EASTMAN KODAK CO. v. IMAGE TECHNICAL SERVICES, INC., ET AL.
No. 90-1029
Supreme Court of the United States
Argued December 10, 1991—Decided June 8, 1992
504 U.S. 451
Donn P. Pickett argued the cause for petitioner. With him on the briefs were Daniel M. Wall, Alfred C. Pfeiffer, Jr., and Jonathan W. Romeyn.
Assistant Attorney General Rill argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Deputy Solicitor General Wallace, Christopher J. Wright, Catherine G. O‘Sullivan, and Robert B. Nicholson.
James A. Hennefer argued the cause for respondents. With him on the brief were A. Kirk McKenzie, Douglas E. Rosenthal, Jonathan M. Jacobson, and Elinor R. Hoffmann.*
*Briefs of amici curiae urging reversal were filed for the Computer and Business Equipment Manufacturers Association by Simon Lazarus III; for Digital Equipment Corp. et al. by Kurt W. Melchior, Robert A. Skitol, James A. Meyers, Marcia Howe Adams, Ivor Cary Armistead III, Ronald A. Stern, Stephen Wasinger, James W. Olson, Carter G. Phillips, Ralph I. Miller, and Florinda J. Iascone; for the Motor Vehicle Manufacturers Association of the United States, Inc., by Thomas B. Leary, William H.
This is yet another case that concerns the standard for summary judgment in an antitrust controversy. The Crabtree, and Charles H. Lockwood II; and for the National Electrical Manufacturers Association by James S. Dittmar and James L. Messenger.
Briefs of amici curiae urging affirmance were filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Simon Karas, and Elizabeth H. Watts and Marc B. Bandman, Assistant Attorneys General, James H. Evans, Attorney General of Alabama, and Marc Givhan, Assistant Attorney General, Charles E. Cole, Attorney General of Alaska, and James Forbes, Assistant Attorney General, Grant Woods, Attorney General of Arizona, and Jeri K. Auther, Assistant Attorney General, Winston Bryant, Attorney General of Arkansas, and Royce Griffin, Deputy Attorney General, Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Sanford N. Gruskin, Assistant Attorney General, and Kathleen E. Foote, Deputy Attorney General, Richard Blumenthal, Attorney General of Connecticut, and Robert M. Langer, Assistant Attorney General, Robert A. Butterworth, Attorney General of Florida, and Jerome W. Hoffman, Assistant Attorney General, Warren Price III, Attorney General of Hawaii, Robert A. Marks, Supervising Deputy Attorney General, and Ted Clause, Deputy Attorney General, Larry EchoHawk, Attorney General of Idaho, Roland W. Burris, Attorney General of Illinois, Rosalyn Kaplan, Solicitor General, and Christine Rosso, Senior Assistant Attorney General, Bonnie J. Campbell, Attorney General of Iowa, and John R. Perkins, Deputy Attorney General, Robert T. Stephan, Attorney General of Kansas, and Mary Ann Heckman, Assistant Attorney General, Frederic J. Cowan, Attorney General of Kentucky, and James M. Ringo, Assistant Attorney General, William J. Guste, Jr., Attorney General of Louisiana, and Anne F. Benoit, Assistant Attorney General, Michael E. Carpenter, Attorney General of Maine, and Stephen L. Wessler, Deputy Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, and Robert N. McDonald and Ellen S. Cooper, Assistant Attorneys General, Scott Harshbarger, Attorney General of Massachusetts, and George K. Weber, Assistant Attorney General, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Thomas F. Pursell, Deputy Attorney General, and James P. Spencer and Susan C. Gretz, Special Assistant Attorneys General, Frankie Sue Del Pappa, Attorney General of Nevada, and Rob Kirkman, Deputy Attorney General, Robert J. Del Tufo, Attorney General of New Jersey, and Laurel A. Price, Deputy Attorney General, Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solici-
Petitioner Eastman Kodak Company manufactures and sells photocopiers and micrographic equipment. Kodak also sells service and replacement parts for its equipment. Respondents are 18 independent service organizations (ISO‘s) that in the early 1980‘s began servicing Kodak copying and micrographic equipment. Kodak subsequently adopted policies to limit the availability of parts to ISO‘s and to make it more difficult for ISO‘s to compete with Kodak in servicing Kodak equipment.
tor General, and George W. Sampson, Assistant Attorney General, Lacy H. Thornburg, Attorney General of North Carolina, James C. Gulick, Special Deputy Attorney General, and K. D. Sturgis, Assistant Attorney General, Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Mark Tobey, Assistant Attorney General, R. Paul Van Dam, Attorney General of Utah, and Arthur M. Strong, Assistant Attorney General, Jeffrey L. Amestoy, Attorney General of Vermont, and Geoff Yudien, Assistant Attorney General, Kenneth O. Eikenberry, Attorney General of Washington, and Carol A. Smith, Assistant Attorney General, and Mario J. Palumbo, Attorney General of West Virginia, and Donna S. Quesenberry, Assistant Attorney General; for the Automotive Warehouse Distributors Association et al. by Donald A. Randall, Louis R. Marchese, Robert J. Verdisco, and Basil J. Mezines; for Bell Atlantic Business Systems Services, Inc., by Richard G. Taranto, Joel I. Klein, and John M. Kelleher; for Grumman Corporation by Patrick O. Killian; for the National Association of State Purchasing Officials et al. by Richard D. Monkman; for the National Office Machine Dealers Association et al. by Mark P. Cohen; for the National Retail Federation by Michael J. Altier; for Public Citizen by Alan B. Morrison; for State Farm Mutual Automobile Insurance Co. et al. by Melvin Spaeth, James F. Fitzpatrick, and Melvin C. Garbow.
Briefs of amici curiae were filed for the California State Electronics Association et al. by Richard I. Fine; for Computer Service Network International by Ronald S. Katz; and for the National Electronics Sales and Service Dealers Association by Ronald S. Katz.
I
A
Because this case comes to us on petitioner Kodak‘s motion for summary judgment, “[t]he evidence of [respondents] is to be believed, and all justifiable inferences are to be drawn in [their] favor.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986). Mindful that respondents’ version of any disputed issue of fact thus is presumed correct, we begin with the factual basis of respondents’ claims. See Arizona v. Maricopa County Medical Society, 457 U. S. 332, 339 (1982).
Kodak manufactures and sells complex business machines—as relevant here, high-volume photocopiers and micrographic equipment.1 Kodak equipment is unique; micro-
Kodak provides service and parts for its machines to its customers. It produces some of the parts itself; the rest are made to order for Kodak by independent original-equipment manufacturers (OEM‘s). See id., at 429, 465, 490, 496. Kodak does not sell a complete system of original equipment, lifetime service, and lifetime parts for a single price. Instead, Kodak provides service after the initial warranty period either through annual service contracts, which include all necessary parts, or on a per-call basis. See id., at 98-99; Brief for Petitioner 3. It charges, through negotiations and bidding, different prices for equipment, service, and parts for different customers. See App. 420-421, 536. Kodak provides 80% to 95% of the service for Kodak machines. See id., at 430.
Beginning in the early 1980‘s, ISO‘s began repairing and servicing Kodak equipment. They also sold parts and reconditioned and sold used Kodak equipment. Their customers were federal, state, and local government agencies, banks, insurance companies, industrial enterprises, and providers of specialized copy and microfilming services. See id., at 417, 419-421, 492-493, 499, 516, 539. ISO‘s provide service at a price substantially lower than Kodak does. See id., at 414, 451, 453-454, 469, 474-475, 488, 493, 536-537; Lodging 133. Some customers found that the ISO service was of higher quality. See App. 425-426, 537-538.
In 1985 and 1986, Kodak implemented a policy of selling replacement parts for micrographic and copying machines only to buyers of Kodak equipment who use Kodak service or repair their own machines. See Brief for Petitioner 6; App. 91-92, 98-100, 140-141, 171-172, 190, 442-447, 455-456, 483-484.
As part of the same policy, Kodak sought to limit ISO access to other sources of Kodak parts. Kodak and the OEM‘s agreed that the OEM‘s would not sell parts that fit Kodak equipment to anyone other than Kodak. See id., at 417, 428-429, 447, 468, 474, 496. Kodak also pressured Kodak equipment owners and independent parts distributors not to sell Kodak parts to ISO‘s. See id., at 419-420, 428-429, 483-484, 517-518, 589-590. In addition, Kodak took steps to restrict the availability of used machines. See id., at 427-428, 465-466, 510-511, 520.
Kodak intended, through these policies, to make it more difficult for ISO‘s to sell service for Kodak machines. See id., at 106-107, 171, 516. It succeeded. ISO‘s were unable to obtain parts from reliable sources, see id., at 429, 468, 496, and many were forced out of business, while others lost substantial revenue. See id., at 422, 458-459, 464, 468, 475-477, 482-484, 495-496, 501, 521. Customers were forced to switch to Kodak service even though they preferred ISO service. See id., at 420-422.
In 1987, the ISO‘s filed the present action in the District Court, alleging, inter alia, that Kodak had unlawfully tied the sale of service for Kodak machines to the sale of parts, in violation of
Kodak filed a motion for summary judgment before respondents had initiated discovery. The District Court permitted respondents to file one set of interrogatories and one set of requests for production of documents and to take six depositions. Without a hearing, the District Court granted summary judgment in favor of Kodak. App. to Pet. for Cert. 29B.
As to the § 1 claim, the court found that respondents had provided no evidence of a tying arrangement between Kodak equipment and service or parts. See id., at 32B-33B. The court, however, did not address respondents’ § 1 claim that is at issue here. Respondents allege a tying arrangement not between Kodak equipment and service, but between Kodak parts and service. As to the § 2 claim, the District Court concluded that although Kodak had a “natural monopoly over the market for parts it sells under its name,” a unilateral refusal to sell those parts to ISO‘s did not violate § 2.
As to the § 2 claim, the Court of Appeals concluded that sufficient evidence existed to support a finding that Kodak‘s implementation of its parts policy was “anticompetitive” and “exclusionary” and “involved a specific intent to monopolize.” Id., at 620. It held that the ISO‘s had come forward with sufficient evidence, for summary judgment purposes, to disprove Kodak‘s business justifications. Ibid.
The dissent in the Court of Appeals, with respect to the § 1 claim, accepted Kodak‘s argument that evidence of competition in the equipment market ”necessarily precludes power in the derivative market.” Id., at 622 (emphasis in original). With respect to the § 2 monopolization claim, the dissent concluded that, entirely apart from market power considerations, Kodak was entitled to summary judgment on the basis of its first business justification because it had “submitted extensive and undisputed evidence of a marketing strategy based on high-quality service.” Id., at 623.
II
A tying arrangement is “an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.” Northern Pacific R. Co. v. United States, 356 U. S. 1, 5-6
Kodak did not dispute that its arrangement affects a substantial volume of interstate commerce. It, however, did challenge whether its activities constituted a “tying arrangement” and whether Kodak exercised “appreciable economic power” in the tying market. We consider these issues in turn.
A
For respondents to defeat a motion for summary judgment on their claim of a tying arrangement, a reasonable trier of fact must be able to find, first, that service and parts are two distinct products, and, second, that Kodak has tied the sale of the two products.
For service and parts to be considered two distinct products, there must be sufficient consumer demand so that it is efficient for a firm to provide service separately from parts. Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U. S. 2, 21-22 (1984). Evidence in the record indicates that service and parts have been sold separately in the past and still are sold separately to self-service equipment owners.5 Indeed, the development of the entire high-technology service industry is evidence of the efficiency of a separate market for service.6
Kodak‘s assertion also appears to be incorrect as a factual matter. At least some consumers would purchase service without parts, because some service does not require parts, and some consumers, those who self-service for example, would purchase parts without service.7 Enough doubt is cast on Kodak‘s claim of a unified market that it should be resolved by the trier of fact.
Finally, respondents have presented sufficient evidence of a tie between service and parts. The record indicates that Kodak would sell parts to third parties only if they agreed not to buy service from ISO‘s.8
fornia State Electronics Association et al. as Amici Curiae; Brief for National Office Machine Dealers et al. as Amici Curiae.
Having found sufficient evidence of a tying arrangement, we consider the other necessary feature of an illegal tying arrangement: appreciable economic power in the tying market. Market power is the power “to force a purchaser to do something that he would not do in a competitive market.” Jefferson Parish, 466 U. S., at 14.9 It has been defined as “the ability of a single seller to raise price and restrict output.” Fortner, 394 U. S., at 503; United States v. E. I. du Pont de Nemours & Co., 351 U. S. 377, 391 (1956). The existence of such power ordinarily is inferred from the seller‘s possession of a predominant share of the market. Jefferson Parish, 466 U. S., at 17; United States v. Grinnell Corp., 384 U. S. 563, 571 (1966); Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 611-613 (1953).
1
Respondents contend that Kodak has more than sufficient power in the parts market to force unwanted purchases of the tied market, service. Respondents provide evidence that certain parts are available exclusively through Kodak. Respondents also assert that Kodak has control over the availability of parts it does not manufacture. According to respondents’ evidence, Kodak has prohibited independent manufacturers from selling Kodak parts to ISO‘s, pressured Kodak equipment owners and independent parts distributors to deny ISO‘s the purchase of Kodak parts, and taken steps to restrict the availability of used machines.
2
Kodak counters that even if it concedes monopoly share of the relevant parts market, it cannot actually exercise the necessary market power for a Sherman Act violation. This is so, according to Kodak, because competition exists in the equipment market.10 Kodak argues that it could not have
Kodak does not present any actual data on the equipment, service, or parts markets. Instead, it urges the adoption of a substantive legal rule that “equipment competition precludes any finding of monopoly power in derivative aftermarkets.” Brief for Petitioner 33. Kodak argues that such a rule would satisfy its burden as the moving party of showing “that there is no genuine issue as to any material fact” on the market power issue.11 See
Legal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavored
cial resources with a view to deciding the merits of one or more of the questions presented in the petition.” Because respondents failed to bring their objections to the premise underlying the questions presented to our attention in their opposition to the petition for certiorari, we decide those questions based on the same premise as the Court of Appeals, namely, that competition exists in the equipment market.
Kodak contends that there is no need to examine the facts when the issue is market power in the aftermarkets. A legal presumption against a finding of market power is warranted in this situation, according to Kodak, because the existence of market power in the service and parts markets absent power in the equipment market “simply makes no economic sense,” and the absence of a legal presumption would deter procompetitive behavior. Matsushita, 475 U. S., at 587; id., at 594-595.
Kodak analogizes this case to Matsushita, where a group of American corporations that manufactured or sold consumer electronic products alleged that their 21 Japanese counterparts were engaging in a 20-year conspiracy to price
The Court‘s requirement in Matsushita that the plaintiffs’ claims make economic sense did not introduce a special burden on plaintiffs facing summary judgment in antitrust cases. The Court did not hold that if the moving party enunciates any economic theory supporting its behavior, regardless of its accuracy in reflecting the actual market, it is entitled to summary judgment. Matsushita demands only that the nonmoving party‘s inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision.14 If the plaintiff‘s theory is eco-
Kodak, then, bears a substantial burden in showing that it is entitled to summary judgment. It must show that despite evidence of increased prices and excluded competition, an inference of market power is unreasonable. To determine whether Kodak has met that burden, we must unravel the factual assumptions underlying its proposed rule that lack of power in the equipment market necessarily precludes power in the aftermarkets.
The extent to which one market prevents exploitation of another market depends on the extent to which consumers will change their consumption of one product in response to a price change in another, i. e., the “cross-elasticity of demand.” See Du Pont, 351 U. S., at 400; P. Areeda & L. Kaplow, Antitrust Analysis ¶ 342(c) (4th ed. 1988).15 Ko-
Co. of New York, Inc. v. Siemens Medical Systems, Inc., 879 F. 2d 1005, 1012 (CA2 1989) (“[O]nly reasonable inferences can be drawn from the evidence in favor of the nonmoving party“) (emphasis in original); Arnold Pontiac-GMC, Inc. v. Budd Baer, Inc., 826 F. 2d 1335, 1339 (CA3 1987) (Matsushita directs us “to consider whether the inference of conspiracy is reasonable “); Instructional Systems Development Corp. v. Aetna Casualty & Surety Co., 817 F. 2d 639, 646 (CA10 1987) (summary judgment not appropriate under Matsushita when defendants “could reasonably have been economically motivated“).
Even if Kodak could not raise the price of service and parts one cent without losing equipment sales, that fact would not disprove market power in the aftermarkets. The sales of even a monopolist are reduced when it sells goods at a monopoly price, but the higher price more than compensates for the loss in sales. Areeda & Kaplow ¶¶ 112 and 340(a). Kodak‘s claim that charging more for service and parts would be “a short-run game,” Brief for Petitioner 26, is based on the false dichotomy that there are only two prices
in the equipment market will significantly restrain power in the service and parts markets.
that can be charged—a competitive price or a ruinous one. But there could easily be a middle, optimum price at which the increased revenues from the higher priced sales of service and parts would more than compensate for the lower revenues from lost equipment sales. The fact that the equipment market imposes a restraint on prices in the aftermarkets by no means disproves the existence of power in those markets. See Areeda & Kaplow ¶340(b) (“[T]he existence of significant substitution in the event of further price increases or even at the current price does not tell us whether the defendant already exercises significant market power“) (emphasis in original). Thus, contrary to Kodak‘s assertion, there is no immutable physical law—no “basic economic reality“—insisting that competition in the equipment market cannot coexist with market power in the aftermarkets.
We next consider the more narrowly drawn question: Does Kodak‘s theory describe actual market behavior so accurately that respondents’ assertion of Kodak market power in the aftermarkets, if not impossible, is at least unreasonable?18 Cf. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
Kodak and the United States attempt to reconcile Kodak‘s theory with the contrary actual results by describing a “marketing strategy of spreading over time the total cost to the buyer of Kodak equipment.” Brief for United States as Amicus Curiae 18; see also Brief for Petitioner 18. In other words, Kodak could charge subcompetitive prices for equipment and make up the difference with supracompetitive prices for service, resulting in an overall competitive price. This pricing strategy would provide an explanation for the theory‘s descriptive failings—if Kodak in fact had adopted it. But Kodak never has asserted that it prices its equipment or parts subcompetitively and recoups its profits through service. Instead, it claims that it prices its equipment comparably to its competitors and intends that both its equipment sales and service divisions be profitable. See App. 159-161, 170, 178, 188. Moreover, this hypothetical pricing strategy is inconsistent with Kodak‘s policy toward its self-service customers. If Kodak were underpricing its equipment, hoping to lock in customers and recover its losses in the service
Respondents offer a forceful reason why Kodak‘s theory, although perhaps intuitively appealing, may not accurately explain the behavior of the primary and derivative markets for complex durable goods: the existence of significant information and switching costs. These costs could create a less responsive connection between service and parts prices and equipment sales.
For the service-market price to affect equipment demand, consumers must inform themselves of the total cost of the “package“—equipment, service, and parts—at the time of purchase; that is, consumers must engage in accurate life-cycle pricing.19 Life-cycle pricing of complex, durable equipment is difficult and costly. In order to arrive at an accurate price, a consumer must acquire a substantial amount of raw data and undertake sophisticated analysis. The necessary information would include data on price, quality, and availability of products needed to operate, upgrade, or enhance the initial equipment, as well as service and repair costs, including estimates of breakdown frequency, nature of repairs, price of service and parts, length of “downtime,” and losses incurred from downtime.20
Much of this information is difficult—some of it impossible—to acquire at the time of purchase. During the life of a product, companies may change the service and parts prices, and develop products with more advanced features, a
Kodak acknowledges the cost of information, but suggests, again without evidentiary support, that customer information needs will be satisfied by competitors in the equipment markets. Brief for Petitioner 26, n. 11. It is a question of fact, however, whether competitors would provide the necessary information. A competitor in the equipment market may not have reliable information about the lifecycle costs of complex equipment it does not service or the needs of customers it does not serve. Even if competitors had the relevant information, it is not clear that their interests would be advanced by providing such information to consumers. See 2 P. Areeda & D. Turner, Antitrust Law ¶404b1 (1978).21
Moreover, even if consumers were capable of acquiring and processing the complex body of information, they may choose not to do so. Acquiring the information is expensive. If the costs of service are small relative to the equipment price, or if consumers are more concerned about equipment capabilities than service costs, they may not find it cost efficient to
As Kodak notes, there likely will be some large-volume, sophisticated purchasers who will undertake the comparative studies and insist, in return for their patronage, that Kodak charge them competitive lifecycle prices. Kodak contends that these knowledgeable customers will hold down the package price for all other customers. Brief for Petitioner 23, n. 9. There are reasons, however, to doubt that sophisticated purchasers will ensure that competitive prices are charged to unsophisticated purchasers, too. As an initial matter, if the number of sophisticated customers is relatively small, the amount of profits to be gained by supracompetitive pricing in the service market could make it profitable to let the knowledgeable consumers take their business elsewhere. More importantly, if a company is able to price discriminate between sophisticated and unsophisticated consumers, the sophisticated will be unable to prevent the exploitation of the uninformed. A seller could easily price discriminate by varying the equipment/parts/service package, developing different warranties, or offering price discounts on different components.
Given the potentially high cost of information and the possibility that a seller may be able to price discriminate between knowledgeable and unsophisticated consumers, it makes little sense to assume, in the absence of any evidentiary support, that equipment-purchasing decisions are based
Indeed, respondents have presented evidence that Kodak practices price discrimination by selling parts to customers who service their own equipment, but refusing to sell parts to customers who hire third-party service companies. Companies that have their own service staff are likely to be high-volume users, the same companies for whom it is most likely to be economically worthwhile to acquire the complex information needed for comparative lifecycle pricing.
A second factor undermining Kodak‘s claim that supracompetitive prices in the service market lead to ruinous losses in equipment sales is the cost to current owners of switching to a different product. See Areeda & Turner ¶519a.23 If the cost of switching is high, consumers who already have purchased the equipment, and are thus “locked in,” will tolerate some level of service-price increases before changing equipment brands. Under this scenario, a seller profitably could maintain supracompetitive prices in the aftermarket if the switching costs were high relative to the increase in service prices, and the number of locked-in customers were high relative to the number of new purchasers.
Moreover, if the seller can price discriminate between its locked-in customers and potential new customers, this strategy is even more likely to prove profitable. The seller could simply charge new customers below-marginal cost on the equipment and recoup the charges in service, or offer pack-
Respondents have offered evidence that the heavy initial outlay for Kodak equipment, combined with the required support material that works only with Kodak equipment, makes switching costs very high for existing Kodak customers. And Kodak‘s own evidence confirms that it varies the package price of equipment/parts/service for different customers.
In sum, there is a question of fact whether information costs and switching costs foil the simple assumption that the equipment and service markets act as pure complements to one another.24
We conclude, then, that Kodak has failed to demonstrate that respondents’ inference of market power in the service and parts markets is unreasonable, and that, consequently, Kodak is entitled to summary judgment. It is clearly reasonable to infer that Kodak has market power to raise prices and drive out competition in the aftermarkets, since respondents offer direct evidence that Kodak did so.25 It is also plausible, as discussed above, to infer that Kodak chose to gain immediate profits by exerting that market power where locked-in customers, high information costs, and discriminatory pricing limited and perhaps eliminated any long-
Nor are we persuaded by Kodak‘s contention that it is entitled to a legal presumption on the lack of market power because, as in Matsushita, there is a significant risk of deterring procompetitive conduct. Plaintiffs in Matsushita attempted to prove the antitrust conspiracy “through evidence of rebates and other price-cutting activities.” Id., at 594. Because cutting prices to increase business is “the very essence of competition,” the Court was concerned that mistaken inferences would be “especially costly” and would “chill the very conduct the antitrust laws are designed to protect.” Ibid. See also Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 763 (1984) (permitting inference of concerted action would “deter or penalize perfectly legitimate conduct“). But the facts in this case are just the opposite. The alleged conduct—higher service prices and market foreclosure—is facially anticompetitive and exactly the harm that antitrust laws aim to prevent. In this situation, Matsushita does not create any presumption in favor of summary judgment for the defendant.
Kodak contends that, despite the appearance of anticompetitiveness, its behavior actually favors competition because its ability to pursue innovative marketing plans will allow it to compete more effectively in the equipment market. Brief for Petitioner 40-41. A pricing strategy based on lower equipment prices and higher aftermarket prices could enhance equipment sales by making it easier for the buyer to finance the initial purchase.26 It is undisputed that competition is enhanced when a firm is able to offer various marketing options, including bundling of support and maintenance service with the sale of equipment. Nor do such ac-
We need not decide whether Kodak‘s behavior has any procompetitive effects and, if so, whether they outweigh the anticompetitive effects. We note only that Kodak‘s service and parts policy is simply not one that appears always or almost always to enhance competition, and therefore to warrant a legal presumption without any evidence of its actual economic impact. In this case, when we weigh the risk of deterring procompetitive behavior by proceeding to trial against the risk that illegal behavior will go unpunished, the balance tips against summary judgment. Cf. Matsushita, 475 U.S., at 594-595.
For the foregoing reasons, we hold that Kodak has not met the requirements of
III
Respondents also claim that they have presented genuine issues for trial as to whether Kodak has monopolized, or at-tempted to monopolize, the service and parts markets in violation of § 2 of the
Even assuming, despite the absence of any proof from the dissent, that all manufacturers possess some inherent market power in the parts market, it is not clear why that should immunize them from the antitrust laws in another market. The Court has held many times that power gained through some natural and legal advantage such as a patent, copyright, or business acumen can give rise to liability if “a seller exploits his dominant position in one market to expand his empire into the next.” Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 611 (1953); see, e. g., Northern Pacific R. Co. v. United States, 356 U.S. 1 (1958); United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948); Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 463 (1938). Moreover, on the occasions when the Court has considered tying in derivative aftermarkets by manufacturers, it has not adopted any exception to the usual antitrust analysis, treating derivative aftermarkets as it has every other separate market. See International Salt Co. v. United States, 332 U.S. 392 (1947); International Business Machines Corp. v. United States, 298 U.S. 131 (1936); United Shoe Machinery Corp. v. United States, 258 U.S. 451 (1922). Our past decisions are reason enough to reject the dissent‘s proposal. See Patterson v. McLean Credit Union, 491 U.S. 164, 172-173 (1989) (“Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done“).
Nor does the record in this case support the dissent‘s proposed exemption for aftermarkets. The dissent urges its exemption because the tie here “does not permit the manufacturer to project power over a class of consumers distinct from that which it is already able to exploit (and fully) without the inconvenience of the tie.” Post, at 498. Beyond the dissent‘s obvious difficulty in explaining why Kodak would adopt this expensive tying policy if it could achieve the same profits more conveniently through some other means, respondents offer an alternative theory, supported by the record, that suggests Kodak is able to exploit some customers who in the absence of the tie would be protected from increases in parts prices by knowledgeable customers. See supra, at 475-476.
At bottom, whatever the ultimate merits of the dissent‘s theory, at this point it is mere conjecture. Neither Kodak nor the dissent have provided
A
The existence of the first element, possession of monopoly power, is easily resolved. As has been noted, respondents have presented a triable claim that service and parts are separate markets, and that Kodak has the “power to control prices or exclude competition” in service and parts. Du Pont, 351 U.S., at 391. Monopoly power under § 2 requires, of course, something greater than market power under § 1. See Fortner, 394 U.S., at 502. Respondents’ evidence that Kodak controls nearly 100% of the parts market and 80% to 95% of the service market, with no readily available substitutes, is, however, sufficient to survive summary judgment under the more stringent monopoly standard of § 2. See National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U.S. 85, 112 (1984). Cf. United States v. Grinnell Corp., 384 U.S., at 571 (87% of the market is a monopoly); American Tobacco Co. v. United States, 328 U.S. 781, 797 (1946) (over two-thirds of the market is a monopoly).
Kodak also contends that, as a matter of law, a single brand of a product or service can never be a relevant market under the
B
The second element of a § 2 claim is the use of monopoly power “to foreclose competition, to gain a competitive advan-
As recounted at length above, respondents have presented evidence that Kodak took exclusionary action to maintain its parts monopoly and used its control over parts to strengthen its monopoly share of the Kodak service market. Liability turns, then, on whether “valid business reasons” can explain Kodak‘s actions. Id., at 605; United States v. Aluminum Co. of America, 148 F. 2d, at 432. Kodak contends that it has three valid business justifications for its actions: “(1) to promote interbrand equipment competition by allowing Kodak to stress the quality of its service; (2) to improve asset management by reducing Kodak‘s inventory costs; and (3) to prevent ISOs from free-riding on Kodak‘s capital investment in equipment, parts and service.” Brief for Petitioner 6. Factual questions exist, however, about the validity and sufficiency of each claimed justification, making summary judgment inappropriate.
Kodak first asserts that by preventing customers from using ISO‘s, “it [can] best maintain high quality service for its sophisticated equipment” and avoid being “blamed for an equipment malfunction, even if the problem is the result of improper diagnosis, maintenance or repair by an ISO.” Id., at 6-7. Respondents have offered evidence that ISO‘s provide quality service and are preferred by some Kodak equipment owners. This is sufficient to raise a genuine issue of
Moreover, there are other reasons to question Kodak‘s proffered motive of commitment to quality service; its quality justification appears inconsistent with its thesis that consumers are knowledgeable enough to lifecycle price, and its self-service policy. Kodak claims the exclusive-service contract is warranted because customers would otherwise blame Kodak equipment for breakdowns resulting from inferior ISO service. Thus, Kodak simultaneously claims that its customers are sophisticated enough to make complex and subtle lifecycle-pricing decisions, and yet too obtuse to distinguish which breakdowns are due to bad equipment and which are due to bad service. Kodak has failed to offer any reason why informational sophistication should be present in one circumstance and absent in the other. In addition, because self-service customers are just as likely as others to blame Kodak equipment for breakdowns resulting from (their own) inferior service, Kodak‘s willingness to allow self-service casts doubt on its quality claim. In sum, we agree with the Court of Appeals that respondents “have presented evidence from which a reasonable trier of fact could conclude that Kodak‘s first reason is pretextual.” 903 F. 2d, at 618.
There is also a triable issue of fact on Kodak‘s second justification—controlling inventory costs. As respondents argue, Kodak‘s actions appear inconsistent with any need to control inventory costs. Presumably, the inventory of parts
Nor does Kodak‘s final justification entitle it to summary judgment on respondents’ § 2 claim. Kodak claims that its policies prevent ISO‘s from “exploit[ing] the investment Kodak has made in product development, manufacturing and equipment sales in order to take away Kodak‘s service revenues.” Brief for Petitioner 7-8. Kodak does not dispute that respondents invest substantially in the service market, with training of repair workers and investment in parts inventory. Instead, according to Kodak, the ISO‘s are free-riding because they have failed to enter the equipment and parts markets. This understanding of free-riding has no support in our case law.33 To the contrary, as the Court of Appeals noted, one of the evils proscribed by the antitrust laws is the creation of entry barriers to potential competitors by requiring them to enter two markets simultaneously. Jefferson Parish, 466 U.S., at 14; Fortner, 394 U.S., at 509.
None of Kodak‘s asserted business justifications, then, are sufficient to prove that Kodak is “entitled to a judgment as
IV
In the end, of course, Kodak‘s arguments may prove to be correct. It may be that its parts, service, and equipment are components of one unified market, or that the equipment market does discipline the aftermarkets so that all three are priced competitively overall, or that any anticompetitive effects of Kodak‘s behavior are outweighed by its competitive effects. But we cannot reach these conclusions as a matter of law on a record this sparse. Accordingly, the judgment of the Court of Appeals denying summary judgment is affirmed.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE O‘CONNOR and JUSTICE THOMAS join, dissenting.
This is not, as the Court describes it, just “another case that concerns the standard for summary judgment in an antitrust controversy.” Ante, at 454. Rather, the case presents a very narrow—but extremely important—question of substantive antitrust law: whether, for purposes of applying our per se rule condemning “ties,” and for purposes of applying our exacting rules governing the behavior of would-be monopolists, a manufacturer‘s conceded lack of power in the interbrand market for its equipment is somehow consistent with its possession of “market,” or even “monopoly,” power in wholly derivative aftermarkets for that equipment. In my view, the Court supplies an erroneous answer to this question, and I dissent.
I
Per se rules of antitrust illegality are reserved for those situations where logic and experience show that the risk of injury to competition from the defendant‘s behavior is so pronounced that it is needless and wasteful to conduct the usual judicial inquiry into the balance between the behavior‘s pro-
Despite intense criticism of the tying doctrine in academic circles, see, e. g., R. Bork, The Antitrust Paradox 365-381 (1978), the stated rationale for our per se rule has varied little over the years. When the defendant has genuine “market power” in the tying product—the power to raise price by reducing output—the tie potentially enables him to extend that power into a second distinct market, enhancing barriers to entry in each. In addition:
“[T]ying arrangements may be used to evade price control in the tying product through clandestine transfer of the profit to the tied product; they may be used as a counting device to effect price discrimination; and they may be used to force a full line of products on the customer so as to extract more easily from him a monopoly return on one unique product in the line.” Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 513-514 (1969) (Fortner I) (WHITE, J., dissenting) (footnotes omitted).
Our § 2 monopolization doctrines are similarly directed to discrete situations in which a defendant‘s possession of substantial market power, combined with his exclusionary or anticompetitive behavior, threatens to defeat or forestall the corrective forces of competition and thereby sustain or extend the defendant‘s agglomeration of power. See United States v. Grinnell Corp., 384 U.S. 563, 570-571 (1966). Where a defendant maintains substantial market power, his activities are examined through a special lens: Behavior that might otherwise not be of concern to the antitrust laws—or that might even be viewed as procompetitive—can take on exclusionary connotations when practiced by a monopolist. 3 P. Areeda & D. Turner, Antitrust Law ¶813, pp. 300-302 (1978) (hereinafter 3 Areeda & Turner).
The concerns, however, that have led the courts to heightened scrutiny both of the “exclusionary conduct” practiced by a monopolist and of tying arrangements subject to per se prohibition, are completely without force when the participants lack market power. As to the former, “[t]he [very] definition of exclusionary conduct,” as practiced by a monopolist, is “predicated on the existence of substantial market power.” Id., ¶813, at 301; see, e. g., Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177-178 (1965) (fraudulent patent procurement); Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 75 (1911) (acquisition of competitors); 3 Areeda & Turner ¶724, at 195-197 (vertical integration). And with respect to tying, we have recognized that bundling arrangements not coerced by the heavy hand of market power can serve the procompetitive functions of facilitating new entry into cer-
The Court today finds in the typical manufacturer‘s inherent power over its own brand of equipment—over the sale of distinctive repair parts for that equipment, for example—the sort of “monopoly power” sufficient to bring the sledgehammer of § 2 into play. And, not surprisingly in light of that insight, it readily labels single-brand power over aftermarket products “market power” sufficient to permit an antitrust plaintiff to invoke the per se rule against tying. In my opinion, this makes no economic sense. The holding that market power can be found on the present record causes these venerable rules of selective proscription to extend well beyond the point where the reasoning that supports them leaves off. Moreover, because the sort of power condemned by the Court today is possessed by every manufacturer of durable goods with distinctive parts, the Court‘s opinion threatens to release a torrent of litigation and a flood of commercial intimidation that will do much more harm than good to enforcement of the antitrust laws and to genuine competition. I shall explain, in Parts II and III, respectively, how neither logic nor experience suggests, let alone compels, ap-
II
On appeal in the Ninth Circuit, respondents, having waived their “rule of reason” claim, were limited to arguing that the record, construed in the light most favorable to them, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), supported application of the per se tying prohibition to Kodak‘s restrictive parts and service policy. See 903 F. 2d 612, 615, n. 1 (1990). As the Court observes, in order to survive Kodak‘s motion for summary judgment on this claim, respondents bore the burden of proffering evidence on which a reasonable trier of fact could conclude that Kodak possesses power in the market for the alleged “tying” product. See ante, at 464; Jefferson Parish, 466 U.S., at 13-14.
A
We must assume, for purposes of deciding this case, that petitioner is without market, much less monopoly, power in the interbrand markets for its micrographic and photocopying equipment. See ante, at 465-466, n. 10; Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). In the District Court, respondents did, in fact, include in their complaint an allegation which posited the interbrand equipment markets as the relevant markets; in particular, they alleged a § 1 “tie” of micrographic and photocopying equipment to the parts and service for those machines. App. 22-23. Though this allegation was apparently abandoned in pursuit of §§ 1 and 2 claims focused exclusively on the parts and service aftermarkets (about which more later), I think it helpful to analyze how that claim would have fared under the per se rule.
Had Kodak—from the date of its entry into the micrographic and photocopying equipment markets—included a lifetime parts and service warranty with all original equip-
ment, or required consumers to purchase a lifetime parts and service contract with each machine, that bundling of equipment, parts, and service would no doubt constitute a tie under the tests enunciated in Jefferson Parish, supra. Nevertheless, it would be immune from per se scrutiny under the antitrust laws because the tying product would be equipment, a market in which (we assume) Kodak has no power to influence price or quantity. See id., at 13-14; United States Steel Corp. v. Fortner Enterprises, Inc., 429 U. S. 610, 620 (1977) (Fortner II); Northern Pacific R. Co. v. United States, 356 U. S. 1, 6-7 (1958). The same result would obtain, I think, had Kodak—from the date of its market entry—consistently pursued an announced policy of limiting parts sales in the manner alleged in this case, so that customers bought with the knowledge that aftermarket support could be obtained only from Kodak. The foreclosure of respondents from the business of servicing Kodak‘s micrographic and photocopying machines in these illustrations would be undeniably complete—as complete as the foreclosure described in respondents’ complaint. Nonetheless, we would inquire no further than to ask whether Kodak‘s market power in the equipment market effectively forced consumers to purchase Kodak micrographic or photocopying machines subject to the company‘s restrictive aftermarket practices. If not, that would end the case insofar as the per se rule was concerned. See Jefferson Parish, supra, at 13-14; 9 P. Areeda, Antitrust Law ¶ 1709c5, pp. 101-102 (1991); Klein & Saft, The Law and Economics of Franchise Tying Contracts, 28 J. Law & Econ. 345, 356 (1985). The evils against which the tying prohibition is directed would simply not be presented. Interbrand competition would render Kodak powerless to gain economic power over an additional class of consumers, to price discriminate by charging each customer a “system” price equal to the system‘s economic value to that customer, or to raise barriers to entry in the interbrand equipment markets. See 3 Areeda & Turner ¶ 829d, at 331-332.
I have described these illustrations as hypothetical, but in fact they are not far removed from this case. The record below is consistent—in large part—with just this sort of bundling of equipment on the one hand, with parts and service on the other. The restrictive parts policy, with respect to micrographic equipment at least, was not even alleged to be anything but prospective. See App. 17. As respondents summarized their factual proffer below:
“Under this policy, Kodak cut off parts on new products to Kodak micrographics [independent service organizations] ISOs. The effect of this, of course, was that as customers of Kodak micrographics ISOs obtained new equipment, the ISOs were unable to service the equipment for that customer, and, service for these customers was lost by the Kodak ISOs. Additionally, as equipment became obsolete, and the equipment population became all ‘new equipment’ (post April 1985 models), Kodak micrographics ISOs would be able to service no equipment at all.” Id., at 360.
As to Kodak copiers, Kodak‘s restrictive parts policy had a broader foundation: Considered in the light most favorable to respondents, see Anderson, supra, at 255, the record suggests that, from its inception, the policy was applied to new and existing copier customers alike. But at least all post-1985 purchasers of micrographic equipment, like all post-1985 purchasers of new Kodak copiers, could have been aware of Kodak‘s parts practices. The only thing lacking to bring all of these purchasers (accounting for the vast bulk of the commerce at issue here) squarely within the hypotheticals we have described is concrete evidence that the restrictive parts policy was announced or generally known. Thus, under the Court‘s approach the existence vel non of such evidence is determinative of the legal standard (the per se rule versus the rule of reason) under which the alleged tie is examined. In my judgment, this makes no sense. It is
B
In the Court of Appeals, respondents sought to sidestep the impediment posed by interbrand competition to their invocation of the per se tying rule by zeroing in on the parts and service “aftermarkets” for Kodak equipment. By alleging a tie of parts to service, rather than of equipment to parts and service, they identified a tying product in which Kodak unquestionably held a near-monopoly share: the parts uniquely associated with Kodak‘s brand of machines. See Jefferson Parish, 466 U. S., at 17. The Court today holds that such a facial showing of market share in a single-brand aftermarket is sufficient to invoke the per se rule. The existence of even vibrant interbrand competition is no defense. See ante, at 470-471.
I find this a curious form of market power on which to premise the application of a per se proscription. It is enjoyed by virtually every manufacturer of durable goods requiring aftermarket support with unique, or relatively unique, goods. See P. Areeda & H. Hovenkamp, Antitrust Law ¶ 525.1, p. 563 (Supp. 1991). “[S]uch reasoning makes every maker of unique parts for its own product a holder of market power no matter how unimportant its product might be in the market.” Ibid. (emphasis added).1 Under
in this case may have implicated truth-in-advertising or
In the absence of interbrand power, a seller‘s predominant or monopoly share of its single-brand derivative markets does not connote the power to raise derivative market prices generally by reducing quantity. As Kodak and its principal amicus, the United States, point out, a rational consumer considering the purchase of Kodak equipment will inevitably factor into his purchasing decision the expected cost of aftermarket support. “[B]oth the price of the equipment and the price of parts and service over the life of the equipment are expenditures that are necessary to obtain copying and micrographic services.” Brief for United States as Amicus Curiae 13. If Kodak set generally supracompetitive prices for either spare parts or repair services without making an offsetting reduction in the price of its machines, rational consumers would simply turn to Kodak‘s competitors for photocopying and micrographic systems. See, e. g., Grappone, Inc. v. Subaru of New England, Inc., 858 F. 2d 792, 796-798 (CA1 1988). True, there are—as the Court notes, see ante, at 474-475—the occasional irrational consumers that consider only the hardware cost at the time of purchase (a category that regrettably includes the Federal Government, whose “purchasing system,” we are told, assigns foremarket purchases and aftermarket purchases to different entities). But
The Court attempts to counter this theoretical point with a theory of its own. It says that there are “information costs“—the costs and inconvenience to the consumer of acquiring and processing life-cycle pricing data for Kodak machines—that “could create a less responsive connection between service and parts prices and equipment sales.” Ante, at 473. But this truism about the functioning of markets for sophisticated equipment cannot create “market power” of concern to the antitrust laws where otherwise there is none. “Information costs,” or, more accurately, gaps in the availability and quality of consumer information, pervade real-world markets; and because consumers generally make do with “rough cut” judgments about price in such circumstances, in virtually any market there are zones within which otherwise competitive suppliers may overprice their products without losing appreciable market share. We have never suggested that the principal players in a market with such commonplace informational deficiencies (and, thus, bands of apparent consumer pricing indifference) exercise market power in any sense relevant to the antitrust laws. “While [such] factors may generate ‘market power’ in some abstract sense, they do not generate the kind of market power that justifies condemnation of tying.” Jefferson Parish, 466 U. S., at 27; see, e. g., Town Sound and Custom Tops, Inc. v. Chrysler Motors Corp., supra.
Respondents suggest that, even if the existence of interbrand competition prevents Kodak from raising prices generally in its single-brand aftermarkets, there remain certain consumers who are necessarily subject to abusive Kodak pricing behavior by reason of their being “locked in” to their investments in Kodak machines. The Court agrees; indeed, it goes further by suggesting that even a general policy of supracompetitive aftermarket prices might be profitable over the long run because of the “lock-in” phenomenon. “[A]
The Court‘s narrower point, however, is undeniably true. There will be consumers who, because of their capital investment in Kodak equipment, “will tolerate some level of service-price increases before changing equipment brands,” ibid.; this is necessarily true for “every maker of unique parts for its own product.” Areeda & Hovenkamp, Antitrust Law ¶ 525.1b, at 563. But this “circumstantial” leverage created by consumer investment regularly crops up in smoothly functioning, even perfectly competitive, markets, and in most—if not all—of its manifestations, it is of no concern to the antitrust laws. The leverage held by the manufacturer of a malfunctioning refrigerator (which is measured by the consumer‘s reluctance to walk away from his initial investment in that device) is no different in kind or degree from the leverage held by the swimming pool contractor when he discovers a 5-ton boulder in his customer‘s backyard and demands an additional sum of money to remove it; or the leverage held by an airplane manufacturer over an airline that has “standardized” its fleet around the manufacturer‘s models; or the leverage held by a drill press manufacturer whose customers have built their production lines around the
The Court correctly observes that the antitrust laws do not permit even a natural monopolist to project its monopoly power into another market, i. e., to “exploi[t] his dominant position in one market to expand his empire into the next.” Ante, at 480, n. 29 (quoting Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 611 (1953)). However, when a manufacturer uses its control over single-branded parts to acquire influence in single-branded service, the monopoly “leverage” is almost invariably of no practical consequence, because of perfect identity between the consumers in each of the subject aftermarkets (those who need replacement parts for Kodak equipment and those who need servicing of Kodak equipment). When that condition exists, the tie does not permit the manufacturer to project power over a class of consumers distinct from that which it is already able to exploit (and fully) without the inconvenience of the tie. Cf., e. g., Bowman, Tying Arrangements and the Leverage Problem, 67 Yale L. J. 19, 21-27 (1957).
We have never before accepted the thesis the Court today embraces: that a seller‘s inherent control over the unique
We have recognized in closely related contexts that the deterrent effect of interbrand competition on the exploitation of intrabrand market power should make courts exceedingly reluctant to apply rules of per se illegality to intrabrand restraints. For instance, we have refused to apply a rule of per se illegality to vertical nonprice restraints “because of their potential for a simultaneous reduction of intrabrand competition and stimulation of interbrand competition,” Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 51-52 (1977), the latter of which we described as “the primary concern of antitrust law,” id., at 52, n. 19. We noted, for instance, that “new manufacturers and manufacturers entering new markets can use the restrictions in order to induce competent and aggressive retailers to make the kind of investment of capital and labor that is often required in the distribution of products unknown to the consumer,” and that “[e]stablished manufacturers can use them
I would instead evaluate the aftermarket tie alleged in this case under the rule of reason, where the tie‘s actual anticompetitive effect in the tied product market, together with its potential economic benefits, can be fully captured in the analysis, see, e. g., Jefferson Parish, 466 U. S., at 41 (O‘CONNOR, J., concurring in judgment). Disposition of this case does not require such an examination, however, as respondents apparently waived any rule-of-reason claim they
III
These considerations apply equally to respondents’ § 2 claims. An antitrust defendant lacking relevant “market power” sufficient to permit invocation of the per se prohibition against tying a fortiori lacks the monopoly power that warrants heightened scrutiny of his allegedly exclusionary behavior. Without even so much as asking whether the purposes of § 2 are implicated here, the Court points to Kodak‘s control of “100% of the parts market and 80% to 95% of the service market,” markets with “no readily available substitutes,” ante, at 481, and finds that the proffer of such statistics is sufficient to fend off summary judgment. But this showing could easily be made, as I have explained, with respect to virtually any manufacturer of differentiated products requiring aftermarket support. By permitting antitrust plaintiffs to invoke § 2 simply upon the unexceptional demonstration that a manufacturer controls the supplies of its single-branded merchandise, the Court transforms § 2 from a specialized mechanism for responding to extraordinary agglomerations (or threatened agglomerations) of economic power to an all-purpose remedy against run-of-the-mill business torts.
In my view, if the interbrand market is vibrant, it is simply not necessary to enlist § 2‘s machinery to police a seller‘s intrabrand restraints. In such circumstances, the interbrand market functions as an infinitely more efficient and more precise corrective to such behavior, rewarding the seller whose intrabrand restraints enhance consumer welfare while punishing the seller whose control of the aftermarkets is viewed unfavorably by interbrand consumers. See Business Electronics Corp., supra, at 725; Continental T. V., Inc., supra, at 52, n. 19, 54. Because this case comes to us on the as-
Notes
While superficially appealing, at bottom this explanation lacks coherence. Whether they self-service their equipment or not, rational foremarket consumers (those consumers who are not yet “locked in” to Kodak hardware) will be driven to Kodak‘s competitors if the price of Kodak equipment, together with the expected cost of aftermarket support, exceeds competitive levels. This will be true no matter how Kodak distributes the total system price among equipment, parts, and service. See supra, at 495. Thus, as to these consumers, Kodak‘s lack of interbrand power wholly prevents it from employing a tie between parts and service as a vehicle for price discrimination. Nor does a tie between parts and service offer Kodak incremental exploitative power over those consumers—sophisticated or not—who have the supposed misfortune of being “locked in” to Kodak equipment. If Kodak desired to exploit its circumstantial power over this wretched class by pressing them up to the point where the cost to each consumer of switching equipment brands barely exceeded the cost of retaining Kodak equipment and remaining subject to Kodak‘s abusive practices, it could plainly do so without the inconvenience of a tie, through supracompetitive parts pricing alone. Since the locked-in sophisticated parts purchaser is as helpless as the locked-in unsophisticated one, I see nothing to be gained by price discrimination in favor of the former. If such price discrimination were desired, however, it would not have to be accomplished indirectly, through a tie of parts to service.