Today the ABA Antitrust Law Section’s annual Spring Meeting comes to a close. This post reviews a panel discussion on the particular challenges of trying a monopolization or attempt to monopolize case under Sherman Act Section 2.

Ian Simmons, O’Melveney & Myers: Antitrust enforcement agencies have shown new interest in bringing cases under Section 2. Today we’ll discuss best practices for trying a Section 2 case to a judge or jury.

The simplicity and brevity of Section 2’s language have notoriously produced a thicket of complex doctrinal analysis in the courts. Who benefits from that?

Doug Melamed, Stanford Law School: Antitrust law’s complexity favors defendants, but antitrust cases all come down to two questions—did the defendant engage in anticompetitive conduct, and did the conduct increase monopoly or market power? Judges have grown conservative about antitrust.

Simmons: Courts prescribe a 5-part test. How do you reconcile that with your two steps?

Melamed: In United States v. Microsoft, the focus stayed on roadblocks Microsoft erected. Courts do apply a multi-step rule, but the steps collapse into the big two questions.

Simmons: How does the complexity affect how you try cases?

John Roberti, Cohen & Gresser: Section 2 cases confront a mass of case law that judges must follow, but judges take account of news and developing ideas. The fact of growing government interest in section 2 reflects a positive development that may influence judicial thinking.

Simmons: Let’s talk about the consumer welfare standard (CWS). CWS posits that Congress passed antitrust statutes to protect consumer welfare. What do you tell judges antitrust law aims to do?

Bonny Sweeney, Antitrust Division: CWS started with Robert Bork.* People use it to underenforce antitrust. It focuses on short-term price and output effects. That approach omits providers like farmers and workers. Proponents answer that you can still use CWS for them, but CWS framing still causes problems. It causes courts to err in defining relevant markets, for instance. Antitrust concerns competition and the competitive process, not a tally of consumer welfare.

Simmons: CW feels hard to grasp, but a marketplace realities test seems intuitive and easy.

Sweeney: Courts say you must consider market realities, but CWS causes them to focus on short-term price and output effects.

Christopher Yoo, University of Pennsylvania Law School: Jonathan Baker, who wrote The Antitrust Paradigm, favors more vigorous enforcement. A more structural approach also vies with CWS for recognition. Alternatives to CWS provide a broader perspective now, with more attention to quality and to quantity. The big elephant in the room is innovation. We need better tools to analyze innovation effects. 

Melamed: In defense of CWS, Bork spoke of consumer welfare when he meant total welfare. CWS really means to protect loss of economic welfare due to increases in market power. Harm consists in higher prices or lower quality, less quantity, or weaker innovation.

Market power reduces dominant firms’ incentives to innovate. But let’s not toss out CWS. Let’s instead rename it.

Simmons: We hear the mantra that antitrust concerns competition and not competitors. That seems odd. Shouldn’t we care about competitors?

Melamed: We do consider harm to competitors, but the law focuses on how market power disadvantages competition.

Yoo: We care about market structure, but now we can measure performance directly. We look at effects instead of structure. We rejected no-fault monopolization to reward innovation, but structure still matters.

Melamed: I agree structure matters to public policy, but antitrust law focuses on conduct instead of structure.

Sweeney: Consumers give tech companies their personal data and attention and lose privacy, and they therefore pay for tech services. Monopoly power suppresses firms’ incentive to innovate whether they “charge” a price or not.

Simmons: How do you explain that free stuff has a positive cost?

Roberti: You must stress that services don’t come free.

Yoo: We’ve seen this before. We had free TV in our homes, but ads on TV cost the advertisers. Nominally free tech services have costs too.

Simmons: The Supreme Court might have done antitrust plaintiffs a favor by positing the “two-sided market” concept, which makes you think of the total cost of both sides of the market.

Exclusionary conduct seems squishy. How can you distinguish between lawful exclusion and the unlawful kind?

Melamed: Exclusionary conduct tends to exclude and weaken rivals but is not necessary to increase welfare. Hard question comes with what do you do with conduct that does both. Balancing has problems conceptually. Courts avoid the hard issue.

Simmons: The idea of preferring a less restrictive way to achieve an increase in welfare exists in doctrine. The ex post judicial management of what counts as a less restrictive alternative worries me.

Roberti: You must tell a story. The story says the conduct didn’t need to happen to get positive effects.

Yoo: I see that as a big problem, too. The notion of vertical mergers that eliminate double marginalization presents an instance of potentially exclusionary conduct that inherently confers benefits, but the question remains whether anyone other than the acquirer reaps the benefits of that elimination. 

Roberti: You need to explain why conduct does or doesn’t improve welfare in a necessary way.

Simmons: What role does intent play for monopolies?

Sweeney: Intent as a formal matter doesn’t count except in attempt to monopolize cases, but courts say intent helps make conduct understandable. It provides narrative. Helpful facts characterize conduct as good or bad. The same conduct could go either way. You must look at conduct as a whole.

Simmons: D.C. Circuit says intent may cast light on effect of conduct. Don’t you have to focus on intent to impair competition?

Yoo: Intent helps you understand the scheme. You need a hot document, but you still need to show effects.

Roberti: Evidence to show why someone acted in a certain way.

Melamed: Intent evidence helps, but at the same time it lacks materiality.

Simmons: Impairing opportunities of rivals. 

Yoo: Refusal to deal impairs rivals, but impairing rival doesn’t suffice. 

Simmons: How can you show lack of innovation?

Melamed: You don’t usually have to show harm to innovation. More market power increases inference of loss to innovation. 

Simmons: John Gaddis Smith speaks of lumpers and splitters. Plaintiffs lump, defendants split.

Sweeney: Defendants always split. Law says you must look at conduct as whole. 

Yoo: Statute says lump, but courts say split.

[Problem consists in need of plaintiffs to disturb the status quo. The disturber must justify changing the world. Antitrust violation makes moral judgment.]

Melamed: Antitrust condemns bad conduct. You must find anticompetitive conduct. 

Simmons: The Trinko case** broods over Section 2 cases. Does that explain the rarity of Section 2 enforcement actions?

Melamed: Trinko involved a simple issue, but Justice Scalia used it to express a broad principle. 

Roberti: Enforcers haven’t brought criminal Section 2 cases because of having to prove the intent element. 

Simmons: A Section 2 case should succeed if you show the conduct “may” have a negative effect on competition.

Melamed: Antitrust law tolerates incremental enhancements of market power.

Yoo: Courts worry about the practical ability to predict the but-for world.

Simmons: Judgment happens in retrospect.


*Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (1979).

**Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, 540 U.S. 398 (2004).

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Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.