ANTITRUST RESTORATION FROM CALIFORNIA ANCHORED BY A NEW MONOPOLIZATION SYNTHESIS
By Jordan Elias*
California is past due for an anti-monopoly law. With federal antitrust legislation stalled and monopolization cases slowly wending through the courts, the Law Revision Commission has begun considering how to amend the Cartwright Act to prohibit antitrust violations committed by a single firm. The attention is well deserved: Many U.S. markets are now effectively controlled by a company or small set of companies.
The new law should adopt specific principles and presumptions, rather than remaining vague like the Sherman Act.1 Monopolization standards have become "not just vague but vacuous"2âa description that is "hard to disagree with."3 An FTC official told The New Yorker: "You really have to be an expert, or hire an expert attorney, if you feel like one of these companies is acting inappropriately. The law only works when it is simple enough for the little guy to bring an action on their own."4
The increased acknowledgment of excessive concentration creates an opportunity to codify earlier, twentieth-century approaches to monopoly power, market definition, and remedies.5 California’s business code and common law already can be applied to curtail market dominance and exclusionary conduct,6 which may explain why no legislation followed the California Supreme Court’s holding in 1988 that the Cartwright Act’s ban on trusts does not extend to single-firm conduct.7 As that very decision shows, however, California’s competition laws are distinct from (and in certain cases may reach further than) federal law.8 But neither state nor federal law has proved capable of holding back the tide of consolidation.9