The LinkLine holding is not particularly surprising. Trinko applies at the wholesale level and Brooke Group at the retail level.

1. Wholesale — If there is no antitrust duty to deal in the first place, then the upstream firm may charge whatever price it wants. In fact, Roberts is pretty clear about the fact that the upstream firm can put the downstream competitor out of business in a number of ways: stop selling, higher prices, crummy service, etc. It all depends on whether there is an antitrust duty to deal. Here, there isn’t. (See FN.2)
2. Retail — Downstream pricing can only be an antitrust violation if it satisfies the (i) below cost and (ii) recoupment prongs of Brooke Group, which LinkLine doesn’t.

What’s interesting about LinkLine is not so much what it says (aside from some very quotable language), but what it doesn’t address. Unlike Scalia in Trinko who went out of his way to address and limit the application of essential facilities and duties to deal in general, LinkLine is silent on what exactly constitutes the all important duty to deal. Roberts cites Aspen as one source of a duty to deal, and then quotes Areeda’s “Epithet” article but only for the limited and rather uncontroversial proposition that “court’s shouldn’t be rate regulators, etc.”, which he then proceeds to discuss for about a page and a half.

So LinkLine (unlike Trinko) is a rather disciplined and limited decision, only applying (a moderate interpretation of) Trinko and Brooke Group to a set of facts that involves both elements. The only “novelty” is the disaggregation of a price squeeze claim in an upstream duty to deal and a downstream predatory pricing claim. The key question, however, has been left open: What constitutes a duty to deal?

A somewhat different question is whether Roberts’ consistent application of the “lesser included” argument, i.e., if you don’t have to sell at all, then whatever else you do to your buyer (price, quality, delay, etc.) can’t be an antitrust violation, may turn out to be a slippery slope. This line of reasoning is, of course, prominent in the IP context. As long as a firm stays within the scope and duration of the patent grant, it is all but immune from antitrust challenge (Fed. Cir, DOJ). I wonder what this will do, over time, to tying. In a tying case, one almost never has a duty to deal in the first place. The offense is conditioning the sale on the purchase of other stuff. In fact, the “lesser included” reasoning may well be extended to vertical restraints in general, all of which have some form of conditioning attached to them (I’ll sell you my stuff, but only if (i) you don’t resell it in California; (ii) you don’t sell anyone else’s stuff, etc.). Extrapolating from LinkLine, one might argue that as long as one can refuse to sell in the first place, there is little that one can do to downstream buyers that could run afoul of the antitrust laws.

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