On Tuesday, January 31, 2017, President Trump nominated Neil Gorsuch from the 10th Circuit Court of Appeals to fill the vacancy on the U.S. Supreme Court. AAI President Diana Moss said, “AAI will continue to review Judge Gorsuch’s record and press the Senate to ensure any Supreme Court nominee is committed to enforcement of the antitrust laws. Such enforcement should be consistent with congressional intent throughout the past many decades, thereby ensuring the robust continuation of free and competitive markets.”
Judge Gorsuch’s record on antitrust issues includes his time on the federal bench and in private practice. Differences between these two records create some room for debate over the impact that a Justice Gorsuch might have on the high court. AAI Associate General Counsel Randy Stutz noted, “From his time on the bench, Judge Gorsuch’s record is relatively sparse, but it largely fits a conservative mold.”
On the 10th Circuit, Judge Gorsuch authored three published antitrust opinions and joined three more. He also joined one unpublished opinion. Only one ruled in favor of a plaintiff.
Most significantly, in Novell v. Microsoft (2013), Judge Gorsuch’s opinion held that the “profit-sacrifice” test is an essential element of liability in a Section 2 refusal-to-deal claim. The AAI argued in Novell that this ruling would impair the ability of innovative companies and the government to prevent network monopolists that dominate critical sectors of the economy from denying or degrading access to their networks, even when such exclusion harms consumers and has no legitimate business justification. A copy of AAI’s brief is available here.
Judge Gorsuch authored another opinion upholding an alleged monopolist’s refusal to deal in Four Corners Nephrology Associates v. Mercy Medical Center of Durango (2009). In that case, the opinion also articulated a narrow scope for refusal-to-deal claims based on a highly questionable reading of the Supreme Court’s decision in Trinko. And in Christy Sports v. Deer Valley Resort Co. (2009), Judge Gorsuch joined an opinion taking a similarly questionable approach.
Judge Gorsuch’s record as a trial lawyer in private practice prior to joining the bench has a somewhat different tenor. In Conwood v. U.S. Tobacco (2002), he helped secure antitrust plaintiffs a favorable monopolization verdict that did not involve a refusal-to-deal. His brief in that case argued that conduct can be sufficiently exclusionary and harmful to support antitrust liability if it impairs the opportunities of rivals yet does nothing to benefit competition on the merits, without regard to profit sacrifice. The $1 billion verdict in that case was reportedly the largest ever awarded.
The one pro-plaintiff antitrust ruling written by Judge Gorsuch involved state-action immunity. In that case, Kay Elec. Co-op v. City of Newkirk (2010), he wrote an opinion that applied heightened scrutiny in determining whether a state “clearly articulated” a policy to displace competition. The opinion served as a road map for the Supreme Court’s subsequent 9-0 decision in FTC v. Phoebe Putney (2013), limiting the state action defense.
Stutz said, “While arguably not as doctrinaire as Justice Scalia, the President’s nominee, if confirmed, can be expected to restore a dynamic very familiar to antitrust litigants, namely a 5-4 conservative majority with Justice Kennedy casting the ‘swing vote.’”
A similar dynamic persisted from 2006 to 2016, beginning when Justice Alito assumed Justice O’Connor’s seat on the bench and ending with Justice Scalia’s death last year. During that time, very few of the approximately one dozen antitrust decisions on the merits were decided along purely ideological lines. Notably, however, the Court was ideologically split 5-4 in the Leegin case (2007), which eased the legal treatment of resale price maintenance.
In light of this history, if Judge Gorsuch were to be confirmed, the implications of restoring the conservative majority to the Supreme Court may be troublesome, particularly for private enforcement of antitrust rules. During the last conservative era, the Court made class actions more difficult to bring by raising the burdens on class certification and strictly enforcing arbitration clauses. Under a scenario where a Justice Gorsuch were to simply pick up where Justice Scalia left off, antitrust class actions very likely would be further eroded.