On October 21, 2019, the U.S. Supreme Court declined to review a Ninth Circuit decision that badly erodes modern antitrust law’s focus on consumer welfare. A California federal jury was told that the defendant before it violated the antitrust laws if its only purpose, in refusing further dealings with the plaintiffs, was to harm a competitor. The Ninth Circuit approved this instruction even though the jury, by following it, could stand an antitrust violation solely on the defendant’s subjective intent. But when a business’s conduct is scrutinized under the antitrust laws, WLF explained in an amicus curiae brief urging review, what matters is not what the business intended in theory, but what its conduct accomplished in reality. It is precisely by setting out to harm a rival, in fact, that a business often ends up doing the most good for consumers and society at large.


WLF cert-stage brief