Distribution, Competition, and Antitrust / IP Law

Archives for February 2012

Can A Franchisor Require Franchisees to Buy Supplies, Ingredients, or Products From It?

Tied in Knots?

The antitrust laws sometimes forbid product “tying.” A tying arrangement is an agreement by a party to sell one product on the condition that the buyer also purchases a different (or tied) product. In the franchise context, franchisors sometimes require franchisees to buy products from them or affiliated companies. Are these arrangements lawful?

Franchisors and franchisees see these arrangements differently. The franchisees – perhaps upset with the pricing of the franchisor-supplied products – may allege an antitrust violation, claiming that the franchise is the “tying” product and the required supplies or ingredients are the “tied” products. (Such ties can hurt competition in the tied product market – for example, if fast food franchises are at issue, ties could deny an important customer base to a competing supplier of food ingredients. That is what makes ties potentially anti-competitive.) The franchisor, of course, will argue that it is entitled on quality, reputation, uniformity, and consistency grounds to require that only certain supplies, ingredients, or products be used in its franchised operations.

The courts’ treatment of these claims has been somewhat complicated and not entirely uniform. It’s probably safe to say that these claims will fail if the franchisor lacks “market power” in the tying product market, or if the plaintiff does not adequately allege product market definitions. In the past, these market power and market definition requirements have stymied plaintiffs. But, as I note below, these claims have not been entirely foreclosed.

In Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, reh’g denied, 129 F.3d 724 (3d Cir. 1997), the Third Circuit took a strict view of how to determine the relevant product markets. The plaintiff franchisees argued that Domino’s had tied the franchise to the purchase of ingredients and supplies, and that the ingredients and supplies used in the operation of a Domino’s pizza shop constituted a relevant market. (The plaintiffs also alleged, among other things, that Domino’s had power in the market for “Domino’s approved” pizza dough and used that power to force plaintiffs to buy unwanted ingredients and supplies in the “aftermarket” for sales of supplies to Domino’s franchisees, and that Domino’s had monopolized the market for ingredients and supplies used in Domino’s stores.)

The court disagreed, holding that the relevant product market could not be limited to Domino’s franchisees. The ingredients and supplies used in a Domino’s franchise were interchangeable with products from other suppliers used in the broader market. The question was not whether a Domino’s franchisee could use both approved and non-approved products, but whether pizza makers generally could use such products interchangeably. They could. The franchise agreement’s contractually-imposed exclusivity restraints could not amount to or create market power; the question was whether the franchisor had pre-contract market power, not whether it had post-contractual “power” under the franchise agreement.

However, two relatively recent cases illustrate that the law in this area may not be entirely settled, or at least that tying claims in the franchise context are not completely dead. For example, in Burda v. Wendy’s International, Inc., 659 F. Supp. 2d 928 (S.D. Ohio 2009), the court refused to dismiss a franchise tying claim. Wendy’s had allegedly insisted that franchisees purchase foods or ingredients from it (or its affiliates) after franchisees entered into a franchise agreement that, at least according to the pleadings, did not contemplate such exclusivity. The lack-of-disclosure-at-time-of-franchising allegation was significant. Because the Wendy’s franchisees allegedly did not know that the “market power” was contractually established by the franchise agreements, the court concluded that Queen City Pizza was not controlling. (In Queen City Pizza, the standard form franchise agreement expressly provided that Domino’s reserved the right to require ingredients and supplies to be purchased exclusively from it.)

Compare Burda with Martrano v. The Quizno’s Franchise Co., L.L.C. (W.D. Pa. 2009). There, the court rather quickly dismissed a tying claim, reasoning that the alleged market for “Quick Service Toasted Sandwich Restaurant Franchises” was improper as a matter of law. Before plaintiffs signed their franchise agreements, they could have chosen among other fast food franchises, or, more narrowly, among other fast-food sandwich franchises. In such markets, Quizno’s did not have market power. Therefore, plaintiffs had no tying claim.

So what’s the upshot? First, franchisors still have broad abilities to impose supply and ingredient restrictions. But they are much safer if they do so as part of the franchise disclosures and the franchise agreement, rather than imposing them later. Such surprise restrictions may stimulate arguments that franchisees are suddenly “locked in” to exclusive sources of supply in connection with a market where the franchisor has market power, and ultimately prompt the filing of antitrust claims.

Second, in rejecting an aftermarket claim, the Queen City Pizza court stressed that the ingredients and supplies at issue were interchangeable with other ingredients and supplies on the broader market. The only factor that differentiated them was that they were approved by Domino’s. There may be cases, however, where products are not interchangeable. If the franchisor supplies truly unique products, and requires franchisees to purchase the products exclusively from it, some caution and further analysis is warranted.

N.D. Cal. Addresses Form of Attorneys-Eyes-Only Protective Orders

Barnes & Noble, Inc. v. LSI Corp., No. C-11-2709 EMC (LB) (Beeler, Magistrate J.).

On February 23, Magistrate Judge Beeler entered an order in an area that is usually subject to stipulation: the form of a protective order. The Court found that each side’s proposed protective order was insufficient. B&N’s proposed order inappropriately would have allowed its in-house counsel access to a “broad swath” of defendants’ attorneys-eyes-only-designated material. Defendants’ proposed protective order inappropriately would have barred B&N’s in-house counsel from license agreements that likely will be necessary for those attorneys to participate in meaningful settlement discussions. The Court directed the parties to present a new protective order compliant with the Court’s reasoning.

Can My Supplier Refuse to Sell Products to Me?

Supply Chain

Wholesalers, distributors, and retailers are dependent upon their suppliers for a supply of products. What happens when your supplier decides it no longer wants to deal with you? Is that lawful?

The answer, of course, depends on the facts. Let’s break the question down into various possibilities. The main dividing line is between unilateral actions by the supplier and “concerted” actions (that is, actions in furtherance of an agreement or understanding with other firms or companies).

I’ll cover basic competition law here; keep in mind that you may also have contract or promissory estoppel claims.

Unilateral action

If your supplier decides all by itself that it no longer wants to do business with you, it is generally within its rights to do so under the competition laws if it does not have “market power.” The concept of market power can become technically complicated, but it essentially means the power to raise prices above competitive levels for some significant period of time. Market power may not be immediately obvious, so we often use market share as a simple proxy for market power, at least to obtain a quick sense of the situation.

So how does this work in practice? If you are buying widgets, your supplier accounts for 90% of the widget market, and it suddenly decides to stop selling to you, it is possible you are looking at an anti-competitive action that might violate the special rules that apply to monopolists or would-be monopolists. You would have to develop more facts to assess the strength of any such argument.

If your supplier’s market share is less than 40%, it is very unlikely that you have such a claim. Above 60% to 70%, you may, and in between 40% and 60% is a bit of a grey area (although some courts have held that certain percentages in this range either are, or are not, sufficient). Details of the market structure (are there significant barriers to entry? are there significant barriers to other firms’ expansion?) may be important.

Just because your supplier has market power and has terminated you, however, does not necessarily mean that you have a good claim. You would still need to prove that the termination has harmed competition; harm to your business is not by itself enough. For example, all things being equal, the termination of one of many distributors may not be competitively significant. On the other hand, if a supplier terminates all distributors that carry products of the supplier’s competitor – and the supplier has market power – then a claim is in theory possible. But again, proving harm to competition can require a detailed understanding of the marketplace and the distribution system.

Lacking market power, however, a supplier generally has the right to do business with whom it pleases. That’s the “American way.”

Concerted action

What if your supplier terminates you because your competitors complain to the supplier? For example, they might complain that your pricing is “too low” and is hurting the market or their business.

The central principle remains that a supplier can do business with whom it likes. It can terminate a distributor for pricing reasons – even if it has previously received complaints from other distributors. Such a sequence of events is not by itself sufficient to establish an unlawful agreement or concerted action.

But if there is evidence of an actual agreement between a supplier and some distributors to terminate another price-cutting distributor in order to raise, maintain, or stabilize pricing, such an agreement may be illegal. Developing the evidence of such an agreement in order to establish something more than dealer complaints followed by a termination can be challenging, but it is not impossible.

Concerted action involving multiple suppliers can also pose competition law issues. Such an agreement may amount to a “group boycott” that could be challenged under federal or state antitrust law.

Summary

Most supplier terminations are entirely lawful. But occasionally some cross the line, either because the supplier has market power and the supplier is exercising it to harm competition, or because the supplier has agreed with other firms to terminate a price-cutting distributor. In such cases, a careful analysis of the facts is required.

TFT-LCD Antitrust Court Addresses Quantum of Proof for Class Impact and Refuses to Exclude Plaintiffs’ Economists

In re: TFT-LCD (Flat Panel) Antitrust Litigation, No. M 07-1827 SI (Feb. 21, 2012) (Illston, J.)

Judge Illston refused to exclude indirect purchaser plaintiffs’ economics experts. In doing so, the Court addressed the necessary quantum of proof for class impact in an indirect purchaser case.

The indirect purchaser plaintiffs indirectly purchased TFT-LCD panels made by the defendants. They allege price-fixing, and seek injunctive relief under federal law and damages under state antitrust law. Plaintiffs retained two experts, Drs. Janet Netz and William Comanor, who concluded that defendants’ alleged cartel increased prices to direct purchasers (by around 12%), who in turn passed on overcharges to indirect purchasers, resulting in some $3 billion in alleged damages.

Defendants argued that the case was not amenable to class treatment, because plaintiffs could not show “with certainty” that class members were impacted. However, the Court rejected this argument. “[P]laintiffs need not be able to articulate the precise degree to which every individual class member was injured; it suffices to show that it was more likely than not that classwide impact occurred.” According to the Court, the nature of the industry rendered defendants’ proposed standard inappropriately strict; plaintiffs asserted that TFT-LCD panels are fungible commodities. “It is therefore unnecessary for plaintiffs to provide evidence of panel-by-panel impact. Rather, plaintiffs may resort to generalized methods of proof.”

In short, the Court held that “[p]laintiffs need not identify the overcharge on each and every panel sold to direct purchasers, and they need not trace that specific overcharge through the manufacturing and retail chains to the ultimate purchaser. The fact that plaintiffs lack perfect proof does not mean that plaintiffs lack any proof at all.”

The Court then addressed defendants’ related argument that the experts’ economic regression analyses, while relevant to damages, cannot be used to establish either impact to direct purchasers or pass-through to indirect purchasers. Because the Court had determined that plaintiffs need not establish, to a certainty, class members’ injuries on an LCD panel-by-panel basis, the Court rejected this argument – at least in its categorical form. “Even if regression models are not enough, standing alone, to establish classwide impact, they may nevertheless be relevant to the issue. A large average overcharge, for example, might make it more likely that every direct purchaser was overcharged to some degree.” The Court declined to preclude the experts from testifying that their models establish impact, but agreed to let defendants renew their objections when the experts’ specific testimony is before the Court.

The Court then turned to, and rejected, defendants’ various specific arguments about the experts’ regression analyses, finding that they did not render the testimony inadmissible under the Daubert standard.

Sony’s Indirect LCD Purchaser Claims Survive Motion to Dismiss on Foreign Trade Antitrust Improvements Act and Other Grounds

In re: TFT-LCD (Flat Panel) Antitrust Litigation, No. M 07-1827 SI (Feb. 15, 2012) (Illston, J.)

Sony filed suit against LG as an indirect purchaser of thin-film transistor liquid-crystal display (“TFT-LCD”) panels. In rejecting LG’s motion to dismiss, Judge Illston ruled that allegations of fraudulent concealment were sufficient to toll the statute of limitations.

Judge Illston also rejected LG’s Foreign Trade Antitrust Improvements Act (“FTAIA”) argument, noting that Sony contended that its purchases fell within the domestic injury exception to the FTAIA because its claims were based solely on purchases made in the U.S. LG countered that Sony’s purchases were foreign – and therefore beyond the Sherman Act’s reach – because Sony took possession outside the U.S. of LCD panels and products it purchased. In rejecting this second LG argument, the Court held that it is the location of the purchase, not the ultimate destination of the LCD products, that determines where the injury occurred. Because Sony alleged domestic purchases (Sony alleged that it agreed to pay and paid inflated prices for LCD panels and products from its U.S. headquarters), the Court concluded that Sony had adequately alleged domestic purchases and domestic injury.

Finally, the Court also rejected LG’s antitrust standing argument and LG’s argument that Sony could not assert a stand-alone claim for unjust enrichment.

Patent Tying: Does Price Discrimination Promote Innovation? (Part 3)

Returning to the subject of patent tying, price discrimination, and the promotion of innovation, Christopher Leslie’s recent article comes to the following conclusions:

1. Tying law should apply equally to patent tie-ins as to other tie-ins.

2. Tying law generally should be “fixed” by requiring proof of anticompetitive effects.  In other words, per se treatment should be jettisoned.  (In reality, although many courts still speak of “per se” illegal tying offenses, they often analyze competitive effects.  But there is language in some relatively recent cases suggesting that the offense of per se illegal tying may still exist.)

3. So long as the elements of a tying claim (including anticompetitive effects) are proven, then the fact that the patentee was using the tie-in as a metering device should be irrelevant.

I personally suggest that point no. 2 above makes eminent sense.  Point no. 3 at least has the advantage of simplicity of administration.  But I find, perhaps surprisingly, that point no. 1 is the most interesting one.  For one thing, it may be overbroad.  Patent law, after all, distinguishes between staple products (those that have uses unrelated to the patented product) and non-staple products (which are specially designed for use with the patented product).  Sale of a non-staple product can, at least under certain circumstances, amount to contributory patent infringement.  So if non-staple products are in some sense within the scope of the patent grant, why shouldn’t a patentee be able to engage in metered tying without worrying about tying law?

Additionally, the existence of a patent is probably some evidence of at least some sort of innovation in the patented product.  In the ordinary tying case involving unpatented products, there may be no such presumption.  And although some patentees can directly meter usage instead of using a tie in, as Leslie suggests, in some cases that may not be possible.  For example, suppose a company has a patent on a razor design, which utilizes unpatented blades.  Each consumer may buy only one razor, which lasts many years (or decades).  As a practical matter, it may not be possible to meter the razor usage — but it is relatively easy to meter the blade usage.

So perhaps the rule should be: as to staple products, or as to tied products where metering of the tying, patented product is a practical alternative, the tying rules should be the same.

 

Monopolization Claims Against Adobe Relating to Acquisition of FreeHand Survive Motion to Dismiss

Free FreeHand Corp. v. Adobe Systems Inc., No. 11-CV-02174-LHK (Feb. 10, 2012) (Koh, J.).

Judge Koh refused to dismiss the bulk of an antitrust complaint Against Adobe Systems relating to its acquisition of FreeHand, a professional vector graphic illustration software. Although Adobe signed an FTC consent order in 1994 requiring it to divest itself of FreeHand after it acquired Aldus, that provision expired in 2005, whereupon Adobe acquired FreeHand by purchasing Macromedia. The plaintiffs alleged a “monopoly broth” of post-merger anti-competitive conduct, including (1) alleged charging of monopoly prices, (2) discontinuing support for and development of FreeHand, (3) bundling of Adobe’s Illustrator product with other Adobe products, and (4) declining to release FreeHand’s source code to the open source community. Although the court determined that declining to release the source code could not be considered as part of the overall effect of Adobe’s alleged anticompetitive conduct, it allowed the other allegations to stand.

 

N.D. Cal. Certifies Antitrust / Arbitration Estoppel Question to Ninth Circuit

In re Apple & AT&TM Antitrust Litigation, No. C 07-05152 JW (Feb. 1, 2012) (Ware, J.)

Judge Ware certified for interlocutory appeal the question of whether a non-signatory may assert equitable arbitration estoppel against a signatory plaintiff.

The case involves a Sherman Act Section 2 / aftermarket claim against Apple. The case arose from the plaintiff’s service contract with defendant ATTM. As part of that service contract, the plaintiff signed an arbitration agreement with defendant ATTM which precluded class arbitrations and class actions.

The district court initially followed Mundi v. Union Security Life Ins. Co., 555 F.3d 1042 (9th Cir. 2009), in finding that equitable estoppel required plaintiff to arbitrate with non-signatory Apple as well. The Mundi court had found a dearth of prior Ninth Circuit precedent, and had looked to other circuits for guidance — in particular, the Second Circuit in Sokol Holdings, Inc. v. BMB Munai, Inc., 542 F.3d 354 (2d Cir. 2008). The Ninth Circuit allowed the assertion of equitable estoppel where the dispute is “intertwined” with the contract and there is a sufficient “relationship” between the parties.

Plaintiff filed a motion for reconsideration. Because the Apple Court’s prior order “was premised on an interpretation of Mundi which required the Court to undertake an extensive analysis of both that opinion itself and the Second Circuit caselaw to which the Mundi court looked for guidance, and given the language in Mundi which indicates that the Ninth Circuit did not mean to extend the ‘concept of equitable estoppel of third parties’ beyond the ‘very narrow confines’ delineated in previous cases,” the Apple Court found reason to certify the issue of arbitration by equitable estoppel for interlocutory review.

 

T-Mobile’s State Law Claims Dismissed in LCD (Flat Panel) Case

In re: TFT-LCD (Flat Panel) Antitrust Litigation, No. M 07-1827 SI (Feb. 6, 2012) (Illston, J.)

Judge Illston dismissed T-Mobile’s California and New York state law price-fixing claims, ruling that because T-Mobile did not allege that it had made purchases in California or New York, it could not invoke the laws of those states.  Judge Illston refused to dismiss T-Mobile’s allegations against Sanyo, noting that it had already ruled against Sanyo in connection with Motorola Mobility’s substantially identical claims.

 

Barnes & Noble’s Patent Infringement Affirmative Defenses (Alleging SSO Fraud) Survive Motion to Strike

Barnes & Noble, Inc. v. LSI Corp., No. C-11-2709 EMC (Chen, J.)

On February 2, Judge Chen refused to dismiss affirmative defenses pled by Barnes & Noble against infringement claims concerning patents related to the Barnes & Noble Nook’s 3G, WiFi, and audio technology.  Some of the defenses were based on allegations of unenforceability due to standard-setting misconduct arising from alleged fraud on Standard Setting Organizations (“SSOs”).  In making its ruling, the Court conducted a fairly extensive analysis of the elements (misleading statements or omissions, duty to disclose, essentiality of the patents, intent, and reliance) and whether they were sufficiently pled.  The Court also found that Barnes & Noble had adequately pled that the SSO conduct of Lucent, a predecessor of LSI, could be imputed for purposes of unenforceability of patent rights, even if it could not be imported for purposes of tort-like antitrust liability.

The Court did dismiss two defenses relating to laches and judicial estoppel.

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