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Abstract: The legacy of the Ninth Circuit’s decision in Lessig v. Tidewater Oil Co. has, by and large, been confusion. It is clear the case does establish that an attempt to monopolize under section 2 of the Sherman Act can be proved without a showing that the defendant is on the verge of acquiring monopoly power as indicated by his share of the relevant market. Yet, however firmly the case seems to decry market analysis in all respects, it does not make the concept of relevant market irrelevant to proof of a section 2 attempt. To the contrary, Lessig and its progeny, read in context and as a whole, are consistent with, if not supportive of, the following propositions: (1) the relevant market must be defined to determine the legal possibility occ the completed offense, that is, that successful implementation of defendant’s intent would constitute monopolization; (2) dangerous probability need not invariably be proved by a computation of defendant’s share of the relevant market, but may instead be shown by “substantial restraints of trade” associated with the alleged attempt; and (3) specific intent to exclude competitors or fix prices may also be inferred from “substantial restraints of trade” presumably imposed to gain control of a relevant market.
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