EXCLUSIVE DEALING AFTER JEFFERSON PARISH

Jefferson Parish Hospital District No. 2 v. Hyde1 teetered on the brink between characterization as a tying case and characterization as an exclusive dealing case, as evidenced by the four-vote concurring opinion which would have treated the arrangement as exclusive dealing. Because of this, the decision is important to the law of exclusive dealing as well as to the law of tying. It also comes at a time when a significant amount of new learning is evolving on the subject of exclusive dealing, with the applicable standards becoming increasingly refined. Beside Jefferson Parish, we also have the Justice Department's Vertical Restraints Guidelines2 delimiting a series of "safe harbors," as well as a trio of recent decisions in the lower courts and the Federal Trade Commission amplifying and refining the scope of exclusive dealing analysis.