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Author: Terence Herrick

Amazon is the unrivaled king of online shopping today, with Q3 sales in 2025 reaching $180 billion[1] and estimates for Q4 reaching $211 billion.[2]  Even to the casual observer, the proliferation of Amazon trucks and smiling cardboard boxes littering American doorsteps attest to this reality. Likewise, Google has long dominated the search engine and online ad space industry. Both companies do more than simply operate these goliath platforms; they utilize them to their own advantage. Google promotes its advertisements over those of its competitors, and Amazon promotes its own distributors in the same way. But given their market dominance, what duty do these companies and those like them have to deal an even hand to their competitors?

The longstanding and well cited answer is that there is simply “no duty to deal” with one’s competitors under Section 2 of the Sherman Act.[3] Competitors hoping to force the monopolist to deal favorably (or at all) with them have, time and again, been forced to pass through the “narrow-eyed needle of refusal to deal doctrine.”[4] Aspen Skiing’s “course of dealing” requirement is chief among the reasons why a competitor’s path to antitrust success is so narrow. To many courts, it has become a bright-line rule, requiring the “unilateral termination of a voluntary and profitable course of dealing.”[5]

The duty to deal doctrine’s rule-like rigidity lives in conflict with another well-established aspect of antitrust law: “Legal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavored in antitrust law.”[6] Today’s technological monopolists operate in a strikingly different market landscape than the ski resorts of Aspen Colorado circa 1985. It should come as no surprise then that changes are afoot. No doubt to the dismay of today’s tech giants, the eye of the needle may be widening in two distinct ways.

First, some courts have begun to openly question the prevailing narrative that Aspen, linkLine and Trinko—the three Supreme Court cases forming the contours of the duty to deal doctrine—mandate a fixed set of essential, factual elements for a competitor to establish a duty to deal claim. Put bluntly, “Aspen Skiing and Trinko just do not say what these courts say they do.”[7] The focus, courts argue, should not be on factual elements which existed in these foundational cases, but on the spirit of what those facts indicated: “conduct that may or may not be characterized as ‘exclusionary’ or ‘anticompetitive.’”[8]

The implications of this less rigid duty to deal doctrine could be far reaching indeed. Without the prior course of dealing requirement, new competitors with whom the monopolist had never before done business would be able to bring legitimate duty to deal claims, broadening the pool of potential litigants enormously. But before the Amazons and Googles of the world start expanding their already enormous litigation budgets, it’s worth noting that that the winds of change blow gently, at least for now. While courts within the First and Ninth Circuits have hinted toward this more flexible application of the duty to deal doctrine,[9] this is certainly the minority view.[10]

Second, while current protections offered by the duty to deal doctrine are quite robust, they only apply if the court agrees to framing the issues within the duty to deal context. Duty to deal claims contain similar elements to, and sometimes lie within, claims of exclusive dealing or tying. For example, “even if the refusal to sell a product to rivals could ‘be characterized as a unilateral refusal to deal,’ the sale of a tying product to ‘third parties’ on the ‘condition that they buy’ a tied product does not fit within the ambit of the refusal to deal exception to antitrust liability.”[11]  Whether on account of creative litigators, skeptical judges, or monopolists overplaying their hand, several recent cases suggest a reluctance to accept this “get out of jail free card” at face value.[12] Just ask Apple and Google, two companies whose recent attempts to frame their defenses in duty to deal terms have fallen on deaf ears.[13]

Like any area of the law, antitrust doctrine adapts with the times and factual circumstances to which it must be applied. And the fact is, times have changed. Whether the duty to deal doctrine shifts toward a more holistic approach to sussing out anticompetitive behavior, or whether courts begin to deflect such claims in favor of alternative theories, one thing remains true: 1985 was a long time ago—a time before cell phones, search engines, and shopping from the comfort of our couches. So, while the Aspen framework has proven a trustworthy ally to countless monopolists, every dynasty has its day.

About the Author

Terence Herrick, Associate

Terence brings a strong mission-oriented skill set to bear in his growing litigation practice, forged through his professional career operating in high-risk, high-pressure environments. Follow him on LinkedIn here.

[1] Marketplace Pulse, “Amazon Net Sales,” https://www.marketplacepulse.com/stats/amazon-net-sales (last visited Jan. 31, 2026).

[2] IG Bank, “Amazon Q4 2025 earnings preview: AWS growth and cash flow concerns under spotlight,” https://www.ig.com/en-ch/news-and-trade-ideas/Amazon-4Q25-earnings-preview-260128 (last visited Jan. 31, 2026).

[3] Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 597 (1985) (holding that “a corporation which possesses monopoly power” is not “under a duty to cooperate with its business rivals”);  Verizon Commc’ns Inc. v. L. Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 401 (2004) (“[T]here is no duty to aid competitors.”); Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc., 555 U.S. 438, 450 (2009) (holding that “the defendant has no antitrust duty to deal with its rivals at wholesale”).

[4] Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1074 (10th Cir. 2013).

[5] Facebook, Inc. v. BrandTotal Ltd., 2021 U.S. Dist. LEXIS 108137, at *50 (N.D. Cal. June 3, 2021).

[6] Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 451, 466-67 (1992).

[7] Steward Health Care Sys., LLC v. Blue Cross & Blue Shield of R.I., 311 F. Supp. 3d 468, 482 (D.R.I. 2018); see also Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1183 (1st Cir. 1994) abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 130 S. Ct. 1237, 176 L. Ed. 2d 18 (2010) (“In Aspen Skiing, the Court criticized a monopolist’s unilateral refusal to deal in a very different situation, casting serious doubt on the proposition that the Court has adopted any single rule or formula for determining when a unilateral refusal to deal is unlawful.”); see also In re Thalomid & Revlimid Antitrust Litig., 2015 WL 9589217, at *15 (D.N.J. Oct. 29, 2015) (“The termination of the dealing between Ski Co. and Highlands was used as circumstantial evidence of Ski Co.’s demonstrated anticompetitive motivation, along with its lack of legitimate business justifications for doing so.”); see also Helicopter Transp. Servs. v. Erickson Air-Crane, Inc., 2008 WL 151833, at *9 (D. Or. Jan. 14, 2008) (“The Supreme Court has never held that termination of a preexisting course of dealing is a necessary element of an antitrust claim. It was merely one of several facts in Aspen Skiing that supported a finding that the refusal to deal was intended to exclude competition rather than to advance a legitimate business interest.”).

[8] Steward, 311 F. Supp. 3d at 482.

[9] See, e.g., Data Gen. Corp., 36 F.3d at 1183 (First Circuit noting its “serious doubt on the proposition that the Court has adopted any single rule or formula for determining when a unilateral refusal to deal is unlawful”); Subspace Omega, LLC v. Amazon Web Servs., Inc., 2025 WL 3706480, at *10 (W.D. Wash. Dec. 22, 2025) (“[T]he Ninth Circuit advised that courts ‘eschew dogmatic adherence to a particular, rigid test and . . . [instead] fashion broad and flexible objective standards concerned with accurately evaluating the purposes of business behavior.’” (citing William Inglis & Sons Baking Co. v. ITT Cont’l Baking Co., Inc., 668 F.2d 1014, 1031 n.18 (9th Cir. 1981))).

[10] See, e.g., MSP Recovery Claims Series LLC v. Celgene Corp. (In re Revlimid & Thalomid Purchaser Antitrust Litig.), 2024 U.S. Dist. LEXIS 100811, at *157 (D.N.J. June 6, 2024) (noting that Third Circuit precedent appears to require “alleging the unilateral termination of a voluntary and profitable course of dealing”); Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1075 (10th Cir. 2013) (discussing the risks of requiring a prior course of dealing, but adhering to the requirement); Tyntec Inc. v. Syniverse Techs., LLC, 2020 WL 2786873, at *2 (M.D. Fla. May 29, 2020) (noting that “Eleventh Circuit precedent further constricts the boundary of ‘refusal to deal’ liability and narrows the conduct that falls within the boundary”).

[11] U.S. v. Google LLC, 778 F. Supp. 3d 797, 866–67 (E.D. Va. 2025) (citing Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 463 n.8 (1992)).

[12] Bryan Koenig, “Big Tech’s Refusal-To-Deal Defense Hits A Wall: Judges,” Law360, https://www.law360.com/articles/2369616/big-tech-s-refusal-to-deal-defense-hits-a-wall-judges (last visited Jan. 31, 2026).

[13] Id.