In April 2015, the Eleventh Circuit affirmed the FTC’s finding that McWane, Inc. had violated Section 5 of the FTC Act via exclusive dealing. McWane petitioned the Supreme Court for certiorari, and a decision on that petition is expected to be announced next Monday, March 21. While it is anyone’s guess whether certiorari will be granted, the issues raised by McWane v. FTC are crucial to businesses seeking to comply with the antitrust laws, and additional guidance from the Supreme Court would greatly benefit all antitrust practitioners.

Background

McWane is an Alabama-based ductile iron pipe fittings manufacturer. From April 2006 until late 2009, it was the only supplier of domestically-produced fittings. End users of fittings issue either “open specifications,” which permit the use of fittings manufactured anywhere in the world, or “domestic specifications,” which require the use of fittings manufactured in the United States. In 2009, Congress enacted the American Recovery and Reinvestment Act, which allocated funds to water infrastructure projects and increased the demand for domestic fittings. Soon after, another fitting supplier, Star Pipe Products, announced that it would also offer domestic fittings.

In response to Star’s announcement, McWane modified its rebate policy. Under the new policy, distributors who bought domestic fittings from companies other than McWane might lose their rebates or be cut off from purchasing McWane’s domestic fittings for up to three months. Despite the new policy, Star gained about 5% of the domestic fittings market in its first year, about 10% in its second year, and was on pace for its best year ever in its third year, though it estimated its sales would have been even greater had the rebate policy not been modified.

Both the FTC and the Eleventh Circuit found that McWane’s conduct violated the FTC Act, finding that McWane was a monopolist whose exclusive-dealing program foreclosed a substantial share of the market.

McWane now petitions the Supreme Court for certiorari, raising two questions. First, can a court find exclusive dealing unlawful when a competitor was able to successfully enter the relevant market during the time period at issue? Second, can a court find exclusive dealing unlawful when there is a “nonexclusionary business justification for the conduct”?

Question 1: Entrance by a Competitor

McWane argues that without the power to exclude new competitors from the relevant market, it is inconceivable that an alleged monopolist can control price, as new competitors can enter, sell their own products at a discount, and drive down the incumbent’s prices. McWane cites supporting cases from the Second and Ninth Circuits, arguing that these circuits have found successful entry by a competitor to refute a finding of monopoly power. Since Star was able to enter the domestic fitting markets and rapidly earn 10% of the relevant market, McWane could not have had monopoly power.

McWane therefore rejects the Eleventh Circuit’s reliance on McWane’s high percentage of market share and the allegedly “large capital outlays required to enter” the market, noting that the question is whether McWane can retain that market share in the face of entry and that Star was able to enter the market without acquiring its own foundries. McWane further rejects the Eleventh Circuit’s speculation about what would have happened if the rebate policy had not been modified, arguing that the court improperly relied on lay testimony.

In response, the FTC states that the standard requires “successful” or “substantial” entry into the domestic market and that Star had achieved neither, as Star’s entry had no constraining effect on McWane’s prices. Moreover, the FTC claimed that McWane almost immediately softened its rebate policy when the FTC announced its investigation, which reduces the probative value of Star’s increasing market share.

Additionally, the FTC rejects McWane’s characterization of the Second and Ninth Circuit case law. It argues that those cases weighed many factors in deciding that the defendant lacked monopoly power and did not rely solely on the finding that a single competitor had entered the market.

Question 2: Nonexclusionary Business Justification

McWane cites the Supreme Court decisions of Aspen Skiing Co. v. Aspen Highlands Skiing Corp. and Eastman Kodak Co. v. Image Technical Services, Inc. for the proposition that defendant need only show a “normal business purpose” or “legitimate competitive reasons” (i.e., something other than the opportunity to charge monopoly prices in the future) to defeat a monopolization claim. McWane says that the First, Seventh, Eighth, and Tenth Circuits all require nothing more than a “reasonable business justification,” while only the Third and Eleventh Circuits require an additional showing of affirmative benefit to consumers.

McWane argues that it has presented such reasonable business justifications: “(1) making efficient use of considerable excess production capacity at its Alabama foundry, and (2) limiting the likelihood that it would bear the expense of carrying a full range of pipe fittings and accessories only to have its core offerings ‘cherrypicked’ by competitors who opted to limit production to the most popular fittings.” McWane rejects the Eleventh Circuit’s characterization of these justifications as “pretextual,” arguing that contemporaneous documents that showed a desire to beat out its rival did not negate McWane’s otherwise valid business justification.

In response, the FTC states that McWane’s documents did not merely show a desire to prevail over Star. Instead, the documents revealed McWane’s fear that if Star stayed in the market, customers would demand lower prices. A desire to preserve monopoly profits are not valid business justifications.

The FTC also argues that McWane has applied the wrong legal standard. Aspen Skiing and Eastman Kodak were cases where a monopolist refused to deal with its rivals. In such cases, a mere desire to advance one’s own business interests might suffice. But here, McWane attempted to exclude a rival and therefore needed to prove a procompetitive justification for its conduct. As McWane has not claimed that its actions lowered prices, improved service or quality, or otherwise benefited consumers, McWane could not make such a showing.

Conclusion

While we wait to learn whether the Supreme Court will accept certiorari in McWane v. FTC, the briefing before the Court is a good reminder that exclusive dealing programs can cause antitrust problems for monopolists.