Supreme Court will not hear Duke Energy’s appeal in anti-monopoly case

Four white light switches on tan wall — Carolina Journal photo by Mitch Kokai

The US Supreme Court will not take up Duke Energy’s appeal of a lower court ruling in an anti-monopoly dispute involving Fayetteville’s long-term electricity contract.

The US solicitor general had urged the high court in December to reject Duke’s case.

The Supreme Court’s orders list Monday included the Duke case among dozens that were rejected from across the nation.

Florida-based rival NTE Carolinas filed suit against Duke, alleging illegal anticompetitive behavior.

A trial judge ruled for Duke, but the 4th US Circuit Court of Appeals reversed that ruling in 2024. Appellate judges determined that NTE should be able to proceed with its claims that Duke illegally interfered with attempts to win Fayetteville’s business.

Duke petitioned the US Supreme Court in February 2025 to take the case. US Solicitor General John Sauer filed a Dec. 1 brief urging the high court to reject Duke’s request.

The Charlotte-based utility company responded with its own court filing later that month.

“The United States describes this case … as ‘highly fact-bound and case-specific,’ an unexceptional summary-judgment decision that does not implicate any important question of antitrust law. Nothing to see here, says the government,” Duke’s lawyers wrote.

“It has told other courts precisely the opposite,” the court filing continued. “Federal antitrust regulators are now embroiled in a series of high-profile monopolization suits against the world’s largest tech companies. Because a traditional rules-based approach would make those suits more challenging, DOJ and the FTC have jettisoned it.”

“In its place, both agencies are actively attempting to revive the monopoly-broth theory — a relic of a bygone era that allows courts to sidestep established Section 2 tests any time a plaintiff alleges an ‘anticompetitive course of conduct,’” Duke’s lawyers argued.

“The decision below is the lone modern authority on that point, and the United States has seized on it from the moment it was handed down,” the court filing continued. The feds have cited the 4th Circuit’s ruling in separate cases involving Apple and Amazon.

“The government does not mention its position in these cases and others,” Duke’s lawyers wrote. “Nor does it mention that lower courts have already understood the panel decision to establish a new rule of law, dividing the Fourth Circuit from its peers.”

The federal government wants the Supreme Court to reject the case “so that it can continue using the panel’s favorable (and wrong) legal standard to go after its chosen targets,” the court filing explained. “This Court should not take the bait. The panel decision is a suitable vehicle under any fair-minded reading, it implicates a clear circuit split, and it is egregiously incorrect under this Court’s modern precedents.”

“The government and the plaintiffs’ bar are attempting to roll back decades of this Court’s efforts to bring structure to antitrust law. Whether that campaign is right or wrong, it merits this Court’s attention,” Duke’s lawyers argued.

“This appeal arises out of a campaign by an established monopolist to stop a more efficient rival from disturbing its long-dominant hold over a regional energy market,” according to Sauer’s Dec. 1 brief. “Applying the established summary-judgment standard, the court of appeals concluded that this exclusionary campaign did not involve competition ‘on the merits,’ because petitioner could not compete with respondent on the basis of efficiency. And the court found that this campaign produced the very harms the federal antitrust laws are designed to prevent — ‘reduced consumer choice, higher prices in the long term, and market foreclosure.’”

The 4th US Circuit Court of Appeals “properly held” that Duke was not entitled to summary judgment in the case. “That fact-bound decision does not warrant further review,” Sauer’s brief argued. “Nor is this case a suitable vehicle to announce any broader rule of antitrust law.”

The solicitor general labeled Duke Energy the “beneficiary of a government grant more than a century ago.” Duke “has controlled the wholesale-power market in the Carolinas for generations. It has maintained that position in part because many barriers to entry exist in this industry.”

“Power plants have high startup costs, and ‘anchor’ clients sizable enough to cover those costs are rare,” the solicitor general argued. “By dissuading such customers from switching to a potential competitor, an entrenched monopolist can prevent new entrants from gaining a foothold in the region — without creating a better product, producing a better service, or implementing a general price cut.”

The record in the case “would support a finding that that is exactly what happened here,” according to the brief.

“Petitioner’s older plants were ‘not competitive’ with respondent’s plants, which used superior technology to produce cleaner power at a far cheaper rate,” Sauer’s brief argued. “So when respondent sought to build a new facility in the Carolinas, petitioner sought to target the competition itself. Petitioner recognized that this new plant would be viable only if respondent could sell power to the City of Fayetteville, the one sizable customer in the area whose contract was coming due. Petitioner therefore took a variety of steps intended to deter Fayetteville from switching to a new supplier.”

“Petitioner succeeded — and respondent presented sufficient evidence for a jury to conclude that petitioner did so through means ‘other than efficiency,’” the brief continued. “For instance, petitioner ‘manufactured’ a ‘sham breach’ of an interconnection agreement to make it appear that respondent’s plant would be ‘unable to transmit its power.’”

“Likewise, petitioner restructured Fayetteville’s contract to give the City a short-term discount and lump-sum payment, which petitioner would recoup through a long-term price hike on other customers,” Sauer’s brief added. “All told, without ever competing with respondent on the merits (i.e., offering a better service), petitioner was able to prevent respondent from operating its superior facility.”

“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,” the solicitor general argued. “Instead, courts uniformly agree, consistent with this [Supreme] Court’s precedent, that a holistic analysis is appropriate in circumstances like these.”

A unanimous three-judge 4th Circuit panel ruled against Duke Energy in August 2024. The panel threw out a trial judge’s ruling in the dispute. The full 4th Circuit voted, 11-2, in November 2024 against hearing the case en banc.

Duke’s Supreme Court petition criticized the 4th Circuit panel’s decision.

“This petition presents an important and recurring question of antitrust law: when can 0 + 0 = 1? The district court found that antitrust math is no different from ordinary arithmetic. If an antitrust plaintiff pleads a series of independently lawful acts, each of which does not violate this Court’s precedents, those acts cannot together add up to some nebulous antitrust violation,” Duke’s lawyers wrote. “The court of appeals concluded otherwise, embracing a ‘monopoly broth’ theory prominent in the 1960s to 1980s but long since discarded.”

“This Court’s intervention is needed to restore antitrust law to the principles that have governed for the last three decades,” the petition continued.

The 4th Circuit “bucked” the consensus of “[f]ive courts of appeals, numerous district courts, and the leading antitrust treatise” about the proper approach to the case, Duke’s lawyers argued.

“[T]o get around this Court’s well-established tests for predatory pricing, refusals to deal, and sham litigation, NTE dusted off the old monopoly-broth playbook, arguing that Duke was liable because of its overall ‘anticompetitive scheme,’” the petition argued. “This time, the move worked. Breaking from decades of case law, the Fourth Circuit held that antitrust plaintiffs can add up distinct, independently lawful actions and put their ‘combined effect’ before a jury.”

NTE Carolinas responded to Duke’s arguments in its Supreme Court brief.

“The Fourth Circuit held that respondents have a triable monopolization case for two independent reasons,” the brief explained. “First, a reasonable jury could find multiple acts by Duke unlawful under this Court’s canonical tests for predatory pricing and refusal to deal. Second, petitioners’ conduct involved ‘a complex or atypical exclusionary campaign, the individual components of which do not fit neatly within pre-established categories.’”

“Because this Court’s specific tests for common types of monopolistic conduct do not cover all the ‘many different forms’ of anticompetitive conduct, which ‘cannot always be categorized,’ the court below also considered Duke’s course of conduct ‘as a whole’ and found that a reasonable jury could find it anti-competitive,” NTE Carolinas’ lawyers wrote.

Appeals Court Judge Paul Niemeyer wrote for the unanimous 4th Circuit panel that ruled against Duke.

“In particular, NTE presented evidence in the district court that Duke devised a plan to ensure that NTE, its only serious competitor, would not have the opportunity to compete for the business of Fayetteville, North Carolina, the only major wholesale customer whose long-term contract with Duke was expiring soon enough to allow NTE to compete for its business,” Niemeyer wrote.

“The district court granted Duke’s motion for summary judgment, in which Duke argued that the conduct that NTE imputed to Duke constituted legitimate competition in seeking to retain Fayetteville’s business and that none of the actions on which NTE relied was unlawful,” Niemeyer added. “While the court concluded that there was a question of fact on whether Duke had monopoly power, it also concluded as a matter of law that Duke did not engage in anticompetitive conduct but rather legitimate competition to retain Fayetteville’s business.”

“While we recognize that much of Duke’s conduct can be understood to be legitimate competitive conduct, … we also have found much from which a jury could conclude that Duke’s actions were illegitimate anticompetitive conduct that violated § 2 of the Sherman Act,” the 4th Circuit opinion continued. “Because genuine disputes of material fact exist, we vacate the district court’s summary judgment and remand for further proceedings.”

“Supreme Court will not hear Duke Energy’s appeal in anti-monopoly case” was originally published on www.carolinajournal.com.