By Mark S. Popofsky & Ariel A. Martinez
Courts remain, in the words of one observer, mired in an “exclusionary conduct ‘definition’ war.” Applying Section 2’s broad prohibition on “monopolizing” conduct requires courts to select a governing legal test. Section 2 legal tests run the spectrum from rules of per se legality to rules of near per se illegality. Courts continue to grapple with this question.
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