Antitrust Queries Expected at Gorsuch Supreme Court Hearing

Stay current on the latest developments from agencies including the CFPB, Federal Reserve, FDIC, and OCC to advise clients on real-life regulatory situations.

By Liz Crampton

Supreme Court nominee Neil Gorsuch’s views on antitrust are likely to come up at his Senate confirmation hearing, providing clues on how the circuit judge may rule on antitrust cases if he is confirmed.

Gorsuch’s significant antitrust paper trail gives a rare chance for competition issues to take center stage during a Supreme Court confirmation proceeding. It’s also a topic of interest to him. Gorsuch has recently taught antitrust law at the University of Colorado, Boulder.

Sen. Amy Klobuchar (D-Minn), the ranking member of the Senate Judiciary Committee’s antitrust subcommittee, has said she plans to question Gorsuch about recent Supreme Court decisions that “have raised barriers to the pursuit of antitrust cases.”

Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit, has handled antitrust cases while working in private practice and authored opinions on issues such as exclusive dealing.

The hearing is expected to cover a wide variety of topics. Senators on the committee have also said they will focus their questions on Gorsuch’s controversial rulings on workers rights and access to contraception.

Opening statements from committee members and Gorsuch are slated for March 20, and questioning of the judge will begin on March 21. The hearing is expected to last three to four days.

‘Antitrust Expert.’

Klobuchar has criticized recent Supreme Court antitrust decisions, hinting at what she might ask Gorsuch.

“For the last few decades, however, Supreme Court cases -- like Trinko, Credit Suisse, Leegin, among others -- have raised barriers to the pursuit of antitrust cases,” Klobuchar said at a March 13 event at the Center for American Progress. These cases involved different legal questions, but they all narrowed the scope for bringing antitrust claims.

“As Judge Gorsuch is an antitrust expert, it’ll be a good thing to pursue with him next week,” Klobuchar said.

Disagreement Among Antitrust Advocates

Daniel Goldman, a partner at Kramer Levin Naftalis & Frankel LLP in New York, said he expects Gorsuch will play it safe. “I suspect if he’s pressed, he’ll say it depends on the facts of the case and he’ll uphold the law as he sees it,” Goldman said. “I would be surprised if he takes the position he’s going to overturn decades of Supreme Court precedent. I think he’ll be very careful.”

Goldman, along with 15 other antitrust attorneys that represent plaintiffs, signed a March 7 letter to Judiciary Committee leaders in support of Gorsuch. It said, “We are confident that Judge Gorsuch will judge cases fairly and capably, and should be confirmed.”

But the American Antitrust Institute, a group advocating for rigorous antitrust enforcement, parts company with Goldman and his co-signatories. AAI has warned that Gorsuch could be disastrous for private enforcement of antitrust rules, particularly by making it more difficult for plaintiffs to bring class actions.

In a statement, AAI General Counsel Randy Stutz said Gorsuch’s record “largely fits a conservative mold,” which signals a hands-off approach to enforcement.

“The president’s nominee, if confirmed, can be expected to restore a dynamic very familiar to antitrust litigants, namely a 5-4 conservative majority with Justice [Anthony] Kennedy casting the ‘swing vote,’” Stutz’s statement said.

‘Both Sides.’

A former colleague of Gorsuch says it’s not accurate to argue that the nominee is in favor of big business or monopolies. He has represented plaintiffs, defendants, individuals, not-for-profits and corporations, said Steven Benz, a litigation partner at Kellogg, Hansen, Todd, Figel & Frederick, PLLC, Gorsuch’s former firm.

“He has experience on both sides of the ‘v’,” Benz said, using a legal term of art that refers to the divide between plaintiffs and defendants.

Benz said Gorsuch has “experience seeing antitrust litigation from beginning to end. He’s going to be the only justice up there who’s been in the district court litigation trenches. That’s great because he’s bringing diversity to the bench in antitrust.”

Gorsuch’s biggest antitrust victory in private practice came when he was the number two lawyer representing Conwood Co. LP, a moist snuff tobacco manufacturer, which sued U.S. Tobacco for antitrust violations. A jury awarded Conwood $350 million in damages, which was trebled under federal antitrust law to more than $1 billion and is considered to be the biggest antitrust judgment ever.

On the bench, Gorsuch wrote an opinion on a finding a Durango, Colo. hospital didn’t have to share facilities with its competitors ( Four Corners Nephrology Associates, P.C. et al v. Mercy Medical Center, 1:05-cv-02084, 2/10/10 )

In 2013, he rejected software company Novell Inc.’s antitrust suit against Microsoft Corp. Novell, the publisher of WordPerfect, which argued that Microsoft violated antitrust laws when it stopped offering certain features of Windows 95 ( Novell v. Microsoft Corporation, 10th Cir., 12-4143, 9/23/13 )

To contact the reporter on this story: Liz Crampton in Washington at lcrampton@bna.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Antitrust on Bloomberg Law