By Steven Cernak, a Partner with Bona Law PC in its Detroit, MI office who practiced antitrust law in-house with General Motors for over 20 years.

Since at least 1919, U.S. courts have acknowledged “the long recognized right [of even a monopolist] freely to exercise his own independent discretion as to parties with whom he will deal.”1  The U.S. Supreme Court most recently found an exception to that “long-recognized” right in 1985’s Aspen Skiing opinion2; however, that opinion was narrowed, but not overturned, by the Court itself as being “at or near the outer boundary of [Sherman Act] §2 liability.”3  Since then, lower courts have struggled to define if a monopolist can ever be liable for monopolization for a “refusal to deal” with a rival and, if so, the elements that must be alleged and proven.

Last month, the Seventh Circuit in Viamedia Inc. v. Comcast Corp.4 found that such refusal-to-deal claims can still be successfully alleged under Sherman Act Section 2 if plaintiff’s allegations mirror those in Aspen Skiing closely enough.  If it stands, the opinion will make it much more difficult for monopolist defendants to dismiss such claims and avoid lengthy and expensive discovery.