On December 4, 2024, WLF asked the Ninth Circuit to reverse a trial court’s controversial verdict and sweeping injunction in a major antitrust case. In its amicus brief supporting Google, WLF argues that under prevailing law, a business—even an alleged monopolist—may choose with whom it transacts. Exceptions are rare. The Supreme Court has never endorsed a remedial duty to deal where there is no prior course of dealing. For without a prior course of dealing, there can be no evidence that a particular course would be profitable, no reason to infer that the monopolist’s otherwise lawful refusal was unjustified, and no prior terms to guide the court in determining what terms to impose on competitors. Not only would courts become “central planners”—something antitrust law seeks to avoid—but worse, they would be centrally planning on a blank slate.
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