By: Matthew Carder*
Abstract
Monopolistic behavior and violations of antitrust statutes are prominent issues in the United States. Large corporate entities strive to maximize the wealth of their shareholders. However, those efforts often interfere with and exclude other companies from the market. In addition, corporations’ unrestrained drive to maximize shareholder wealth can hurt the welfare of consumers.
In 2023, the Ninth Circuit Court of Appeals’s decision in Epic Games, Incorporated v. Apple, Incorporated legitimized Apple’s monopolistic presence in the mobile gaming market. The court’s decision in Epic Games effectively eliminated small company competitiveness from the mobile gaming market and left consumers with few mobile gaming alternatives. Traditionally, courts have considered a defendant’s subjective intent when determining whether a defendant has attempted to monopolize the market. While a defendant’s subjective intent is appropriate for determining other specific intent crimes, it is not appropriate when analyzing an attempted monopoly.
This Comment analyzes the court’s decision in Epic Games v. Apple and discusses the complications with its holding. In addition, this Comment discusses the standard used to analyze a tax-free spinoff and how the tax-free spinoff standard would be more appropriate when scrutinizing attempted monopolies. Further, this Comment discusses why a tax-free spinoff standard is most appropriate when analyzing attempted monopoly cases. This Comment also provides its own analysis of Apple’s attempted monopoly using the tax-free spinoff standard. Finally, this Comment recommends that courts should use the tax-free spinoff standard when analyzing a business’s conduct rather than using the traditional specific intent standard.
* J.D. Candidate, The Pennsylvania State University School of Law, 2025.