Reifert v. South Central Wisconsin MLS Corp.
450 F.3d 312
7th Cir.
2006
Check Treatment
Docket

*1 employee’s she was An because “sick.” Jay REIFERT, “sick,” however, Plaintiff-Appellant, being

reference to does suggest employer “not to the the med might ical condition be serious or that the

FMLA otherwise could applicable.” be SOUTH CENTRAL WISCONSIN MLS Collins, (citing CORPORATION, 272 F.3d at 1009 Price v. Realtors Associa 1022, Wayne, Ft. 117 F.3d Cir. Wisconsin, Inc., tion of South Central 1997)). Phillips claims the doctor’s Courter, Matthews, Robert L. Susan Quebecor’s triggered note duty inquiry Stark, Weber, David Robert Thomas under v. Fed. Express Corp., Bunbury, Hill, Maurice W. Peter Sve Kauffman (7th Cir.2005). 426 F.3d 886-87 After um, Zwygart, Marshall and David employee an requests leave for a serious McGrath, Defendants-Appellees. condition, the employer may health re No. 05-3601. quest employee’s certification provider. health care 29 C.F.R. United Appeals, States Court of 825.305(a). § If the provided certification Seventh Circuit. incomplete, employer must then af employee Argued ford the opportu “a Feb. 2006. reasonable nity to deficiency. cure” the 29 C.F.R. Decided June 2006. 825.305(d). § however, regulations, These Rehearing July Denied 2006. sufficiency address the of the cer doctor’s tification sufficiency rather than the provided by employee

notice

first instance.

Requiring employers to determine

whether leave is covered the FMLA time an

every employee was absent be impose of sickness

cause would “a substan largely

tial investigative wasted bur Aubuchon, employers.”

den on 359 F.3d Phillips’ request coupled for leave

with a mention of her sickness did not

“place the employer on notice of a proba

ble for FMLA basis leave” because she convey any

failed regarding information

the nature of her problem. medical Id. As law,

a matter of available information Quebecor require did not inqui further Price,

ry. See 117 F.3d at 1026.

III. Conclusion reasons,

For the foregoing we Affirm of the district court. *3 Barry (argued), Barry

David & Associ- ates, Francisco, CA, Plaintiff-Ap- for San pellant. Williamson, Kahn, Godfrey

Brady C. & Milwaukee, WI, Bierig (argued), Jack R. Wood, IL, Sidley Chicago, Austin Brown & . Defendants-Appellees. FLAUM, Judge, Before and Chief WOOD, Judges. KANNE and Circuit FLAUM, Judge. Chief Plaintiff-Appellant Jay Reifert claims that the defendants violated Sherman by tying Act access to a real estate multi- (“MLS”) listing service Realtors Association. The district court granted judgment for all defen- case, finding dants in therefore, in the tied market and no anti- trust violation. reasons,

For following we now af- firm the of the district court. Background I. Realtors Association of South Central (“RASCW”) Wisconsin, Inc. is a real estate trade association. Its members are real agents appraisers and around and Madison, Wisconsin. RASCW offers a va- riety and to mem- services its bers, functions, including lobbying, social courses, forms, programs, referral contract conventions, publications, legal and infor- mation. associated with the

RASCW is Wiscon- sin Realtors Association and the National (“NAR”). Association of Realtors When a person pays membership dues to an associ- NAR, person ation affiliated with be- Normally, comes a of NAR. member Reifert, plaintiff, Jay brings The three memberships Association1 SCWMLS, RASCW, local, state, against claims group including packaged as First, he al- the directors SCWMLS. memberships. NAR leges unlawfully that SCWMLS ties its 100% of the stock RASCW owns Second, services to Reifert al- RASCW. Corp. MLS South Central Wisconsin leges by conditioning access to MLS (“SCWMLS”). multiple The MLS or list- RASCW, on an un- service computerized database of ing service is group boycott lawful has occurred. Final- listed for sale properties homes and ly, alleges that Article 16 of the participants south-central SCWMLS I NAR Code of Ethics violates the Section listing multiple Access to this Wisconsin. Act, § the Sherman U.S.C. necessity for real estate service is prohibiting competition. *4 all Virtually in this area. appraisers and Reifert, in real is a residential estate bro- active residential real ker, exclusively buyers of representing Users are region subscribe to SCWMLS. in gain fee to access to real estate south central Wisconsin. charged quarterly (or a member of Reifert has been a member of RASCW the full database and must be in predecessor) participant NAR. its and a affiliated with a Realtors Association (or predecessor) since 1988. membership re- SCWMLS its The Realtors Association fifty belongs to the National Association for more than Reifert quirement has existed (“NAEBA”) Buyer’s Agents Generally, any licensed real estate Exclusive years. membership and no to maintain by to abide has desire professional agrees who in or the state and national Asso- pays applica- RASCW NAR Code of Ethics objects ciation to the of Realtors. ble fees is admitted. pay to for unwanted fees he is forced of Ethics Article 16 of NAR’s Code of Ethics he must services and Code ar- a “non-solicitation” rule. This contains in follow to maintain his practice the related standards of ticle and and NAR. RASCW inducing sellers to prohibit members contracts, years during Reifert claims that the four listing advising sellers breach action, in paid in dues during the time at issue this he superior prices services or for an unwanted RASCW with another excess of they are under contract $2000 ac- Realtor, maintain his SCWMLS received to using “information four-year peri- During ... to cess. the relevant through Multiple Listing Service 2,079 od, approximately there have been target clients of other Realtors®.” 5,600 partici- total annual and SCWMLS of directors A member-elected board pants. Fees sets dues for RASCW. action, a plaintiff To an antitrust by support set members elected SCWMLS are also the defendant’s ac- organiza- must demonstrate that of directors. Both board competition. Section tions have restrained solely opera- fees to cover tions set their states, “Every con- costs, I of the Act profit-making intent. Sherman tional tract, of trust or NAR, the form join the combination Annual dues to Wisconsin otherwise, in restraint of Realtors, conspiracy, or and RASCW are Association of among the several trade or commerce year. approximately $449 example of a organizations Ethics. RASCW is an Code of 1. “Realtors Associations” are affiliated with the National Association local Realtors Association. by agreed to abide the NAR Realtors and have ... illegal.” Tying States is declared to be 15 A. Claim § 1. The long U.S.C. Court has Reifert claims that the defendants recognized Congress intended to out engaged have an unlawful ar restraints,” only law “unreasonable not all rangement by limiting SCWMLS access to contracts restraint of trade. See State Thus, members of a Relators Association. Khan, 3, 10, Oil v.Co. alleged “tying product” is SCWMLS (1997) (citations 275, 139 L.Ed.2d 199 omit alleged and the product” “tied is member ted). Clayton The private Act allows for ship a Realtors Association. injured suits individuals violations of §§ antitrust laws. See 15 U.S.C. In determining whether a violation of Act, I Section of the Sherman 15 U.S.C. 25, 2005, August On the district court 1,§ has occurred aas result of a tie granted summary judgment to the defen- services, between two dants and denied requires Court four plaintiff. A tying arrangement vio- elements. See Carl Sandburg Vill. Condo. lates federal antitrust statutes if it has a Co., Ass’n No. 1 v. First Condo. Dev. substantial effect on interstate commerce. Cir.1985) (citing imposi- The district court found that “there is tion of the “economic requirement interest *5 insufficient evidence for a fact finder to by Second, ... Third, courts in the find that a tie between the defendant’s Fourth, Fifth, Sixth, Ninth, and Eleventh multiple listing service and Realtor mem- Circuits”). bership has had an effect on interstate commerce as that element has been de- In order to per establish the illegality se fined the Court.” tying of a arrangement, a plaintiff must (1) show that: tying the arrangement is boycott claim, As to Reifert’s group the between products two distinct or ser district court again found that the (2) vices, the defendant has sufficient had prove failed to any anticompetitive power economic in tying the market to resulting effects tying the of Realtors appreciably competition restrain free Association memberships to MLS services. (3) the market for product, the tied and Accordingly, granted district court a not insubstantial amount of interstate summary judgment to the defendants. commerce is affected. Pac. Ry. [N. Co. States, v. 1, 5-6, United 356 U.S. 78 II. Discussion 514, (1958)]; S.Ct. 2 L.Ed.2d 545 Moore Co., v. Jas. H. Matthews & 550 F.2d We review a district grant court’s 1207, (9th Cir.1977). 1212 addition, In summary novo, judgment taking de all this circuit has held that an illegal tying facts in light most favorable to the arrangement will not be found See, where the non-moving party. e.g., McCoy v. Har- alleged rison, (7th tying company 600, Cir.2003) absolutely has 341 (citations omitted). economic interest in the sales of the tied award An seller, proper whose when are favored gen- “there is no uine the tie-in. any Ohio-Sealy issue as to Mfg. material fact and Mattress Inc., moving party 821, Co. v. Sealy, is entitled to a judgment 585 F.2d as a Cir.1978), denied, matter of law.” fed. 930, R. Civ. P. cert. 56(c); Catrett, Corp. 317, Celotex (1979); U.S. 322- S.Ct. 59 L.Ed.2d 486 War (1986). Consultants, 91 L.Ed.2d 265 Mgmt. ner Inc. v. Data is listed on the service. The graphic area F.Supp. Corp., Gen. market information created (N.D.Ill.1982). near-perfect require- is the result of a by SCWMLS Id. at 207-08. place listings all in the ment that members the district precedent, Following this days. The within five MLS allows MLS Reifert to correctly required access to search and filter individuals with tying vio- elements of a following four in- upon based detailed criteria properties (1) sepa- two a tie exists between lation: cluding compensation buyers’ offered (2) tying seller products; rate information, property agents, detailed (SCWMLS) power has sufficient economic information, prior sales his- neighborhood restrain tying product days property, on the on tory, offers made product mar- the tied free market, price compara- the sale and (Realtors memberships); Association ket ble homes. The features information (3) a not-insubstantial tie affects are not through available SCWMLS avail- in the tied commerce of interstate amount In through any other service. addi- able (Realtors Association member- tion, targets the MLS service different (SCWMLS) (4) seller ships); and apprais- audience—real sales of interest has some economic listing newspa- or ers—than free services (Realtors Association the tied short, impossible perform it In pers. Id. at 207.2 memberships). agent apprais- tasks of a real estate that Reifert question is no There geographic area without er the relevant for the first two requirements satisfied Thus, possesses it using suffi- SCWMLS. First, multi-listing access to the elements. competi- to restrain power cient market pur- cannot be obtained without service tion. Asso- a Realtors chasing product, the tied Second, membership. SCWMLS ciation Sandburg The third element of the *6 power market to restrain has sufficient vio tying arrangement a test states that in mar- the tied competition free if “a only law substantial lates antitrust ket. of is foreclosed” because volume commerce Hosp. Dist. Parish Nearly of the tie. unique product. is a SCWMLS Jefferson 2, 16, 104 v. 466 U.S. S.Ct. geo- Hyde, No. 2 every home the relevant available (“The concurring) to colleague time has therefore come concurring agree our 2. We ’ 'per always se label refocus approach appropri abandon the a cautious effects, and inquiry adverse economic on the anticipating Supreme future Court ate when benefits, 1985, tie potential economic began Circuit to incor In our actions. area, have.”). Supreme analysis. may In a related porate of reason in our the rule time, that, recently adopted Justice O'Connor's “According Court to At we stated Hosp. 2 Court, reasoning Dist. Parish No. plaintiff's failure to state Jefferson involving tying arrangements and held that illegal not neces per antitrust claim does se upon based their patents should be evaluated state a sarily prove to his case if he can fatal per se power than under the “rather Carl Sand the rule of reason.” claim under Ink, Inc., Works, 1, 203, Indep. v. Tool Inc. rule.” Ill. - U.S. -, No. F.2d burg Vill. Condo. Ass’n 758 1281, Enter., 26 Cir.1985) S.Ct. 164 L.Ed.2d (7th 126 (citing Fortner Inc. 210 495, (2006). analysis Although per se of Corp., 394 U.S. v. States Steel United 1252, majority 499-500, Hosp. No. 2 Dist. 495 Parish 22 89 S.Ct. L.Ed.2d Jefferson overruled, Consultants, the interven expressly (1969); been Mgmt. Inc. v. not Warner 956, Sandburg Vill. ing twenty-one years since Carl F.Supp. 966 Corp., 545 Data Gen. 1, Supreme Court has (N.D.Ill.1982)); Ass’n No. Parish Condo. see also Jefferson 2, 35, disagree Cir with this found Hyde, 104 not occasion 2 466 U.S. Hosp. Dist. No. v. J„ 1551, (1984) (O'Connor, approach. cuit’s 2 80 L.Ed.2d S.Ct. 318 (1984). 80 2 L.Ed.2d This element the product itself and substitutes for it.” (1)

can be broken into sub-questions: two States, Brown Shoe Co. v. United Is there at least one competitor in the tied 294, 325, 8 L.Ed.2d 510 product market other than the (1962). favored (2) seller; quantity Is the of interstate This requires Court that a commerce affected not-insubstantial? products good are substitutes The district court found no compe evidence; using economic conclusory as tition in the allegedly tied market sumption competition of where Realtors memberships. Association services appear to be similar is insufficient. Where there is in the tied See Menasha Corp. News Am. Mktg. market, there can be no antitrust violation. In-Store, Inc., (7th 354 664 Cir. Forcing a buyer purchase a product he 2004). Actual data and a reasonable anal otherwise would purchased not have is in ysis are necessary to demonstrate that a sufficient to establish the foreclosure of product or good service is a substitute for (“[W]hen competition. Id. purchaser “Economics, another. like the other social buy ‘forced’to a product he would not have sciences, has its share of counterintuitive bought otherwise even from another seller findings, so observing things that to the market, tied there can be no eye untutored seem to be substitutes need impact adverse on competition because no not mean that they good substitutes.” portion of market which would other Id. wise have been available other sellers Other federal foreclosed.”). courts have held that has been con ditioning access to a multi-listing service Despite Reifert’s desire to pur- avoid on membership in a Realtors Association is chasing a Realtors Association member- indicative of an unlawful tying ar ship, without evidence of competitors in rangement. Estate, See Real Wells Inc. v. the market for services offered Realtors, Greater Lowell Bd. 850 F.2d of Association, can there be no fore- (1st Cir.1988); O'Riordan v. Long Is closure competition. See Ohio-Sealy Realtors, Inc., land Bd. F.Supp. Mattress Mfg. Inc., Co. v. Sealy, 585 F.2d (E.D.N.Y.1988); Buyer’s Corner Realty, Cir.1978); E. Aree- Phillip Inc. v. Ky. No. Realtors, Ass’n DA & HERBERT HOVENKAMP, ANTITRUST LAW F.Supp.2d (E.D.Ky.2006). One federal ¶ (2d 2004) (“When 1723a ed. there are no *7 court has held that a tied real estate asso rival product sellers tied to be fore- ciation group faced and there closed, then alleged might tie-in affect fore tie; created an unlawful explained as a substantial volume of commerce in the below, however, find we that case distin product tied yet not foreclose any- guishable. Thompson See v. Metro. Mul one.”). The district correctly found ti-List, Inc., (11th Cir.1991). 934 F.2d 1566 despite “laundry list of entities” by plaintiff, submitted there were no argues Reifert by comparing competitors in the product tied market. participation in Realtors Associations in Products and services are areas where MLS services “open” are same market they when good substi individuals joined who have not a Realtors tutes for one another. “The outer bound Association with so called “closed” areas aries of a market are determined that require in membership a Realtors As by the reasonable interchangeability sociation, of use he can demonstrate that or the cross-elasticity of demand between have purchase been forced to Realtors As- EB) only independent bro- comparison memberships. This sociation —serves however, kers unreliable, because it fails to of whether a question central speak to the 11. of Real Estate National Association particular in this exists competitor (NAREA) only Appraisers —covers account for and does not “closed” market appraisers for the ob- explanations possible other 12. National Association of Real Estate Forcing individuals differences. served (NAREB) primarily de- Brokers — purchase position Reifert’s minority bro- voted to the needs of a violation of not want is not they do kers Hosp. Parish antitrust law. See Jefferson heavily upon The district court relied 104 S.Ct. 1551. Dist. No. the First decision in Wells Real Circuit’s it analysis, an economic Even without effective- Estate. We believe decision competition. lacks apparent that RASCW ly captured the central flaw Reifert’s by cited organizations Each of the twelve argument. competitor qualify fails to as plaintiff] has failed to demonstrate [The Association: the national or local Realtors membership in slightest market for (Al)covers only Institute Appraisal 1. might real estate boards that have been appraisers by alleged tying affected the defendants’ Agent Association 2. Asian Real Estate arrangement. There is no evidence (AREAA) a distinct ethnic —serves any “pur- other broker would have community any other board chased” Pro- American Real Estate 3. Chinese power exerted the lure of but for (CAREPA)— Association fessionals There is no evi- the defendants’ MLS. community a distinct ethnic serves that a volume of “com- dence substantial was fore- merce” board Association of 4. Chinese Real Estate tie-in. The claim closed (CREAA) a dis- America —serves any proof fail of anti-com- must absent community tinct ethnic for the tied in the market petitive effects of Exclusive 5. Colorado Association product. (CAEBA) Buyer Agents —covers buyer agents Estate, Inc., only exclusive F.2d at 815 Real Wells (footnotes omitted). Buyer Association 6. Massachusetts (MABA) only exclu- Agents —covers organizations While buyer agents sive services, important may named provide Exclusive compete National Association of with RASCW they simply do not (NAEBA) Buyer Agents Association. These any other Realtors —covers only buyer agents cross-price exclusive elastici- niche associations lack national and local ty with the Independent 8. National Association *8 Associations, purposes. and have dissimilar (NAIFA) Appraisers Fee —covers unlikely substi- organizations are These only appraisers tutes for a Realtors Association Wiscon- Hispanic of 9. National Association sin. (NAH- Estate Professionals Real

REP) ethnic com- a distinct providing the district —serves Instead munity Rei- analysis, required economic from 30-year old decision employs a Indepen- fert 10. National Association FTC, (NAIR- Court, Co. v. Beatrice Foods Brokers dent Real Estate Cir.1976), tiff, frame Empire his Board, Real Estate was discussion of competition. Beatrice Foods “founded an as African American upon Co. relied Court’s deci- professional because, association at that Co., sion in Brown Shoe U.S. 82 time, the Realtors [Association] excluded S.Ct. and set forth “practical several African Americans from membership.” indicia” to determine a market’s bound- Thompson, 934 F.2d at 1570. plain- The (1) aries. “These indicia are the industry proved tiffs that as a result of the tie and public or recognition of the submarket as a prohibitive cost of joining two groups, separate (2) economic entity, product’s 400 brokers join either did not quit peculiar (3) uses, characteristics Empire Real Estate Board. Thompson unique production (4) facilities, distinct held that competitor where a offering simi- (5) customers, (6) prices, distinct sensitivi- lar services loses four hundred members ty (7) price changes, and specialized because of a tie between an association of Co., vendors.” Beatrice Foods 540 F.2d at real and an service, MLS “practical While the indicia” named there has been a substantial effect on in- in Brown Shoe and Beatrice Foods Co. are terstate commerce. Id. at 1578. In our important considerations defining a case, however, plaintiff pre- has not market, they were never intended to ex- sented organization an equivalent to Em- clude analysis economic altogether. Both pire Real Estate Board. Thompson pre- opinions recognized importance of eco- sented a valid competitor; neither Wells analysis, nomic including cross-price elas- nor the Thus, instant case does. Thomp- ticity of demand. Shoe, See Brown 370 son demonstrated a substantial effect on (“The U.S. at 82 S.Ct. 1502 outer commerce, interstate while Reifert has not. boundaries of a market are deter- Having found competitors, there are mined by the reasonable interchangeability many issues raised the parties’ briefs of use or the cross-elasticity of demand that we need not reach. need We between itself and substitutes decide quantity whether the of interstate it.”); Co., see also Beatrice Foods commerce affected “not-insubstantial,” F.2d at 308. nor must we address whether SCWMLS

This Court emphasized has the use sufficient economic interest analysis economic in the law. To demon sales of the tied product to satisfy the strate case, in an antitrust fourth element of an unlawful ar- provide must an analysis economic rangement. See, relevant market. e.g., Mena sha, 354 F.3d (requiring economic evi Group Boycott B. Claim dence the existence of a distinct Reifert also asks this Court to market). Lacking any evidence, economic gTant consider the district court's of sum Reifert has failed to show that the tying mary judgment to the defendants on his arrangement has foreclosed any portion of group boycott group boycott claim. A tra the market for real estate services. ditionally particular group occurs when a The facts of the instant case stand in prohibited joining or individual is an contrast to the situation analyzed by the organization. "Where there are no exclu Eleventh Circuit in Thompson. The de- sionary conditions attached to Realtor fendants in Thompson operated an MLS membership, board and there is no conten system and tied MLS access to member- prohibitively high, tion that the cost is it is *9 ship in a Realtors Association. The Plain- any competition." difficult to see affront to

321 challenge to Article review a must We County Bd. Monmouth v. Pomanowski of to determine rule of reason under the 92 16 306, 446 A.2d Realtors, N.J. 89 to contributes agreement case, li the whether instant (N.J.1982). In the See Nat’l productivity. and competition access denied agent was real censed States, 435 anti-competi Eng’rs United Soc’y of an because to SCWMLS of Prof'l L.Ed.2d 55 679, 695, 98 S.Ct. U.S. measure. tive reason, of (1978). rule the Under plain boycott, group To to demonstrate the burden Reifert had the must establish tiff anti-com effect was 16’s net Article impact an adverse has had requirement Farm v. Ind. Co. Bi-Rite Oil petitive. See the for market in the competition upon Inc., Ass’n, Co-op. Bureau above, Reifert As stated product. tied Cir.1990). a of existence the demonstrate to failed Associa Realtors for market competitive and anti-com- pro- between The balance no need Thus, is there memberships. tion of heavily favor weighs petitive effects of effects pro-competitive the to balance MLS areas “open” Even in Article re Association the Alaska, where and as Massachusetts such ef anti-competitive its against quirement joined Realtors not have who individuals Inc., Realty, Comer Buyer’s See fects. service, MLS an may access Association O’Riordan, (citing at 583-84 F.Supp.2d the exclu- to solicit not agree must users 116). F.Supp. during MLS users of other listings sive reluc- were agents If listing. term of the of Effects Anti-Competitive C. for fear listings, their post tant Ethics of Code clients, the their would steal agents other of that Article claims and transparent less become would Associa the National of of Ethics Code 16 aids Article efficient. less and anti-competitive of Realtors tion of the Sherman purposes fulfills Act, 15 I of the Sherman violates Section mar- transparent a more by providing Act members prohibits Article 16 § 1. U.S.C. ketplace. of Realtors Association National agree exclusive interfering with from Conclusion III. established have members other ments clients. with reasons, judgment foregoing For the concerning anti- court the district AffiRMed. of allegations Reifert’s however, Article of effects competitive Associ- National theAs overly broad. concurring WOOD, Judge, Circuit Ethics Standard Realtors, of Code ation judgment. states, does “Article 16-2 of Practice reservation agree without I Although making gen- from Realtors® preclude that the dis- majority’s conclusion with describ- prospects announcements eral correctly granted trict Rather, Article’s servicesf.]” their ing case, I in this the defendants solicita- targeted prevent is to purpose its aspects of some am concerned exclusively have individuals who tion governing with in tension opinion are agent another property their listed arrange- on doctrine Court improperly prevent briefly explain I the reasons For ments. a data as listing services using multiple ap- cautious more here, take I would customers. potential bank

322 proach, and leave developments further probability of anticompetitive conse- tying law to high the court. quences. In Northern Ry. Co. v. United 15-16, Id. at 104 Pacific S.Ct. 1551. The Court

States, 1, 356 514, 78 U.S. 2 S.Ct. L.Ed.2d went on to describe the un- circumstances (1958), the Court defined a der which that probability would exist: tying arrangement as agreement “an by a first, there must potential be substantial party to sell one but only on the impact on competition, which would be buyer condition the purchases also shown aif substantial volume of commerce (or tied) different product, or at least is foreclosed second, the arrangement; agrees that he will purchase not prod anticompetitive forcing must be likely, uct any 5-6, other supplier.” Id. at which is the case when it probable is 78 S.Ct. 514. As the Court later made the seller has power. 16-17, Id. at clear in Hospital Parish Dist. Jefferson S.Ct. 1551. If the seller does not have No. Hyde, 2 v. 2, 1551, U.S. 104 S.Ct. “either degree the or the kind of market (1984), L.Ed.2d 2 however, “every re power that him enables to force customers fusal to sell two separately can purchase second, unwanted not be said to restrain competition.” Id. at order to obtain tying product,” then 11, 104 S.Ct. 1551. The trick is to distin the per se rule cannot be used and the guish between tying arrangements arrangement be must assessed under a full are invalid and those innocuous, that are rule of 18, reason. at Id. 104 S.Ct. 1551. from a competitive standpoint. In Jeffer Despite Justice opin O’Connor’sforceful Parish, son the Court explained the differ ion concurring in the judgment, in which ence as follows: she argued that the time had come to Our cases have concluded that jettison per se rule in cases, tying see essential characteristic of an ty- invalid id. at S.Ct. despite ing arrangement lies in the seller’s ex- opportunity it as recently had as March ploitation of its control over tying 2006 to take that step, see Illinois Tool product to buyer force the pur- into the — Works Inc. v. Independent Ink, Inc., chase a tied product that buyer U.S. -, 164 L.Ed.2d 26 either did all, want or might have (2006), the Court has refused to do so. preferred to purchase elsewhere on dif- Illinois Tool Works held only that fact ferent terms. When “forcing” such is that a tying product patented is does not present, competition on the merits support a presumption that the seller has market for the tied item restrained market power product. over that See and the Sherman Act is violated. S.Ct. at 1291. It concluded that “tying Id. at on, S.Ct. Going over arrangements involving patented products objection (who of Justice O’Connor should be evaluated under the standards concurred in the judgment because applied in cases like Fortner II and Jeffer point), the majority had this say about son Parish rather than under the per se analytical approach toward ar- rule applied in Morton Loew’s,” Salt and rangements: both cases involving intellectual property

Per se (patents condemnation—condemnation Salt, in Morton copyrights in without inquiry into actual Loew’s). market condi- view, In my Illinois Tool Works tions—is only appropriate if the exis- thus stands only for the proposition that a tence of forcing probable. Thus, ap- plaintiff must prove that a holder of intel plication per se rule focuses on the lectual property has “either degree *11 Inc., Multi-List, 934 F.2d 1566 him Metro. enables power that kind of market the Cir.1991). (11th case, In that the court tied the purchase to to force customers” foreclosure, on so, its decision explicitly the rested then If can do product. ele as the “coercion Parish it referred to which framework established Jefferson need to ment,” “plaintiffs that explaining apply. to continues only has Metro not that [defendant] show us, must decide we before In the case this also has wielded power market but [ ] evi- enough produced has whether to alter to force brokers power market summary to dence survive professional of associations.” their choice the defen- allegation to the respect the reported then at 1577. It Id. the have tied Associations dant of “that 400 record showed evidence the (MLS, tying prod- the multi-listing service mem and current prospective Empire’s uct) Associ- in the Realtors to Empire Empire quit join bers did Wisconsin, Inc. Central ation of South Id. prohibitive of the cost.” because district (RASCW, The product). tied the type the of show precisely This is not come had that Reifert concluded make. failed to ing that Reifert I evidence. requisite the forward with a useful offered D.C. Circuit agree. The majority may well be Analytically, tying case of the elements it approach rule of reason right that the 253 F.3d Corp., v. States United Ass’n Sandburg Vill. in Carl Condo. sees Microsoft (D.C.Cir.2001): Co., 758 F.2d Dev. 1 v. Condo. No. First per (7th se Cir.1985), to a more sensi- are four elements would be There (1) and tied But it tying tying cases. all tying way approach violation: to ble (2) the products; the Su- separate anticipate two court to goods are for this is not tying in the de- power overruling of its earlier preme defendant Court’s (3) market; af- the defendant of time and cisions, passage even if pur- but to doctrinal no choice that create fords consumers of later cases impact (4) it; and as we did product from to all. Just chase tied tensions evident Co., sub- F.3d 1358 arrangement forecloses in Khan v. State Oil v. Cir.1996), Oil Co. of commerce. State stantial volume overruled Khan, say that Here, willing I to am Id. at 85. limit our- (1997), we should L.Ed.2d enough evidence brought forth Reifert has seewe problems out the pointing selves in his favor of fact to rule a trier permit as it the law attempting apply then His of those elements. the first three on present In the we can. stands as best however, fails, on the fourth. proof Oil, application case, faithful unlike State not the measurement key point The same out- leads to the law existing of the tied much commerce how approach ambitious as the more come fact that It affected. market was reason, I For that chosen. majority has to show no evidence Reifert offered in the concur outcome happy to am prod- tied in the any foreclosure there was reaches, respect- I must but majority tell from as can As far we uct market. opinion. join its fully decline to joining record, no one refrained cost organization because any other Associations Realtor others)

(RASCW us. This before from the our case distinguishes

is what Thompson opinion in

Eleventh Circuit’s