Antitrust 1 Prof. E. Fox Fall 2004 1 I. Introduction to Antitrust Law 4 a. General Background 4

Predatory Product Change and Market Foreclosures – Leveraging

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Predatory Product Change and Market Foreclosures – Leveraging

  • What is the appropriate standard for differentiating product change innovation from predation?

  • How much deference should be given to the dominant firm?

  • Should there be a prophylactic rule of non-intervention?

  • Berkey Photo v. Eastman Kodak (2d Cir. 1979)

  • Use of monopoly power attained in one market to gain a competitive advantage in another is a violation of § 2, even if there has not been an attempt to monopolize the second market; it is the use of economic power that creates the liability  most restrictive standard

  • Judge Jackson dismissed the leveraging claims

  • Ability to distinguish leveraging that harms from leveraging that benefits consumers

  • Monopolist w/n exploit consumers by charging more for the bundle; already receives monopoly rents from OS monopoly

  • Foreshadows Trinko – and in conflict w/EU practice – antitrust law is only concerned w/consumer welfare; leveraging d/n prove harm to consumers, only harm to competitors  must show that there is some sort of monopoly pricing in the leveraged market (i.e., browsers)

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