it is possible does NOT equate to generally. More over I will take an actual ruling by a judge (
Case 4:20-cv-05640-YGR Document 812 Filed 09/10/21) or an actual lawyer says (Hoeg) rather than what some webpage cranked out by nobody knows whom (most likely not a lawyer and certainly not a judge) that is likely
out of date.
"The threshold of market share for finding a prima facie case of monopoly power is generally
no less than 65% market share. See Image Tech. Servs. II, 125 F.3d at 1206 (“
Courts generally require a 65% market share to establish a prima facie case of market power.”); Hunt-Wesson, 627 F.2d at 924–25 (“market shares on the order of 60 percent to 70 percent have because its “ability to charge monopoly prices will necessarily be temporary”).
A more conservative threshold would require a market share of 70% or higher for monopoly power. See Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 174 (4th Cir. 2014) (“Although there is no fixed percentage market share that conclusively resolves whether monopoly power exists,
the Supreme Court has never found a party with less than 75% market share to have monopoly power. And we have observed that when monopolization has been found the defendant controlled seventy to one hundred percent of the relevant market.” (citations omitted)); Syufy Enters. v. Am. Multicinema, Inc., 793 F.2d 990, 995 (9th Cir. 1986)"
More over the judge Apple is in front of already decided: "Relying on the same documents, for 2015, the Court takes Apple’s 18% market share divided by 34% of the mobile share of the global market. For 2016, the Court takes Apple’s 21.8% market share divided by 40% of the mobile share of the global market."
The very judge Apple is in front of has already ruled that 65% is the bare minimum and could only give an incipient ('if you come close then you are in violation') ruling based on state law. Effectively that court was saying that getting a ticket for driving 34 MPH in a 35 MPH zone (ie
under the limit) was still valid because you were close to going over. If that sounds a dumb as dirt the Ninth Circuit rightly put that thing on hold until the Epic case works its way through the appeals process. I seriously doubt the Ninth Circuit would be happy if that wonky California law is invoked again.