Competing Refusal-To-Deal Tests At 7th, 9th Circs.

Law360 (October 9, 2019, 3:15 PM EDT) -- “[U]nilateral refusals to deal are almost always lawful”— said then U.S. Circuit Judge Neil Gorsuch on behalf of the U.S. Court of Appeals for the Tenth Circuit in Novell Inc. v. Microsoft Corp.[1] The Tenth Circuit followed Verizon Commications Inc. v. Law Offices of Curtis V. Trinko LLP,[2] narrowly construed Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,[3] and set up a rigid irrationality requirement requiring as a first step that a refusal to deal plaintiff show that a monopolist lost overall profits as a result of its conduct.

Judge Gorsuch concluded that “[c]ases that meet the profit sacrifice test represent a...

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