In an eight-page letter submitted on July 11, AAI has urged the Solicitor General’s Office to oppose certiorari in Duke Energy v. NTE Carolinas and to credit the difference between monopolization claims that challenge an anticompetitive course of conduct and monopolization claims that rely on a “monopoly broth” theory of liability.
In Duke Energy, NTE Carolinas alleged that Duke Energy violated Section 2 of the Sherman Act by engaging in an anticompetitive course of conduct designed to exclude NTE Carolinas as a new, highly efficient competitor in energy generation. The district court granted summary judgment to Duke Energy, but AAI believed NTE’s claims presented genuine issues for trial and filed an amicus brief urging reversal. The Fourth Circuit agreed, holding that NTE Carolinas raised genuine trial issues with respect to predatory pricing, exclusionary bundling, refusal to deal, and the challenged course of conduct as a whole. Duke Energy petitioned for certiorari in February, and last month the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States.
In its letter to the Solicitor General, AAI explained why certiorari is unwarranted. First, the petition does not present the question on which review was sought. Duke Energy seeks review of whether a monopolization claim can be won by aggregating multiple distinct, independently lawful acts into an unlawful whole. But here the court found that each individual element of the challenged course of conduct independently raised genuine trial issues. Although the court credited the cumulative effect of the alleged course of conduct as a whole, it separately applied conduct-specific monopolization tests to each element of the conduct and found that material factual disputes precluded summary judgment under the applicable tests. The summary judgement record therefore does not present a vehicle for reaching the viability of the monopoly broth theory, under which a series of independently lawful acts are added up and alleged to give rise to liability through their combined, synergistic effect.
Second, the letter argues that certiorari would create confusion in the lower courts by fostering a mistaken conflation of course-of-conduct analysis, which is a common mode of factual analysis found not only in many Section 2 cases but throughout the law, with the monopoly broth theory of liability, which is less common and has been a subject of some debate. Doing so would imperil several pending government actions that properly rely on allegations that an anticompetitive course of conduct, considered as a whole, supports well established theories of antitrust liability. The government’s major, pending actions in, for example, United States v. Google, United States v. Apple, United States v. Live Nation Entertainment, and FTC v. Amazon, all rely on a proper application of course-of-conduct analysis. Several cite directly to the Fourth Circuit’s opinion in this case.
The letter was written by AAI Senior Counsel David O. Fisher and AAI President Randy Stutz, with assistance from AAI Vice President and Director of Legal Advocacy Kathleen Bradish.
