Antitrust Cases of Bundling a Matter of Market Share

10th Circuit says tie-in products are not anti-competitive

The 10th Circuit Court of Appeals last month provided one more data point for guidance for antitrust attorneys in an area without a large body of case law.
The case, Suture Express v. Owens & Minor Distribution, added to that body of case law with an opinion that ultimately says antitrust disputes in cases regarding “tying” products together depend largely on the facts at hand, rather than prior legal precedent, and that market share is a major factor in determining whether an antitrust violation occurred.
According to the FTC, tying can be anti-competitive if a monopolist uses bundled or “tie-in” sales to gain power in a market area where it is not dominant. Often, the bundled product is seen as less desirable than those offered by other sellers, but the monopoly power can control their decisions, regardless. When the seller has sufficient market power, the practice can be seen as anti-competitive.
However, when there is not sufficient market share, courts might consider the practice to be pro-competitive.

To read this story and other complete articles featured in the April 17, 2017 print edition of Law Week Colorado, copies are available for purchase online.