Law Antitrust - Instructor: Dwight Drake Jefferson Parish Hospital Dist. No. 2 v. Hyde (Sup. Ct. 1984) Basic Facts: Exclusive contract between hospital and anesthesiologist group. Third party anesthesiologist, seeking declaratory judgment that contract was illegal tying of anesthesiologist services to hospital surgery. Dist. Ct. dismissed. Ct. of Appeals reversed. What was basis of Dist. Cts. Dismissal? What was basis of Ct. of Appeals reversal? What percent of market share did hospital have? Did hospital have market power? What was majority’s position regarding a per se for tying? Note two prong majority analysis: (1) Are there two separate products that are being tied? (2) Is there market power to force patients to accept tying?

Law Antitrust - Instructor: Dwight Drake Jefferson Parish Hospital Dist. No. 2 v. Hyde (Sup. Ct. 1984) Did majority find there were two separate products that had been tied? Why did majority conclude hospital lacked market power? Even without per se and market power, majority said there may be Section 1 liability if unreasonable restrain. Why insufficient evidence here? O’Connor and three others concurred. What would they have done with per se rule for tying? What was O’Connor’s three threshold criteria for tying? If three threshold criteria met, what then according to O’Connor? How did facts of this case stack up against O’Connor’s threshold criteria?

Law Antitrust - Instructor: Dwight Drake Eastman Kodak Co. v. Image Technical Services Inc. (Sup. Ct. 1992) Basic Facts: Kodak, after encouraging ISOs to service customers, reversed course, refused to sell parts to ISOs and offered to sell parts to customers only if they bought services from Kodak or serviced themselves. ISO’s sued for monopolizations and illegal tying. Dist. Ct. granted Kodak summary judgment; Appellate court reversed. What was the alleged tying and tied product? What was required to defeat summary judgment per Court? What was Court’s test for whether there is two separate products? What did the Court say was necessary in addition to tying arrangement for plaintiff to prevail? Did Kodak have market power in its parts market? How about the equipment market?

Law Antitrust - Instructor: Dwight Drake Eastman Kodak Co. v. Image Technical Services Inc. (1992) What substantive rule did Kodak urge Court to adopt for aftermarket products? What was Kodak’s and Court’s view of cross-elasticity between primary and aftermarket? Can competition in an equipment market co-exist with market power in an aftermarket? What did evidence show about pricing impacts? How did Court view the impact of the cost and value of consumer total information and the cost of switching. Did Majority leave in tack per se rule? Why did Scalia, O’Connor and Thomas say per se tying and monopolization doctrine should not apply to single-brand aftermarket, when seller does not have market power at interbrand level? How did dissent view the information and lock-in challenges?

Law Antitrust - Instructor: Dwight Drake United States v. Microsoft Corporation (D.C. Cir. 2001) (Tying) What was alleged tying and tied products? What did court say about separate-product test of Jefferson Parish? Why did Microsoft claim Jefferson Parish’s test would chill innovation? Why did court say this case different than all tying cases of Supreme Court? Why did Court hold bundling of products in software platform market should not be subject to per se? What did court say about per se and software market generally? Why do you think the tying claim was abandoned on remand and no attempt was made to prevail under a “rule of reason” tying claim?

Law Antitrust - Instructor: Dwight Drake Illinois Tool Works Inc v. Independent Ink, Inc. (Sup. Ct. 2006) What was factual basis of Independent’s Sherman 1 tying claim? What was factual basis of Independent’s Sherman 2 claim? What market power standard did Plaintiff argue should by used in patent tying cases? What market power standard did Dist. Ct use in granting summary judgment on Sherman 1 claim? What authority did the Dist. Ct. use in support of its position? What market power did the Fed. Circuit use in reversing the Dist Ct.?

Law Antitrust - Instructor: Dwight Drake Illinois Tool Works Inc v. Independent Ink, Inc. (Sup. Ct. 2006) Was there any question that there were two products or that a “not insubstantial” amount of commerce was affected? Were these issues? Why did Dist. Ct. grant summary judgment on Sherman 2 claim for defendant? Was Fed Cir. correct in affirming on this issue? Should patented and copyright products be held to a tougher standard than non-legal protected products? How did Supreme Court decide the issue? Do you agree? What is the practical impact of the decision?