A Tale of Two Jurisdictions and an Orphan Case: Antitrust, Intellectual Property, and Refusals to Deal

This Essay examines both the U.S. law and the EU law through the window of a recent U.S. case: New York Mercantile Exchange v. Intercontinental Exchange (“NYMEX”). The NYMEX facts are similar in concept to the facts in IMS but present a stronger case for liability. The Essay argues that the opinion in NYMEX, along with a growing set of U.S. cases, interprets Trinko to impose rigid requirements on a Section 2 plaintiff, not all of which are inherent in Trinko. It argues that the formalistic post-Trinko analysis, which would require dismissal of cases that do not fit within one of two “black boxes,” immunizes some conduct that is anticompetitive in both purpose and effect, while the EU rule (although itself not perfect) can recognize and remedy a broader set of problems.