SG recommends antitrust grant, FTC objects

UPDATE Friday evening

The Federal Trade Commission, in an unusual but not unprecedented step, disclosed on Friday that it does not agree with the Solicitor General that the Court should hear the case discussed in this post.  The ruling of the Ninth Circuit Court at issue in the case “is unquestionably correct,” the Commission said. A statement explaining its position can be found here.

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In this invitation brief filed yesterday, the Solicitor General’s office recommended the Court grant certiorari in Pacific Bell Telephone Co., dba AT&T California v. linkLine Communications (07-512). The petition, filed in response to a Ninth Circuit ruling last September, involves whether a company that has no duty under antitrust law to sell to others at wholesale can be held liable for the narrow difference between its wholesale and retail price levels. In its brief, the Solicitor General states that Section 2 of the Sherman Antitrust Act does not permit the type of “price-squeeze” claim at issue in the case, and that the ruling below is contrary to the Court’s 2004 opinion in Verizon Communications v. Trinko.

This is the fifth invitation brief the Solicitor General has filed this month. The government recommended the Court grant certiorari in AT&T v. Hulteen (07-543) (brief here), while recommending denial in AT&T Pension Benefit Plan v. Call (06-1398) (brief here), Exxon Mobil v. Doe (07-81) (brief here or blog post here), and Progress Energy v. Taylor (07-539) (brief here and blog post here).