Gabriel on Trinko After Linkline

Josh Wright —  19 March 2009

Manfred Gabriel (Antitrust Review) writes that Linkline extends the reach of Trinko in some important ways:

The opinion of the court in Linkline, Chief Justice Roberts writes that Trinko:

… makes clear that if a firm has no antitrust duty to deal with its competitors at wholesale, it certainly has no duty to deal under terms and conditions that the rivals find commercially advantageous. … The nub of the complaint in both Trinko and [Linkline] are identical—the plaintiffs alleged that the defendants (upstream monopolists) abused their power in the wholesale market to prevent rival firms from competing effectively in the retail market. Trinko holds that such claims are not cognizable under the Sherman Act in the absence of an antitrust duty to deal.

This re-interpretation of Trinko, extends Trinko in significant ways. First, the specific application to the telecommunications industry and its regulatory scheme is gone; Trinko á la Linkline is broadly applicable to any vertically-integrated upstream monopolist. Second, the holding is no longer confined to an extension of the antitrust laws, but reaches all of §2 (hence the possibility of a slippery slope, as Hanno pointed out). Finally, the presence and effectiveness of a regulatory scheme, which provides a regulatory duty to deal and which may or may not address abuses of market power, has been taken out of the equation: the only thing that matters now is the absence of an antitrust duty to deal. And we know from Trinko that antitrust duties to deal probably don’t exist except perhaps under Aspen Skiing, that is in the case of prior business relationships discontinued for no good reason other than exclusion of a rival.

Read the whole thing.