United States Court of Appeals for the Tenth Circuit · 1997-06-24
Case and law context
Role: rule-announced; posture: civil; tying claim by rival service provider; summary judgment for defendant for lack of concerted action, affirmed by panel; rehearing en banc limited to the concerted-action question; plaintiff appeals; result: remanded; claim:
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Variant | Exact source quotations |
|---|---|---|---|---|
| /f3d/117/1137-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers | not_reached Excluded from merits counts rule-announced / meritsThe seller's own customer contract supplies the plurality; no third-party co-conspirator is needed (overruling Chanute/McKenzie). Distinguished from a Colgate unilateral refusal to deal (announced terms, no agreement extracted). Rule announced, not applied: the en banc court expressly assumes without deciding that the WSS contract ties software support to hardware support, and the claim that failed below only for want of a second conspirator goes back for everything else. | vertical-agreement/coerced-acquiescence-in-tie | Systemcare services Wang computer hardware in Colorado and competes with Wang in providing hardware support services.Source: docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [2142:2259] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d.Beginning in 1985, Wang offered its minicomputer users a package of hardware and software support services called Wang Software Services (“WSS”).Source: docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [2260:2405] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d.For the purposes of this opinion, we expressly assume, but do not decide, that under the WSS contract, a customer must subscribe to Wang’s hardware support program in order to obtain Wang’s software support services.Source: docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [2406:2622] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d.the district court granted summary judgment in favor of Wang because Systemcare failed to “establish a conspiracy between at least two parties” to impose a tying arrangement on Wang’s customers as required by ChanuteSource: docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [3435:3651] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d.The essence of section l’s contract, combination, or conspiracy requirement in the tying context is the agreement, however reluctant, of a buyer to purchase from a seller a tied product or service along with a tying product or service.Source: docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [17988:18223] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d.Even though a seller and a buyer may not share the same motive for entering into the anticompetitive agreement, the concerted action requirement is satisfied when their minds meet in an unlawful tying agreement.Source: docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [18837:19048] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d.We hold that a contract between a buyer and seller satisfies the concerted action element of section 1 of the Sherman Act where the seller coerces a buyer’s acquiescence in a tying arrangement imposed by the seller.Source: docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [17772:17987] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d. |
| /f3d/117/1137-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Conditional Monsanto / Matsushita inference: evidence tending to exclude the possibility of independent action when circumstantial proof is used | not_reached Excluded from merits counts rule-announced / meritsMonsanto's heightened evidentiary showing for vertical price-fixing adds nothing where the tie is an express contract term; the court reserves the question for implicit ties. Stated as a rule about what evidence would suffice; no evidence of this case is weighed. | express-tie/buyer-acquiescence-excludes-independent-action | Evidence that the buyer acquiesces in a tying arrangement will unequivocally “exclude the possibility that the manufacturer and [buyers] were acting independently.”Source: docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [26210:26374] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d.Contrary to Wang’s argument, the requirements for proof of concerted action in a tying ease are consistent with those applied in cases involving other unreasonable restraints of trade.Source: docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [24419:24603] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d. |
| /f3d/117/1137-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Restraint of trade or commerce among the several States or with foreign nations | not_reached Excluded from merits counts rule-announced / merits | Unspecified variant | No source quotation recorded for this block. |
| /f3d/117/1137-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat) | not_reached Excluded from merits counts rule-announced / merits | Unspecified variant | No source quotation recorded for this block. |
| /f3d/117/1137-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Unreasonable restraint of trade (Standard Oil Co. v. United States) | not_reached Excluded from merits counts rule-announced / meritsWang's market-power and no-conditioning arguments were raised below but not decided by the district court, panel, or en banc court; left for remand. | Unspecified variant | A tying arrangement constitutes an unreasonable restraint of trade if “the seller has ‘appreciable economic power’ in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market.”Source: docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [5624:5851] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d. |
| /f3d/117/1137-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Relevant product/geographic market definition and market power under the Rule of Reason | not_reached Excluded from merits counts rule-announced / merits | Unspecified variant | No source quotation recorded for this block. |
| /f3d/117/1137-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Antitrust standing / efficient enforcer test (Associated General Contractors; Illinois Brick) | not_reached Excluded from merits counts rule-announced / merits | Unspecified variant | No source quotation recorded for this block. |
Court interpretations recorded from this case
interpretation
Evidence that the buyer acquiesces in a tying arrangement will unequivocally “exclude the possibility that the manufacturer and [buyers] were acting independently.”
/f3d/117/1137-01 — United States Court of Appeals for the Tenth Circuit · 1997
Evidence that the buyer acquiesces in a tying arrangement will unequivocally “exclude the possibility that the manufacturer and [buyers] were acting independently.”Source:
docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [26210:26374] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d.This is a conditional evidentiary inference used when the alleged agreement is proved circumstantially; it is not a universal additional element where direct agreement evidence is offered. Under Monsanto (465 U.S. at 764) and Matsushita (475 U.S. at 588), circumstantial evidence must tend to exclude independent action.
interpretation
A tying arrangement constitutes an unreasonable restraint of trade if “the seller has ‘appreciable economic power’ in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market.”
/f3d/117/1137-01 — United States Court of Appeals for the Tenth Circuit · 1997
A tying arrangement constitutes an unreasonable restraint of trade if “the seller has ‘appreciable economic power’ in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market.”Source:
docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [5624:5851] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d.Because every commercial contract restrains trade in some literal sense, § 1 outlaws only *unreasonable* restraints of trade (Standard Oil Co. v. United States, 221 U.S. 1 (1911); State Oil Co. v. Khan, 522 U.S. 3, 10 (1997)), evaluated via one of three analytical modes (`restraint.per-se`, `restraint.quick-look`, or `restraint.rule-of-reason`).
interpretation
A tying arrangement constitutes an unreasonable restraint of trade if “the seller has ‘appreciable economic power’ in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market.”
/f3d/117/1137-01 — United States Court of Appeals for the Tenth Circuit · 1997
A tying arrangement constitutes an unreasonable restraint of trade if “the seller has ‘appreciable economic power’ in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market.”Source:
docroot/ir/caselaw/f3d_117.jsonl#/f3d/117/1137-01; Unicode character offsets [5624:5851] (end exclusive); SHA-256 a36344b321af95e0282badf90b0d6556447e8cb9d2f401ed27f3a27a49607f8d.Under Summit Health, Ltd. v. Pinhas (500 U.S. 322 (1991)) and McLain v. Real Estate Board of New Orleans (444 U.S. 232 (1980)), satisfied if the restraint is either "in" interstate commerce or concerns general business activities that have a "not insubstantial effect" on interstate commerce (and for foreign commerce, subject to the Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a).