Antitrust, Web3 And Blockchain Technology: A Quick Look Into The Refusal To Deal Theory As Exclusionary Conduct

• Jurisdiction: United States,Federal
• Law Firm: Bona Law PC
• Subject Matter: Antitrust/Competition Law, Technology, Antitrust, EU Competition , Fin Tech
• Author: Luis Blanquez
• Published date: 20 June 2023

A company using a blockchain--or perhaps even the blockchain itself--, with a sizeable share of a market, could be a monopolist subject to U.S. antitrust laws. But monopoly by itself isn't illegal. Rather, a company must use its monopoly power to willfully maintain that power through anticompetitive exclusionary conduct.

Thus, a monopolization claim requires: (i) the possession of monopoly power in the relevant market--i.e. the ability to control output or raise prices profitability above those that would be charged in a competitive market; and (ii) the willful acquisition or maintenance of that power as distinguished from attaining it by having a superior product, business acumen, or even an accident of history. United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966).

The monopolist may also have a legitimate business justification for behaving in a way that prevents other firms from succeeding in the marketplace. For instance, the monopolist may be competing on the merits in a way that benefits consumers through greater efficiency or a unique set of products or services.

There are many ways a company may willfully acquire or maintain such monopoly power through anticompetitive exclusionary conduct. Some of them include exclusive supply or purchase agreements, tying, bundling, predatory pricing, or refusal to deal.

In this article we briefly discuss the refusal to deal theory of harm in the context of web3.

What is Web3?

The internet is an evolving creature. Thirty years ago, web 1.0 was all about browsing and reading information. As a consumer you had access to information, but few were able to publish online.

In the early 2000s the current web 2.0. arrived, and everyone started publishing their own web content and building communities. The problem today is that we have a centralized internet. Very few companies--big online platforms such as Google, Facebook or Amazon--control and own everyone's online content and data. And they even use all that data to make money through, for instance, targeted advertising.

That's why web3 is a necessary step in the right direction. As a consumer you can now access the internet without having to provide your personal data to these online gatekeepers. And you don't need to give up ownership of the content you provide. Plus, you own your digital content and can execute digital agreements using crypto currencies. If wonder how is all that possible, the answer is through a new infrastructure called blockchain.

You can read a broader discussion of antitrust guidelines for companies using blockchain technology here.

Refusal to Deal with Competitors or Customers

Competitors and Rivals

First, an illegal refusal to deal may occur when the monopolist refuses to deal with a competitor or rival. Under US antitrust laws such claims are challenging and rarely successful.

Although a company generally has no duty to deal with its rivals, courts have found antitrust liability in some limited scenarios when a monopolist (i) unilaterally outright refuses to sell a product to a rival that it made available to others (Verizon...