- Proving “Willful Maintenance of Monopoly Power”: They’ll have to show that the defendants (Live Nation-Ticketmaster or 5-Hour Energy) aren’t just big by default, but that they abused their dominance to choke off competition.
- Documenting the Harm: In court, raw numbers talk. Just as Conwood’s expert used regression analysis to illustrate how U.S. Tobacco’s actions led to lost sales, Vitamin Energy might do the same with anecdotal and statistical evidence that 5-Hour Energy’s alleged acts directly harmed their bottom line.
- Public Policy Angle: The DOJ suit against Live Nation-Ticketmaster resonates with fans, artists, and promoters who feel the concert giant’s stranglehold is inflating ticket prices and restricting concert choices. Public outcry often applies extra pressure on courts (and juries), much like it did in Conwood.
- Monopolization: At its core, section 2 of the Sherman Act makes it illegal to acquire or maintain monopoly power through improper means. The long-standing requirement for monopolization is both “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.”(4)
- The Conwood case clarified what constitutes “exclusionary conduct” under Section 2 of the Sherman Act. It’s not just about having market power but how you use it — or abuse it — to keep others out. This ruling has been a beacon for cases like the ones we’re seeing now, where market control is allegedly used to bend the rules of fair play.
In the Vitamin Energy lawsuit, there’s a direct parallel to Conwood. They allege tactics like those used by U.S. Tobacco — controlling shelf space, exclusive agreements, and misleading ads. It’s like history on repeat, but with energy shots instead of snuff. The Conwood case also set a precedent for the admissibility and reliability of expert testimonies on damages, which could play a crucial role in both current litigations.
Will we see a record-shattering verdict in either case? That remains to be seen. But if Conwood v. U.S. Tobacco taught us anything, it’s that courts have no qualms about awarding astronomical damages against a company caught rigging the competitive landscape.
