Amazon could thus argue that its practice of exacting the lowest possible prices from its suppliers is profoundly pro-competitive and promotes the welfare of consumers in its markets by offering them lower prices than they must otherwise pay. It could argue that it seeks only to obtain for itself the lowest possible prices that the market will bear, and that it passes along these market-beating prices to its customers, who benefit from them. Under existing federal precedents, however, Amazon would have a strong defense against such claims. If Amazon were to adopt this approach with other suppliers in other retail markets that it has come to dominate, the practice could allow it to entrench its existing monopoly positions and establish new ones, but it would expose it to credible claims of unlawful monopolization, attempted monopolization and conspiracy to monopolize in violation of Section 2 of the Sherman Act and related state-law statutes, as well as related claims for inducing unlawful price-discrimination in violation of the Robinson-Patman Act and conspiring with its (coerced) suppliers to impose unlawful restraints of trade in violation of Section 1 of the Sherman Act. This new circumstance possibly implicates antitrust issues.Īmazon has become the indispensable distributor of reference for an ever larger number of suppliers and customers, but in a recent dispute with one of its suppliers, Hachette, a book publisher, it acted to prevent reasonable distribution of Hachette’s books unless Hachette sold them to Amazon at prices that Hachette could scarcely afford. More recently, however, Amazon might have abused such monopoly positions as it might hold in order to preserve them.
If Amazon holds monopoly positions, it has gained them by lawful conduct - that is, by offering a superior service that customers prefer. This circumstance by itself is not a condemnation of Amazon.
Amazon possibly has acquired monopoly or near-monopoly positions in some retail markets - for example, the submarket for the sale of e-books in the United States (which is a problematic market, but is one in which Amazon holds a monopoly position if the market is properly defined for antitrust purposes). Are the antitrust laws implicated by Amazon’s new strategy of depriving sellers of access to its platform unless they offer it market-beating prices that they cannot offer to anyone else? The short answer is that the practice exposes Amazon to arguable but problematic claims under the restrictive federal statutes, but also to more promising claims under California’s more permissive antitrust laws.
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