The Unilateral Conduct Gap Sacrificing Interoperability and Innovation

The Sherman Act and related antitrust jurisprudence have proven flexible and capable of balancing competitive effects of virtually any kind of concerted conduct among two or more conspirators under the rule of reason. The same flexibility, however, is not available to plaintiffs seeking to remedy unilateral conduct — no matter how anticompetitive — except in very limited circumstances. The current U.S. antitrust framework overwhelmingly fails to reach anticompetitive, unilateral conduct by c