Antitrust. Monopoly. FIRST.

E.I. du Pont de Nemours and Company v. Kolon Industries, Inc., 637 F.3d 435 (2011) (Shortened, simplified, all internal cites omitted).

DuPont (based in the United States), Teijin (based in the Netherlands), and Kolon (based in South Korea) all sell para-aramid fiber, which is a complex synthetic fiber used to make body armor and fiber-optic cables, among other things. DuPont filed a lawsuit against Kolon, a new entrant to the market, for misappropriation of trade secrets. Kolon counterclaimed that DuPont monopolized and attempted to monopolize the para-aramid market in violation of Section 2 of the Sherman Antitrust Act. (Note to students. This is a federal law designed to prevent control of markets by monopolies and to promote competition). DuPont filed a motion to dismiss Kolon's claims. Should Kolon's claims be dismissed?

Has Kolon raised a factual issue that must be presented to the jury for decision? (1) Kolon alleges that DuPont has attempted to monopolize the market. DuPont naturally denies this. (2) The United States Supreme Court has defined the offense of monopolization as involving the possession of monopoly power in the relevant market and the willful use of that power to prevent competitors from entering the market.

Preliminary facts are that DuPont controls over 70 percent of the U.S. para-aramid fiber market which a jury could decide shows its monopoly power. DuPont imposed multiyear agreements on its high-volume customers, thereby limiting the other producers' such as Kolon, ability to compete. A jury could decide that "DuPont's conduct has had a direct, substantial, and adverse effect on competition. Further, DuPont's conduct has constrained the only potential entrant [Kolon] to the United States in decades from effectively entering the market."

The matter must be presented to the jury on the issue of whether or not DuPont acted as a monopoly in an attempt to prevent competitors from entering the market. Kolon's claims are not dismissed. We remand (send back) the case to the trial court for a jury trial on the issue presented in this appeal.

1. QUESTION. Why do we not know whether or not DuPont has attempted to prevent competitors from entering the market?
a.Courts cannot look at the facts only the law.
b.Courts cannot make decisions on motions to dismiss claims.
c.There are insufficient facts.
d.The jury must decide this.

2. Antitrust. Monopoly. You may not be able to tell from the case citation, however, this case is filed in a federal court. If the parties wanted to appeal to the United States Supreme Court could they and why or why not?
a.No, the US Supreme Court cannot make state law and this is a state law matter.
b.Yes, this matter involves a question of federal law, specifically the Sherman Antitrust Act.
c.Yes, the US Supreme Court is the highest court in the federation and can hear appeals on any topic from any of the members of the federation.
d.No, only constitutional law cases can be appealed to the US Supreme Court and this is not a constitutional law case.
e.Yes, the US Supreme Court is the highest court in the federation and can hear appeals on the topic of family law from state courts.

3. Antitrust. Monopoly. What is the name of the law the author of the passage says applies?
a.Monopolization
b.No name is given.
c.Sherman Antitrust Act
d.This case

4. Antitrust. Monopoly. The sentence labeled #2 and beginning with "The United States Supreme Court..." is which of the following?
a.Conclusion.
b.Analysis
c.Issue
d.Fact
e.Rule

5. Antitrust. Monopoly. Same passage as above. The case says, "DuPont imposed multiyear agreements on its high-volume customers". How did Kolon most likely find this out as it is likely DuPont did not want to share copies of its contracts with Kolon?
a.Discovery
b.It hired a corporate spy to go into DuPont headquarters and copy the contracts from the files or records.
c.Kolon is only guessing, there is no way it can copies of Dupont's contracts if Dupont does not voluntarily give them up.
d.Since all contracts must be filed with the government, Kolon could have gotten a copy from the appropriate government office.

6. Antitrust. Monopoly. CAUTION. Read carefully. What was the issue presented in the argument? Hint. The answer to this question and the one asking "What issue must be presented to the jury?" is not the same.
a.What is the factual issue?
b.Did DuPont commit the offense of monopolization?
c.None, this is not an argument.
d.What is a monopoly?
e.Is there a factual issue?

7. Antitrust. Monopoly. CAUTION. Read carefully. What issue must be presented to the jury?
a.Is there a factual issue?
b.What is the factual issue?
c.What is a monopoly?
d.Did DuPont commit the offense of monopolization?