Clarifying Trinko as Precedent in EHR and AI Memory Duty to Deal Cases: A New Institutional Economics Approach

Abstract

By clarifying the bases for the Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 2004 opinion, we hope to reduce two distinct errors. The false positive error is citing Trinko as precedent when it is not. This error is so prevalent it has earned the nickname of Trinko Creep. The false negative error is not citing Trinko when it should be. We argue that this error will be growing in the future as Trinko should be precedent in cases involving regulated access rights to sensitive consumer data in electronic health records and Agentic AI Long Term Memory.