Antitrust and Unfair Competition Law
Competition: SPRING 2023, Vol 33, No. 1
Content
- 133 Years Young: Sherman Act Section Two Keeps Up With Big Tech
- Antitrust Restoration From California Anchored By a New Monopolization Synthesis
- Competition Beyond Rivalry: Adapting Antitrust Merger Review To Address Market Realties
- Dormant Commerce Clause: a Potential Brake On State Antitrust Legislation
- Executive Committee
- Message From the Advisors
- Message From the Editor
- Over-prescription Is Bad Medicine: the Case Against a Knee-jerk Revision of Antitrust Injury
- Restrictions On Worker Mobility and the Need For Stronger Policies On Anticompetitive Employment Contract Provisions
- Should California Adopt Revisions Proposed By Congress and the New York State Legislature To Address Single-firm Conduct?
- Table of Contents
- Technological Monopolies, Innovation, and the Personal Freedom To Form Businesses: Like Oil and Water?
- The Adaptable Antitrust Laws
- The Risks of Requiring California-specific Merger Approvals
- Updating the Cartwright Act For the Twenty-first Century: Allowing Antitrust Claims For Unilateral Conduct
- Why Has California Waited So Long To Enact Its Own Merger Review Law?
- California Should Amend the Cartwright Act To Address Single-firm Monopolization
CALIFORNIA SHOULD AMEND THE CARTWRIGHT ACT TO ADDRESS SINGLE-FIRM MONOPOLIZATION
By Kendall MacVey and Wendy Y. Wang1
Unlike Section 2 of the Sherman Act, the Cartwright Act, California’s principal antitrust statute, does not explicitly prohibit monopolization or attempted monopolization.2 Rather, with the exception of one provision prohibiting a condition on purchasers not to use a competitor’s goods or services, the Cartwright Act is silent on monopolization.3
Enacted in 1907, the Cartwright Act made "trusts" unlawful, which are defined as "a combination of capital, skill or acts by two or more persons for" specific purposes.4 California courts at various times have issued decisions that left open whether the Cartwright Act prohibits monopolization.
In 1978, for example, the First Appellate District Court of Appeal in Lowell v. Mother’s Cake & Cookie Co. (1978) 79 Cal.App.3d 13, 23 held that the Cartwright Act prohibits monopolization as the Act "prohibits the combination of resources of two or more independent interests for the purpose of restraining commerce and preventing market competition." But in 1988, the California Supreme Court appeared to disagree, examining the legislative history of the Cartwright Act and concluding that the Legislature did not intend the term "combination" to include mergers.5 Subsequent courts have interpreted that holding to mean that the Cartwright Act does not apply to single-firm monopolization.6 Then in 2015, the California Supreme Court confirmed this interpretation: