TYING ARRANGEMENTS AND RELATED RESTRICTIONS AFTER FORTNER II

Any experienced antitrust practitioner recalling those opinions, rendered in widely varying business contexts, ranging from disgruntled fast-food franchisees to competing suppliers of computer software, would, I think, necessarily conclude that any attorney relying on a Fortner I2 based recollection of the law of tying would today have great difficulty giving accurate and useful legal advice to a client. In my experience, attorneys, particularly those who studied antitrust law more than five years ago and do not practice it on a daily basis, generally recognize and frequently shy away from cases which involve tying because they apply a superficial, per se type of analysis that the courts seem to have largely abandoned.