Tying Arrangements: Avoiding Antitrust Liability

Leveraging Market Power Arguments and Seller Defenses

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, May 1, 2012
Recorded event now available

This CLE webinar will offer guidance for antitrust counsel to sellers of technological or other bundles of products on avoiding antitrust violations, discuss approaches based on regulations and jurisprudence for sellers of all kinds, and will outline special considerations for intellectual property owners.


Tying arrangements are offers by sellers to sell two or more products together, on the condition that all the products are purchased. The U.S. Supreme Court and lower federal and state courts have frequently addressed claims of tying arrangements that run afoul of antitrust laws.

Confusion over the legality of tying arrangements persists, despite rulings that tying can be illegal per se. The Supreme Court has focused on an analysis of tying based on a rule of reason, examining the seller's market power among other factors.

The nature of the product involved presents other challenges, such as IP and products in the aftermarket setting. Opportunities exist in the form of special defenses that can shield some tying arrangements from antitrust liability.

Listen as our authoritative panel of antitrust attorneys examines the current state of antitrust issues affecting tying practices, and offers approaches to sellers for avoiding violations and seeking legal alternatives.


  1. Tying arrangement rules and jurisprudence
    1. What is tying?
    2. Tying statutes: Clayton Act, Sherman Act and Federal Trade Commission Act
  2. Judicial history of tying
    1. Tying per se analysis
    2. Rule of reason approach
    3. Market power and other factors
    4. Kodak and tying in the aftermarket
    5. Recognized defenses and justification
  3. Intellectual property considerations
    1. Market power issues in IP markets
    2. Patented products tied to other patented products
    3. Patented products tied to non-patented products
    4. Other IP ties
  4. Best practices


The panel will review these and other key questions:

  • What is the analysis used by the Supreme Court and lower courts for determining whether tying arrangements violate antitrust law?
  • What defenses and justifications can be raised to defend against an antitrust action?
  • What are the special considerations for owners of patents and other intellectual property?


Howard M. Ullman, Of Counsel
Orrick Herrington & Sutcliffe, San Francisco

His practice is focused on antitrust, trade regulation and unfair competition issues. He has extensive experience advising on distribution law and distribution system issues (including pricing issues, non-price restraints and dealer termination issues).

Kevin D. McDonald, Partner
Jones Day, Washington, D.C.

He is a litigator who concentrates in antitrust and competition law. He has trial and appellate experience at all levels of federal and state courts and at various administrative agencies. He is a member of the leadership of the ABA's Section of Antitrust Law and serves as a Senior Editor on the ABA Antitrust Law Journal. He has written and lectured on numerous topics, including tying.

Thomas S. Hixson, Partner
Bingham McCutchen, San Francisco

His experience covers a range of commercial litigation matters, including antitrust and consumer class actions as well as intellectual property and technology disputes, and appellate litigation in federal and state courts. He is a past chair of the California State Bar’s Antitrust and Unfair Competition Section and has spoken and written articles on class action procedure.


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Antitrust Law Advisory Board

Clifford H. Aronson


Skadden Arps Slate Meagher & Flom

W. Joseph Bruckner


Lockridge Grindal Nauen

Gregory J. Casas


Greenberg Traurig

David B. Goroff


Foley & Lardner

Allen P. Grunes

Co-Founder and Attorney

The Konkurrenz Group

Robert N. Kaplan


Kaplan Fox & Kilsheimer

Christopher J. Kelly


Mayer Brown

James J. Long


Briggs and Morgan

Milton Marquis


Cozen O'Connor

Janet L. McDavid


Hogan Lovells

Kevin D. McDonald


Jones Day

Daniel F. McInnis


Thompson Hine

Saul P. Morgenstern


Kaye Scholer

Douglas Rosenthal


Constantine | Cannon

M. Sean Royall


Gibson Dunn & Crutcher

Joseph J. Tabacco, Jr.


Berman DeValerio

Douglas M. Tween



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