The American Antitrust Institute (AAI) recently filed an amicus brief in CareFirst of Maryland, Inc. v. Johnson & Johnson, No. 26-1248, urging the Fourth Circuit to reverse a grant of summary judgment that erroneously imposed a freestanding specific-intent requirement on a completed civil monopolization claim under Section 2 of the Sherman Act.
CareFirst, a health insurer, alleges that Johnson & Johnson used patents obtained in its acquisition of Momenta Pharmaceuticals as part of a scheme to delay biosimilar competition against Stelara, its blockbuster immunology drug. The district court granted summary judgment on reconsideration, holding that CareFirst could not prove J&J intended to exclude rivals anticompetitively when it acquired the Momenta patents.
AAI’s brief argues that the district court committed a clear and dangerous legal error. The test for completed civil monopolization has always been effects-based, not intent-based. Under the two-part standard articulated by the Supreme Court in United States v. Grinnell Corp., the “willful” acquisition or maintenance of monopoly power requires only a general intent to engage in the challenged conduct—not a specific purpose to exclude rivals. The Supreme Court, an unbroken line of circuit courts, and recent Fourth Circuit authority all confirm that intent evidence is relevant only to help characterize ambiguous conduct and is not a threshold element that plaintiffs must independently satisfy.
AAI’s brief shows that the district court compounded its error by isolating J&J’s patent acquisition from the broader course of conduct of which it was alleged to be a part. The Fourth Circuit’s decision in Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC requires courts to assess allegedly anticompetitive conduct holistically and to draw the line between lawful and unlawful behavior based on competitive effect, not state of mind. In Duke Energy, evidence of anticompetitive intent played only a supporting role—bolstering a conclusion that the effects analysis had already reached—not a dispositive one. The district court’s approach inverts that framework.
AAI also explains that the general-intent requirements for a completed civil monopolization claim stand in contrast to the specific-intent requirement for two other distinct types of claims. Attempted monopolization requires proof of specific intent because the anticompetitive harm lies in the future and effects cannot yet supply one. Criminal Section 2 prosecutions require mens rea because of the general principles of criminal liability. Completed civil monopolization requires neither, because its effects have already materialized and can be examined directly. The district court’s ruling effectively grafted the attempt standard onto a completed offense.
Finally, AAI argues that sound antitrust policy independently supports an effects-based standard. Only an effects-based standard is consistent with the consumer welfare focus of case law under the Sherman Act and effective, fair enforcement. Because anticompetitive intent is proved largely through a defendant’s own documents, a sophisticated firm can evade liability simply by training employees to avoid incriminating language, while the underlying anticompetitive conduct and its market effects remain unchanged.
Read the full brief: AAI Amicus Brief in CareFirst of Maryland, Inc. v. Johnson & Johnson
