United States: The Senate's Uneventful Gorsuch Confirmation Hearing

Recently, we discussed in prior articles the antitrust legacy of Neil Gorsuch, currently a judge on the U.S. Court of Appeals for the Tenth Circuit and nominee for the Supreme Court of the United States. Gorsuch has significant antitrust experience, both in private practice and on the bench. While at Kellogg, Huber, Hansen, Todd, Evans & Figel, Gorsuch defended "Baby Bell" SBC Communications, a company formed after the Federal Trade Commission's breakup of AT&T, and prosecuted (to a jury verdict) what is widely considered to be one of the largest private antitrust awards in Conwood v. United States Tobacco. As a judge on the Tenth Circuit, Gorsuch has written several high-profile antitrust opinions, among them Novell v. Microsoft, a case in which the Tenth Circuit concluded Microsoft had no duty under the Sherman Antitrust Act to share its intellectual property with rival software-developer Novell. Indeed, during Gorsuch's four-day Senate confirmation hearing last week, Democratic Sen. Amy Klobuchar called Gorsuch as an antitrust expert.

Despite Gorsuch's antitrust experience, the 20 senators on the Judiciary Committee gave Gorsuch a virtual pass on his antitrust views after two days of testimony. Only one senator asked him any antitrust-related questions during a few short minutes of his over 20 hours of testimony. In the one isolated instance, Sen. Klobuchar questioned Gorsuch about: the uptick in merger reviews by the Federal Trade Commission and the Department of Justice, the president's comments about the proposed merger of AT&T and Time Warner, a 2008 Department of Justice report on monopolization and the Federal Trade Commission's criticism (as Klobuchar put it) of that report as "too lenient on monopolization, which would hurt consumers," and recent Supreme Court decisions that "have made antitrust enforcement too difficult." She also asked Gorsuch about pay-for-delay cases, "where prescription drug companies actually pay generic drug companies to keep their cheaper drugs out of the market."

Perhaps as the best example of the cursory softball questioning and not particularly elucidating responses from the nominee, Klobuchar asked Gorsuch for his thoughts on recent Supreme Court decisions that have made it difficult to enforce the federal antitrust laws, Gorsuch responded with a rather formulaic explanation of the dangers of monopolies: "Well, the real problem at the end of the day is ... lack of competition between competitors. And then of course that filters down to the consumer level. And what that yields are higher prices and lower output, a dead-weight loss to the economy, a loss of production." Klobuchar then asked Gorsuch about his views on Federal Trade Commission v. Activis, where the Supreme Court's seminal decision adopted a rule-of-reason standard in reviewing pharmaceutical pay-for-delay arrangements. Gorsuch ducked the Activis question, explaining instead, "one lesson we've learned in antitrust law over the years is to be cautious about per se rules either direction before you have some experience. And that you learn from—from the economics as you go." On Klobuchar's question regarding the Department of Justice's 2008 important report on monopolization, Gorsuch ostensibly refused to answer: "Oh, senator, I—there's no way you're gonna get me to," at which point Klobuchar just changed the subject. On what might have been a more revealing path, no questions were asked of Gorsuch about his prior antitrust experiences in private practice, including his successful work in the Conwood case where he truly represented a little guy "David" against a big guy "Goliath" competitor who had used multiple predatory tactics against his client.

Even when Klobuchar asked Gorsuch about his significant decision in Novell v. Microsoft, which we covered in our February column, Gorsuch simply replied that he had "attempted to apply the Supreme Court's teaching in Trinko and Aspen Skiing ... as faithfully as he could." Of course, that is not to say that Gorsuch's statement was inaccurate. Indeed, his Novell decision drew heavily on the Supreme Court's decisions in Aspen Skiing v. Aspen Highlands Skiing, 472 U.S. 585 (1985), and Verizon Communications v. Law Offices of Curtis V. Trinko, 540 U.S. 398 (2004). But as with all Gorsuch's answers, it failed to reveal his own antitrust jurisprudence.

In Aspen Skiing, the Supreme Court was called on to decide whether Aspen Skiing, a monopolist in the Aspen downhill skiing market, violated Section 2 of the Sherman Act by refusing to deal with its competitor, Aspen Highlands. Aspen Skiing (which owned three out of four ski slopes in the area at the time) had, for a number of years, agreed with Aspen Highlands (which owned the fourth slope) to offer customers an all-access pass to both companies' slopes. Years into the arrangement, Aspen Skiing pushed Aspen Highlands to accept an increasingly lower percentage of the profits from the joint venture. According to Justice Paul Stevens, Aspen Skiing's offer was "considerably below Aspen Highlands' historical average profit based on usage." When Aspen Highlands rejected the unfavorable offer, Aspen Skiing refused to participate in the venture any longer, causing significant financial harm to the Aspen Highlands.

In concluding that Aspen Skiing violated Section 2 of the Sherman Act, Justice Stevens (who, like Gorsuch, practiced antitrust law and tried cases before joining the bench) explained that, while the Sherman Act generally does not oblige a company to deal with its competitors, Aspen Skiing's conduct was clearly anticompetitive. Initially, because Aspen Skiing had participated in the all-access pass for a number of years, "its decision to terminate the all-access pass was ... a decision by a monopolist to make an important change in the character of the market." Moreover, Aspen Skiing's decision resulted in a lower quality of service—evidence adduced at trial showed that skiers preferred the convenience and flexibility of the all-access pass. Finally, Aspen Skiing failed to prove at trial that its conduct was "justified by any normal business purpose." Justice Stevens noted that Aspen Skiing's decision did not make financial sense, at least in the short term, because there was evidence that the all-access pass provided significant financial benefits over an unbundled pass. Therefore, Stevens concluded, the jury could have concluded that Aspen Skiing "elected to forgo these short-run benefits because it was more interested in reducing competition in the Aspen market over the long run."

In Trinko, the Supreme Court considered whether Aspen Skiing extended to the highly regulated telecommunications industry. Pursuant to the Telecommunications Act of 1996, Verizon Communications, a communications company classified as an incumbent local exchange carrier, was required to share its communications network with competitors, giving them equal access on an "unbundled basis." When Verizon allegedly failed to meet its obligations, the FCC opened an investigation and eventually signed a consent decree with Verizon subjecting it to "new performance measurements and new reporting requirements ... with additional penalties for continued noncompliance." In Trinko, however, the late Justice Antonin Scalia writing for the majority of the court concluded that Verizon's failure to provide open access to competitors did not violate the Sherman Act, noting that the Aspen Skiing decision "is at or near the outer boundary of Section 2 liability." Distinguishing Aspen Skiing's conduct from Verizon's, Scalia explained that Verizon had not voluntarily agreed to deal with its competitors in the first place. Rather, the Telecommunications Act of 1996 mandated that it share its network with others. Moreover, the court noted that Verizon's actions, while potentially unlawful under the Telecommunications Act, made rational business sense because sharing a network with competitors was considerably expensive and ostensibly provided no benefit to Verizon. In sum, Trinko clarified the scope of refusal to deal cases by requiring: a voluntary course of dealing between rivals and "the unilateral termination of that ... course of dealing in a manner that suggests a willingness to forsake short-term profits to achieve an anticompetitive end."

What can be said, but was not pressed in the committee hearings, is that Judge Gorsuch's application of Aspen Skiing to his decision in Novell v. Microsoft closely followed Scalia's reasoning in Trinko. In Novell, he acknowledged that Microsoft had, in the past, maintained a cooperative relationship with Novell. In fact, Microsoft had "freely offered its ... rivals, including Novell, access to its software." Therefore, Novell met the first prong of Aspen Skiing, as applied in Trinko. But Novell proffered "no evidence from which a reasonable jury could infer that Microsoft's discontinuation of [its relationship with Novell] suggested a willingness to sacrifice short-term profits, let alone in a manner that was irrational but for its tendency to harm competition." Therefore, Gorsuch concluded, Novell failed to prove that Microsoft's refusal to deal was anticompetitive.

Gorsuch's testimony that he has "attempted to apply the Supreme Court's teaching ... as faithfully as he could" is, to a large extent, an accurate assessment of his jurisprudence to date. As a judge of the Tenth Circuit, he was obligated to apply the standards handed down in Aspen Skiing and Trinko. But as a Supreme Court justice, he may have the opportunity to leave his own mark on the antitrust laws, as did Justice Stevens. Notwithstanding the Senate Judiciary Committee's failure to peg Gorsuch on the significant and pressing antitrust issues confronting consumers and facing Corporate America, the Senate has scheduled a vote for April 7. Stay tuned.

Reprinted with permission from the March 31, 2017 issue of The Legal Intelligencer. Copyright 2017. ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.