in the united states district court for the - Hoosier Racing Tire

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Case 2:07-cv-01294-TFM Document 263 Filed 09/15/2009 Page 22 of 34 Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993). With respect to the third element, in order to prove whether there is a dangerous probability of monopolization, a court must inquire “into the relevant product and geographic market and the defendant’s economic power in that market.” Id. at 459. Section 2 is violated only when there is “conduct which unfairly tends to destroy competition itself.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993). “[A] practice is not ‘anticompetitive’ simply because it harms competitors . . . . Rather, a practice is ‘anticompetitive’ only if it harms the competitive process.” Mumford v. GNC Franchising LLC, 437 F. Supp.2d 344, 354 (W.D. Pa. 2006) (citations omitted). If the challenged conduct is not in itself unlawful, the courts must conduct a more thorough balancing analysis of the pro- and anti-competitive effects of the challenged behavior. Indeed, the analysis applied is much the same reasonableness standard as that conducted under a section 1 analysis. A “dangerous probability” of the defendant’s ultimate success in achieving a monopoly - or lack thereof - is assessed by considering the relevant market, the defendant’s market share, entry barriers, and other direct or circumstantial evidence bearing upon the likelihood that if the defendant’s conduct continues, the defendant will achieve actual monopoly power to control prices and exclude competition. Market share is not all determinative, however, and may be offset by other evidence bearing upon such competitive conditions within the industry, such as proof that the market remains highly competitive, that the defendant controls key materials or technology, and the presence or absence of other barriers to new market entry or expansion by existing competitors. 22
Case 2:07-cv-01294-TFM Document 263 Filed 09/15/2009 Page 23 of 34 See, e.g., U.S. v. Microsoft Corp., 253 F.3d 34, 53 (D.C. Cir. 2001) (reversing findings that Microsoft had attempted to monopolize an alleged market for internet browser software, where the government failed to either properly define the relevant market or to demonstrate the presence of substantial barriers to entry.”). 3. Antitrust Damages A private plaintiff is not required to prove exactly and with total certainty the amount of antitrust damages which it has sustained, if that plaintiff clearly demonstrates that the defendant’s antitrust violations caused its antitrust injury. However, if a plaintiff has suffered financial loss from the lawful activities of a competitor, then no damages may be recovered under the antitrust laws. It is a requirement that an antitrust plaintiff must prove that its damages were caused by the unlawful acts of the defendant. See 15 U.S.C. § 15. This is the essence of “antitrust injury” as set forth by the United States Supreme Court in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). The requisite antitrust injury requires: “(1) harm of the type the antitrust laws were intended to prevent; and (2) an injury to the plaintiff which flows from that which makes defendant’s acts unlawful.” Gulfstream III Assocs. Inc. v. Gulfstream Aerospace Corp., 995 F.2d 425, 429 (3d Cir. 1999) (citing Brunswick, 429 at 477 and Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 978 F.2d 1318, 1327-28 (3d Cir. 1992)). 23
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in the united states district court for the - Hoosier Racing Tire

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