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Proving Refusal to Deal Liability: Three Emerging Alternatives to Aspen Skiing

Jonathan M. Justl, ABA Antitrust Section, Unilateral Conduct Committee’s Monopoly Matters Newsletter, Fall 2017

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A common question under Section 2 of the Sherman Act, which proscribes unlawful monopolization, is whether a company with market power engages in “exclusionary conduct” by choosing not to deal with a competitor. Although the general rule is that an alleged monopolist, like any other company, has no duty to deal with anyone, there are exceptions, the scope of which are frequently debated and litigated.

Since 1970, the U.S. Supreme Court has addressed an alleged monopolist’s duty to deal with competitors in five seminal decisions: Otter Tail Power Co. v. United States2 in 1973; Aspen Skiing Co. v. Aspen Highlands Skiing Corp.3 in 1985; Eastman Kodak Co. v. Image Technical Services, Inc.4 in 1992; Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP5 in 2004; and Pacific Bell Telephone Co. v. Linkline Communications, Inc.6 in 2009. Neither of the latter two cases, which each held that the defendant had no duty to deal, overruled the earlier three, which reached (or at least implied) the opposite conclusion for reasons that are difficult to reconcile with the latter two.

Notwithstanding those three emerging lines of cases, many courts will likely remain reluctant to hold that companies may be liable for refusing to deal with competitors in circumstances dissimilar to those in Aspen Skiing. But companies would be well-advised to be aware of their emergence and monitor whether lower courts expand their reasoning to find potential refusal to deal liability in other contexts in the future.

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