The Court should draw the line for anticompetitive behavior violative of the Sherman Act above the mere gain of a competitive advantage in the second market. If the Supreme Court were to draw the line at this level, the circuit split and the resulting confusion would be ameliorated. By recognizing the three types of conduct that characterize monopoly leveraging, with the exception to the third type of conduct, the Supreme Court would provide much needed guidance for the lower federal courts in determining whether a firm's behavior in a given case rises to the level of the monopoly leveraging. The lower federal courts would have to examine three situations when presented with a monopoly leveraging cause of action: (1) whether monopolization occurred in the second market through leveraging, (2) whether attempted monopolization in the second market occurred through leveraging, or (3) whether the leveraging produced "higher prices or reduced output or quality associated with the kind of monopoly that is ordinarily accompanied by a large market share ' 27° in the second market. A clear pronouncement from the Supreme Court would not only help federal judges, but potential plaintiffs as well, leading ultimately to judicial economy. Those contemplating bringing a cause of action for monopoly leveraging would have guideposts by which to measure the facts of their case against to determine whether the conduct at issue is within the spectrum of actionable conduct. The waters that surround monopoly leveraging have been murky ever since the inception of the doctrine in 1948 in Eastman Kodak. Through Verizon, the Supreme Court has the opportunity to clear the waters once and for all.
Note, Monopoly Leveraging in Verizon Communications v. Law Offices of Curtis v. Trinko, LLP: Why the United States Supreme Court Should Draw a Clear Line for Anticompetitive Behavior Violative of the Sherman Act, 51 Clev. St. L. Rev. 235 (2004)