U.S. Supreme Court Aspen Skiing v. Aspen Highlands
Skiing, 472
U.S. 585 (1985) Aspen Skiing Co. v. Aspen Highlands
Skiing Corp. No. 84-510 Argued March 27, 1985 Decided June 19, 1985 472
U.S. 585 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT Syllabus Respondent, which owns one of the four major mountain facilities
for downhill skiing at Aspen, Colo., filed a treble-damages action
in Federal District Court in 1979 against petitioner, which owns
the other three major facilities, alleging that petitioner had
monopolized the market for downhill skiing services at Aspen in
violation of § 2 of the Sherman Act. The evidence showed that in
earlier years, when there were only three major facilities operated
by three independent companies (including both petitioner and
respondent), each competitor offered both its own tickets for daily
use of its mountain and an interchangeable 6-day all-Aspen ticket,
which provided convenience to skiers who visited the resort for
weekly periods but preferred to remain flexible about what mountain
they might ski each day. Petitioner, upon acquiring its second of
the three original facilities and upon opening the fourth, also
offered, during most of the ski seasons, a weekly multiarea ticket
covering only its mountains, but eventually the all-Aspen ticket
outsold petitioner's own multiarea ticket. Over the years, the
method for allocation of revenues from the all-Aspen ticket to the
competitors developed into a system based on random-sample surveys
to determine the number of skiers who used each mountain. However,
for the 1977-1978 ski season, respondent, in order to secure
petitioner's agreement to continue to sell all-Aspen tickets, was
required to accept a fixed percentage of the ticket's revenues.
When respondent refused to accept a lower percentage --
considerably below its historical average based on usage -- for the
next season, petitioner discontinued its sale of the all-Aspen
ticket; instead sold 6-day tickets featuring only its own
mountains; and took additional actions that made it extremely
difficult for respondent to market its own multiarea package to
replace the joint offering. Respondent's share of the market
declined steadily thereafter. The jury returned a verdict against
petitioner, fixing respondent's actual damages, and the court
entered a judgment for treble damages. The Court of Appeals
affirmed, rejecting petitioner's contention that there cannot be a
requirement of cooperation between competitors, even when one
possesses monopoly powers. Page 472 U. S. 586 Held: 1. Although even a firm with monopoly power has no general duty
to engage in a joint marketing program with a competitor (and the
jury was so instructed here), the absence of an unqualified duty to
cooperate does not mean that every time a firm declines to
participate in a particular cooperative venture, that decision may
not have evidentiary significance, or that it may not give rise to
liability in certain circumstances. Lorain Journal Co. v.
United States, 342 U. S. 143 . The
question of intent is relevant to the offense of monopolization in
determining whether the challenged conduct is fairly characterized
as "exclusionary," "anticompetitive," or "predatory." In this case,
the monopolist did not merely reject a novel offer to participate
in a cooperative venture that had been proposed by a competitor,
but instead elected to make an important change in a pattern of
distribution of all-Aspen tickets that had originated in a
competitive market and had persisted for several years. It must be
assumed that the jury, as instructed by the trial court, drew a
distinction

															"between practices which tend to exclude or restrict
competition, on the one hand, and the success of a business which
reflects only a superior product, a well-run business, or luck, on
the other,"

															and that the jury concluded that there were no "valid business
reasons" for petitioner's refusal to deal with respondent. Pp. 472 U. S.
600 -605.

															2. The evidence in the record, construed most favorably in
support of respondent's position, is adequate to support the
verdict under the instructions given. In determining whether
petitioner's conduct may properly be characterized as exclusionary,
it is appropriate to examine the effect of the challenged pattern
of conduct on consumers, on respondent, and on petitioner itself. 472 U. S. 605-611.

															(a) The evidence showed that, over the years, skiers developed a
strong demand for the all-Aspen ticket, and that they were
adversely affected by its elimination. 472 U.
S. 605-607.

															(b) The adverse impact of petitioner's pattern of conduct on
respondent was established by evidence showing the extent of
respondent's pecuniary injury, its unsuccessful attempt to protect
itself from the loss of its share of the patrons of the all-Aspen
ticket, and the steady decline of its share of the relevant market
after the ticket was terminated. 472 U. S. 607-608.

															(c) The evidence relating to petitioner itself did not persuade
the jury that its conduct was justified by any normal business
purpose, but instead showed that petitioner sought to reduce
competition in the market over the long run by harming its smaller
competitor. That conclusion is strongly supported by petitioner's
failure to offer any efficiency justification whatever for its
pattern of conduct. 472 U. S. 608-611.

															738 F.2d 1509, affirmed. Page 472 U. S. 587 STEVENS, J., delivered the opinion of the Court, in which all
other Members joined, except WHITE, J., who took no part in the
decision of the case.

															JUSTICE STEVENS delivered the opinion of the Court.

															In a private treble-damages action, the jury found that
petitioner Aspen Skiing Company (Ski Co.) had monopolized the
market for downhill skiing services in Aspen, Colorado. The
question presented is whether that finding is erroneous as a matter
of law because it rests on an assumption that a firm with monopoly
power has a duty to cooperate with its smaller rivals in a
marketing arrangement in order to avoid violating § 2 of the
Sherman Act. [ Footnote 1 ] I Aspen is a destination ski resort with a reputation for "super
powder," "a wide range of runs," and an "active night life,"
including "some of the best restaurants in North America." Tr.
765-767. Between 1945 and 1960, private investors independently
developed three major facilities for downhill skiing: Aspen
Mountain (Ajax), [ Footnote 2 ]
Aspen Highlands Page 472 U. S. 588 (Highlands), [ Footnote 3 ]
and Buttermilk. [ Footnote 4 ] A
fourth mountain, Snowmass, [ Footnote 5 ] opened in 1967.

															The development of any major additional facilities is hindered
by practical considerations and regulatory obstacles. [ Footnote 6 ] The identification of
appropriate topographical conditions for a new site and substantial
financing are both essential. Most of the terrain in the vicinity
of Aspen that is suitable for downhill skiing cannot be used for
that purpose without the approval of the United States Forest
Service. That approval is contingent, in part, on environmental
concerns. Moreover, the county government must also approve the Page 472 U. S. 589 project, and in recent years it has followed a policy of
limiting growth.

															Between 1958 and 1964, three independent companies operated
Ajax, Highlands, and Buttermilk. In the early years, each company
offered its own day or half-day tickets for use of its mountain. Id. at 152. In 1962, however, the three competitors also
introduced an interchangeable ticket. [ Footnote 7 ] Id. at 1634. The 6-day, all-Aspen
ticket provided convenience to the vast majority of skiers who
visited the resort for weekly periods, but preferred to remain
flexible about what mountain they might ski each day during the
visit. App. 92. It also emphasized the unusual variety in ski
mountains available in Aspen.

															As initially designed, the all-Aspen ticket program consisted of
booklets containing six coupons, each redeemable for a daily lift
ticket at Ajax, Highlands, or Buttermilk. The price of the booklet
was often discounted from the price of six daily tickets, but all
six coupons had to be used within a limited period of time -- seven
days, for example. The revenues from the sale of the 3-area coupon
books were distributed in accordance with the number of coupons
collected at each mountain. Tr. 153, 1634-1638.

															In 1964, Buttermilk was purchased by Ski Co., but the
interchangeable ticket program continued. In most seasons after it
acquired Buttermilk, Ski Co. offered 2-area, 6- or 7-day tickets
featuring Ajax and Buttermilk in competition with the 3-area,
6-coupon booklet. Although it sold briskly, the all-Aspen ticket
did not sell as well as Ski Co.'s multiarea ticket until Ski Co.
opened Snowmass in 1967. Thereafter, Page 472 U. S. 590 the all-Aspen coupon booklet began to outsell Ski Co.'s ticket
featuring only its mountains. Record Ex. LL; Tr. 1646,
1675-1676.

															In the 1971-1972 season, the coupon booklets were discontinued
and an "around the neck" all-Aspen ticket was developed. This
refinement on the interchangeable ticket was advantageous to the
skier, who no longer found it necessary to visit the ticket window
every morning before gaining access to the slopes. Lift operators
at Highlands monitored usage of the ticket in the 1971-1972 season
by recording the ticket numbers of persons going onto the slopes of
that mountain. Highlands officials periodically met with Ski Co.
officials to review the figures recorded at Highlands, and to
distribute revenues based on that count. Id. at 1622,
1639.

															There was some concern that usage of the all-Aspen ticket should
be monitored by a more scientific method than the one used in the
1971-1972 season. After a one-season absence, the 4-area ticket
returned in the 1973-1974 season with a new method of allocating
revenues based on usage. Like the 1971-1972 ticket, the 1973-1974
4-area ticket consisted of a badge worn around the skier's neck.
Lift operators punched the ticket when the skier first sought
access to the mountain each day. A random-sample survey was
commissioned to determine how many skiers with the 4-area ticket
used each mountain, and the parties allocated revenues from the
ticket sales in accordance with the survey's results.

															In the next four seasons, Ski Co. and Highlands used such
surveys to allocate the revenues from the 4-area, 6-day ticket.
Highlands' share of the revenues from the ticket was 17.5% in
1973-1974, 18.5% in 1974-1975, 16.8% in 1975-1976, and 13.2% in
1976-1977. [ Footnote 8 ] During
these four seasons, Ski Co. did not offer its own 3-area, multiday
ticket in competition Page 472 U. S. 591 with the all-Aspen ticket. [ Footnote 9 ] By 1977, multiarea tickets accounted for
nearly 35% of the total market. Id. at 614, 1367. Holders
of multiarea passes also accounted for additional daily ticket
sales to persons skiing with them.

															Between 1962 and 1977, Ski Co. and Highlands had independently
offered various mixes of 1-day, 3-day, and 6-day passes at their
own mountains. [ Footnote 10 ]
In every season except one, however, they had also offered some
form of all-Aspen, 6-day ticket, and divided the revenues from
those sales on the basis of usage. Nevertheless, for the 1977-1978
season, Ski Co. offered to continue the all-Aspen ticket only if
Highlands would accept a 13.2% fixed share of the ticket's
revenues.

															Although that had been Highlands' share of the ticket revenues
in 1976-1977, Highlands contended that that season was an
inaccurate measure of its market performance since it had been
marked by unfavorable weather and an unusually low number of
visiting skiers. [ Footnote
11 ] Moreover, Highlands wanted to continue to divide revenues
on the basis of actual usage, as that method of distribution
allowed it to compete Page 472 U. S. 592 for the daily loyalties of the skiers who had purchased the
tickets. Tr. 172. Fearing that the alternative might be no
interchangeable ticket at all, and hoping to persuade Ski Co. to
reinstate the usage division of revenues, Highlands eventually
accepted a fixed percentage of 15% for the 1977-1978 season. Ibid. No survey was made during that season of actual
usage of the 4-area ticket at the two competitors' mountains.

															In the 1970's the management of Ski Co. increasingly expressed
their dislike for the all-Aspen ticket. They complained that a
coupon method of monitoring usage was administratively cumbersome.
They doubted the accuracy of the survey and decried the
"appearance, deportment, [and] attitude" of the college students
who were conducting it. Id. at 1627. See also id. at 398, 405-407, 959. In addition, Ski Co.'s president had
expressed the view that the 4-area ticket was siphoning off
revenues that could be recaptured by Ski Co. if the ticket was
discontinued. Id. at 586-587, 950, 960. In fact, Ski Co.
had reinstated its 3-area, 6-day ticket during the 1977-1978
season, but that ticket had been outsold by the 4-area, 6-day
ticket nearly two to one. Id. at 613-614.

															In March 1978, the Ski Co. management recommended to the board
of directors that the 4-area ticket be discontinued for the
1978-1979 season. The board decided to offer Highlands a 4-area
ticket provided that Highlands would agree to receive a 12.5% fixed
percentage of the revenue -- considerably below Highlands'
historical average based on usage. Id. at 396, 585-586.
Later in the 1978-1979 season, a member of Ski Co.'s board of
directors candidly informed a Highlands official that he had
advocated making Highlands "an offer that [it] could not accept." Id. at 361.

															Finding the proposal unacceptable, Highlands suggested a
distribution of the revenues based on usage to be monitored by
coupons, electronic counting, or random sample surveys. Id. at 188. If Ski Co. was concerned about who was to
conduct the survey, Highlands proposed to hire disinterested Page 472 U. S. 593 ticket counters at its own expense -- "somebody like Price
Waterhouse" -- to count or survey usage of the 4-area ticket at
Highlands. Id. at 191. Ski Co. refused to consider any
counterproposals, and Highlands finally rejected the offer of the
fixed percentage.

															As far as Ski Co. was concerned, the all-Aspen ticket was dead.
In its place Ski Co. offered the 3-area, 6-day ticket featuring
only its mountains. In an effort to promote this ticket, Ski Co.
embarked on a national advertising campaign that strongly implied
to people who were unfamiliar with Aspen that Ajax, Buttermilk, and
Snowmass were the only ski mountains in the area. For example, Ski
Co. had a sign changed in the Aspen Airways waiting room at
Stapleton Airport in Denver. The old sign had a picture of the four
mountains in Aspen touting "Four Big Mountains" whereas the new
sign retained the picture but referred only to three. Id. at 844, 847, 858-859. [ Footnote
12 ]

															Ski Co. took additional actions that made it extremely difficult
for Highlands to market its own multiarea package to replace the
joint offering. Ski Co. discontinued the 3-day, 3-area pass for the
1978-1979 season, [ Footnote
13 ] and also refused to sell Highlands any lift tickets, either
at the tour operator's discount or at retail. Id. at 327.
[ Footnote 14 ] Highlands
finally developed Page 472 U. S. 594 an alternative product, the "Adventure Pack," which consisted of
a 3-day pass at Highlands and three vouchers, each equal to the
price of a daily lift ticket at a Ski Co. mountain. The vouchers
were guaranteed by funds on deposit in an Aspen bank, and were
redeemed by Aspen merchants at full value. Id. at 329-334.
Ski Co., however, refused to accept them.

															Later, Highlands redesigned the Adventure Pack to contain
American Express Traveler's Checks or money orders instead of
vouchers. Ski Co. eventually accepted these negotiable instruments
in exchange for daily lift tickets. [ Footnote 15 ] Id. at 505, 507, 549. Despite some
strengths of the product, the Adventure Pack met considerable
resistance from tour operators and consumers who had grown
accustomed to the convenience and flexibility provided by the
all-Aspen ticket. Id. at 784-785, 1041.

															Without a convenient all-Aspen ticket, Highlands basically
"becomes a day ski area in a destination resort." Id. at
1425. Highlands' share of the market for downhill skiing services
in Aspen declined steadily after the 4-area ticket based on usage
was abolished in 1977: from 20.5% in 1976-1977, to 15.7% in
1977-1978, to 13.1% in 1978-1979, to Page 472 U. S. 595 12.5% in 1979-1980, to 11% in 1980-1981. [ Footnote 16 ] Record Ex. No. 97, App. 183.
Highlands' revenues from associated skiing services like the ski
school, ski rentals, amateur racing events, and restaurant
facilities declined sharply as well. [ Footnote 17 ] II In 1979, Highlands filed a complaint in the United States
District Court for the District of Colorado naming Ski Co. as a
defendant. Among various claims, [ Footnote 18 ] the complaint alleged that Ski Co. had
monopolized the market for downhill skiing services at Aspen in
violation of § 2 of the Sherman Act, and prayed for treble damages.
The case was tried to a jury which rendered a verdict finding Ski
Co. guilty of the § 2 violation and calculating Highlands' actual
damages at $2.5 million. App. 187-190.

															In her instructions to the jury, the District Judge explained
that the offense of monopolization under § 2 of the Sherman Act has
two elements: (1) the possession of monopoly power in a relevant
market, and (2) the willful acquisition, maintenance, or use of
that power by anticompetitive or exclusionary means or for
anticompetitive or exclusionary Page 472 U. S. 596 purposes. [ Footnote 19 ]
Tr. 2310. Although the first element was vigorously disputed at the
trial and in the Court of Appeals, in this Court Ski Co. does not
challenge the jury's special verdict finding that it possessed
monopoly power. [ Footnote
20 ] Nor does Ski Co. criticize the trial court's instructions
to the jury concerning the second element of the § 2 offense.

															On this element, the jury was instructed that it had to consider
whether

															"Aspen Skiing Corporation willfully acquired, maintained, or
used that power by anti-competitive or exclusionary means or for
anti-competitive or exclusionary purposes."

															App. 181. The instructions elaborated:

															"In considering whether the means or purposes were
anti-competitive or exclusionary, you must draw a distinction here
between practices which tend to exclude or restrict competition on
the one hand and the success of a business which reflects only a
superior product, a well-run business, or luck, on the other. The
line between legitimately gained monopoly, its proper use and
maintenance, and improper conduct has been described in various
ways. It has been said that obtaining or maintaining monopoly power
cannot represent monopolization if the power was gained and
maintained by conduct that was honestly industrial. Or it is said
that monopoly power which is thrust upon a firm due to its Page 472 U. S. 597 superior business ability and efficiency does not constitute
monopolization."

															"For example, a firm that has lawfully acquired a monopoly
position is not barred from taking advantage of scale economies by
constructing a large and efficient factory. These benefits are a
consequence of size and not an exercise of monopoly power. Nor is a
corporation which possesses monopoly power under a duty to
cooperate with its business rivals. Also a company which possesses
monopoly power and which refuses to enter into a joint operating
agreement with a competitor or otherwise refuses to deal with a
competitor in some manner does not violate Section 2 if valid
business reasons exist for that refusal."

															"In other words, if there were legitimate business reasons for
the refusal, then the defendant, even if he is found to possess
monopoly power in a relevant market, has not violated the law. We
are concerned with conduct which unnecessarily excludes or
handicaps competitors. This is conduct which does not benefit
consumers by making a better product or service available -- or in
other ways -- and instead has the effect of impairing
competition."

															"To sum up, you must determine whether Aspen Skiing Corporation
gained, maintained, or used monopoly power in a relevant market by
arrangements and policies which rather than being a consequence of
a superior product, superior business sense, or historic element,
were designed primarily to further any domination of the relevant
market or sub-market." Id. at 181-182. The jury answered a specific
interrogatory finding the second element of the offense as defined
in these instructions. [ Footnote
21 ] Page 472 U. S. 598 Ski Co. filed a motion for judgment notwithstanding the verdict,
contending that the evidence was insufficient to support a § 2
violation as a matter of law. In support of that motion, Ski Co.
incorporated the arguments that it had advanced in support of its
motion for a directed verdict, at which time it had primarily
contested the sufficiency of the evidence on the issue of monopoly
power. Counsel had, however, in the course of the argument at that
time, stated: "Now, we also think, Judge, that there clearly cannot
be a requirement of cooperation between competitors." Tr. 1452.
[ Footnote 22 ] The District
Court denied Ski Co.'s motion and entered a judgment awarding
Highlands treble damages of $7,500,000, costs, and attorney's fees.
[ Footnote 23 ]
App.191-192. Page 472 U. S. 599 The Court of Appeals affirmed in all respects. 738 F.2d 1509
(CA10 1984). The court advanced two reasons for rejecting Ski Co.'s
argument that " there was insufficient evidence to present a
jury issue of monopolization because, as a matter of law, the
conduct at issue was pro-competitive conduct that a monopolist
could lawfully engage in.'" [ Footnote 24 ] First, relying on United States v.
Terminal Railroad Assn. of St. Louis, 224 U.
S. 383 (1912), the Court of Appeals held that the
multiday, multiarea ticket could be characterized as an "essential
facility" that Ski Co. had a duty to market jointly with Highlands.
738 F.2d at 1520-1521. Second, it held that there was sufficient
evidence to support a finding that Ski Co.'s intent in refusing to
market the 4-area ticket, "considered together with its other
conduct," was to create or maintain a monopoly. Id. at
1522. In its review of the evidence on the question of intent, the
Court of Appeals considered the record "as a whole" and concluded
that it was not necessary for Highlands to prove that each
allegedly anticompetitive act was itself sufficient to demonstrate
an abuse of monopoly power. Id. at 1522, n. 18. [ Footnote 25 ] The court noted that by
"refusing to cooperate" with Highlands, Ski Co. "became the only
business in Aspen that could offer a multi-day multi-mountain
skiing experience"; that the refusal to offer a 4-mountain ticket
resulted in "skiers' frustration over its unavailability"; that
there was apparently no valid business reason for refusing to
accept the coupons in Highlands' Adventure Pack; and that after
Highlands had modified its Adventure Pack to meet Ski Co.'s
objections, Ski Co. had increased its single ticket price to $22
"thereby making it unprofitable . . . to market [the] Adventure
Pack." Id. at 1521-1522. In reviewing Ski Co.'s argument
that it was entitled to a directed verdict, the Court of Appeals
assumed that the jury had resolved all contested questions of fact
in Highlands' favor. Page 472 U. S. 600 III In this Court, Ski Co. contends that even a firm with monopoly
power has no duty to engage in joint marketing with a competitor,
that a violation of § 2 cannot be established without evidence of
substantial exclusionary conduct, and that none of its activities
can be characterized as exclusionary. It also contends that the
Court of Appeals incorrectly relied on the "essential facilities"
doctrine and that an "anticompetitive intent" does not transform
nonexclusionary conduct into monopolization. In response, Highlands
submits that, given the evidence in the record, it is not necessary
to rely on the "essential facilities" doctrine in order to affirm
the judgment. [ Footnote 26 ]
Tr. of Oral Arg. 34.

															"The central message of the Sherman Act is that a business
entity must find new customers and higher profits through internal
expansion -- that is, by competing successfully rather than by
arranging treaties with its competitors." United States v. Citizens & Southern National Bank, 422 U. S. 86 , 422 U. S. 116 (1975). Ski Co., therefore, is surely correct in submitting that
even a firm with monopoly power has no general duty to engage in a
joint marketing program with a competitor. Ski Co. is quite wrong,
however, in suggesting that the judgment in this case rests on any
such proposition of law. For the trial court unambiguously
instructed the jury that a firm possessing monopoly power has no
duty to cooperate with its business rivals. Supra, at 472 U. S.
596 -597. Page 472 U. S. 601 The absence of an unqualified duty to cooperate does not mean
that every time a firm declines to participate in a particular
cooperative venture, that decision may not have evidentiary
significance, or that it may not give rise to liability in certain
circumstances. The absence of a duty to transact business with
another firm is, in some respects, merely the counterpart of the
independent businessman's cherished right to select his customers
and his associates. The high value that we have placed on the right
to refuse to deal with other firms does not mean that the right is
unqualified. [ Footnote
27 ]

															In Lorain Journal Co. v. United States, 342 U.
S. 143 (1951), we squarely held that this right was not
unqualified. Between 1933 and 1948 the publisher of the Lorain
Journal, a newspaper, was the only local business disseminating
news and advertising in that Ohio town. In 1948, a small radio
station was established in a nearby community. In an effort to
destroy its small competitor, and thereby regain its "pre-1948
substantial monopoly over the mass dissemination of all news and
advertising," the Journal refused to sell advertising to persons
that patronized the radio station. Id. at 342 U. S.
153 .

															In holding that this conduct violated § 2 of the Sherman Act,
the Court dispatched the same argument raised by the monopolist
here:

															"The publisher claims a right as a private business concern to
select its customers and to refuse to accept advertisements from
whomever it pleases. We do not dispute that general right."

															"But the word 'right' is one of the most deceptive of pitfalls;
it is so easy to slip from a qualified meaning in the premise to an
unqualified one in the conclusion. Most rights are qualified."

															" American Page 472 U. S. 602 Bank & Trust Co. v. Federal Bank, 256 U. S.
350 , 256 U. S. 358 . The right
claimed by the publisher is neither absolute nor exempt from
regulation. Its exercise as a purposeful means of monopolizing
interstate commerce is prohibited by the Sherman Act. The operator
of the radio station, equally with the publisher of the newspaper,
is entitled to the protection of that Act."

															" In the absence of any purpose to create or maintain a
monopoly, the act does not restrict the long recognized right
of trader or manufacturer engaged in an entirely private business,
freely to exercise his own independent discretion as to parties
with whom he will deal."

															"(Emphasis supplied.) United States v. Colgate &
Co., 250 U. S. 300 , 250 U. S.
307 . See Associated Press v. United States, 326 U. S.
1 , 326 U. S. 15 ; United States
v. Bausch & Lomb Co., 321 U. S. 707 , 321 U. S.
721 -723."

															342 U.S. at 342 U. S. 155 .
The Court approved the entry of an injunction ordering the Journal
to print the advertisements of the customers of its small
competitor.

															In Lorain Journal, the violation of § 2 was an "attempt
to monopolize," rather than monopolization, but the question of
intent is relevant to both offenses. In the former case it is
necessary to prove a "specific intent" to accomplish the forbidden
objective as Judge Hand explained, "an intent which goes beyond the
mere intent to do the act." United States v. Aluminum Co. of
America, 148 F.2d 416, 432 (CA2 1945). In the latter case
evidence of intent is merely relevant to the question whether the
challenged conduct is fairly characterized as "exclusionary" or
"anticompetitive" -- to use the words in the trial court's
instructions -- or "predatory," to use a word that scholars seem to
favor. Whichever label is used, there is agreement on the
proposition that "no monopolist monopolizes unconscious of what he
is doing." [ Footnote 28 ] As
Judge Page 472 U. S. 603 Bork stated more recently: "Improper exclusion (exclusion not
the result of superior efficiency) is always deliberately
intended." [ Footnote 29 ]

															The qualification on the right of a monopolist to deal with whom
he pleases is not so narrow that it encompasses no more than the
circumstances of Lorain Journal. In the actual case that
we must decide, the monopolist did not merely reject a novel offer
to participate in a cooperative venture that had been proposed by a
competitor. Rather, the monopolist elected to make an important
change in a pattern of distribution that had originated in a
competitive market and had persisted for several years. The
all-Aspen, 6-day ticket with revenues allocated on the basis of
usage was first developed when three independent companies operated
three different ski mountains in the Aspen area. Supra, at 472 U. S. 589 ,
and n. 7. It continued to provide a desirable option for skiers
when the market was enlarged to include four mountains, and when
the character of the market was changed by Ski Co.'s acquisition of
monopoly power. Moreover, since the record discloses that
interchangeable tickets are used in other multimountain areas which
apparently are competitive, [ Footnote 30 ] it seems appropriate to infer that such
tickets satisfy consumer demand in free competitive markets. Page 472 U. S. 604 Ski Co.'s decision to terminate the all-Aspen ticket was thus a
decision by a monopolist to make an important change in the
character of the market. [ Footnote 31 ] Such a decision is not necessarily
anticompetitive, and Ski Co. contends that neither its decision,
nor the conduct in which it engaged to implement that decision, can
fairly be characterized as exclusionary in this case. It
recognizes, however, that as the case is presented to us, we must
interpret the entire record in the light most favorable to
Highlands and give to it the benefit of all inferences which the
evidence fairly supports, even though contrary inferences might
reasonably be drawn. Continental Ore Co. v. Union Carbide &
Carbon Corp., 370 U. S. 690 , 370 U. S. 696 (1962).

															Moreover, we must assume that the jury followed the court's
instructions. The jury must, therefore, have drawn a distinction
"between practices which tend to exclude or restrict competition on
the one hand, and the success of a business which reflects only a
superior product, a well-run business, or luck, on the other." Supra, at 472 U. S. 596 .
Since the jury was unambiguously instructed that Ski Co.'s refusal
to Page 472 U. S. 605 deal with Highlands "does not violate Section 2 if valid
business reasons exist for that refusal," supra, at 472 U. S. 597 ,
we must assume that the jury concluded that there were no valid
business reasons for the refusal. The question then is whether that
conclusion finds support in the record. IV The question whether Ski Co.'s conduct may properly be
characterized as exclusionary cannot be answered by simply
considering its effect on Highlands. In addition, it is relevant to
consider its impact on consumers and whether it has impaired
competition in an unnecessarily restrictive way. [ Footnote 32 ] If a firm has been "attempting
to exclude rivals on some basis other than efficiency," [ Footnote 33 ] it is fair to
characterize its behavior as predatory. It is, accordingly,
appropriate to examine the effect of the challenged pattern of
conduct on consumers, on Ski Co.'s smaller rival, and on Ski Co.
itself. Superior Quality of the All-Aspen Ticket The average Aspen visitor "is a well-educated, relatively
affluent, experienced skier who has skied a number of times in the
past. . . . " Tr. 764. Over 80% of the skiers visiting the resort
each year have been there before -- 40% of these repeat visitors
have skied Aspen at least five times. Id. at 768. Over the
years, they developed a strong demand for the 6-day, all-Aspen
ticket in its various refinements. Most experienced skiers quite
logically prefer to purchase their tickets at once for the whole
period that they will spend at the resort; they can then spend more
time on the slopes and enjoying apres-ski amenities and less time
standing in ticket lines. The 4-area attribute of the ticket
allowed the skier to Page 472 U. S. 606 purchase his 6-day ticket in advance while reserving the right
to decide in his own time and for his own reasons which mountain he
would ski on each day. It provided convenience and flexibility, and
expanded the vistas and the number of challenging runs available to
him during the week's vacation. [ Footnote 34 ]

															While the 3-area, 6-day ticket offered by Ski Co. possessed some
of these attributes, the evidence supports a conclusion that
consumers were adversely affected by the elimination of the 4-area
ticket. In the first place, the actual record of competition
between a 3-area ticket and the all-Aspen ticket in the years after
1967 indicated that skiers demonstrably preferred four mountains to
three. Supra, at 472 U. S.
589 -590, 472 U. S. 592 .
Highlands' expert marketing witness testified that many of the
skiers who come to Aspen want to ski the four mountains, and the
abolition of the 4-area pass made it more difficult to satisfy that
ambition. Tr. 775. A consumer survey undertaken in the 1979-1980
season indicated that 53.7% of the respondents wanted to ski
Highlands, but would not; 39.9% said that they would not be skiing
at the mountain of their choice because their ticket would not
permit it. Record Ex. No. 75, pp. 36-37.

															Expert testimony and anecdotal evidence supported these
statistical measures of consumer preference. A major wholesale Page 472 U. S. 607 tour operator asserted that he would not even consider marketing
a 3-area ticket if a 4-area ticket were available. [ Footnote 35 ] During the 1977-1978 and
1978-1979 seasons, people with Ski Co.'s 3-area ticket came to
Highlands "on a very regular basis" and attempted to board the
lifts or join the ski school. [ Footnote 36 ] Highlands officials were left to explain to
angry skiers that they could only ski at Highlands or join its ski
school by paying for a 1-day lift ticket. Even for the affluent,
this was an irritating situation because it left the skier the
option of either wasting 1 day of the 6-day, 3-area pass or
obtaining a refund which could take all morning and entailed the
forfeit of the 6-day discount. [ Footnote 37 ] An active officer in the Atlanta Ski Club
testified that the elimination of the 4-area pass "infuriated" him.
Tr. 978. Highlands' Ability to Compete The adverse impact of Ski Co.'s pattern of conduct on Highlands
is not disputed in this Court. Expert testimony described the
extent of its pecuniary injury. The evidence concerning its attempt
to develop a substitute product either by buying Ski Co.'s daily
tickets in bulk, or by marketing its Page 472 U. S. 608 own Adventure Pack, demonstrates that it tried to protect itself
from the loss of its share of the patrons of the all-Aspen ticket.
The development of a new distribution system for providing the
experience that skiers had learned to expect in Aspen proved to be
prohibitively expensive. As a result, Highlands' share of the
relevant market steadily declined after the 4-area ticket was
terminated. The size of the damages award also confirms the
substantial character of the effect of Ski Co.'s conduct upon
Highlands. [ Footnote 38 ] Ski Co.'s Business Justification Perhaps most significant, however, is the evidence relating to
Ski Co. itself, for Ski Co. did not persuade the jury that its
conduct was justified by any normal business purpose. Ski Co. was
apparently willing to forgo daily ticket sales both to skiers who
sought to exchange the coupons contained in Highlands' Adventure
Pack, and to those who would have purchased Ski Co. daily lift
tickets from Highlands if Highlands had been permitted to purchase
them in bulk. The jury may well have concluded that Ski Co. elected
to forgo these short-run benefits because it was more interested in
reducing competition in the Aspen market over the long-run by
harming its smaller competitor.

															That conclusion is strongly supported by Ski Co.'s failure to
offer any efficiency justification whatever for its pattern of
conduct. [ Footnote 39 ] In
defending the decision to terminate the jointly Page 472 U. S. 609 offered ticket, Ski Co. claimed that usage could not be properly
monitored. The evidence, however, established that Ski Co. itself
monitored the use of the 3-area passes based on a count taken by
lift operators, and distributed the revenues among its mountains on
that basis. [ Footnote 40 ]
Ski Co. contended that coupons were administratively cumbersome,
and that the survey takers had been disruptive and their work
inaccurate. Coupons, however, were no more burdensome than the
credit cards accepted at Ski Co. ticket windows. Tr. 330-331.
Moreover, in other markets Ski Co. itself participated in
interchangeable lift tickets using coupons, n. 30, supra. As for the survey, its own manager testified that the problems were
much overemphasized by Ski Co. officials, and were mostly resolved
as they arose. Tr. 663-667, 673. Ski Co.'s explanation for the
rejection of Highlands' offer to hire at its own expense a
reputable national accounting firm to audit usage of the 4-area
tickets at Highlands' mountain, was that there was no way to
"control" the audit. Id. at 598.

															In the end, Ski Co. was pressed to justify its pattern of
conduct on a desire to disassociate itself from -- what it
considered Page 472 U. S. 610 -- the inferior skiing services offered at Highlands. Id. at 401, 422. The all-Aspen ticket based on usage,
however, allowed consumers to make their own choice on these
matters of quality. Ski Co.'s purported concern for the relative
quality of Highlands' product was supported in the record by little
more than vague insinuations, and was sharply contested by numerous
witnesses. Moreover, Ski Co. admitted that it was willing to
associate with what it considered to be inferior products in other
markets. Id. at 964. Although Ski Co.'s pattern of conduct
may not have been as " bold, relentless, and predatory'" as the
publisher's actions in Lorain Journal, [ Footnote 41 ] the record in this case
comfortably supports an inference that the monopolist made a
deliberate effort to discourage its customers from doing business
with its smaller rival. The sale of its 3-area, 6-day ticket,
particularly when it was discounted below the daily ticket price,
deterred the ticket holders from skiing at Highlands. [ Footnote 42 ] The refusal to accept
the Adventure Pack coupons in exchange for daily tickets was
apparently motivated entirely by a decision to avoid providing any
benefit to Highlands even though accepting the coupons would have
entailed no cost to Ski Co. itself, would have provided it with
immediate benefits, and would have satisfied its potential
customers. Thus the evidence supports an inference that Ski Co. was
not motivated by efficiency concerns and that it was willing to
sacrifice Page 472 U. S. 611 short-run benefits and consumer goodwill in exchange for a
perceived long-run impact on its smaller rival. [ Footnote 43 ]

															Because we are satisfied that the evidence in the record,
[ Footnote 44 ] construed most
favorably in support of Highlands' position, is adequate to support
the verdict under the instructions given by the trial court, the
judgment of the Court of Appeals is Affirmed. JUSTICE WHITE took no part in the decision of this case.

															[ Footnote 1 ]

															The statute provides, in relevant part:

															"Every person who shall monopolize, or attempt to monopolize, or
combine or conspire with any other person or persons, to monopolize
any part of the trade or commerce among the several States, or with
foreign nations, shall be deemed guilty of a felony. . . . "

															15 U.S.C. § 2.

															[ Footnote 2 ]

															Ski Co. developed Ajax in 1946. The runs are quite steep and
primarily designed for expert or advanced intermediate skiers. The
base area of Ajax is located within the village of Aspen.

															[ Footnote 3 ]

															In 1957, the United States Forest Service suggested that Ajax
"was getting crowded, and . . . that a ski area ought to be started
at Highlands." Tr. 150. Whipple V. N. Jones, who owned an Aspen
lodge at the time, discussed the project with Ski Co. officials,
but they expressed little interest, telling him that they had
"plenty of problems at Aspen now, and we don't think we want to
expand skiing in Aspen." Id. at 150-151. Jones went ahead
with the project on his own, and laid out a well-balanced set of
ski runs: 25% beginner, 50% intermediate, 25% advanced. The base
area of Highlands Mountain is located 1 1/2 miles from the village
of Aspen. Id. at 154. Respondent Aspen Highlands Skiing
Corporation provides the downhill skiing services at Highlands
Mountain. Throughout this opinion we refer to both the respondent
and its mountain as Highlands.

															[ Footnote 4 ]

															In 1958, Friedl Pfeiffer and Arthur Pfister began developing the
ranches they owned at the base of Buttermilk Mountain into a third
ski area. Pfeiffer, a former Olympian, was the director of the ski
school for Ski Co., and the runs he laid out were primarily for
beginners and intermediate skiers. More advanced runs have since
been developed. The base area of Buttermilk is located
approximately 2 1/4 miles from the village of Aspen. Id. at 152, 1471-1472, 1526; Deposition of Paul Nitze 6-7.

															[ Footnote 5 ]

															In the early 1960's William Janss, a former ski racer, and his
associates had acquired three ranches in the Snowmass Valley, and
had secured Forest Service permits for a ski area. The developer
sold the company holding the permits to Ski Co. to allow it to
develop a downhill skiing facility for the project, leaving him to
develop the land at the base of the site. A fairly balanced
mountain was developed with a mixture of beginner, intermediate,
and advanced runs. Id. at 14-16; Tr. 1475-1476. The base
area of Snowmass is eight miles from the village of Aspen.

															[ Footnote 6 ] Id. at 378-379, 638, 2040-2051, 2069-2070,
2078-2082.

															[ Footnote 7 ]

															Friedl Pfeiffer, one of the developers of Buttermilk, initiated
the idea of an all-Aspen ticket at a luncheon with the owner of
Highlands and the President of Ski Co. Pfeiffer, a native of
Austria, informed his competitors that

															"'[i]n St. Anton, we have a mountain that has three different
lift companies -- lifts owned by three different lift companies. .
. . We sell a ticket that is interchangeable.' It was good on any
of those lifts; and he said, 'I think we should do the same thing
here.'" Id. at 153.

															[ Footnote 8 ] Id. at 167. Highlands' share of the total market during
those seasons, as measured in skier visits was 15.8% in 1973-1974,
17.1% in 1974-1975, 17.4% in 1975-1976, and 20.5% in 1976-1977.
Record Ex. No. 97, App. 183.

															[ Footnote 9 ]

															In 1975, the Colorado Attorney General filed a complaint against
Ski Co. and Highlands alleging, in part, that the negotiations over
the 4-area ticket had provided them with a forum for price fixing
in violation of § 1 of the Sherman Act and that they had attempted
to monopolize the market for downhill skiing services in Aspen in
violation of § 2. Record Ex. X. In 1977, the case was settled by a
consent decree that permitted the parties to continue to offer the
4-area ticket provided that they set their own ticket prices
unilaterally before negotiating its terms. Tr. 229-231.

															[ Footnote 10 ]

															About 15-20% of each company's ticket revenues were derived from
sales to tour operators at a wholesale discount of 10-15%, while
80-85% of the ticket revenues were derived from sales to skiers in
Aspen. Id. at 623, 1772.

															[ Footnote 11 ]

															The 1976-1977 season was "a no snow year." There were less than
half as many skier visits (529,800) in that season as in either
1975-1976 (1,238,500) or 1977-1978 (1,273,400). Record Ex. No. 97,
App. 183. In addition, Highlands opened earlier than Ski Co.'s
mountains and its patrons skied off all the good snow. Ski Co.
waited until January and had a better base for the rest of the
season. Tr. 228.

															[ Footnote 12 ]

															Ski Co. circulated another advertisement to national magazines
labeled "Aspen, More Mountains, More Fun." App. 184. The
advertisement depicted the four mountains of Aspen, but labeled
only Ajax, Buttermilk, and Snowmass. Buttermilk's label is
erroneously placed directly over Highlands Mountain. Tr. 860,
1803.

															[ Footnote 13 ]

															Highlands' owner explained that there was a key difference
between the 3-day, 3-area ticket and the 6-day, 3-area ticket:

															"with the three day ticket, a person could ski on the . . .
Aspen Skiing Corporation mountains for three days and then there
would be three days in which he could ski on our mountain; but with
the six-day ticket, we are absolutely locked out of those
people." Id. at 245. As a result of "tremendous consumer demand"
for a 3-day ticket, Ski Co. reinstated it late in the 1978-1979
season, but without publicity or a discount off the daily rate. Id. at 622.

															[ Footnote 14 ]

															In the 1977-1978 negotiations, Ski Co. previously had refused to
consider the sale of any tickets to Highlands, noting that it was
"obviously not interested in helping sell" a package competitive
with the 3-area ticket. Record Ex. No. 16; Tr. 269-270. Later, in
the 1978-1979 negotiations, Ski Co.'s vice-president of finance
told a Highlands official that "[w]e will not have anything to do
with a four-area ticket sponsored by the Aspen Highlands Skiing
Corporation." Id. at 335. When the Highlands official
inquired why Ski Co. was taking this position considering that
Highlands was willing to pay full retail value for the daily lift
tickets, the Ski Co. official answered tersely: "we will not
support our competition." Ibid. [ Footnote 15 ]

															Of course, there was nothing to identify Highlands as the source
of these instruments, unless someone saw the skier "taking it out
of an Adventure Pack envelope." Id. at 505. For the
1981-1982 season, Ski Co. set its single ticket price at $22 and
discounted the 3-area, 6-day ticket to $114. According to
Highlands, this price structure made the Adventure Pack
unprofitable. Id. at 535.

															[ Footnote 16 ]

															In these seasons, Buttermilk Mountain, in particular,
substantially increased its market share at the expense of
Highlands. Record Ex. BB; Tr. 1806.

															[ Footnote 17 ] See Record Ex. No. 91; Tr. 488, 571-572, 692-694, 698,
701-702. Highlands' ski school had an outstanding reputation, and
its share of the ski school market had always outperformed
Highlands' share of the downhill skiing market. Id. at
1822. Even some Ski Co. officials had sent their children to ski
school at Highlands. Id. at 560-570, 588. After the
elimination of the 4-area ticket, however, families or groups
purchasing 3-area tickets were reluctant to enroll a beginner among
them in the Highlands ski school when the more experienced skiers
would have to leave to ski at Ajax, Buttermilk, or Snowmass. Id. at 571.

															[ Footnote 18 ]

															Highlands also alleged that Ski Co. had conspired with various
third parties in violation of § 1 of the Sherman Act. The District
Court allowed this claim to go to the jury which rendered a verdict
in Ski Co.'s favor. App. 189.

															[ Footnote 19 ]

															In United States v. Grinnell Corp., 384 U.
S. 563 , 384 U. S.
570 -571 (1966), we explained:

															"The offense of monopoly under § 2 of the Sherman Act has two
elements: (1) the possession of monopoly power in the relevant
market and (2) the willful acquisition or maintenance of that power
as distinguished from growth or development as a consequence of a
superior product, business acumen, or historic accident."

															[ Footnote 20 ]

															The jury found that the relevant product market was "[d]ownhill
skiing at destination ski resorts," that the "Aspen area" was a
relevant geographic submarket, and that during the years 1977-1981,
Ski Co. possessed monopoly power, defined as the power to control
prices in the relevant market or to exclude competitors. See App. 187-188.

															[ Footnote 21 ]

															It answered this interrogatory affirmatively:

															"Willful Acquisition, Maintenance or Use of Monopoly Power: Do
you find by a preponderance of the evidence that the defendants
willfully acquired, maintained or used monopoly power by
anticompetitive or exclusionary means or for anticompetitive or
exclusionary purposes, rather than primarily as a consequence of a
superior product, superior business sense, or historic
accident?" Id. at 189.

															[ Footnote 22 ]

															Counsel also appears to have argued that Ski Co. was under a
legal obligation to refuse to participate in any joint marketing
arrangement with Highlands:

															"Aspen Skiing Corporation is required to compete. It is required
to make independent decisions. It is required to price its own
product. It is required to make its own determination of the ticket
that it chooses to offer and the tickets that it chooses not to
offer."

															Tr. 1454. In this Court, Ski Co. does not question the validity
of the joint marketing arrangement under § 1 of the Sherman Act.
Thus, we have no occasion to consider the circumstances that might
permit such combinations in the skiing industry. See generally
National Collegiate Athletic Assn. v. Board of Regents of Univ. of
Okla., 468 U. S. 85 , 468 U. S.
113 -115 (1984); Broadcast Music, Inc., v. Columbia
Broadcasting System, Inc., 441 U. S. 1 , 441 U. S. 18 -23
(1979); Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U. S. 36 , 433 U. S. 61 -57
(1977).

															[ Footnote 23 ]

															The District Court also entered an injunction requiring the
parties to offer jointly a 4-area, 6-out-of-7-day coupon booklet
substantially identical to the "Ski the Summit" booklet accepted by
Ski Co. at its Breckenridge resort in Summit County, Colorado. See n. 30, infra. See also supra at 472 U. S. 589 .
The injunction was initially for a 3-year period, but was later
extended through the 1984-1985 season by stipulation of the
parties. Highlands represents that "it will not seek an extension
of the injunction." Brief for Respondent 1, n. 1. No question is
raised concerning the character of the injunctive relief ordered by
the District Court.

															[ Footnote 24 ]

															738 F.2d at 1516-1517 ( quoting Ski Co.'s brief
below).

															[ Footnote 25 ] See Continental Ore Co. v. Union Carbide & Carbon
Corp., 370 U. S. 690 , 370 U. S. 699 (1962); Associated Press v. United States, 326 U. S.
1 , 326 U. S. 14 (1945).

															[ Footnote 26 ]

															Highlands also contends that Ski Co.'s present contentions were
not properly raised in the District Court. In that court, Ski Co.
primarily questioned whether the evidence supported a finding that
it possessed monopoly power in a properly defined market. In this
Court, on the other hand, Ski Co.'s entire argument relates to the
question whether it misused that power. Nevertheless, we agree with
the Court of Appeals' conclusion, 738 F.2d at 1517-1518, that Ski
Co.'s motion for a directed verdict did raise the question whether
the judgment improperly rested on an assumption that § 2 required a
monopolist to cooperate with its rivals.

															[ Footnote 27 ]

															Under § 1 of the Sherman Act, a business "generally has a right
to deal, or refuse to deal, with whomever it likes, as long as it
does so independently." Monsanto Co. v. Spray-Rite Service
Corp., 465 U. S. 752 , 465 U. S. 761 (1984); United States v. Colgate & Co., 250 U.
S. 300 , 250 U. S. 307 (1919).

															[ Footnote 28 ]

															"In order to fall within § 2, the monopolist must have both the
power to monopolize, and the intent to monopolize. To read the
passage as demanding any 'specific,' intent, makes nonsense of it,
for no monopolist monopolizes unconscious of what he is doing. So
here, 'Alcoa' meant to keep, and did keep, that complete and
exclusive hold upon the ingot market with which it started. That
was to 'monopolize' that market, however innocently it otherwise
proceeded." United States v. Aluminum Co. of America, 148 F.2d at
432.

															[ Footnote 29 ]

															R. Bork, The Antitrust Paradox 160 (1978) (hereinafter
Bork).

															[ Footnote 30 ]

															Ski Co. itself participates in interchangeable ticket programs
in at least two other markets. For example, since 1970, Ski Co. has
operated the Breckenridge resort in Summit County, Colorado.
Breckenridge participates in the "Ski the Summit" 4-area
interchangeable coupon booklet which allows the skier to ski at any
of the four mountains in the region: Breckenridge, Copper Mountain,
Keystone, and Arapahoe Basin. Tr. 188, 590, 966, 1070-1081. In the
1979-1980 season Keystone and Arapahoe Basin -- which are jointly
operated -- had about 40% of the Summit County market, and the
other two ski mountains each had a market share of about 30%. Id. at 1100. During the relevant period of time, Ski Co.
also operated Blackcomb Mountain, northeast of Vancouver, British
Columbia, which has an interchangeable ticket arrangement with
nearby Whistler Mountain, an independently operated facility. Id. at 369, 873-874. Interchangeable lift tickets
apparently are also available in some European skiing areas. See n. 7, supra ; Tr. 720.

															[ Footnote 31 ]

															"In any business, patterns of distribution develop over time;
these may reasonably be thought to be more efficient than
alternative patterns of distribution that do not develop. The
patterns that do develop and persist we may call the optimal
patterns. By disturbing optimal distribution patterns one rival can
impose costs upon another, that is, force the other to accept
higher costs."

															Bork 156. In § 1 cases where this Court has applied the per
se approach to invalidity to concerted refusals to deal,

															"the boycott often cut off access to a supply, facility or
market necessary to enable the boycotted firm to compete, . . . and
frequently the boycotting firms possessed a dominant position in
the relevant market." Northwest Wholesale Stationers, Inc. v. Pacific Stationery
& Printing Co., ante at 472 U. S.
294 .

															[ Footnote 32 ]

															"Thus, 'exclusionary' comprehends at the most behavior that not
only (1) tends to impair the opportunities of rivals, but also (2)
either does not further competition on the merits or does so in an
unnecessarily restrictive way."

															3 P. Areeda & D. Turner, Antitrust Law 78 (1978).

															[ Footnote 33 ]

															Bork 138.

															[ Footnote 34 ]

															Highlands' expert marketing witness testified that visitors to
the Aspen resort

															"are looking for a variety of skiing experiences, partly because
they are going to be there for a week and they are going to get
bored if they ski in one area for very long; and also they come
with people of varying skills. They need some variety of slopes so
that, if they want to go out and ski the difficult areas, their
spouses or their buddies who are just starting out skiing can go on
the bunny hill or the not-so-difficult slopes."

															Tr. 765. The owner of a condominium management company
added:

															"The guest is coming for a first-class destination ski
experience, and part of that, I think, is the expectation of
perhaps having available to him the ability to ski all of what is
there; i.e., four mountains vs. three mountains. It helps
enhance the quality of the vacation experience." Id. at 720. See also id. at 685.

															[ Footnote 35 ]

															"Our philosophy is that . . . to offer [Aspen] as a premier ski
resort, our clients should be offered all of the terrain.
Therefore, we would never consciously consider offering a
three-mountain ticket if there were a four-mountain ticket
available." Id. at 1026.

															[ Footnote 36 ] Id. at 356, 492, 572, 679, 1001-1002. For example, the
marketing director of Highlands' ski school reported that one
frustrated consumer was a dentist from

															"the Des Moines area [who] came out with two of his children,
and he had been told by our base lift operator that he could not
board. He became somewhat irate and she had referred him to my
office, which is right there on the ski slopes. He came into my
office and started out, 'Well, I want to go skiing here, and I
don't understand why I can't.' When we got the situation slowed
down and explained that there were two different tickets, well,
what came out is irritation occurred because he had intended when
he came to Aspen to be able to ski all areas. . . ." Id. at 356.

															[ Footnote 37 ]

															The refund policy was cumbersome, and poorly publicized. Id. at 994, 1044, 1053.

															[ Footnote 38 ]

															In considering the competitive effect of Ski Co.'s refusal to
deal or cooperate with Highlands, it is not irrelevant to note that
similar conduct carried out by the concerted action of three
independent rivals with a similar share of the market would
constitute a per se violation of § 1 of the Sherman Act. See Northwest Wholesale Stationers, Inc. v. Pacific Stationery
& Printing Co., ante at 472 U. S. 294 . Cf. Lorain Journal Co. v. United States, 342 U.
S. 143 , 342 U. S. 154 (1951).

															[ Footnote 39 ]

															"The law can usefully attack this form of predation only when
there is evidence of specific intent to drive others from the
market by means other than superior efficiency and when the
predator has overwhelming market size, perhaps 80 or 90 percent.
Proof of specific intent to engage in predation may be in the form
of statements made by the officers or agents of the company,
evidence that the conduct was used threateningly and did not
continue when a rival capitulated, or evidence that the conduct
was not related to any apparent efficiency. These matters are
not so difficult of proof as to render the test overly hard to
meet."

															Bork 157 (emphasis added).

															[ Footnote 40 ]

															Under the Ski Co. system, each skier's ticket, whether a daily
or weekly ticket, is punched before he goes out on the slopes for
the day. Revenues are distributed between the mountains on the
basis of this count. Tr. 650-651. Ski Co.'s vice-president for
finance testified that Ski Co. "would never consider" a system like
that for monitoring usage on a 4-area ticket: "it's fine to
approximate within your own company." Id. at 599. The
United States Forest Service, however, required the submission of
financial information on a mountain-by-mountain basis as a
condition of the permits issued for each mountain. Id. at
643, 945. A lift operator at Ajax conceded that the survey count
during the years of the 4-area ticket was "generally pretty close"
to the count made by Ski Co.'s staff. Id. at 1627.

															[ Footnote 41 ] Lorain Journal Co. v. United States, 342 U.S. at 342 U. S. 149 ( quoting opinion below, 92 F. Supp.
794 , 796 (ND Ohio 1950)).

															[ Footnote 42 ]

															"[W]hy didn't they buy an individual daily lift ticket at Aspen
Highlands? . . . For those who had bought six-day tickets, I think
despite the fact that they are all relatively affluent -- a lot of
them are relatively affluent when they go to Aspen -- they are all
sort of managerial types and they seem to be pretty cautious.
Certainly the comments that I have had from individual skiers and
from the tour operators, club people that I have talked to -- they
are pretty careful with their money and they would feel -- these
are the people who will buy the six-day, three-area ticket that
giving up one of those days and going over to ski at Aspen
Highlands would mean spending extra money."

															Tr. 777.

															[ Footnote 43 ]

															The Ski Co. advertising that conveyed the impression that there
were only three skiing mountains in Aspen, supra, at 472 U. S. 593 ,
and n. 12, is consistent with this conclusion, even though this
evidence would not be sufficient in itself to sustain the
judgment.

															[ Footnote 44 ]

															Given our conclusion that the evidence amply supports the
verdict under the instructions as given by the trial court, we find
it unnecessary to consider the possible relevance of the "essential
facilities" doctrine, or the somewhat hypothetical question whether
nonexclusionary conduct could ever constitute an abuse of monopoly
power if motivated by an anticompetitive purpose. If, as we have
assumed, no monopolist monopolizes unconscious of what he is doing,
that case is unlikely to arise.

Summary: In Aspen Skiing v. Aspen Highlands Skiing, the US Supreme Court ruled that a company with monopoly power can be held liable for refusing to cooperate with a competitor if it leads to anticompetitive outcomes. The case centered around two companies offering downhill skiing services in Aspen, Colorado, and the refusal of one company to continue selling a joint ticket with its competitor, which led to a decline in the competitor's market share. The Court found that while there is no general duty for monopolists to cooperate with rivals, the specific actions taken by the monopolist in this case indicated an anticompetitive intent and caused harm to competition.