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Comcast Corporation, et al. v. Viamedia, Inc.

Paid petition · United States Court of Appeals for the Seventh Circuit, No. 18-2852 · judgment February 24, 2020

Certiorari denied · June 28, 2021
Pre-decision estimate: 12% cert probability (95% interval 7%–20%)

Before the decision, about 3× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition), and down for a business respondent.

Question presented

In Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), the Court recognized a “limited exception” to the rule that unilateral refusals to deal with a rival are not actionable under § 2 of the Sherman Act. Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 409 (2004). That exception is not available, and a refusal-to-deal claim fails, when there is “any efficiency justification” for the refusal. Aspen, 472 U.S. at 608. Moreover, an antitrust plaintiff may not circumvent the “reasoning of Trinko” by bringing an alternative § 2 claim that is premised on a lawful refusal to deal. Pac. Bell Tel. Co. v. Linkline Commc’ns, Inc., 555 U.S. 438, 450 (2009). The questions presented are:

  1. whether the Seventh Circuit erred in holding that a refusal-to-deal claim under § 2 of the Sherman Act may proceed despite the presence of valid business justifications for the refusal, in direct conflict with Trinko and decisions of the Second, Ninth, Tenth, and Eleventh Circuits; and

  2. whether the Seventh Circuit erred in allowing a plaintiff to avoid the limitations on a § 2 refusal-todeal claim by reframing it as some other form of anticompetitive conduct, such as tying, in direct conflict with Linkline and decisions of the Fourth, Ninth, and Tenth Circuits.

Counsel of record

For petitioner
Miguel A. Estrada
Gibson, Dunn & Crutcher LLP

For respondent
Aaron M. Panner
Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.

Case

Conference history
Distributed for 2 conferences

Amicus briefs
5 cert-stage

Proceedings

  1. Jun 28 2021
    Petition DENIED. Justice Barrett took no part in the consideration or decision of this petition.
  2. Jun 08 2021
    DISTRIBUTED for Conference of 6/24/2021.
  3. Jun 07 2021
    Supplemental brief of petitioners Comcast Corporation, et al. filed. (Distributed)
  4. May 25 2021
    Brief amicus curiae of United States filed.
  5. Dec 07 2020
    The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States. Justice Barrett took no part in the consideration of this petition.
  6. Nov 17 2020
    DISTRIBUTED for Conference of 12/4/2020.
  7. Nov 16 2020
    Reply of petitioners Comcast Corporation, et al. filed. (Distributed)
  8. Nov 03 2020
    Brief of respondent Viamedia, Inc. in opposition filed.
  9. Oct 13 2020
    Brief amicus curiae of The Chamber of Commerce of the United States of America filed.
  10. Oct 13 2020
    Brief amicus curiae of Washington Legal Foundation filed.
  11. Oct 13 2020
    Brief amici curiae of Scholars of Economics and Antitrust filed.
  12. Oct 13 2020
    Brief amicus curiae of NCTA - The Internet & Television Association filed.
  13. Oct 02 2020
    Motion to extend the time to file a response is granted and the time is extended to and including November 12, 2020.
  14. Sep 30 2020
    Motion to extend the time to file a response from October 13, 2020 to November 12, 2020, submitted to The Clerk.
  15. Sep 24 2020
    Blanket Consent filed by Petitioner, Comcast Corporation, et al.
  16. Sep 04 2020
    Petition for a writ of certiorari filed. (Response due October 13, 2020)