# USCA4 Appeal: 26-1248

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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CASE NO. 26-1248
IN THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
CAREFIRST OF MARYLAND, et al.,
Plaintiffs-Appellants,
v.
JOHNSON & JOHNSON, et al.,
Defendants-Appellees.
On Appeal from the United States District Court for the
Eastern District of Virginia, No. 2:23-cv-629
(Hon. Jamar K. Walker)

BRIEF OF THE FEDERAL TRADE COMMISSION
AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY
FOR REVERSAL
DANIEL GUARNERA
Director

BRENDAN T. CHESTNUT
Director

TAYLOR C. HOOGENDOORN
Deputy Director

ANUPAMA SAWKAR
Chief Counsel for Intellectual Property
Office of Policy Planning

KARA L. MONAHAN
Deputy Assistant Director
ARMINE BLACK
Attorney
Bureau of Competition

FEDERAL TRADE COMMISSION
600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580
(202) 326-2665

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TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
INTEREST OF AMICUS CURIAE ..........................................................................2
STATEMENT............................................................................................................3
ARGUMENT .............................................................................................................6
I. Willful acquisition or maintenance of monopoly power does not
require proof of specific intent...............................................................................7
II. The district court misapplied Supreme Court and Fourth Circuit
precedent to require proof of specific intent ........................................................12
CONCLUSION........................................................................................................21

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TABLE OF AUTHORITIES
CASES
2311 Racing LLC v. NASCAR, LLC,
139 F.4th 404 (4th Cir. 2025) ............................................................. 5, 7, 13, 16
Altria Group, Inc. v. Good,
555 U.S. 70 (2008)...............................................................................................3
Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,
472 U.S. 585 (1985)................................................................................... passim
Chicago Bd. of Trade v. United States,
246 U.S. 231 (1918)................................................................................ 8, 14, 16
Cohens v. Virginia,
19 U.S. 264 (1821).............................................................................................14
Conwood Co. v. U.S. Tobacco Co.,
290 F.3d 768 (6th Cir. 2002) .............................................................................10
Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC,
111 F.4th 337 (4th Cir. 2024) ................................................................. 8, 13, 16
Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC,
122 F.4th 120 (4th Cir. 2024) ................................................................... 5, 7, 13
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435 (4th Cir. 2011) .......................................................... 10, 11, 12, 13
Eastman Kodak Co. v. Image Tech. Servs., Inc.,
504 U.S. 451 (1992).............................................................................................7
FTC v. AbbVie Inc.,
976 F.3d 327 (3d Cir. 2020) ................................................................................2
FTC v. Actavis, Inc.,
570 U.S. 136 (2013).............................................................................................2
FTC v. Qualcomm Inc.,
969 F.3d 974 (9th Cir. 2020) ...............................................................................7
FTC v. Shkreli,
581 F. Supp. 3d 579 (S.D.N.Y. 2022) .................................................................2
FTC v. Shkreli,
No. 22-728, 2024 WL 1026010 (2d Cir. Jan. 23, 2024)......................................2

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Greenville Pub. Co. v. Daily Reflector, Inc.,
496 F.2d 391 (4th Cir. 1974) ...................................................................... 12, 13
Imaging Ctr., Inc. v. W. Maryland Health Sys., Inc.,
158 F. App’x 413 (4th Cir. 2005) ......................................................................18
Impax Labs., Inc. v. FTC,
994 F.3d 484 (5th Cir. 2021) ...............................................................................2
LePage’s Inc. v. 3M,
324 F.3d 141 (3d Cir. 2003) ................................................................................7
McMellon v. United States,
387 F.3d 329 (4th Cir. 2004) .............................................................................13
McWane, Inc. v. FTC,
783 F.3d 814 (11th Cir. 2015) ...........................................................................11
Morris Commc’ns,
364 F.3d 1288 (11th Cir. 2004) ...........................................................................7
Nat’l Pork Producers Council v. Ross,
598 U.S. 356 (2023)...........................................................................................14
Nat’l Reporting Co. v. Alderson Reporting Co.,
763 F.2d 1020 (8th Cir. 1985) ...........................................................................10
NCAA v. Bd. of Regents of Univ. of Okla.,
468 U.S. 85 (1984)...............................................................................................8
New York v. Actavis PLC,
787 F.3d 638 (2d Cir. 2015) ................................................................................7
Ohio v. Am. Express Co.,
585 U.S. 529 (2018).............................................................................................7
Oksanen v. Page Mem’l Hosp.,
945 F.2d 696 (4th Cir. 1991) ................................................................ 16, 17, 18
Prairie Farmer Pub. Co. v. Indiana Farmer’s Guide Pub. Co.,
88 F.2d 979 (7th Cir. 1937) .................................................................................8
Reazin v. Blue Cross & Blue Shield of Kansas, Inc.,
899 F.2d 951 (10th Cir. 1990) ...........................................................................10
Reiter v. Sonotone Corp.,
442 U.S. 330 (1979)...........................................................................................14
Spectrum Sports, Inc. v. McQuillan,
506 U.S. 447 (1993).................................................................................... 10, 11
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Swift & Co. v. United States,
196 U.S. 375 (1905)...........................................................................................11
Times-Picayune Pub. Co. v. United States,
345 U.S. 594 (1953).........................................................................................1, 9
Tops Mkts., Inc. v. Quality Mkts., Inc.,
142 F.3d 90 (2d Cir. 1998) ................................................................................10
United Food & Com. Workers Loc. 1776 v. Takeda Pharm. Co.,
11 F.4th 118 (2d Cir. 2021) .................................................................................9
United States v. Aluminum Co. of Am. (“Alcoa”),
148 F.2d 416 (2d Cir. 1945) ...................................................................... passim
United States v. Griffith,
334 U.S. 100 (1948).......................................................................................9, 11
United States v. Grinnell Corp.,
384 U.S. 563 (1966).......................................................................................7, 20
United States v. Microsoft Corp.,
253 F.3d 34 (D.C. Cir. 2001).................................................................. 7, 11, 17
Viamedia, Inc. v. Comcast Corp.,
951 F.3d 429 (7th Cir. 2020) ...............................................................................7
White v. Rockingham Radiologists, Ltd.,
820 F.2d 98 (4th Cir. 1987) ...............................................................................17
STATUTES
15 U.S.C. §§ 41–58....................................................................................................2
OTHER AUTHORITIES
Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of
Antitrust Principles and Their Application (Wolters Kluwer 2025) ......... passim
Robert H. Bork, The Antitrust Paradox (1978) .......................................................15
U.S. Dep’t of Just. & Fed. Trade Comm’n, Merger Guidelines (2023) ..................20

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INTRODUCTION
As a matter of black-letter law, monopolization under Section 2 of the
Sherman Act does not require proof of specific intent to exclude rivals or harm
competition. It “demands only a general intent to do the act.” Times-Picayune Pub.
Co. v. United States, 345 U.S. 594, 626 (1953) (citing United States v. Aluminum
Co. of Am. (“Alcoa”), 148 F.2d 416, 432 (2d Cir. 1945) (Hand, J.)). That is because
antitrust law is concerned with the competitive impact of conduct, not the
monopolist’s “purity of heart.” Phillip E. Areeda & Herbert Hovenkamp, Antitrust
Law: An Analysis of Antitrust Principles and Their Application ¶ 1506 (Wolters
Kluwer 2025).
The district court departed from this bedrock principle by requiring an
antitrust plaintiff to prove that a biosimilar drug manufacturer intended to exclude
rivals when it made an allegedly anticompetitive acquisition in violation of
Section 2. Requiring proof of intent in a monopolization case “makes nonsense of”
the Sherman Act, Alcoa, 148 F.2d at 432, clashes with Supreme Court and Fourth
Circuit precedent, and contravenes the congressional policy underlying federal
antitrust laws. If such a rule were allowed to stand, it would impede antitrust
enforcement, undermine competitive markets, and harm American consumers. The
Court should correct the district court’s error and reaffirm that anticompetitive
intent is not an element of monopolization under Section 2.

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INTEREST OF AMICUS CURIAE
The Federal Trade Commission is a federal agency charged with protecting
America’s consumers from anticompetitive and unfair conduct.1 The Commission
achieves this core mission through vigorous enforcement of federal antitrust laws.
As the primary federal antitrust enforcer in the pharmaceutical industry, the
Commission has extensive experience analyzing and successfully challenging
monopolization and other anticompetitive conduct by drug manufacturers. See,
e.g., FTC v. Actavis, Inc., 570 U.S. 136 (2013); Impax Labs., Inc. v. FTC, 994 F.3d
484 (5th Cir. 2021); FTC v. AbbVie Inc., 976 F.3d 327 (3d Cir. 2020); FTC v.
Shkreli, 581 F. Supp. 3d 579 (S.D.N.Y. 2022), aff’d, 2024 WL 1026010 (2d Cir.
Jan. 23, 2024). 2 The Commission also reviews pharmaceutical patent settlement
agreements, conducts studies, hosts listening sessions, and collaborates with other
agencies to promote drug competition, including competition in the biologic
marketplace.3

1

15 U.S.C. §§ 41–58.

For a summary of other cases, see Fed. Trade Comm’n, Overview of FTC Actions
in the Pharmaceutical Products and Distribution (Mar. 2026),
https://www.ftc.gov/system/files/ftc_gov/pdf/Overview-Pharma.pdf.
2

3

See, e.g., FTC and DOJ to Host Listening Sessions on Lowering Americans’
Drug Prices Through Competition: Sessions to Discuss Generic and Biosimilar
Availability, Prescription Drug Formularies and Benefits, and Regulatory Barriers
(June 11, 2025), https://www.ftc.gov/news-events/news/press-releases/2025/06/ftcdoj-host-listening-sessions-lowering-americans-drug-prices-through-competition;
(Continued…)
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Because the Commission has a strong interest in ensuring the proper
application of federal antitrust laws, we submit this brief under Federal Rule of
Appellate Procedure 29(a)(2) to address a legal error in the district court’s
treatment of intent. The Commission takes no position on whether CareFirst would
have survived summary judgment under the correct application of the
monopolization test.
STATEMENT
J&J’s biologic drug Stelara (ustekinumab) is one of the highest-grossing
drugs in the United States. It is approved for the treatment of a variety of
autoimmune conditions, including psoriasis, psoriatic arthritis, Crohn’s disease,
and ulcerative colitis. ECF No. 794 at 2, ¶ 1. J&J was the sole manufacturer of
ustekinumab from its launch in 2009 through 2024. Id. ¶¶ 2–3.
In 2020, J&J acquired Momenta, id. ¶ 19, a pharmaceutical company that
discovers and develops therapies for immune-mediated diseases. 4 With this

Joint Statement of the Food & Drug Administration and the Federal Trade
Commission Regarding a Collaboration to Advance Competition in the Biologic
Marketplace (Feb. 3, 2020),
https://www.ftc.gov/system/files/documents/public_statements/1565273/v190003f
daftcbiologicsstatement.pdf.
The FTC’s decision not to take action on this transaction at the time of the
acquisition is not an indication of its legality. See, e.g., Altria Group, Inc. v. Good,
555 U.S. 70, 89–90 (2008) (“The FTC’s failure to require petitioners to correct
their allegedly misleading use of ‘light’ descriptors is not evidence [that the FTC
(Continued…)

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acquisition, J&J acquired exclusive control over all Momenta patents. Id.
Momenta’s patent portfolio comprised over 500 patents, including four
manufacturing patents covering methods for making biosimilar copies of biologic
drugs (the “Momenta manufacturing patents”). Id. ¶ 16.
In November 2022, J&J sued Amgen for patent infringement after Amgen
notified J&J of its intent to launch a ustekinumab biosimilar. Id. ¶ 21. Three
months later, J&J amended its complaint to allege infringement of the Momenta
manufacturing patents. Id. ¶ 22. In May 2023, J&J settled its claims against
Amgen, granting Amgen a license to use the Momenta manufacturing patents
beginning January 1, 2025. Id. ¶ 23. As a result, Amgen did not begin selling its
ustekinumab biosimilar until January 2025, although it received FDA approval in
October 2023. Id. ¶ 24. J&J settled infringement claims against six other
ustekinumab biosimilar manufacturers in 2023 and 2024 on similar terms. Id. ¶ 25.
In December 2023, CareFirst of Maryland filed a class action complaint
against J&J alleging, among other claims, that J&J willfully maintained its
monopoly power in the ustekinumab market by wrongfully acquiring the Momenta
manufacturing patents and asserting those patents to delay or prevent ustekinumab
competition in violation of Section 2 of the Sherman Act. ECF No. 1 ¶ 280. The

authorized the use of the descriptor]; agency nonenforcement of a federal statute is
not the same as a policy of approval.”).
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district court initially denied J&J’s motion for summary judgment on the Momenta
acquisition theory, ECF No. 794 at 39–45, but later reversed its decision on J&J’s
motion for reconsideration, ECF No. 887 at 4–20.
In its summary judgment opinion, the district court held that the “Fourth
Circuit’s most recent, and thus controlling, articulation of the willfulness standard
is whether the defendant ‘intended to “exclude rivals on some basis other than
efficiency.”’” ECF No. 794 at 40–41 (quoting 2311 Racing LLC v. NASCAR, LLC,
139 F.4th 404, 410 (4th Cir. 2025) (quoting Aspen Skiing Co. v. Aspen Highlands
Skiing Corp., 472 U.S. 585, 605 (1985)); id. (also citing Duke Energy Carolinas,
LLC v. NTE Carolinas II, LLC, 122 F.4th 120, 122 (4th Cir. 2024) (denial of
hearing en banc)). The district court noted that this “articulation of the
monopolization standard is . . . inconsistent with Supreme Court precedent.” ECF
No. 794 at 40–41 n.19. It recognized that “intent is not expressly contemplated and
certainly not required” under the Supreme Court’s burden-shifting liability
framework for monopoly maintenance claims under Section 2, although
“‘knowledge of intent may be [] helpful in cases involving practices . . . which can
have numerous explanations and are very difficult to characterize as competitive or
anticompetitive.’” Id. (quoting Areeda & Hovenkamp ¶ 651).
In its opinion on J&J’s motion for reconsideration, the district court
acknowledged that “[b]oth parties take issue with the Court’s ‘adoption of a legal

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standard argued by neither side.’” ECF No. 887 at 4 (cleaned up) (quoting ECF
No. 827 at 4; ECF No. 871 at 31). But it reiterated the willfulness standard
articulated in the summary judgment opinion and declined to engage with
CareFirst’s suggestion that the court’s articulation constituted clear error because
CareFirst had not moved for reconsideration. Id. at 5 & n.5.
CareFirst subsequently moved the district court to reconsider its decision on
J&J’s motion for reconsideration and sought to introduce new evidence of J&J’s
specific intent to monopolize because CareFirst had previously “‘litigated this case
based on the understanding that specific intent to monopolize is not an element of
the legal standard for a monopolization claim.’” ECF No. 921 at 2 (quoting ECF
No. 904 at 5–6). The district court stood by “the standard it articulated in its
opinions on summary judgment and reconsideration” and denied CareFirst’s
motion for reconsideration. Id. at 2–4.
ARGUMENT
Monopolization requires only a general intent to perform the act that results
in or maintains monopoly power, not specific intent for the act to have
anticompetitive consequences. The district court erred in its articulation of the
monopolization standard under Section 2 of the Sherman Act by misreading 2311
Racing and Duke Energy to require proof of specific anticompetitive “inten[t] to
‘exclude rivals on some basis other than efficiency.’” ECF No. 794 at 40–41

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(quoting 2311 Racing, 139 F.4th at 410 and Duke Energy, 122 F.4th at 122). The
district court’s misstatement of well-settled monopolization doctrine has the
potential to undermine future antitrust law enforcement efforts, impede
competition, and harm consumers in the form of higher prices or lower quality
goods or services.
I.

WILLFUL ACQUISITION OR MAINTENANCE OF MONOPOLY POWER DOES NOT
REQUIRE PROOF OF SPECIFIC INTENT

Monopolization under Section 2 of the Sherman Act has two elements:
“(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.” Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 480
(1992) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966)). 5
Then, defendants can rebut the prima facie case by demonstrating legally
cognizable, “nonpretextual” business justifications. Microsoft, 253 F.3d at 59. If

Courts follow a burden-shifting framework in monopolization cases. See United
States v. Microsoft Corp., 253 F.3d 34, 59 (D.C. Cir. 2001) (en banc); see also New
York v. Actavis PLC, 787 F.3d 638, 652–59 (2d Cir. 2015); LePage’s Inc. v. 3M,
324 F.3d 141, 163–64 (3d Cir. 2003) (en banc); Viamedia, Inc. v. Comcast Corp.,
951 F.3d 429, 463–64 (7th Cir. 2020); FTC v. Qualcomm Inc., 969 F.3d 974, 991
(9th Cir. 2020); Morris Commc’ns Corp. v. PGA Tour, Inc., 364 F.3d 1288, 1293–
98 (11th Cir. 2004). Courts follow a similar burden-shifting framework in cases
brought under Section 1 of the Sherman Act. See, e.g., Ohio v. Am. Express Co.,
585 U.S. 529, 541–42 (2018).
5

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defendant succeeds, the burden shifts back to plaintiff to rebut the justifications—
for example, by showing that they are pretextual—or otherwise overcome them,
for example by showing that the anticompetitive harm outweighs the
procompetitive benefits or that the benefits can be achieved in less restrictive ways.
See Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC, 111 F.4th 337, 343,
365–66 (4th Cir. 2024) (holding that plaintiff created genuine dispute of material
fact regarding defendant’s business justifications that could not be resolved on
summary judgement).
It is black-letter law that an antitrust plaintiff does not need to prove specific
intent to monopolize. Indeed, as a general principle of antitrust, “good motives will
not validate an otherwise anticompetitive practice.” NCAA v. Bd. of Regents of
Univ. of Okla., 468 U.S. 85, 101 n.23 (1984); see also Chicago Bd. of Trade v.
United States, 246 U.S. 231, 238 (1918) (“good intention” cannot “save an
otherwise objectionable” restraint of trade). The reason is that the federal antitrust
laws focus on the “anticompetitive consequences of the act, not the defendant’s
purpose.” Areeda & Hovenkamp ¶ 658; see also Prairie Farmer Pub. Co. v.
Indiana Farmer’s Guide Pub. Co., 88 F.2d 979, 982 (7th Cir. 1937) (explaining
that antitrust laws are “declarative of economic policy, violation of which is
deemed detrimental to common welfare, irrespective of motive or other wrongful
intent”).

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Accordingly, as the Supreme Court has repeatedly explained,
“monopolization under § 2 demands only a general intent to do the act.” TimesPicayune, 345 U.S. at 626 (1953) (citing Alcoa, 148 F.2d at 432); see also Aspen
Skiing, 472 U.S. at 602. The “general intent to do the act” is established by the
very fact that the act is done, irrespective of the monopolist’s motive, purpose, or
intent for the act to have anticompetitive consequences. See, e.g., Alcoa, 148 F.2d
at 432; United States v. Griffith, 334 U.S. 100, 105 (1948) (holding that “[i]t is
sufficient that a restraint of trade or monopoly results as the consequence of a
defendant’s conduct or business arrangements” even without the defendant
intending these consequences). “[A]bsent some anomalous accident or involuntary
spasm of industrial consequence,” exclusionary conduct will satisfy the general
intent requirement. See, e.g., United Food & Com. Workers Loc. 1776 v. Takeda
Pharm. Co., 11 F.4th 118, 137 (2d Cir. 2021).
For example, in the seminal Alcoa decision Judge Learned Hand wrote that
“transactions, neutral on their face” and “however innocently” undertaken,
constituted monopolization without proof that the monopolist had “specific intent”
or “motive . . . to exclude others and perpetuate its hold upon the ingot market.”
Alcoa, 148 F.2d at 431–32. The defendant was held liable despite believing—and
the court assuming as true—that it maintained its monopoly power through “fair
means,” and “skill, energy, and initiative.” Id. at 430–31. In reaching this result,

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the court explained that “to limit” improper “exclusion . . . to maneuvres not
honestly industrial, but actuated solely by a desire to prevent competition” would
“emasculate the Act [and] would permit just such consolidations as it was designed
to prevent.” Id. at 431. This is why antitrust liability turns on the anticompetitive
consequences of the defendant’s actions, rather than its intentions. To read Section
2’s prohibition against monopolization to demand specific intent “makes
nonsense” of the Sherman Act. Aspen Skiing, 472 U.S. at 602 n.28 (quoting Alcoa,
148 F.2d at 432).
This distinction between general intent to undertake an exclusionary act and
specific, anticompetitive intent to harm competition reflects a key difference
between monopolization and attempted monopolization. Attempted
monopolization requires “specific intent to monopolize.” Spectrum Sports, Inc. v.
McQuillan, 506 U.S. 447, 459 (1993); E.I. du Pont de Nemours & Co. v. Kolon
Indus., Inc., 637 F.3d 435, 453 (4th Cir. 2011).6 This makes sense because, as the

The other circuit courts make the same distinction. See, e.g., Conwood Co. v. U.S.
Tobacco Co., 290 F.3d 768, 782 (6th Cir. 2002) (“[F]or a ‘completed’
monopolization claim to succeed, the plaintiff must prove a general intent on the
part of the monopolist to exclude; while by contrast, to prevail on a ‘mere’ attempt
claim, the plaintiff must prove a specific intent to ‘destroy competition or build a
monopoly.’” (quoting Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 101 (2d
Cir. 1998)); Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 899 F.2d 951, 973
(10th Cir. 1990); Nat’l Reporting Co. v. Alderson Reporting Co., 763 F.2d 1020,
1025 (8th Cir. 1985).
6

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Supreme Court has repeatedly explained, “‘Where acts are not sufficient in
themselves to produce a result which the law seeks to prevent—for instance, the
monopoly— . . . an intent to bring it to pass is necessary in order to produce a
dangerous probability that it will happen.’” Spectrum Sports, 506 U.S. at 455
(quoting the seminal attempted monopolization opinion Swift & Co. v. United
States, 196 U.S. 375, 396 (1905) (Holmes, J.)).
But where acts result in or maintain a monopoly, an inquiry into the
monopolist’s anticompetitive intent is not required, and courts instead assess
whether the defendant’s conduct is “exclusionary” or “anticompetitive”—that is,
whether the conduct has hampered the growth of rivals through means other than
“competition on the merits.” Aspen Skiing, 472 U.S. at 602, 605 & n.32; see also
Kolon, 637 F.3d at 441; Microsoft, 253 F.3d at 62, 65. In this context, a plaintiff
can use the defendant’s anticompetitive intent to bolster a showing of the likely
exclusionary effect of the defendant’s conduct, but anticompetitive intent is not
required. See, e.g., Griffith, 334 U.S. at 105; McWane, Inc. v. FTC, 783 F.3d 814,
840 (11th Cir. 2015) (“‘Evidence of the intent behind the conduct of a monopolist
is relevant only to the extent it helps us understand the likely effect of the
monopolist’s conduct.’” (quoting Microsoft, 253 F.3d at 59)). “To require a greater
showing would cripple the Act.” Griffith, 334 U.S. at 105.

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The Fourth Circuit’s cases have long reflected this important difference
between “the specific intent required to prove an illegal attempt to monopolize”
and “the general intent which, accompanied by monopoly power, constitutes the
offense of monopolization.” Greenville Pub. Co. v. Daily Reflector, Inc., 496 F.2d
391, 396 (4th Cir. 1974). For example, Kolon involved both a claim for
monopolization and attempted monopolization. 637 F.3d 435. In analyzing the
willful maintenance element, the Court focused on the competitive effects of
alleged exclusive agreements without mentioning specific intent to monopolize. Id.
at 451–53. Without addressing specific intent, it held that “Kolon adequately pled
all elements of its monopolization claim.” Id. at 453. After reaching that
conclusion, the Fourth Circuit then turned to Kolon’s attempted monopolization
claim and analyzed, for the first time, whether Kolon had alleged DuPont’s
“specific intent to monopolize.” Id.
II.

THE DISTRICT COURT MISAPPLIED SUPREME COURT AND FOURTH CIRCUIT
PRECEDENT TO REQUIRE PROOF OF SPECIFIC INTENT

The district court erred in departing from binding Supreme Court and Fourth
Circuit precedent by requiring proof of anticompetitive intent for CareFirst’s
monopolization claim. The district court even acknowledged that anticompetitive
“intent is . . . certainly not required” to prove monopolization under Supreme Court
precedent. ECF No. 794 at 40–41 n.19. But it held that the “Fourth Circuit’s most
recent, and thus controlling, articulation of the willfulness standard is whether the
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defendant ‘intended to exclude rivals on some basis other than efficiency.’” Id. at
40–41 (quoting 2311 Racing, 139 F.4th at 410 and Duke Energy, 122 F.4th at
122).7 The district court recognized that a specific intent requirement, in its own
words, would be “inconsistent with Supreme Court precedent,” but it disregarded
the Supreme Court’s clear and repeated resolution of this issue and adopted a new,
erroneous standard. ECF No. 794 at 40–41 n.19.
Two isolated statements of dicta in 2311 Racing and Duke Energy appear to
be the district court’s source of confusion. In 2311 Racing, the Fourth Circuit
stated that “Section 2 requires that the defendant have engaged in anticompetitive
conduct—i.e., conduct intended to ‘exclude rivals on some basis other than
efficiency.’” 2311 Racing, 139 F.4th at 410 (quoting Aspen Skiing, 472 U.S. at
605). The Fourth Circuit used similar language in Duke Energy, 111 F.4th at 353.
(“But the second element is at issue—whether Duke Energy maintained its power

The District Court was mistaken not only on the law of antitrust, but also on the
law of precedent. In the Fourth Circuit, a panel’s “most recent . . . articulation” of
the law is not the “controlling” one. ECF No. 794 at 40. “When published panel
opinions are in direct conflict on a given issue, the earliest opinion controls, unless
the prior opinion has been overruled by an intervening opinion from this court
sitting en banc or the Supreme Court.” McMellon v. United States, 387 F.3d 329,
333 (4th Cir. 2004). To the extent the Supreme Court’s unambiguous statements on
this issue do not settle the matter—and to the further extent this panel shares the
district court’s reading of 2311 Racing and Duke Energy (which it should not)—
the prior panel rule would nonetheless warrant reversal and application of the
correct rule: specific intent is not an element of a monopolization claim. See, e.g.,
Kolon, 637 F.3d at 451–53; Greenville Pub., 496 F.2d at 396–98.
7

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through anticompetitive conduct, i.e., conduct intended to ‘exclude rivals on some
basis other than efficiency.’” (quoting Aspen Skiing, 472 U.S. at 605)).8
The district court improperly “parsed” these statements in 2311 Racing and
Duke Energy “‘as though we were dealing with language of a statute’” to create a
new intent requirement that conflicts with a century’s worth of precedent. Nat’l
Pork Producers Council v. Ross, 598 U.S. 356, 373–74 (2023) (quoting Reiter v.
Sonotone Corp., 442 U.S. 330, 341 (1979)). 9 But these statements must be read in
reference to Aspen Skiing, which the Fourth Circuit quoted in each case in support.
Aspen Skiing shows that “knowledge of intent,” though not required for
liability, “may help the court to interpret facts and to predict consequences” and to
distinguish competition on the merits from improper exclusion, particularly where
the challenged conduct by a monopolist can have numerous explanations. Areeda
& Hovenkamp ¶ 651 (quoting Chicago Bd. of Trade, 246 U.S. at 238). There, a
monopolist ski resort unilaterally refused to deal with its competitor after years of
jointly marketing mountain passes. To determine whether “it is fair to characterize

In its opinion, the district court cited to Judge Niemeyer’s statement in support of
denying rehearing en banc. See ECF No. 794 at 41 (citing 122 F.4th 120, 122
(Mem.)). Though such a statement is not precedential, the same language appears
in the published panel opinion.

8

Nat’l Pork Producers Council, 598 U.S. at 373–74 (“Instead, we emphasize, our
opinions dispose of discrete cases and controversies and they must be read with a
careful eye to context.” (citing Cohens v. Virginia, 19 U.S. 264, 399–400 (1821)
(Marshall, C.J.)).
9

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its behavior as predatory,” the Supreme Court analyzed whether the monopolist
“has been ‘attempting to exclude rivals on some basis other than efficiency.’”
Aspen Skiing, 472 U.S. at 605 (quoting Robert H. Bork, The Antitrust Paradox 138
(1978)).
To answer that question, the Court looked at anticompetitive effects of the
monopolist’s refusal to deal by “examin[ing] the effect of the challenged pattern of
conduct on consumers, on Ski Co.’s smaller rival, and on Ski Co. itself.” Id. at 605.
Concluding that both consumers and the rival were adversely affected by the
conduct, and the monopolist lacked any business justification for it, the Court held
that “the evidence supports an inference that Ski Co. was not motivated by
efficiency concerns and that it was willing to sacrifice short-run benefits and
consumer goodwill in exchange for a perceived long-run impact on its smaller
rival.” Id. at 610–11. While the Court used evidence of intent in its analysis of
business justifications, it made clear that “intent is merely relevant to the question
whether the challenged conduct is fairly characterized as ‘exclusionary’ or
‘anticompetitive,’” id. at 602 (emphasis added), and reiterated that to demand
specific intent in a monopolization case “makes nonsense of” Section 2. Id. at 602
n.28 (quoting Alcoa, 148 F.2d at 432).
The Fourth Circuit’s opinions in 2311 Racing and Duke Energy faithfully
applied this Supreme Court precedent. Anticompetitive intent was not discussed at

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all in 2311 Racing. The conduct at issue was a contractual provision “requiring a
prospective participant” in NASCAR races “to give a release for past conduct as a
condition for doing business.” 2311 Racing, 139 F.4th at 410. The Fourth Circuit
concluded that “[t]he effect of such a release” was “not to eliminate or injure
competition.” Id. It vacated the district court’s preliminary injunction because
“[n]either the plaintiffs nor the district court has shown how the release would have
injured competition.” Id. (emphasis in original).
To the extent Duke Energy relied on evidence of anticompetitive intent, it
did so consistent with Supreme Court instructions to use intent only to “help the
court to interpret facts and to predict consequences.” Chicago Bd. of Trade, 246
U.S. at 238; see also Aspen Skiing, 472 U.S. at 602. The Fourth Circuit noted in
Duke Energy that the evidence of “anticompetitive malice . . . bolsters our
conclusion that the case is trial worthy.” 111 F.4th at 367. But it focused on the
nature and likely effects of the challenged conduct to determine whether the
incumbent competed on the merits or engaged in anticompetitive conduct. See,
e.g., id. at 362 (“The record is thus sufficient to support a finding that Duke’s
blend-and-extend strategy, coupled with its Butler Warner agreement,
independently produced anticompetitive effects.”).
Nor, contrary to J&J’s arguments below, does Oksanen v. Page Mem’l
Hosp., 945 F.2d 696 (4th Cir. 1991) (en banc), require proof of “anticompetitive

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purposes” or “knowledge” that the challenged conduct “would afford [defendant]
monopoly power.” ECF No. 605 at 22–23 (citing Oksanen and arguing that
“willfulness” requires showing “that a defendant acted for anticompetitive
purposes”). In reviewing a grant of summary judgment, Oksanen analyzed the
second element of the monopolization test—willful acquisition or maintenance of
monopoly power (which the Court dubbed “monopolistic intent” as a shorthand).
The Court noted that the defendants had offered a procompetitive justification,
which the plaintiff had not rebutted. It concluded that a plaintiff must show “that a
jury could find no valid business reason or concern for efficiency” for the
challenged conduct. Oksanen, 945 F.2d at 710 (quoting White v. Rockingham
Radiologists, Ltd., 820 F.2d 98, 105 (4th Cir. 1987)). To understand this statement,
recall that Section 2 claims follow a familiar burden-shifting approach, where
defendants may rebut a prima facie showing of monopolization by proving valid
business justifications for their conduct. See supra Section I. In turn, plaintiffs may
rebut any proffered valid business justifications, such as by showing that those
justifications are pretextual or are outweighed by anticompetitive harms. See
Microsoft, 253 F.3d at 58–59.
Oksanen and White—decided 35 and 39 years ago, respectively—fit
comfortably within the burden-shifting approach that has emerged in ensuing
decades. See supra Section I. Each determined that plaintiffs failed to offer

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evidence sufficient to rebut proffered valid business justifications for the
challenged conduct, which meant that plaintiffs could not succeed on the second
element of a monopolization claim. Indeed, a later unpublished decision from this
Court applied Oksanen in exactly that way. See Imaging Ctr., Inc. v. W. Maryland
Health Sys., Inc., 158 F. App’x 413, 420–21 (4th Cir. 2005) (holding that conduct
did not violate Section 2 where defendant proffered “valid business and patient
care reasons” and plaintiff “had offered no effective rebuttal to these
procompetitive justifications” because claims of “reduced output and quality” were
“unsupported” and prices did not increase (quoting Oksanen, 945 F.2d at 710)).
Nothing in Oksanen or White requires any showing of specific intent, which would
be contrary to the Supreme Court’s clear directive in Aspen Skiing.
Nor is the law’s protection of “unwitting” monopolists that had market
dominance “thrust upon” them “by force of accident” tantamount to requiring
proof of specific intent (or knowledge, as J&J calls it).10 See Alcoa, 148 F.2d at
J&J argued below that willfulness required showing specific intent. See, e.g.,
ECF No. 605 at 17 (“Plaintiffs must also show that, at the time of the acquisition,
J&J knew or intended that, by acquiring Momenta, it would be maintaining or
adding to its alleged monopoly power . . . .”); ECF No. 542 at 24 (“Plaintiffs must
also show that . . . J&J knew or intended that . . . it would be maintaining or adding
to its alleged monopoly power.”); ECF No. 444 at 39 (“Establishing willfulness
requires evidence showing ‘monopolistic intent’—i.e., that a defendant acted for
anticompetitive purposes . . . .”). J&J later also argued that “Plaintiffs must show,
at minimum, that J&J acted with knowledge that the Momenta Manufacturing
Patents could be used to exclude with respect to Stelara” and “and would afford it
(Continued…)

10

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429–30. This screen is merely meant to separate monopolies resulting from natural
growth or external supply-and demand-factors—such as “changes in taste or in
cost”—from monopolies resulting from defendant’s exclusionary actions. Id. As
discussed in Section I, whether an act is exclusionary turns on whether it is
“competition on the merits”; specific intent can be probative of the likely
exclusionary effect of the conduct, but its absence does not save an action that is
otherwise anticompetitive. See, e.g., Alcoa, 148 F.2d at 430–32. This is particularly
true where the challenged conduct is a consummated acquisition and its effects can
be readily seen. The federal antitrust agencies’ Merger Guidelines confirm that the
agencies “give little weight” to the absence of specific intent in evaluating
acquisitions. U.S. Dep’t of Just. & Fed. Trade Comm’n, Merger Guidelines § 4.1
(2023).
Applying the correct standard for willfulness under Supreme Court and
Fourth Circuit precedent, J&J’s acquisition of the Momenta manufacturing patents
is sufficient to establish a “willful” act. Indeed, a leading antitrust treatise notes

monopoly power.” ECF No. 605 at 23. J&J contends that this standard is somehow
different from specific intent to monopolize. Id. Such a distinction has no basis in
law. “[N]o monopolist monopolizes unconscious of what he is doing.” Aspen
Skiing, 472 U.S. at 602 (quoting Alcoa, 148 F.2d at 432). There is no practical
difference between having to prove that J&J bought the patents knowing they
would afford it monopoly power and intending that they would afford it monopoly
power. Thus, J&J’s knowledge standard is simply a back door to specific intent.
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that “[a]cquisition by a monopolist of exclusive rights in related patents should
presumptively be a § 2 ‘exclusionary practice,’ and this applies with equal force to
the acquisition of a firm that owns such patents, if the effect of the acquisition is to
give the acquirer an exclusive right in them and this serves to increase or prolong
the monopolist’s market power.” Areeda & Hovenkamp ¶ 707. As alleged in the
complaint, J&J was already a monopolist at the time of the challenged acquisition.
ECF No. 641 ¶¶ 208–15. And it allegedly extended its monopoly power, not by
“historic accident,” Grinnell, 384 U.S. at 571, but through the acquisition of the
Momenta manufacturing patents as part of the Momenta transaction for $6.5
billion. Antitrust liability does not turn on the rigor of J&J’s due diligence or what
J&J knew about the Momenta manufacturing patents at the time of the
acquisition.11 It is sufficient that J&J bought those patents to prove a willful act. Of
course, whether such act is ultimately unlawful depends on the plaintiff’s ability to
prove monopoly power and the likely anticompetitive effects of the transaction.

Requiring proof that defendant knew of the patents’ scope or potential
anticompetitive consequences of the transaction is not only contrary to the law, it
would also hamper Section 2 enforcement of anticompetitive acquisitions while
increasing burdens on parties. See Areeda & Hovenkamp ¶ 1506 (inquiring into a
defendant’s mental state can “invite the parties to examine thousands of
documents, to depose nearly everyone, to resist early disposition on the ground that
disputed intent requires trial, to burden the judge and jury with ambiguous
evidence, and to invite decision on the basis of relative purity of heart rather than
competitive impact”).

11

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CONCLUSION
By mistakenly requiring proof of specific intent, the district court gives a
monopolist a free pass to avoid liability when its conduct harms competition on the
merits but there is no evidence that it intended to do so—either because it actively
avoided creating such evidence or because that evidence does not exist. Such an
intent-based test makes nonsense of the Sherman Act, contradicts precedent, and
risks undermining vigorous market competition and effective government
enforcement if left unchecked. Great for monopolists, bad for American
consumers.
The Court should correct the district court’s legal error and hold that proof
of “willful” conduct does not require proof of specific intent to monopolize.

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Respectfully submitted,
/s/ Brendan T. Chestnut

DANIEL GUARNERA
Director

BRENDAN T. CHESTNUT
Director

TAYLOR C. HOOGENDOORN
Deputy Director

ANUPAMA SAWKAR
Chief Counsel for Intellectual Property
Office of Policy Planning

KARA L. MONAHAN
Deputy Assistant Director
ARMINE BLACK
Attorney
Bureau of Competition

FEDERAL TRADE COMMISSION
600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580
(202) 326-2665
Counsel for
Federal Trade Commission

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CERTIFICATE OF SERVICE
I hereby certify that on June 22, 2026, I caused the foregoing to be
electronically filed with the Clerk of the Court for the United States Court of
Appeals for the Fourth Circuit by using the appellate CM/ECF system. The
participants in the case are registered CM/ECF users and service will be
accomplished by the appellate CM/ECF system.

Dated: June 22, 2026

/s/ Brendan T. Chestnut

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CERTIFICATE OF COMPLIANCE
This brief complies with the length limits permitted by Federal Rule of
Appellate Procedure 29(a)(5). The brief is 5,143 words, excluding the portions
exempted by Rule 32(f). The brief’s typeface and type style comply with Rule
32(a)(5) and (6).

Dated: June 22, 2026

/s/ Brendan T. Chestnut

24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aftc%3Ac6cd6bf0c3776aca. Public record. Not legal advice.