Since the passage of the Sherman Act in 1890, Antitrust jurisprudence has evolved in a variety of fashions. More recently, the Supreme Court, under Chief Justice John Roberts, has taken a decidedly pro-business approach toward antitrust law.
In 2004, the Court ruled in VERIZON COMMUNICATIONS V.TRINKO that a firm with no “antitrust duty to deal” with its rivals is under no obligation to provide those rivals with a sufficient level of service. Essentially, the Trinko case pivoted on whether antitrust suits could be brought under the Sherman or Clayton Act if a firm violated another congressional act which was enacted to spur competition (In the Trinko case the act at issue was the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56). Verizon was exempt from suit by the Court, brought by a customer who alleged that Verizon was filling customer orders from other communication providers on a discriminatory basis as part of a scheme to inhibit competition. The court ruled that Verizon had no antitrust duty to the other communication providers, and therefore had no obligation to sell to them at a particular price.
The court furthered this principle in 2009 in PACIFIC BELL TELEPHONE CO v. LINKLINE COMMUNICATIONS where the Court unanimously ruled antitrust claims for “price squeezing” may not be brought where the defendant has no antitrust duty to the plaintiff. Essentially, in this case, AT&T was forced under a merger agreement to supply infrastructure to smaller DSL service providers in the California. AT&T allegedly created a monopoly system whereby they sold DSL service directly to customers at low rates, while at the same time renting out the infrastructure for DSL service to other service providers at overly inflated prices. This allowed AT&T to force out much of its competition in California. The Court ruled that no antitrust duty was present by AT&T to the other providers (only the duty to sell under the merger agreement) and therefore a suit for an antitrust violation could not be brought.
In another case, Leegin Creative Leather Products, Inc. v. PSKS, Inc. (2007) the Robert’s Court overruled a 1919 case, United States v. Colgate & Co., and held that a distributor does not violate established antitrust law by setting minimum prices for retailers to sell their products. This has allowed clothing, electronic, food, and other commercial items to be priced by distributors and forced to be sold at these prices by retailers.
Additionally, the Court has recently precluded a number of antitrust suits from going forward and created new standards for litigants. This includes Credit Suisse Securities LLC v. Billing, where the Court precluded a suit against an alleged underwriting scheme, and in Bell Atlantic Corp. v. Twombly, where the Court stated that, absent some factual context suggesting agreement between the defendants in an antitrust claim to engage in conspiracy, a conspiracy complaint should be dismissed prior to the discovery phase being commenced. Furthermore, the Court ruled, allegations of parallel business conduct, taken alone, do not state a claim under 1 of the Sherman Act. These cases were striking both for their shielding of businesses from suit, but also their modification of Civil Procedure rules that have been in place for decades.
It appears by the strong majorities in some of these cases, that the pro-business attitude of the Court will continue in years to come. The only question remains how far the Court will go in overruling long established precedent in this area of law.