Whether a 'de facto' exclusive dealing claim is cognizable under the Sherman Act in the absence of exclusive contractual terms, programs, or policies, and whether a refusal-to-deal claim prohibited by Trinko is cognizable if the plaintiff calls it something else

In Bell Atlantic Corp. v. Twombly , this Court recognized the risk of allowing antitrust claims to proceed past the pleading stage in the absence of a “plausible entitlement to relief.” 550 U.S. 544, 559 (2007). That risk is particularly acute when a court relies on novel and vague theories of antitrust law. The Ninth Circuit’s decision raises precisely that concern: the court reversed the grant of a motion to dismiss based on two th eories that provide no plausible entitlement to relief under the Sherman Act or this Court’s case law—and that have given rise to conflict and confusion among the courts of appeals. The questions presented are: 1. Whether a “de facto” exclusive dealing claim is cognizable under the Sherman Act in the absence of exclusive contractual terms, programs, or policies. 2. Whether a refusal-to-deal claim prohibited by Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP , 540 U.S. 398 (2004), is cognizable if the plaintiff calls it something else.