II. Judge Gorsuch's Career as a Practicing Attorney
Judge Gorsuch's career in private practice also provides some insight into his depth of experience with--and his possible approach as a Justice to--antitrust matters. As a practitioner, he handled antitrust lawsuits from discovery through appeals, representing both plaintiffs and defendants.
From 1995 to 2005, Judge Gorsuch worked in private practice until leaving for a short stint at the Department of Justice, and then ultimately joining the Tenth Circuit. Although Judge Gorsuch "consciously sought to maintain a general litigation practice and avoid specialization," several of his cases in private practice involved antitrust claims. These cases ran the gamut from conspiracy claims under Section 1 of the Sherman Act, to refusal to deal and exclusionary conduct cases under Section 2. One of Judge Gorsuch's antitrust cases went to trial in 2002, resulting in a jury verdict of $1.05 billion for his client, which at the time was among the largest private antitrust judgments ever in the United States. Judge Gorsuch's other antitrust cases involved complex pleading challenges, substantial discovery, and client counseling. In short, Judge Gorsuch will bring a robust experience in antitrust matters to the Supreme Court should the Senate confirm his nomination.
A. Antitrust Trial: Conwood v. United States Tobacco
On behalf of Conwood Co., L.P., a manufacturer of moist snuff smokeless tobacco, Judge Gorsuch brought Sherman Act Section 2 monopolization claims against the dominant manufacturer in the industry, United States Tobacco ("UST"). Conwood alleged that UST engaged in a multiyear scheme to interfere with Conwood's distribution in stores by entering into exclusive dealing arrangements with retailers, removing Conwood's racks and product placements, interfering with Conwood's in-store advertising, and providing misleading information to retailers.
Judge Gorsuch was involved in every aspect of the case. According to his confirmation questionnaire submitted in connection with his nomination to the Tenth Circuit, Judge Gorsuch "helped manage and run the case at all stages, from the pre-suit investigation through the drafting of the complaint; the discovery process; pre-trial motions practice; trial, where [he] served as second chair and handled many witnesses on direct and cross; post-trial motions practice; and the preparation of appellate briefs."
After a four-week trial, the jury returned a verdict in favor of Conwood for $1.05 billion (after trebling). UST challenged the verdict arguing primarily that Conwood had failed to establish that UST excluded Conwood from the relevant market. Both the district court and the court of appeals (in a significant and widely cited decision) ruled that, although Conwood had not presented evidence of UST's conduct in each of the thousands of stores where the tobacco products were sold, Conwood's testimonial and documentary evidence were sufficient to establish that UST had engaged in exclusionary conduct. Conwood also defeated UST's challenges to the damages calculations and expert testimony. Notably, the Obama Administration touted Conwood as an influential "example of successful challenges to exclusionary conduct."
B. Other Antitrust Experience: Pleadings Challenges and Extensive Discovery
Although he was already on the bench by the time the landmark Twombly case reached the Supreme Court, Judge Gorsuch represented in the lower courts one of the defendants facing the conspiracy allegations in that case. The defense group moved to dismiss on the ground that the plaintiffs had not "alleged sufficient facts from which a conspiracy to violate the Sherman Act can be inferred." The district court agreed, but the Second Circuit reversed. In 2007, the Supreme Court vindicated the district court's view and issued its seminal opinion establishing the modern day "plausibility" pleading standard.
Around the same time that Twombly was making its way through the courts, Judge Gorsuch was involved in a refusal-to-deal case on behalf of the same telecommunications client sued in Twombly--SBC Communications, Inc. The plaintiff in that case, a competitor to SBC, alleged, among other things, that SBC and its affiliates had monopolized certain telecommunication markets by refusing to allow the plaintiff to connect to SBC's network facilities, had interfered with the plaintiff's customer relations, and had made disparaging remarks. SBC moved to dismiss the complaint, arguing that the just-decided Supreme Court case Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), foreclosed much of the plaintiff's antitrust theory. The district court disagreed, finding that the plaintiff's monopolization and refusal-to-deal theories survived Trinko.
In another case--one of his earliest as a partner in private practice--Judge Gorsuch asserted a Sherman Act Section 1 conspiracy claim on behalf of his client Zachair, Ltd., against several defendants involved in the sale of a commercial tract of land. Zachair alleged that the defendants were related corporate entities and that their agents had conspired to harm Zachair through the sale. The district court dismissed Zachair's complaint for failure to state a claim based on the Copperweld doctrine, which provides that "[a] corporation and its wholly-owned subsidiary are not capable of conspiring." The district court held, and the Fourth Circuit affirmed, that "Zachair's own allegations show[ed] that the Defendants are related entities incapable of restraining trade within the meaning of the Sherman Act." Moreover, although other claims asserted by Zachair were not dismissed and the case eventually proceeded to trial, the dismissal of the antitrust claim was with prejudice and Zachair lost its bid on appeal to replead.
III. Implications for the Court
If confirmed to fill Justice Scalia's seat on the Court, Judge Gorsuch could immediately confront several important issues in antitrust law, including (1) Section 1 pleading rules, (2) the extraterritorial reach of antitrust laws, (3) the controlling antitrust standards for analyzing pharmaceutical reverse payments, (4) whether the rule of reason or per se rule applies to certain agreements, and (5) the antitrust implications of exclusive dealing arrangements.
First, the Court recently granted certiorari in a case that would have examined whether membership in a business association, standing alone, can be the basis for inferring conspiracy under Section 1 of the Sherman Act. The case drew substantial interest from the class action bar and business sectors, and many commentators hoped the Court would clarify Twombly and pleading standards in Section 1 matters. The Court eventually dismissed the writ as improvidently granted, however, when the petitioner, having persuaded the Court to review the pleading standard issue, raised unrelated arguments in its merits briefing. Given business and consumer interest in having clear Section 1 pleadings standards, growing disagreement over the interpretation of Twombly, and the Court's interest in deciding the issue, we expect the Court will likely look for another vehicle to address the issue in the future.
Second, it seems only a matter of time before the Court is confronted with the permissible reach of U.S. antitrust laws and the extraterritorial limits on such laws set forth in the Foreign Trade Antitrust Improvements Act ("FTAIA"). In 2015, the Court declined review in two appeals from different circuits raising these issues in the context of a litigation over an alleged global cartel to fix prices for liquid crystal displays. The lower courts are divided over the FTAIA's scope and limitations, and the divergences are likely to continue, deepen, and require the Court's intervention.
Third, lower courts are struggling to apply the Court's guidance in FTC v. Actavis concerning how to analyze the antitrust implications of pharmaceutical reverse-payment claims. In that case, the Court stated that "unexplained large reverse payment[s]" are an indicator of "serious doubts about the patent's survival" and likely reflect an objective "to maintain supracompetitive prices" instead of to avoid litigation. But it remains unclear precisely what explanations are sufficient to justify large payments in the reverse-payment context, and lower courts are turning to various other factors in order to analyze the propriety of such arrangements. Notably, during his confirmation hearing for his nomination to the Supreme Court, Judge Gorsuch referred to Actavis as a "great case."
Fourth, the lower courts are split over the application of the rule of reason or per se rule to certain agreements. For example, the Tenth Circuit recently acknowledged "a circuit split about whether a tying case examined under the rule of reason" requires the plaintiff to prove that the defendant had market power in the tying market. Additionally, the Supreme Court may (again) be asked to decide whether vertical agreements alleged to be part of hub-and-spoke conspiracies should be evaluated under the per se standard or the rule of reason. Leegin clarified that "the per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue" and when that restraint "would always or almost always tend to restrict competition." The Court also stated that, if a "vertical agreement setting minimum resale prices is entered upon to facilitate [a horizontal] cartel, it . . . would need to be held unlawful under the rule of reason." Following Leegin, the Third Circuit applied the rule of reason to review a vertical agreement that allegedly facilitated a horizontal conspiracy. But the Second and Fifth Circuits subsequently held that Leegin did not require application of the rule of reason in similar situations. Given these growing circuit splits, the Supreme Court may soon clarify whether the rule of reason should apply in these contexts.
Fifth, the Supreme Court has not weighed in on an exclusive dealing dispute in some time, and there is growing division among the lower courts regarding the analytical framework for resolving these claims. On the one hand, for example, the FTC and the Eleventh Circuit both concluded that a manufacturer engaged in an unlawful monopoly when it used an exclusive dealing arrangement to foreclose a substantial share of the market even though a competitor entered the market and acquired a 10% share within two years. The Tenth Circuit has similarly concluded that a "single competitor's breakthrough does not preclude a finding" of monopoly power. On the other hand, the Second Circuit has held that, "as a matter of law," a competitor's "successful entry . . . itself refutes any inference of the existence of monopoly power." The Ninth Circuit also has held that a competitor's successful market entry "conclusive[ly]" proves that no monopoly exists. Shortly after Justice Scalia's death, the eight-member Court denied certiorari in a case urging the Court to resolve this lower-court division, creating an opportunity for Judge Gorsuch to cast a key vote when a future case invites the Court to clarify how to analyze exclusive dealing arrangements under antitrust laws.
With these and other important issues in antitrust law making their way to the Court, and with the Senate nearing a vote on his nomination, we may soon get our first glimpse into how Judge Gorsuch would apply his experience in this area as a sitting Justice.
 See Can Celik, FTC v. Actavis a 'Great Case' for US Supreme Court, Gorsuch Says, MLex (Mar. 23, 2017).
 Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1073 (10th Cir. 2013), cert. denied, 134 S. Ct. 1947 (2014).
 Four Corners Nephrology Assocs., P.C. v. Mercy Med. Ctr. of Durango, 582 F.3d 1216, 1221 (10th Cir. 2009) (quotation marks and citation omitted).
 Novell, 731 F.3d at 1073.
 Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1194 (10th Cir. 2009).
 See Liz Crampton, Gorsuch Says Lack of Competition Can Hurt Consumers, Economy, Bloomberg BNA (Mar. 27, 2017).
 731 F.3d 1064 (10th Cir. 2013).
 Id. at 1072.
 Id. at 1074.
 Id. at 1073.
 582 F.3d 1216 (10th Cir. 2009).
 Id. at 1221-22.
 Id. at 1223.
 647 F.3d 1039 (10th Cir. 2011), cert. denied, 132 S. Ct. 1107 (2012).
 Id. at 1041.
 555 F.3d 1188 (10th Cir. 2009).
 Id. at 1193.
 Id. at 1192.
 546 F.3d 1288 (10th Cir. 2008).
 15 U.S.C. § 1.
 546 F.3d at 1298.
 642 F.3d 876 (10th Cir. 2011).
 See id. at 894-99.
 Id. at 898.
 Nomination of Neil M. Gorsuch, Nominee to be Circuit Judge for the Tenth Circuit: Nominee Questionnaire, at 14, available at http://online.wsj.com/public/resources/documents/2016_0131_gorsuch_confirmation.pdf (hereinafter "Confirmation Hearing Questionnaire").
 Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 778 (6th Cir. 2002).
 See Confirmation Hearing Questionnaire at 16.
 Conwood, 290 F.3d at 783.
 Id. at 784.
 Id. at 791-92.
 Remarks by Christine A. Varney, Assistant Attorney General, Antitrust Division, Department of Justice, "Vigorous Antitrust Enforcement In This Challenging Era" (May 12, 2009), available at https://www.justice.gov/atr/speech/vigorous-antitrust-enforcement-challenging-era.
 Twombly v. Bell Atl. Corp., 313 F. Supp. 2d 174, 178 (S.D.N.Y. 2003), vacated and remanded, 425 F.3d 99 (2d Cir. 2005), rev'd, 550 U.S. 544 (2007).
 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 548 (2007). By the time Twombly was argued in November 2006, Judge Gorsuch had left private practice to join the Department of Justice.
 Z-Tel Commc'ns, Inc. v. SBC Commc'ns, Inc., 331 F. Supp. 2d 513, 520 (E.D. Tex. 2004).
 Id. at 535, 539.
 Zachair, Ltd. v. Driggs, 141 F.3d 1162, 1998 WL 211943 (4th Cir. 1998).
 Id. at *1 (citing Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 766-77 (1984)).
 Id. at *2.
 Id. at *2-3; see also Confirmation Hearing Questionnaire at 17.
 Osborn v. Visa Inc., 797 F.3d 1057 (D.C. Cir. 2015), cert. granted 136 S. Ct. 2543 (June 28, 2016) (No. 15-961).
 See Visa Inc. v. Osborn, 137 S. Ct 289 (Nov. 17, 2016).
 Compare Motorola Mobility LLC v. AU Optronics Corp., 775 F.3d 816 (7th Cir. 2014), cert. denied, 135 S. Ct. 2837 (2015), with United States v. Hui Hsiung, 778 F.3d 738, 742 (9th Cir.), cert. denied, 135 S. Ct. 2837 (2015).
 FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013).
 Id. at 2236.
 See Can Celik, FTC v. Actavis a 'Great Case' for US Supreme Court, Gorsuch Says, MLex (Mar. 23, 2017).
 Suture Express, Inc. v. Owens & Minor Distrib., Inc., No. 16-3065, 2017 WL 971782, at *6 & n.5 (10th Cir. Mar. 14, 2017).
 See, e.g., In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186 (9th Cir. 2015); United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015); MM Steel, L.P. v. JSW Steel (USA) Inc., 806 F.3d 835 (5th Cir. 2015); Toledo Mack Sales & Serv., Inc. v. Mack Trucks, Inc., 530 F.3d 204 (3d Cir. 2008).
 Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886 (2007).
 Toledo, 530 F.3d at 204.
 Apple, 791 F.3d at 290; MM Steel, 806 F.3d at 835.
 McWane, Inc. v. FTC, 783 F.3d 814 (11th Cir. 2015), cert. denied, 136 S. Ct. 1452 (2016).
 Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114, 1125-26 (10th Cir. 2014).
 Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 99 (2d Cir. 1998).
 United States v. Syufy, 903 F.2d 659, 665 (9th Cir. 1990).
 See McWane, Inc. v. FTC, 136 S. Ct. 1452 (2016).