FTC Commissioner Meador Backs “Monopoly Broth” Aggregation Theory

On October 22, 2026, FTC Commissioner Mark Meador used a speech at Informa’s Antitrust Texas conference in Houston to endorse an “aggregation” or “monopoly broth” theory of monopolization under Section 2 of the Sherman Act. Proponents of the “monopoly broth” theory argue that business practices that may be lawful on an individual basis could become anticompetitive (and unlawful) when considered together. Commissioner Meador’s remarks signal that firms with a substantial market share should expect enforcers and private plaintiffs to approach their conduct as a whole, not practice-by-practice.

Faced with potentially anticompetitive conduct that does not fit neatly in any existing doctrinal categories of antitrust-law violations, plaintiffs often turn to a “monopoly broth” theory, arguing that the aggregation of various potentially neutral practices amounts to a violation of the antitrust laws. Attempts to persuade the courts to endorse “monopoly broth” theories have historically been unsuccessful or otherwise met with skepticism. See, e.g., In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., 44 F.4th 959, 982 (10th Cir. 2022) (“For the sake of accuracy, precision, and analytical clarity, we must evaluate Mylan’s allegedly exclusionary conduct separately.”); see also PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW: AN ANALYSIS OF ANTITRUST PRINCIPLES AND THEIR APPLICATION ¶ 310c7 (4th and 5th eds. 2024) (cautioning against the danger of aggregation that allows “illegality [to] be inferred from procompetitive conduct”). Against that backdrop, Commissioner Meador’s comments are a notable policy statement that may signal a changing tide and a greater embrace of “monopoly broth” theories.

Meador’s comments come weeks after he outlined an ambitious vision for the agency’s standalone Section 5 unfair-methods-of-competition authority, predicated on aggregation theories like those the Fourth Circuit addressed in Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC—which the Supreme Court declined to review in January 2026. 111 F.4th 337 (4th Cir. 2024), cert. denied, 146 S. Ct. 1485 (2026) (more on that below).

Key Takeaways

• Holistic analysis over conduct-specific tests. Commissioner Meador rejected strict reliance on conduct-specific safe harbors (such as those for predatory pricing and refusals to deal) as the exclusive framework for evaluating course-of-conduct claims under Section 2 of the Sherman Act.
• The limiting principle remains unclear. Meador supports aggregation only where the challenged practices interact to produce “a distinct exclusionary effect,” a standard that leaves considerable room for argument. Meador also emphasized the importance of predictability in antitrust enforcement, an interest that seems at cross purposes with a vague approach to “monopoly broth” liability.
• Duke Energy is the FTC’s preferred template. Meador called the Fourth Circuit’s ruling that alleged anticompetitive conduct “must be considered as a whole” a “useful starting point” for aggregation claims.

Skepticism of Conduct-Specific Tests

Meador argued that antitrust defendants and certain academics “have increasingly sought categorical limitations on liability” by insisting on strict application of conduct-specific tests under Section 2. Meador said that this approach “increases error costs,” is “often anything but clear in practice,” and prolongs litigation by forcing courts to resolve “disputes over doctrinal classifications that may have little bearing on how the challenged conduct actually operates on trading partners.”

Meador’s proposed alternative is a cumulative-effects inquiry that considers a business’s overall strategy; the timing and relationship of individual moves; and the practice’s “synergistic effects.” Meador illustrated his disagreement with conduct-specific tests by likening them to examining individually lawful activities like taking prescription medication, drinking alcohol, and driving in isolation while ignoring the illegal combination of the same conduct. Meador called on courts to examine conduct the way businesses themselves assess “how individual practices contribute to a broader commercial strategy.” Meador said aggregation is “unwarranted” “[w]here practices lack a meaningful relationship or present no incremental competitive harm,” but would be defensible “[w]here their interaction produces a distinct exclusionary effect.” How parties or courts should make the determination as to when conduct crosses the line to create such an effect, however, remains unclear.

Commissioner Meador’s framework is not without internal tension. If aggregation is unwarranted where a practice presents “no incremental competitive harm,” traditionally lawful conduct like above-cost pricing would seemingly fall outside a Section 2 monopolization claim. But if that same practice is alleged to contribute to “a distinct exclusionary effect,” the same conduct could be swept back in. A two-part inquiry requiring that (1) there be an overall exclusionary effect and (2) each challenged practice contribute to that effect, at least minimally, would be more consistent with existing law. That inquiry may provide a template for how enforcers will build their cases.

FTC’s Enforcement Strategy to Mirror Duke Energy

Meador’s comments invoked the Fourth Circuit’s recent decision in Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC, 111 F.4th 337 (4th Cir. 2024). That dispute began in 2019 with competing claims for breach of contract between two power companies in the Carolinas. Duke Energy, 111 F.4th at 351. Duke Energy is a vertically integrated power company, meaning it owns both the power plants and the transmission lines that deliver the power to its customers. Id. at 344. NTE, as only a power producer, needed to use those transmission lines to deliver its power to those same potential customers. Id. That control forced NTE, a Florida-based power company expanding into the Carolinas, to enter into an interconnection agreement to use Duke Energy’s transmission lines so that it could compete for North and South Carolina customers. Id. at 345. After the contract claims settled, NTE’s remaining claim alleged that Duke viewed NTE’s cheaper, more efficient generation as a threat and sought to keep an “anchor” customer—the City of Fayetteville, North Carolina—from switching suppliers.Id. at 365.

NTE alleged that Duke willfully maintained monopoly power in the Carolinas’ wholesale power market through a series of business practices intended to stifle NTE, its “biggest threat.” Id. at 343. Those practices included (1) frontloaded and steep discounts to current customers, including the “anchor” customer City of Fayetteville, North Carolina, which allegedly allowed Duke Energy to charge supracompetitive prices in the future once competition had failed, id. at 358; and (2) interference with NTE’s efforts to use Duke Energy’s upstream transmission lines, including the unilateral termination of the interconnection agreement and interference with NTE’s North Carolina regulatory standing, id. at 362. At the district court, these practices had been rejected in silos as insufficient to state (1) a predatory pricing claim or (2) sham litigation or fraud theories that could support a monopolization claim. Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC, 608 F. Supp. 3d 298, 326-28 (W.D.N.C. 2022) (granting summary judgment).

In August 2024, the Fourth Circuit reversed the grant of summary judgment. Duke Energy, 111 F.4th at 367. Writing for the panel, Judge Paul Niemeyer held that Duke’s “conduct must be considered as a whole,” explaining that Section 2 “focuses on anticompetitive conduct, not on court-made subcategories of that conduct.” Id. at 354. Under the first prong (discounts to competition), the Fourth Circuit rejected the predatory pricing framework that the district court had accepted because the “package discount” was alleged to be part of the anticompetitive scheme to recoup those discounts with supracompetitive pricing once competition had diminished. Id. at 356-57. The second prong was analyzed under a refusal-to-deal framework where the Fourth Circuit found a reasonable jury could find that Duke Energy sacrificed a profitable relationship (the interconnection agreement) to avoid competition with NTE in the wholesale power market. Id. at 364-65.

After examining each prong of conduct, the Fourth Circuit took a holistic view and held a jury could “just as well conclude that Duke saw a more efficient competitor in NTE and acted, through a broad range of anticompetitive conduct in various contexts, to eliminate that competition, to the detriment of consumers.” Id. at 366. The Fourth Circuit also emphasized internal Duke Energy statements like labeling NTE as Duke Energy’s “biggest threat” and recognizing the competitor’s product superiority, an indication that otherwise independent acts may have been part of an overarching anticompetitive scheme. Id. at 345.

The Supreme Court denied Duke’s petition for certiorari in January 2026, and the parties settled before trial. The Fourth Circuit’s opinion is likely to be the FTC’s lead citation as it develops course-of-conduct theories going forward.

Implications for FTC Investigations and Private Litigation

While speeches may not definitively set out agency policy, they are a reliable indicator of enforcement priorities. Single-firm conduct investigations are likely to examine a company’s full commercial playbook rather than isolated practices, and staff may resist efforts to cabin individual practices through conduct-specific safe harbors. Commissioner Meador’s remarks place the FTC firmly on the side of aggregation, favoring holistic analysis over examining conduct in isolation.

Commissioner Meador’s remarks may also spark new private cases. Plaintiffs may cite Duke Energy to recast claims that would fail under conduct-specific tests as “monopoly broth” theories, aiming to survive motions to dismiss and summary judgment by highlighting how the challenged practices interact. Any FTC investigation or enforcement action built on an aggregation theory could also prompt follow-on litigation, including private class actions and state attorney general suits, that rely on the agency’s theory of harm and evidentiary record.

For firms with substantial market shares, the practical risks are substantial:

• Safe harbors may not hold. Conduct that clears a conduct-specific test (e.g., above-cost pricing) could still be swept into a broader claim if it is alleged to contribute to an overall exclusionary scheme.
• Summary judgment becomes harder. Holistic claims raise fact questions about strategy, intent, and interaction, increasing the risk that cases proceed to a jury.
• Documents take on greater weight. Internal strategy documents linking otherwise separate initiatives can become evidentiary glue for an aggregation theory.
• Predictability declines. Meador emphasized that enforcement legitimacy depends on standards “courts can apply consistently,” but an open-ended cumulative test is inherently less predictable than a conduct-specific test.

O’Melveny will continue to monitor related statements and litigation. Please contact the attorneys listed below with any questions.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Brian P. Quinn, an O’Melveny partner licensed to practice law in the District of Columbia and Virginia; Lauren M. Weinstein, an O’Melveny partner licensed to practice law in New York and the District of Columbia; and Don Olmos, an O’Melveny associate licensed to practice law in Texas, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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