Crossover grading

[Peter_Spaeth]

Corey consider this example. A small pharma company with one drug loses much of its market share when Merck develops a blockbuster drug for the same indication. Small co. goes to Merck and says, I need to license your drug and become an authorized seller to stay in business. Merck says no. Lawful refusal to deal.

Change the facts. Merck says yes, but then breaches the bargain and never delivers the product. Small co. might have a breach of contract claim now, but it still doesn't have an antitrust claim; the economic effect is the same whether the refusal is straightforward or sleazy. Put another way, every wrongful act by a monopolist does not thereby become an antitrust violation.