Just a few weeks shy of its one-year anniversary of the Federal Trade Commission’s landmark monopolization case against Amazon, the government and the world’s largest e-commerce marketplace await a crucial decision: Whether Judge John Chun will dismiss the case before it ever reaches trial.
Amazon’s motion to dismiss the lawsuit has been sitting in front of Judge Chun since December. Since then, both sides have swapped legal paperwork arguing whether the FTC’s case, accusing Amazon of using its stranglehold over online retail to rip off shoppers and third party sellers, is fit to survive until its October 2026 trial date.
Now, two recent court decisions may have made the choice clearer for Judge Chun. Those decisions—one by a D.C. appeals court and another by Fourth Circuit Court of Appeals—appear to strengthen the FTC’s claims that its lawsuit accurately details Amazon’s dominance, and that its description of Amazon’s alleged monopoly abuses are more than enough to survive Amazon’s dismissal request.
To wit: The FTC sued Amazon last September, accusing the company of using a whole suite of tactics to keep rival online marketplaces from attracting shoppers and third-party sellers to their platforms. The 172-page complaint details, among other things, how Amazon strong-arms small sellers into paying outlandish fees in order to succeed on its monopoly e-commerce platform—fees that then force those sellers to raise the price of their products. Amazon then imposes a “fair pricing policy” to punish sellers who seek to steer shoppers to a competing marketplace by charging a lower price for the same products on the rival store, the lawsuit claims. It’s a complex complaint, but it spells out what the FTC calls a “course of conduct” plot—a series of actions that, taken together, shuts out competition and unfairly protects Amazon’s monopoly.
Amazon’s motion to dismiss attempts to cast Amazon as both a champion of consumers and just another retailer that has to compete with everyone from Walmart to the local brick-and-mortar shops down the street. Amazon says that, even if what the FTC says is true, the company’s actions are actually procompetitive; it’s not forcing small sellers to raise their prices across the web, it says, it’s just ensuring Amazon has the lowest price, which helps shoppers.
Amazon’s arguments set up Judge Chun’s decision: Is Amazon an online retail monopolist whose actions suffocate rival online stores and hike up prices everywhere? Or does Amazon compete against everyone and anyone who sells stuff to people, and is doing all it can to keep prices on its marketplace low for shoppers?
The two recent court rulings may help answer those questions. The first ruling, from the D.C. appeals court, overturned a lower court decision to dismiss the District’s monopoly lawsuit against Amazon that mirrors some of the key allegations in the FTC’s complaint.
The D.C. appeals court’s decision is clarifying. The District’s definition of the industry Amazon operates in—namely, “the U.S. retail e-commerce market”—is plausibly the right one, rather than the much larger universe of all retail, brick-and-mortar included, that Amazon claimed to operate in, the court found. That tracks with how other federal courts have defined Amazon’s market, and, the D.C. appeals court says, the lawsuit “offers a plausible basis for its contention that Amazon possesses market power in online product submarkets and in the broader online marketplace.”
The appeals court also pushed aside Amazon’s claim that the abuses the District accused Amazon of— forcing Amazon sellers to raise their prices in order to afford its fees, then restricting sellers from offering lower prices elsewhere—were actually pro-consumer and intended to keep prices low. The appeals court said the District’s description of the real-world effects of Amazon’s fair pricing policy—raising prices for consumers across the web—were enough to overcome Amazon’s motion to dismiss the case. That case will now go back to the local D.C. trial court, and the FTC flagged the decision for Judge Chun.
Meanwhile, the Fourth Circuit court of appeals took up a different issue: Whether “course-of-conduct” monopoly claims could survive a motion to dismiss, even if each individual action that makes up a course-of-conduct claim wouldn’t violate the law alone.
In the FTC’s lawsuit, the agency says each Amazon action that makes up the alleged “course of conduct” is illegal independently. Still, it’s the course-of-conduct allegations that are the central theme of the government’s lawsuit. Amazon’s bad actions are, as the FTC says, “greater than the sum of its parts” in their anticompetitive effect.
While course-of-conduct monopoly claims were already accepted under the law, the Fourth Circuit’s decision makes it abundantly clear that a monopolist’s conduct can break the law when viewed together and holistically, even if a monopolist’s individual actions aren’t obviously anticompetitive on their own.
In that case, upstart energy company NTE sued incumbent utility monopoly Duke Energy, claiming that a series of actions Duke took to maintain its electricity contract with Fayetteville, North Carolina collectively stopped NTE from competing for the city’s business even though it could sell Fayetteville electricity for far cheaper than what Duke could offer.
We’ll skip the details of that lawsuit here, other than to say NTE alleged, more or less, what the FTC is accusing Amazon of doing: Using an interrelated series of actions that, when viewed together, amounted to a monopolist using its power to ensure rivals can’t get a foothold in the market needed to compete—even when, in the Duke Energy case, the upstart rival is more efficient than the monopoly incumbent.
A district court had dismissed the case, looking at each accusation against Duke alone and in a kind of legal silo, detached from every other allegation. When it did, it found that the individual allegations against Duke failed for the same reasons a lot of monopoly lawsuits fail: Because a mountain of pro-monopoly case law over the past decades means lots of fairly obviously bad behavior escapes prosecution.
In its opinion, the Fourth Circuit Court said viewing each allegation individually was a mistake; not only are course-of-conduct monopoly claims allowed, they are often necessary to understand if and when a monopolist is abusing its power and foreclosing competition. This is far from new; the Supreme Court since at least 1913 showed that an antitrust conspiracy should not “be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole.” The Court extended that legal framework to monopolization in the 1960s, and other circuit courts have upheld that standard as recently as the 2000s.
But common law around monopoly claims has become far more restrictive over the past four decades or so, and at least one circuit court less than a decade ago fully ignored the Supreme Court’s demand that judges take a holistic view of anticompetitive conduct. So a reminder to Judge Chun is helpful, and that’s what the Fourth Circuit delivered. When a plaintiff alleges a complex, exclusionary monopoly scheme, looking at each piece of the anticompetitive puzzle individually and applying a specific test to each “would prove too rigid,” the court ruled.
The FTC flagged the Fourth Circuit’s decision to Judge Chun, and Amazon has lodged its rebuttal. Along with the D.C. appeals court decision, they’re just two more pieces of law for Judge Chun to ponder when considering whether the FTC’s lawsuit should survive. Technically, all the commission has to do is present a set of facts that, if proven true, could plausibly violate the antitrust laws. It’s a relatively low bar, but Judge Chun will ultimately decide the lawsuit’s fate. That decision could come as soon as the end of September.
Ron Knox is a senior researcher and policy advocate at the Institute for Local Self-Reliance. His writing has appeared in The Atlantic, The Washington Post, Wired, The Nation and elsewhere.