Volume 80, Number 5

November 2005

Exclusionary Conduct After Trinko

Frank X. Schoen

The Supreme Court’s decision in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP marks a significant doctrinal shift in the long struggle to develop standards for exclusionary conduct prohibited by Section 2 of the Sherman Act. Yet Trinko‘s incautious treatment of exclusionary conduct and its uncertain scope threaten to add more confusion to Section 2 jurisprudence. In this Note, Frank X Schoen examines the manner in which Trinko has narrowed the grounds for stating a claim for exclusionary conduct and argues that Trinko should be interpreted as signaling a doctrinal departure from traditional frameworks for determining unlawful exclusionary conduct in favor of a short-term profit-sacrifice standard. However, the doctrinal tensions within the decision itself counsel a much narrower reading than might otherwise seem appropriate. This Note concludes that Trinko must be read narrowly to apply only to unilateral refusals to deal where prior courses of dealing or dealings with third parties provide the appropriate baseline for evaluating the conduct. Limiting Trinko to these circumstances addresses the Court’s concerns regarding the identification of and remedy for illegal exclusionary conduct and, moreover, accords with the rationales underlying the Court’s deferential treatment of price competition and innovation.