Amicus Curiae Brief — Duke Energy Carolinas, LLC, et al., Petitioners v. NTE Carolinas II, LLC, et al.

No. 24-917

In the Supreme Court of the United States

DUKE ENERGY CAROLINAS, LLC, ET AL., PETITIONERS

v.

NTE CAROLINAS II, LLC, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

LUCAS CROSLOW

General Counsel

Federal Trade Commission

Washington, D.C. 20580

D. JOHN SAUER

Solicitor General

Counsel of Record

ABIGAIL A. SLATER

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

HARRY S. GRAVER

Assistant to the

Solicitor General

DAVID B. LAWRENCE

DANIEL E. HAAR

NICKOLAI G. LEVIN

PETER M. BOZZO

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly denied the

defendants’ motion for summary judgment in a case

where a rival alleged that a monopolist’s exclusionary

campaign violated Section 2 of the Sherman Act.

(I)

TABLE OF CONTENTS

Page

Statement ......................................................................................... 4

Discussion ...................................................................................... 12

A. This case is an unsuitable vehicle to announce a new

and abstract rule of antitrust law ................................... 12

B. Petitioner has not demonstrated that any other

court of appeals would have reached a different

outcome .............................................................................. 17

C. The decision below is consistent with this Court’s

precedents .......................................................................... 20

Conclusion ...................................................................................... 24

TABLE OF AUTHORITIES

Cases

Associated Press v. United States, 326 U.S. 1 (1945) ........ 20

Brooke Group Ltd. v. Brown & Williamson Tobacco

Corp., 509 U.S. 209 (1993) ................................................ 13

City of Anaheim v. Southern California Edison Co.,

955 F.2d 1373 (9th Cir. 1992) ........................................... 19

City of Groton v. Connecticut Light & Power Co.,

662 F.2d 921 (2d Cir. 1981) .............................................. 19

Continental Ore Co. v. Union Carbide & Carbon

Corp., 370 U.S. 690 (1962) ................................................ 20

Conwood Co. v. United States Tobacco Co.,

290 F.3d 768 (6th Cir. 2002), cert. denied,

537 U.S. 1148 (2003) .......................................................... 17

Dreamstime.com, LLC v. Google, LLC,

54 F.4th 1130 (9th Cir. 2022)............................................ 18

Eastman Kodak Co. v. Image Technical Services,

Inc., 504 U.S. 451 (1992) ............................................. 22, 23

EpiPen Marketing, Sales Practices & Antitrust

Litigation, In re, 44 F.4th 959 (10th Cir. 2022),

cert. denied, 143 S. Ct. 1748 (2023) ................................. 18

(III)

IV

Cases—Continued:

Page

Intergraph Corp. v. Intel Corp.,

195 F.3d 1346 (Fed. Cir. 1999) ......................................... 19

Lipitor Antitrust Litig., In re, 855 F.3d 126

(3d Cir. 2017), cert. denied, 586 U.S. 917 (2018) ........... 18

New York v. Actavis PLC, 787 F.3d 638 (2d Cir.),

cert. dismissed, 577 U.S. 1002 (2015).............................. 19

New York v. Facebook, Inc., 549 F. Supp. 3d 6

(D.D.C. 2021)...................................................................... 18

Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U.S. 438 (2009) ............................ 16, 21, 23

Standard Oil Co. v. United States, 221 U.S. 1 (1911) ........ 20

Swift & Co. v. United States, 196 U.S. 375 (1905) .............. 20

United States v. American Tobacco Co.,

221 U.S. 106 (1911) ............................................................ 20

United States v. Grinnell Corp., 384 U.S. 563 (1966) ........ 20

United States v. Microsoft Corp., 253 F.3d 34

(D.C. Cir.), cert. denied, 534 U.S. 952 (2001) ................. 18

United States v. Paramount Pictures,

334 U.S. 131 (1948) ............................................................ 20

Verizon Communications, Inc. v. Law Offices of

Curtis V. Trinko, LLP, 540 U.S. 398 (2004) ...... 13, 20, 22

Viamedia, Inc. v. Comcast Corp., 951 F.3d 429

(7th Cir. 2020), cert. denied, 141 S. Ct. 2877 (2021) ...... 18

Statute:

Sherman Act, ch. 647, 26 Stat. 209

(15 U.S.C. 2 et seq.) ........................................... 9, 12-17, 23

Miscellaneous:

Daniel A. Crane, Does Monopoly Broth Make Bad

Soup?, 76 Antitrust L.J. 663 (2010) ................................ 12

In the Supreme Court of the United States

No. 24-917

DUKE ENERGY CAROLINAS, LLC, ET AL., PETITIONERS

v.

NTE CAROLINAS II, LLC, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the petition for a writ of certiorari should be denied.1

INTRODUCTION

This appeal arises out of a campaign by an established monopolist to stop a more efficient rival from disturbing its long-dominant hold over a regional energy

market. Applying the established summary-judgment

standard, the court of appeals concluded that this exclusionary campaign did not involve competition “on the

merits,” because petitioner could not compete with respondent on the basis of efficiency. Pet. App. 38a. And

the court found that this campaign produced the very

For clarity, this brief treats the Duke Energy entities as a single

petitioner, and the NTE Carolinas entities as a single respondent.

1

(1)

2

harms the federal antitrust laws are designed to prevent—“reduced consumer choice, higher prices in the

long term, and market foreclosure.” Id. at 28a; see id.

at 54a-57a.

Taking the current record in the light most favorable

to respondent (the non-moving party), the court of appeals properly held that petitioner was not entitled to

summary judgment. That fact-bound decision does not

warrant further review. Nor is this case a suitable vehicle to announce any broader rule of antitrust law.

The beneficiary of a government grant more than a

century ago, petitioner has controlled the wholesalepower market in the Carolinas for generations. It has

maintained that position in part because many barriers

to entry exist in this industry. Power plants have high

startup costs, and “anchor” clients sizable enough to

cover those costs are rare. By dissuading such customers from switching to a potential competitor, an entrenched monopolist can prevent new entrants from

gaining a foothold in the region—without creating a better product, producing a better service, or implementing a general price cut.

The summary-judgment record would support a

finding that that is exactly what happened here. Petitioner’s older plants were “not competitive” with respondent’s plants, which used superior technology to

produce cleaner power at a far cheaper rate. Pet. App.

9a. So when respondent sought to build a new facility

in the Carolinas, petitioner sought to target the competition itself. Petitioner recognized that this new plant

would be viable only if respondent could sell power to

the City of Fayetteville, the one sizable customer in the

3

area whose contract was coming due. Petitioner therefore took a variety of steps intended to deter Fayetteville from switching to a new supplier.

Petitioner succeeded—and respondent presented

sufficient evidence for a jury to conclude that petitioner

did so through means “other than efficiency.” Pet. App.

27a. For instance, petitioner “manufactured” a “sham

breach” of an interconnection agreement to make it appear that respondent’s plant would be “unable to transmit its power.” Id. at 15a-19a, 132a. Likewise, petitioner restructured Fayetteville’s contract to give the

City a short-term discount and lump-sum payment,

which petitioner would recoup through a long-term

price hike on other customers. Id. at 45a. All told, without ever competing with respondent on the merits (i.e.,

offering a better service), petitioner was able to prevent

respondent from operating its superior facility.

The court of appeals’ interlocutory decision denying

petitioner’s summary-judgment motion does not warrant further review. The court below held that petitioner’s campaign was made up of various acts that a

reasonable jury could find to be anticompetitive. And

while petitioner may disagree with those subsidiary

holdings, it has not sought review of those highly factbound and case-specific determinations.

When a monopolist engages in a coordinated campaign to squelch competition, no circuit holds that each

discrete aspect of the defendant’s conduct must be analyzed in isolation. Instead, courts uniformly agree, consistent with this Court’s precedent, that a holistic analysis is appropriate in circumstances like these. The petition for a writ of certiorari should be denied.

4

STATEMENT

1. a. Petitioner is a government-created monopolist

that controls more than 90% of the wholesale-power

market within the Carolinas. See Pet. App. 6a, 8a. Respondent is a Florida-based company that sells wholesale power and “emerged as a threat” to petitioner’s

dominant position within that market. Id. at 140a.2

Respondent broke into the region in 2014 with a natural-gas facility in Kings Mountain, North Carolina.

Pet. App. 6a. Its facility used a “combined-cycle” process that was more efficient than petitioner’s process,

and could generate cleaner energy at a far cheaper rate.

Ibid. Starting that year, petitioner lost nine customers

to respondent. Id. at 7a.

Petitioner’s dated facilities left it unable to “chase

the price competition and earn a reasonable return.”

Pet. App. 7a. And because of petitioner’s outmoded

plants, that “[c]ompetitive disadvantage” was not “going away” anytime soon. Id. at 9a. Internal estimates

showed that petitioner’s “rates would remain much

higher than [respondent’s] through at least 2025.” Ibid.

b. In 2016, respondent announced a major expansion

project: a plant in Reidsville, North Carolina. Pet. App.

9a. Since respondent did not have its own transmission

lines, the Reidsville facility would need to use petitioner’s in order to connect to the interstate grid. Id. at

5a. Because petitioner is a vertically integrated power

company—meaning that it owns both power plants and

transmission lines, and sells to both wholesale and retail

customers—Federal Energy Regulatory Commission

Because this appeal stemmed from the district court’s grant of

summary judgment, the court of appeals properly viewed the evidentiary record in the light most favorable to respondent, the nonmoving party. See Pet. App. 26a.

2

5

(FERC) regulations required petitioner to make its

lines available to competitors. Id. at 6a. Petitioner and

respondent soon entered into a standard agreement under which respondent would pay petitioner nearly $60

million to build the interconnection infrastructure for

Reidsville, and would subsequently pay petitioner for

the right to use those lines (which petitioner would

own). Id. at 10a.

Shortly thereafter, three more of petitioner’s customers switched to respondent. Pet. App. 10a. But to

obtain sufficient scale to make the plant viable, given

the high fixed costs that power-plant operations entail,

respondent still needed to attract a sizable “anchor” client. Id. at 8a-9a, 54a. The opportunity to attract such

clients rarely arises, in part due to their size, and in

larger part because wholesale customers often enter

into long-term contracts with power suppliers. Id. at

7a-9a. For Reidsville, the only potential anchor client

was the City of Fayetteville. Id. at 8a. Fayetteville had

signed a 20-year contract with petitioner in 2012, but

Fayetteville had the option of terminating services as

early as July 2024 if it gave notice in 2020. Ibid. By

contrast, the area’s other major customers were largely

locked into long-term deals. Id. at 9a, 11a.

Losing Fayetteville was the “[l]argest customer

risk” that petitioner faced. Pet. App. 9a. The City had

been a customer for more than 100 years, had generated

massive demand for electricity, and had contributed

$100 million in annual net revenue. Id. at 8a-9a. With a

“large wholesale customer” like Fayetteville, respondent could bring the Reidsville plant online, gain a real

foothold in the region, and jeopardize even more of petitioner’s business. Id. at 9a.

6

Petitioner’s own estimates revealed that its “system

costs” were “25 to 30 percent” higher than respondent’s.

Pet. App. 12a. And the rates it charged “compare[d]

unfavorably” to respondent’s. Id. at 13a. Petitioner

therefore could not expect to retain Fayetteville’s business through “superior efficiency.” Id. at 12a.

c. Petitioner’s campaign to retain Fayetteville as a

customer instead involved exploiting existing leverage,

rather than improving its service. That campaign had

two principal components that worked in tandem: Petitioner (i) used its leverage as Fayetteville’s incumbent

power supplier to offer a short-term discount that no

competitor could match, while (ii) making respondent

appear to be an unreliable power supplier.

i. The first component was a “blend-and-extend”

scheme to restructure Fayetteville’s existing contract.

Pet. App. 13a. Although petitioner could not compete

with respondent on future pricing, petitioner was

uniquely able to offer a discount on Fayetteville’s “existing arrangement ” for the remaining period that

Fayetteville was committed to using petitioner’s services. Ibid. Petitioner proposed to cut its prices by $42

million for the period between January 2021 and June

2024. Ibid.

This proposal, however, was not a standalone price

cut. In order to receive this discount from 2021 to 2024,

Fayetteville would need to accept “ ‘higher prices than

offered by the competition’ beginning in 2024.” Pet.

App. 13a-14a (citation omitted). This “discount-now increase-later” stratagem would allow petitioner to recover much of its short-term losses later. Id. at 13a.

That was particularly so because, if the Reidsville plant

did not commence operations, petitioner planned to

“shift the cost of the discount it had offered Fayetteville

7

back to its wholesale customers and to its retail customers in the years to come.” Id. at 18a.

In combination with this revised price structure, petitioner also offered to quadruple the price it paid for

the excess power it bought from Fayetteville’s “very inefficient” Butler Warner plant. Pet. App. 8a; see id. at

14a. That price increase alone was worth $283 million.

C.A. App. 578. In total, the discount for Fayetteville’s

purchases from 2021-2024, and the price increase for

petitioner’s purchases of power from the Butler Warner

plant, amounted to an aggregate incentive for Fayetteville of $325 million—which it intended to recoup

through price increases on both Fayetteville and other

customers. Pet. App. 13a.

ii. Along with offering an incentive to Fayetteville,

petitioner also sought to hobble and discredit respondent. As noted, petitioner and respondent had entered

into an agreement allowing respondent to use petitioner’s transmission lines at Reidsville. Pursuant to

that agreement, respondent had paid petitioner $1.6

million by early 2019. Pet. App. 12a. In February 2019,

however, petitioner departed from its prior practice and

told respondent to stop sending payments until respondent received a formal invoice. Ibid. In the ensuing months, petitioner did not send an invoice; so as instructed, respondent did not send a payment. Id. at

12a-13a, 15a. During this period, petitioner’s officials

exchanged emails about how to “ruin [respondent’s]

plans” and finally “[p]ut” the Reidsville project “to

bed.” Id. at 12a.

An opportunity arose in May 2019, when respondent

suspended construction on its transmission-line work.

Pet. App. 15a. Such suspensions are “common in the

8

industry” and were “explicitly permitted” under the interconnection agreement. Ibid. But in response, petitioner sent respondent a “notice of breach” for nonpayment, “false[ly]” claiming that petitioner had sent respondent invoices that respondent had failed to pay. Id.

at 15a-16a. In their internal communications, officials

of petitioner explored whether this claim could be used

to allege a “breach!” and to “punt” respondent from its

position in the “OASIS queue”—the database that informs the public of a particular plant’s place in line for

interconnection services, which are essential for the

plant to transmit the power it produces. Id. at 16a.

Petitioner escalated these efforts over the coming

months, sending two notices of default and again falsely

claiming that respondent had failed to pay its invoices.

Pet. App. 17a. In September 2019, petitioner terminated its agreement with respondent. Id. at 18a.

Shortly thereafter, petitioner listed the Reidsville project as “canceled” in the OASIS queue, effectively telling the public (e.g., customers and investors) the plant

would be “unable to transmit its power.” Id. at 19a, 16a.

iii. In combination, these efforts doomed the

Reidsville project. Being listed as “canceled” was disastrous, because the “ability to finance” that plant had

“everything to do with ensuring” the interconnection

agreement was “intact.” Pet. App. 19a; see id. at 20a.

Ultimately, after this “sham breach,” id. at 132a, and in

the shadow of Reidsville being “still listed as ‘canceled’

in [petitioner’s] OASIS queue, [petitioner] and Fayetteville” formalized their new contract. Id. at 19a.

Petitioner nevertheless continued to target

Reidsville. See Pet. App. 55a. Foremost, when respondent applied for a state permit that was “needed to

9

construct the Reidsville plant,” petitioner sought to intervene in the state permitting proceedings “to assert

falsely that [respondent] had breached the Reidsville

interconnection agreement and to suggest that [respondent] would fail to meet its construction goals.” Id.

at 133a.

In a May 2020 declaratory order, FERC explained

that a transmission provider may not terminate an interconnection agreement over the interconnection customer’s objection, or announce that such a termination

has occurred, without first receiving Commission approval. See C.A. App. 562-564; Pet. App. 21a. By then,

however, petitioner had “already secured Fayetteville’s

business.” Pet. App. 21a. The result, according to respondent, was that petitioner “destroyed the value of

the Reidsville project,” leaving customers with “no

choice but to pay [petitioner’s] higher rates.” Id. at 22a.

Without Reidsville, what followed was “reduced consumer choice, higher prices in the long term, and market foreclosure.” Id. at 28a.

2. a. Petitioner sued respondent in state court, alleging that respondent had breached the interconnection agreement. Pet. App. 22a. Respondent removed

the case to federal court and filed counterclaims for monopolization and attempted monopolization under Section 2 of the Sherman Act, ch. 647, 26 Stat. 209 (15

U.S.C. 1 et seq.). Pet. App. 22a.

The district court granted summary judgment to petitioner on respondent’s counterclaims. Pet. App. 127a.

The court held that no reasonable jury could find that

petitioner had engaged in unlawful monopolization. Id.

at 85a, 109a. The court reviewed each part of petitioner’s campaign in isolation, found that none had violated Section 2, and concluded that “[a]dding up several

10

instances of lawful conduct cannot total unlawful conduct. In simple mathematical terms, 0 + 0 = 0.” Id. at

88a.

b. The court of appeals reversed. Pet. App. 1a-60a.

The court agreed that the district court’s “approach”

would have been “proper” if each aspect of petitioner’s

alleged anticompetitive conduct had fit within one of

this Court’s established doctrinal standards. Id. at 29a.

The court concluded, however, that if the “individual

components” of an “exclusionary campaign” do not “fit

neatly within pre-established categories,” considering

those acts in isolation would prove “too rigid.” Ibid. Rather, in those cases, “anticompetitive conduct must be

considered as a whole.” Ibid. But the court cautioned

that antitrust courts “must take care not to aggregate

acts that are procompetitive.” Id. at 32a. And it emphasized that, in protecting the “competitive process,” the

antitrust laws insulate from liability—and indeed encourage—efforts to compete on efficiency, such as by

offering a “superior product, service, or lower prices.”

Id. at 26a-27a.

Applying that framework here, the court of appeals

first held that no part of petitioner’s campaign fit this

Court’s conduct-specific standards. E.g., Pet. App. 41a42a, 46a. The court of appeals concluded that petitioner’s restructured arrangement with Fayetteville

was meaningfully different from traditional predatory

pricing, because the revised deal did not involve a

standalone price-cut, but instead involved a short-term

discount, a sizable side payment, and a “cross-subsidization plan” where other customers would help cover

any losses. Id. at 45a; see id. at 45a-46a. For that reason, the court of appeals explained that “predatory pric-

11

ing analysis cannot fully account for the more comprehensive conditions of [petitioner’s] blend-and-extend

strategy and the Butler Warner offering.” Id. at 35a;

see id. at 42a (“conclud[ing] that disputed facts persist

regarding whether the structure of [petitioner’s] offer

[to Fayetteville] was exclusionary”).

The court of appeals likewise found that this Court’s

unilateral-refusal-to-deal framework did not adequately capture petitioner’s termination of the interconnection agreement. While acknowledging that this second component of petitioner’s campaign “somewhat resembles a refusal to deal,” Pet. App. 46a, the court

viewed it more as an effort to temporarily mislead “potential customers and investors” into believing “that the

Reidsville project would not move forward.” Id. at 53a;

see id. at 46a (describing relevant conduct as “disrupting [respondent’s] placement in [petitioner’s] OASIS

queue”); id. at 51a-52a (“[A] reasonable jury could find

that [petitioner] actually instructed [respondent] not to

pay [its] bills and ultimately walked [respondent] into

an apparent breach of the Reidsville Interconnection

Agreement.”).

The court of appeals held that each part of petitioner’s campaign “independently produced anticompetitive effects,” Pet. App. 46a, because each impeded a

rival from competing on some basis other than efficiency, see id. at 35a-39a (describing the Fayetteville

deal); id. at 50a-54a (contract dispute). After analyzing

these components separately, the court of appeals concluded that they functioned as part of one “larger

scheme” to exclude a more efficient rival from the market. Id. at 54a. The court recognized that petitioner

may have valid justifications for its conduct. Id. at 54a-

12

57a. It explained, however, that this factual dispute between the parties should be resolved by a jury, not by

the court at summary judgment. Id. at 55a.

c. The court of appeals denied rehearing en banc by

an 11-2 vote. Pet. App. 129a. Judge Niemeyer, the author of the panel opinion, concurred in the denial of en

banc review, stating that further review would be a

“wasteful use of limited judicial resources” because the

lawfulness of petitioner’s conduct turned on disputes of

fact. Id. at 138a. Judge Quattlebaum dissented. Id. at

139a. In his view, the panel should have assessed petitioner’s conduct solely under this Court’s established

doctrinal standards for predatory pricing and refusals

to deal. Id. at 149a.

DISCUSSION

A. This Case Is An Unsuitable Vehicle To Announce A New

And Abstract Rule Of Antitrust Law

Petitioner asks this Court to announce a broad general rule concerning the circumstances under which

courts may aggregate conduct for purposes of Section 2

liability. This case would be a poor vehicle in which to

announce such a sweeping principle of antitrust law.

Petitioner does not precisely articulate the anti-aggregation rule that it wants this Court to adopt. The

petition asserts (Pet. 18) that when conduct “can be analyzed under an existing doctrinal test * * * the court

must apply that test.” But the court of appeals agreed

that “where the alleged conduct falls within [one of the]

well-defined categories” for which this Court has “developed [a] test[],” that test controls. Pet. App. 29a; see

Opp. 20-22; Chamber Br. 12; Daniel A. Crane, Does Monopoly Broth Make Bad Soup? 76 Antitrust L.J. 663,

668 (2010).

13

Petitioner’s core dispute with the decision below is

not over that rule, but rather its application. On petitioner’s view (Pet. 19-20; Reply 9-11), the court below

should have analyzed the restructured agreement between petitioner and Fayetteville under the predatorypricing test from Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993); and the

court should have analyzed the terminated interconnection agreement under the unilateral-refusal-to-deal

standards discussed in Verizon Communications Inc.

v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398

(2004). The court of appeals disagreed, finding that

each component of petitioner’s alleged scheme had significant features not contemplated by those frameworks. See Pet. App. 29a, 35a-36a, 41a-42a, 45a-46a,

51a-52a. That is, the court found the predatory-pricing

and refusal-to-deal standards inadequate not simply because petitioner’s scheme included two distinct components (see Pet. 19), but because “the individual components of [the scheme] do not fit neatly within pre-established categories.” Pet. App. 29a; see pp. 10-11, supra.

At least in theory, petitioner might have urged this

Court to consider each discrete aspect of petitioner’s alleged misconduct, and to determine the competitive significance of each component of the overall campaign, before reviewing the court of appeals’ approach to aggregation. But petitioner does not challenge the court of

appeals’ subsidiary holdings about the inapplicability of

this Court’s established doctrinal categories or the anticompetitive effects of the scheme’s individual components—perhaps recognizing that such fact-bound errorcorrection is not ordinarily the stuff of this Court’s review. Petitioner instead has challenged only the court

of appeals’ conclusion that petitioner’s Section 2 liability

14

will ultimately depend on the totality of petitioner’s conduct.

In places, petitioner offers (Pet. 19) a rule—which it

charges the court of appeals with violating—that if

“none of the acts challenged by the plaintiff are anticompetitive, an aggregated claim must fail.” But nothing in the decision below is inconsistent with that approach. After concluding that none of this Court’s conduct-specific tests applied, the court below found that

each of petitioner’s main exclusionary acts “independently produced anticompetitive effects.” Pet. App.

46a; see id. at 54a. In addition, the court of appeals cautioned that, “while courts must not dismember the individual acts of an exclusionary campaign when those acts

are interconnected, they also must take care not to aggregate acts that are procompetitive.” Id. at 32a. So if

the rule is that a “plaintiff must identify at least one anticompetitive act to prove a Section 2 violation,” Pet. 14,

the court below believed that it had found at least two,

in rulings that petitioner does not challenge here.

Elsewhere, petitioner suggests that a course of anticompetitive conduct cannot violate Section 2 unless one

of its component parts is sufficiently consequential to

constitute a standalone Section 2 violation. Pet. Reply

1; see Chamber Br. 6-10. But petitioner’s endorsement

of that anti-aggregation principle is not unequivocal.

For instance, petitioner concedes (Pet. 21) that aggregation can be appropriate “when a monopolist enters

into a series of contracts that each tie up a portion of the

market.” That concession appears to encompass circumstances where no individual contract—tying up 5%

of the market here, 15% there—would be a standalone

antitrust violation; only when the contracts are taken

15

together are their effects on the market sufficient to violate Section 2. Petitioner suggests (ibid.) that aggregation is appropriate only for different iterations of the

same kind of anticompetitive conduct (e.g., four exclusionary contracts of the same basic character). But it

identifies no logical rationale for limiting aggregation

analysis in that manner. If different types of anticompetitive conduct taken together restrain competition to

a much greater degree than would any single component of a defendant’s scheme, there is no sound reason

to ignore that effect in assessing the scheme’s legality.

Petitioner’s amici likewise agree that an anticompetitive scheme can violate the antitrust laws even when no

single constituent part would do so. See Crane

& Hovenkamp Br. 4. They accept that there are circumstances where “disparate conduct” should be “considered collectively.” Id. at 2. To be sure, those amici

agree with petitioner that this is not such a case, and

that the court below instead should have applied this

Court’s “conduct-based tests.” Id. at 4. But as explained, those subsidiary rulings are not challenged

here.

Although petitioner asks (Reply 2) this Court to

“make[] clear what the proper Section 2 analysis should

look like” in this case, petitioner offers no clearly defined alternative to the court of appeals’ approach.

Read literally, petitioner’s question presented (Pet. I)

appears to ask whether aggregation can ever be used to

establish Section 2 liability when no single act of the defendant constitutes a standalone violation. But petitioner does not ultimately appear to endorse a categorical no-aggregation rule. Petitioner also asserts (e.g.,

Pet. 19) that the court should have analyzed the two

principal components of petitioner’s scheme under the

16

established standards for predatory pricing and refusals to deal respectively. But petitioner does not grapple

with, or ask this Court to review, the court of appeals’

stated reasons (see pp. 10-11, supra) for finding that

those standards did not adequately capture the nature

and scope of the scheme’s individual components. Petitioner’s varying formulations of the proper aggregation

rule thus are unclear and are largely disconnected from

the facts of this case.

This Court does not typically announce general antitrust rules divorced from the specific conduct at issue;

instead, it has reviewed discrete theories of aggregation

in cases where those theories were actually asserted.

The Court’s decision in Pacific Bell Telephone Co. v.

linkLine Communications, Inc., 555 U.S. 438 (2009),

offers a good example. There, this Court reviewed a

business maneuver—the simultaneous charging of

high-but-lawful wholesale prices and low-but-lawful retail prices (i.e., a “price squeeze”)—that combined specific actions and was replicable across industries. Id. at

449. This Court’s announcement of specific rules to govern such recurring claims helps to make Section 2 litigation more predictable. But nothing in the Court’s

precedents suggests that every Section 2 claim must be

shoehorned into some pre-existing analytic category, no

matter how imprecise the fit.

The linkLine Court concluded that recognition of

“price-squeeze” claims as a potentially valid theory of

Section 2 liability would discourage “aggressive price

competition” and would leave certain firms with “no

safe harbor for their pricing practices.” 555 U.S. at 452453; see pp. 21, infra. In holding that Section 2 liability

could not be premised on the combined effect of independently lawful wholesale and retail prices, the Court

17

thus relied on the likely deleterious consequences of aggregation in that particular setting. Here, by contrast,

petitioner’s efforts to prevent respondent from competing for Fayetteville’s business involved an idiosyncratic

combination of actions that are not likely to regularly

occur, rather than any replicable behavior that lends itself to a single antitrust rule. And petitioner asks this

Court to announce a broad anti-aggregation principle

that is untethered to the specific forms of exclusionary

conduct alleged in this case.

B. Petitioner Has Not Demonstrated That Any Other

Court Of Appeals Would Have Reached A Different

Outcome

1. The circuits broadly agree about whether and

how a court adjudicating a Section 2 claim may aggregate the discrete constituent parts of a defendant’s

overall course of conduct. Across the country, courts

analyze the particular challenged acts, apply conductspecific tests where appropriate, and otherwise evaluate the alleged monopolistic conduct holistically.

In Conwood Co. v. United States Tobacco Co., 290

F.3d 768 (2002), cert. denied, 537 U.S. 1148 (2003), for

instance, the Sixth Circuit addressed a “systematic effort” by a moist-snuff monopolist to “exclude competition” from that market. Id. at 783. No single aspect of

that campaign was held to constitute a standalone Section 2 violation. Instead, the defendant’s course of conduct involved a series of interlocking efforts that included a variety of business torts (e.g., trade libel) and

exclusive-dealing arrangements. See id. at 783-784.

The court nonetheless held that the defendant had violated Section 2 through this concerted effort to extinguish “effective competition” through means other than

greater efficiency. Id. at 788.

18

Other courts of appeals have employed substantially

the same approach. In general, the “relevant inquiry”

considers “the anticompetitive effect of a defendant’s

exclusionary practices considered together.” In re Lipitor Antitrust Litig., 855 F.3d 126, 147 (3d Cir. 2017)

(brackets and citation omitted), cert. denied, 586 U.S.

917 (2018); see, e.g., Viamedia, Inc. v. Comcast Corp.,

951 F.3d 429, 452-453 (7th Cir. 2020), cert. denied, 141

S. Ct. 2877 (2021). To be sure, where courts have found

that particular conduct qualifies for a safe harbor under

one of this Court’s settled tests, they have “exclude[d]”

it from the analysis. New York v. Facebook, Inc., 549 F.

Supp. 3d 6, 47 (D.D.C. 2021) (cited at Pet. 21). Where

no such settled rule applies, however, courts have recognized that “the evidence” in Section 2 cases generally

must be “evaluate[d]” in its “totality” so that a court can

take account of any “synergistic effect” on competition.

In re EpiPen Marketing, Sales Practices & Antitrust

Litigation, 44 F.4th 959, 982 (10th Cir. 2022) (citations

omitted) (cited at Pet. 24-25), cert. denied, 143 S. Ct.

1748 (2023).

2. None of the decisions invoked by petitioner holds

otherwise. Courts have sometimes declined for casespecific reasons to consider the collective effect of a defendant’s actions. In Dreamstime.com, LLC v. Google,

LLC, 54 F.4th 1130 (2022) (cited at Pet. 24), for example,

the Ninth Circuit declined to aggregate the defendant’s

actions where the plaintiff had failed to show that any

act had affected the market to which the plaintiff had

“expressly tied” its complaint. Id. at 1143; see, e.g.,

United States v. Microsoft Corp., 253 F.3d 34, 78 (D.C.

Cir.) (per curiam) (en banc) (cited at Pet. 25), cert. denied, 534 U.S. 952 (2001). But in general, like other circuits, the Ninth Circuit holds that it is not “proper to

19

focus on specific individual acts of an accused monopolist while refusing to consider their overall combined effect.” City of Anaheim v. Southern California Edison

Co., 955 F.2d 1373, 1376 (1992).

More fundamentally, petitioner misunderstands why

courts have rejected aggregation-based arguments in

particular cases. Courts have regularly held that disconnected acts should not be added up like fractions in

an effort to cross some nebulous antitrust threshold.

Pet. 18; see Intergraph Corp. v. Intel Corp., 195 F.3d

1346, 1366-1367 (Fed. Cir. 1999) (cited at Pet. 26). But

petitioner is wrong to extend that limit on aggregation

to situations where the defendant has devised a scheme

through which separate acts are intended to work together. In that circumstance, courts consider those actions’ “synergistic effect.” City of Groton v. Connecticut Light & Power Co., 662 F.2d 921, 929 (2d Cir. 1981)

(citation omitted); see New York v. Actavis PLC, 787

F.3d 638, 654-655 (2d Cir.), cert. dismissed, 577 U.S.

1002 (2015).

3. Petitioner faults (Pet. 20) the court of appeals for

aggregating actions that purportedly are “unrelated,

except for the fact that they involve [petitioner] and [respondent].” But in fact, the court emphasized that the

disparate acts were parts of a common scheme. Viewing

the evidence in the light most favorable to respondent,

the court concluded that petitioner’s acts were designed

to work in tandem and “were executed simultaneously

and to the same effect”—i.e., to prevent respondent

from “compet[ing] to secure an anchor customer for its

Reidsville plant, thus depriving [respondent] of any

practical ability to bring the more efficient plant to market.” Pet. App. 54a. Petitioner identifies no court of

appeals decision holding that an antitrust court faced

20

with such a scheme should decline to consider the combined effect of acts that were intended to work in combination.

C. The Decision Below Is Consistent With This Court’s

Precedents

1. Anticompetitive conduct implicating the Sherman

Act can take “myriad” forms. Trinko, 540 U.S. at 414

(citation omitted). Anticompetitive acts can include

“exclusive agreement[s]” that “hamper or destroy competition,” Associated Press v. United States, 326 U.S. 1,

14 (1945), as well as “restrictive agreements,” “[p]ricing

practices,” and “acquisitions.” United States v. Grinnell Corp., 384 U.S. 563, 576 (1966). They can also involve price fixing, profit-pooling agreements, licensing

practices, and other restrictive or discriminatory conduct. United States v. Paramount Pictures, 334 U.S.

131, 141, 144-145, 149, 152-154, 156, 160-161 (1948).

An overall course of anticompetitive conduct can incorporate multifarious combinations of these diverse

exclusionary acts. When the goal is to eliminate rivals

without competing on efficiency, monopolists often seek

to pull any lever available. Antitrust plaintiffs therefore

“should be given the full benefit of their proof without

tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each.”

Continental Ore Co. v. Union Carbide & Carbon Corp.,

370 U.S. 690, 699 (1962).3

See, e.g., United States v. American Tobacco Co., 221 U.S. 106,

183 (1911) (finding Section 2 violation from combination of acquisitions, non-compete agreements, and other exclusionary acts);

Standard Oil Co. v. United States, 221 U.S. 1, 32-34, 41, 70-77 (1911)

(similar from scheme of acquisitions, exclusionary marketing, and

related practices); Swift & Co. v. United States, 196 U.S. 375, 3963

21

Contrary to petitioner’s contention (Pet. 20-21), the

Court in linkLine did not upend that longstanding approach. The Court there rejected a specific pricesqueeze theory of antitrust liability, concluding that the

costs of imposing liability on that basis would exceed

any benefit to competition. The Court explained that

recognition of price-squeeze claims might induce firms

to “raise their retail prices or refrain from aggressive

price competition,” linkLine, 555 U.S. at 452, thereby

“chill[ing] the very conduct the antitrust laws are designed to protect,” id. at 451 (citation omitted). Recognition of such claims would also force antitrust courts to

“police” the interaction of prices in two different (wholesale and retail) markets, without any judicially manageable standard for doing so, and would subvert the “safe

harbor” that prior decisions had created for firms’

“pricing practices.” Id. at 453. Given those hazards, the

linkLine Court declined to accept “a new form of antitrust liability never before recognized by this Court.”

Id. at 457.

While the linkLine Court observed that “[t]wo

wrong claims do not make one that is right,” 555 U.S. at

457, its analysis focused on the specific “wrong claims”

at issue; the Court did not broadly condemn holistic

analysis in principle. Rather, in addition to identifying

the drawbacks described above, the Court noted the apparent absence of “any independent competitive harm

caused by price squeezes above and beyond the harm

that would result from a duty-to-deal violation at the

wholesale level or predatory pricing at the retail level.”

Id. at 455. By contrast, where a scheme consists of multiple anticompetitive parts that do have such synergistic

398 (1905) (finding unlawful attempt to monopolize from total effect

of a “single plan”).

22

effects—and do not otherwise qualify for an antitrust

safe harbor—nothing in linkLine bars an antitrust

court from looking at that conduct holistically. See Pet.

App. 29a, 137a-138a.

2. Viewing the summary-judgment record in the

light most favorable to respondent, the court of appeals

correctly concluded that neither of the main parts of petitioner’s exclusionary campaign fit one of this Court’s

conduct-specific tests, and that both produced anticompetitive effects, since each impaired competition on

some basis other than efficiency. See Pet App. 27a. Indeed, the summary-judgment record revealed that petitioner could not compete with respondent “on the merits,” because its plants were outmoded and its product

more expensive. Id. at 52a. And a jury could reasonably

find that, in staving off a more efficient rival, petitioner’s “single campaign” against Reidsville produced

quintessential antitrust harms—“reduced consumer

choice, higher prices in the long term, and market foreclosure.” Id. at 28a, 32a.

“Antitrust analysis must always be attuned to the

particular structure and circumstances of the industry

at issue.” Trinko, 540 U.S. at 411. And the actions of

existing monopolists should be viewed with a “special

lens.” Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 488 (1992) (Scalia, J., dissenting). Faithful to those principles, the court below recognized that a holistic analysis was especially warranted here. Petitioner is a government-created monopolist; it controls a market where economies of scale

impede entry by newcomers unless an “anchor” client

can cover startup costs; and petitioner benefits from industry-standard contracts that lock up those clients for

23

long periods. Pet. App. 54a. Given that dynamic, a monopolist may seek to preserve its position by picking off

a nascent competitor’s potential anchor clients as they

emerge, without creating a better product or lowering

overall prices. The summary-judgment record here reflects that sort of exclusionary conduct.

3. Petitioner asserts (Pet. 2) that the decision below

jeopardizes the “clear rules” that otherwise govern Section 2 claims. That criticism is misconceived. Although

this Court has “emphasized the importance of clear

rules in antitrust law,” linkLine, 555 U.S. at 452, it has

never insisted that all allegedly anticompetitive conduct

must be analyzed under one of the Court’s existing

tests. See, e.g., Kodak, 504 U.S. at 463 n.8 (declining to

assess challenged sales practice under “unilateral refusal to deal” framework). And as explained above, petitioner does not ask this Court to review any of the

court of appeals’ subsidiary holdings that particular aspects of petitioner’s scheme were anticompetitive and

did not fall within any established doctrinal category.

The decision below is appropriately confined. The

court of appeals did not endorse a novel theory of liability that would require courts to systematically “police”

prices. linkLine, 555 U.S. at 453. Nor did it create a

“duty to deal” that would substantially impair businesses’ freedom to choose their contracting partners.

Trinko, 540 U.S. at 415. Instead, it applied the bedrock

definition of anticompetitive conduct—i.e., action that

excludes competition on some basis other than efficiency—to an “atypical exclusionary campaign” waged

by a conceded monopolist. Pet. App. 29a. If that campaign simply involved “lower prices” and “hard-nosed

competition,” petitioner should ultimately prevail at

24

trial. Pet. 4, 7. But in applying settled law to the summary-judgment record here, the court of appeals correctly held that a jury should make that determination.

See Pet. App. 55a-57a.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

LUCAS CROSLOW

General Counsel

Federal Trade Commission

DECEMBER 2025

D. JOHN SAUER

Solicitor General

ABIGAIL A. SLATER

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

HARRY S. GRAVER

Assistant to the

Solicitor General

DAVID B. LAWRENCE

DANIEL E. HAAR

NICKOLAI G. LEVIN

PETER M. BOZZO

Attorneys