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Supreme Court Nominee Neil Gorsuch on Antitrust
Practical Law Legal Update w-005-6770 (Approx. 3 pages)
Supreme Court Nominee Neil Gorsuch on Antitrust
by Practical Law Antitrust
| Published on 01 Feb 2017 • USA (National/Federal) |
On January 31, 2017, President Trump announced Judge Neil Gorsuch as his nominee to take Justice Antonin Scalia's place on the US Supreme Court. Judge Gorsuch currently sits on the US Court of Appeals for the Tenth Circuit. This Legal Update summarizes several of Judge Gorsuch's notable antitrust decisions.
On January 31, 2017, President Donald Trump announced Judge Neil Gorsuch as his nominee to replace Justice Antonin Scalia on the US Supreme Court. Judge Gorsuch, currently of the US Court of Appeals for the Tenth Circuit, is a visiting professor of ethics and antitrust law at the University of Colorado Law School and has issued several antitrust opinions. Judge Gorsuch's antitrust opinions include:
- Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, 582 F.3d 1216 (10th Cir. 2009): Writing for a three-judge panel, Judge Gorsuch affirmed a district court holding that:
- a hospital had no duty to deal with a rival physician demanding access to the hospital's nephrology facilities; and
- the hospital did not have monopoly power or the dangerous probability of achieving it, as approximately 70% of its business was from government payers for whom the hospital could not set prices and there was no evidence that the hospital had the ability to set prices for its other patients; and
- there was no evidence that the hospital sacrificed short-term profits in refusing to deal with the competing physician, which would have been an indicator that the hospital's actions were anticompetitive.
- Kay Electric Cooperative v. City of Newkirk, 647 F.3d 1039 (10th Cir. 2009): Writing for a three-judge panel, Judge Gorsuch held that a municipality was not protected by state action immunity against allegations that it unlawfully tied its electricity services to sewage services in a bid to serve a newly-constructed prison. Judge Gorsuch reasoned that the state did not authorize the defendant's anticompetitive conduct because:
- when it granted defendant's traditional corporate charter, it was not foreseeable that the municipality would act anticompetitively;
- even if some anticompetitive conduct by the municipality was expected, that does not condone all forms of anticompetitive conduct; and
- the state legislature expressed a preference for, not against, competition in the electricity market.
- Novell, Inc. v. Microsoft Corp., 731 F.3d 1064 (10th Cir. 2013): Writing for a three-judge panel, Judge Gorsuch held that the defendant's refusal to deal with its competitor, after having previously dealt with the competitor, did not constitute a violation of Section 2 of the Sherman Act for unlawful maintenance of monopoly power. Judge Gorsuch reasoned that there was no evidence that defendant sacrificed short-term profits in discontinuing its relationship and refusing to deal with its competitor.
There is no timeline for confirmation hearings for Judge Gorsuch, but Senate Republicans hope to have him confirmed in time to hear the last cases of this Supreme Court's term.