Gorsuch May Share Scalia's Antitrust Skepticism Absent Clear Conduct, 2 Attorneys Say

evidence of anti-competitive conduct," they wrote in a commentary. "His likely successor appears to possibly hold similar views of the antitrust laws, ostensibly applying the Sherman Act to avoid replacing procompetitive, free-market behavior with judicially imposed, anti-competitive fiat, based on the record presented." President Donald Trump tapped Gorsuch of the 10th U.S. Circuit Court of Appeals to fill Scalia's Supreme Court seat (see 1702010028). "Gorsuch has a long and storied background in antitrust work" as a clerk for Justices Byron White and Anthony Kennedy, in private practice, and at the 10th Circuit, Hittinger and Herrold wrote. "Perhaps Gorsuch's most significant antitrust decision was Novell v. Microsoft" in 2013, they wrote, noting the case arose out of Microsoft’s development of the popular Windows operating system and related applications, which competed with the applications of other vendors. They said Gorsuch’s opinion, affirming a U.S. district court ruling, "offers an incisive critique of the over-application of antitrust law." He "rejected the argument that Microsoft had to provide Novell with its intellectual property in order to avoid harming Novell’s marketing position. Such a judicially created edict, he explained, would 'paradoxically risk encouraging collusion between rivals and dampen price competition -- themselves paradigmatic antitrust wrongs,'" they wrote. Gorsuch also didn't believe in "forcing monopolists to hold an umbrella over inefficient competitors" that "leaves consumers paying more for less," and he voiced anxiety over courts making legislative-like decisions about competitors, they wrote.