Earlier this month, the U.S. Supreme Court declined to hear Duke Energy’s appeal of a Fourth Circuit decision reviving monopolization claims brought by rival power producer NTE. While a denial of certiorari does not create binding precedent, the Court’s refusal to intervene leaves intact an important appellate ruling: exclusionary conduct must be evaluated holistically, not by each individual act in isolation.

For plaintiffs, public enforcers, and those concerned with preserving meaningful limits on monopoly power, this is an encouraging development.

The Alleged Scheme

The case stems from NTE’s effort to construct a new power plant in Reidsville, North Carolina. To bring its electricity to market, NTE entered into an agreement allowing it to transmit power over Duke Energy’s transmission lines — infrastructure dominated by Duke Energy, who control roughly 90% of the energy market.

According to NTE, Duke responded not with better pricing or better service, but with a coordinated campaign to eliminate NTE as a competitor altogether. The alleged conduct includes:

• Restructuring Duke’s long-term contract with the City of Fayetteville (the only large customer whose contract was expiring soon enough for NTE to compete) to provide a short-term discount and lump-sum payment which Duke allegedly planned to recoup later through higher prices;
• Engineering a “sham” breach of NTE’s agreement by falsely claiming payment defaults, creating the impression NTE’s plant would be unable to reliably transmit power; and
• Filing litigation that further undermined NTE’s credibility and commercial viability.

As the US Solicitor General explained in the government’s brief to the Court, Duke’s alleged strategy succeeded not by outcompeting NTE, but by “prevent[ing] [NTE] from operating its superior facility” altogether.

The Legal Issue

The district court initially granted summary judgment to Duke reasoning each individual act (pricing, contract restructuring, termination, litigation) was lawful when viewing the acts individually.

The Fourth Circuit reversed, stating monopolization claims often involve “complex or atypical exclusionary campaigns” that do not fit neatly within classic antitrust categories. Rather, the court held juries are entitled to consider whether the overall course of conduct, taken together, constitutes exclusionary behavior under Section 2 of the Sherman Act. As the Solicitor General pointed out: “When a monopolist engages in a coordinated campaign to squelch competition, no circuit holds that each discrete aspect of the defendant’s conduct must be analyzed in isolation.”

“Monopoly Broth”

Duke framed the Fourth Circuit’s approach as a dangerous “monopoly broth” theory, suggesting plaintiffs could now stitch together innocent conduct to manufacture liability. As NTE correctly pointed out in its briefing, the Fourth Circuit did not hold that “0 + 0 = 1,” describing two perfectly lawful and separate actions taken together is illegal. Instead, the court held that a reasonable jury could find multiple individual acts unlawful under established tests, and alternatively that the combined exclusionary campaign could support liability even where the components do not fit neatly into pre-existing boxes.

This Case Matters Beyond the Carolinas

Duke made a point in its Supreme Court petition to highlight the DOJ and FTC had already cited the Fourth Circuit’s reasoning in enforcement actions against companies such as Apple and Amazon. In Duke’s perspective, the government had already “seized on” the decision and used it to support a broader enforcement agenda, unnecessarily litigating against large companies.

Duke’s attempt to frame government usage of a recent federal appellate holding (and ongoing litigation) as a speedy and unwarranted overreach was unnecessarily alarmist; at the same time, the government’s actions are necessary.

Modern monopolistic exclusionary strategies are complex and often concealed. Instead, they usually take the form of single, discrete acts, typically carried out through pricing, lobbying, contracting, litigation, platform governance/adherence, and market structure. A rule that forces courts to evaluate each component in isolation would effectively immunize various forms of monopolization. The Fourth Circuit’s decision properly rejects that loophole.

Looking Forward

The Supreme Court’s denial of certiorari allows a correctly decided Fourth Circuit decision to stand. It preserves the ability of plaintiffs and enforcers to challenge coordinated exclusionary schemes based on how they actually operate.

Antitrust law is meant to protect competition - not to protect clever monopolists who obfuscate their intentions though innocuous, specific actions. The outcome in this case is worth applauding - the Court’s decision to leave this decision intact strengthens free market principles.