Brief of TechFreedom and Former Federal Antitrust Officials to the Fourth Circuit in CareFirst of Maryland Inc. v. Johnson & Johnson
INTRODUCTION
Does the willfulness element of a monopolization claim require proof of the defendant’s subjective purpose, or does it instead ask an objective question about the character of the challenged conduct? And when the challenged conduct is a corporate acquisition, what must be shown about the acquisition itself? The district court applied an objective standard, as stated in this Court’s most recent published decisions: the anticompetitive-conduct element of Section 2 asks whether the defendant engaged in “conduct intended to ‘exclude rivals on some basis other than efficiency.’” 2311 Racing LLC v. Nat’l Ass’n for Stock Car Auto Racing, LLC, 139 F.4th 404, 410 (4th Cir. 2025) (quoting Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 605 (1985) (“Aspen Ski”)); accord Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC, 111 F.4th 337, 353 (4th Cir. 2024). CareFirst contends that this articulation misstates Section 2 and requires reversal.
Neither the law nor the record supports CareFirst. Applying the very standard now under attack, the court initially denied J&J summary judgment on CareFirst’s Momenta acquisition theory. CareFirst of Md. v. Johnson & Johnson, 812 F. Supp. 3d 565, 590 (E.D. Va. 2025), vacated in part on reconsideration, 2026 WL 114415 (E.D. Va. Jan. 14, 2026). Judgment for J&J came only after the court excluded evidence whose relevance depended on drawing adverse inferences from entries on J&J’s privilege log—rulings CareFirst does not assign as error, see Br. 8 (statement of issues); Br. 41 (asking that the district court be “free to revisit those evidentiary questions” on remand)—and held that the admissible record could not support characterizing J&J’s acquisition of a 500-patent portfolio as exclusionary. 2026 WL 114415, at *7–9.
Amici do not contend that Section 2 liability requires proof of subjective malice or a confession. The question is narrower and older: whether the “willful acquisition or maintenance” of monopoly power retains content distinguishing condemned conduct from ordinary commerce. 15 U.S.C. § 2; United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966).
On CareFirst’s theory it does not. According to CareFirst, general intent was satisfied because J&J knowingly acquired all of Momenta’s patents, with the acquisition’s exclusionary character supplied by later use of the patents. The district court explained why CareFirst’s argument fails: crediting it “would be to entirely collapse the intent requirement.” 2026 WL 114415, at *8.
Aspen Ski supplies the answer: it asks courts to characterize conduct and not to characterize a state of mind. That is consistent with Grinnell, which distinguishes willful acquisition from growth by merit or accident, and with Times-Picayune, Alcoa, and Griffith, which hold that no specific intent need be proved. Nothing CareFirst identifies establishes that the acquisition of Momenta was an act of exclusion when it was made. It simply asserts that the act of the acquisition is sufficient to meet Section 2’s willfulness requirement. This is incorrect as a matter of law.
The district court’s judgment should be affirmed.