Today, companies looking to merge with others across jurisdictions would do well to consider antitrust issues at the beginning of the transaction process; regulatory antitrust challenges to M&A are increasing globally. On Corporate Counsel, McDermott partners Jon B. Dubrow and Joel R. Grosberg discuss six risks to deals from antitrust regulators, such as vertical merger enforcement changes at the US DOJ, and ways to manage them.
On January 31, 2017, President Trump nominated Neil Gorsuch to fill the vacant seat at the Supreme Court of the United States left by the late Justice Antonin Scalia. As a federal judge for the US Court of Appeals for the Tenth Circuit, a former private practitioner, and an adjunct professor of antitrust law at the University of Colorado, Gorsuch has an extensive background in antitrust.
In 1996, Gorsuch joined the law firm Kellogg Huber Hansen Todd Evans & Figel, where his practice included both plaintiff and defense litigation in antitrust matters. Gorsuch and his co-counsel helped secure a judgment of $1.05 billion in trebled damages for tobacco company Conwood Co. after a jury found that defendant United States Tobacco Co. engaged in anticompetitive marketing practices. Gorsuch also defended telecommunications company SBC Communications, Inc. during his tenure at Kellogg when a rival company alleged that SBC set forth an illegal tying arrangement. The US District Court for the Eastern District of Texas dismissed the tying count in 2004.
President George W. Bush appointed Gorsuch to the US Court of Appeals for the Tenth Circuit in 2006. In this role, Gorsuch authored several antitrust decisions. In 2009, Gorsuch wrote Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, 582 F.3d 1216 (10th Cir. 2009), where he held that a hospital’s refusal to allow a physician to use its inpatient nephrology facilities did not violate the Sherman Act or Colorado law. In 2011, Gorsuch reversed a district court’s ruling in Kay Electric Cooperative v. City of Newkirk, Okla., 647 F.3d 1039 (10th Cir. 2011) after finding that a municipality’s electricity provider was not immune from antitrust liability under the state action immunity doctrine.
In 2013, Gorsuch authored his most well-known antitrust opinion, Novell v. Microsoft Corp., 731 F.3d 1064 (10th Cir. 2013). In this case, plaintiff Novell accused Microsoft of maintaining monopoly power over its operating systems by withholding intellectual property from rival software developers. Gorsuch determined that Microsoft’s purely unilateral conduct did not violate the Sherman Act and that “[f]orcing monopolists to hold an umbrella over inefficient competitors might make rivals happy but it usually leaves consumers paying more for less.” Id. at 1072 (internal citations omitted).
With background in representing plaintiffs and defendants and deciding cases in favor of both sides, Gorsuch’s policies about antitrust laws are not entirely clear. However, in his most recent and well-known case, Novell v. Microsoft, Gorsuch stated “[t]he antitrust laws don’t turn private parties into bounty hunters entitled to a windfall anytime they can ferret out anticompetitive conduct lurking somewhere in the marketplace.” Id. at 1080. This language may indicate a preference for a less interventionist approach to competitor conduct relating to its intellectual property.
With an extensive antitrust background, it will be interesting to see whether the Senate ultimately confirms Gorsuch (they did so eleven years ago unanimously) and, if so, whether antitrust issues reach our nation’s highest court.