Essential Facilities and the Zombie Apocalypse

At its core, the essential facilities doctrine (“EFD”) invariably involves property rights. The idea is that a party that indisputably owns rights to certain property must provide access to that property to another party (that otherwise has no rights to that property and presumably has made no investment in that property) in order to facilitate competition by the other party. But, because we tend to hold the idea of property rights in high regard as a law-abiding society, a doctrine forcing a party to give up its property rights has been, understandably, narrowly construed and applied only in the higher standard of “exceptional circumstances.” This is consistent with the Colgate and McGill rights to discretion in business affairs in the U.S. and the EU, respectively. Nonetheless, recent developments relating to the overwhelming power of certain very large tech companies to call this orthodoxy into question.

By John M. Taladay^[1]

In most post-apocalyptic zombie movies, the dead bodies slowly rise up, infected by the disease of humanity’s past sins, and shamble forward – groaning and lurching – seeking to devour the brains of the living and pass on the infection that has devoured the minds of the zombified . . . just like the essential facilities doctrine.

A growing raft of literature is pushing the idea of using the essential facilities doctrine as a tool to attack perceived competition harms, particularly in digital markets. The argument often goes somet