Competition policy has taken center stage in recent years, with a host of policymakers arguing that a lack of competition may be fueling various social and economic problems. In response, some lawmakers and regulators are exploring new ways to broaden antitrust enforcement, including by seeking to revive the so-called “monopoly broth” or “course-of-conduct” theory of monopolization. The theory posits that a company can be found liable for monopolization by combining multiple lawful business actions—such as price cuts or acquisitions—if those actions collectively can be said to harm competition and were taken with anticompetitive intent.
In this white paper, SIIA argues that the monopoly broth theory is both legally flawed and harmful to sound competition policy. It conflicts with binding Supreme Court precedent, which favors clear, conduct-based tests for assessing monopolization, and it undermines due process by allowing liability without clear rules. As a policy matter, it also risks chilling procompetitive behavior and increasing legal uncertainty for businesses, ultimately harming consumers and the broader economy. SIIA maintains that the existing antitrust law framework is more than adequate to address harmful conduct and expanding liability through monopoly broth would be both unnecessary and ill-advised.
