THE ANTITRUST LITIGATOR
Refusal to Deal By JEFFERY M. CROSS
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enerally, the antitrust laws do not require a company to work with or do business with a rival. As early as 1919, the Supreme Court announced the “Colgate Doctrine,” which held that a company is free to exercise its own independent discretion as to the parties with whom it will deal. In most instances, even monopolists are not required to help their competitors. It is fundamental antitrust law that not only is it not (by itself) unlawful to obtain a monopoly, but it is not unlawful for a monopolist to compete. Competition includes deciding how and with whom a company will do business.
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In 1985, however, the Supreme Court in a controversial decision, Aspen Skiing Co. v. Aspen Highlands Skiing Corp., held that a monopolist could violate Section 2 of the Sherman Act by refusing to deal with a competitor. Subsequent decisions by the Supreme Court have led some to argue that the Aspen decision has “bit the dust.” But a decision by the Seventh Circuit Court of Appeals in early 2020 applied Aspen to a refusal by Comcast to continue doing business with a competitor. In Viamedia, Inc. v. Comcast Corp., the Seventh Circuit reversed a dismissal of the plaintiff’s refusal to deal claim. Comcast has petitioned the Supreme Court for certiorari.
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In December, the Court asked the Office of Solicitor General to file a brief expressing the views of the United States. Many believe that such a request to the government means that the Court is likely to accept certiorari. Given the potential impact of the Aspen refusal to deal doctrine, it would be worthwhile to review Aspen and the Seventh Circuit’s decision in Viamedia. Aspen involved four ski resorts in Aspen, Colorado. Aspen is a destination skiing town. Skiers travel there to spend several days, and they generally want to ski all of the nearby mountains. When the four ski resorts were owned by separate companies, BACK TO CONTENTS
