Unlawful Exclusive Dealing or Tying under Section 3 of the Clayton Act - LAW OFFICES OF WILLIAM MARKHAM, P.C.

Unlawful Exclusive Dealing or Tying under Section 3 of the Clayton Act

We have extensive experience litigating and advising clients about claims made under Section 3 of the Clayton Act, which is codified at 15 U.S.C. § 14, and which forbids certain kinds of exclusive-dealing and tying arrangements: namely, those that meet the following two criteria: (1) the arrangement is used in a contract or transaction for the sale or lease of a commodity in interstate commerce; and (2) the arrangement substantially lessens competition in a properly defined relevant market — typically by foreclosing such a high percentage of overall sales as to deprive competitors an opportunity to establish a foothold in the market and impose viable competitive pressure on the defendant.

Historically, Section 3 of the Clayton Act reaches only exclusive dealing or tying used in the interstate sale of commodities, while Section 1 of the Sherman Act reaches these same practices when used in the provision of services in interstate commerce. The distinction matters: at least arguably, Section 3 still permits a plaintiff to seek an antitrust injunction upon a showing of a substantial likelihood of a violation. Section 1 requires a plaintiff to prove its antitrust injury caused by harm to competition in a properly defined relevant market under the modern consumer-welfare standard.

Mr. Markham's Articles on Antitrust Law

AN OVERVIEW OF ANTITRUST LAW (By William Markham, ©2000)

"Antitrust law is the law of competition and is perhaps the least understood law of all. This article provides an overview and explanation of the essential principles of antitrust law."

ANTITRUST EXEMPTIONS AND IMMUNITIES (By William Markham, ©2022)

"Over the years, Congress and the federal courts have established various immunities from federal antitrust law, removing from its reach specified commercial activities and even entire lines of commerce."

HOW THE CONSUMER-WELFARE STANDARD TRANSFORMED CLASSICAL ANTITRUST LAW (By William Markham, ©2021)

"Since the late 1970s, antitrust law in the United States has been transformed out of recognition and rendered largely toothless by consumer-welfare jurisprudence....,"

ANTITRUST AND FREE MARKETS (BY William Markham, © 2022)

“Some critics of antitrust law treat it as mere governmental overreach and an unwelcome infringement upon the ordinary operations of our free markets. (….) That criticism betrays a fundamental misunderstanding of the very term ‘free markets,’ which refers to markets that are free of any undue restraint, whether public or private.”

UNLAWFUL PRICE DISCRIMINATION (By William Markham, © 2013)

“In this article I take up the obscure, problematic doctrine of illegal price discrimination, which was codified by the Robinson-Patman Act during the Great Depression, and which the modern, conservative Supreme Court has severely limited.”

WHY ANTITRUST LAWS MATTER (By William Markham, © 2006)

“The antitrust laws are supposed to promote and protect competition, or, if you will, competitive processes in distinct ‘lines of commerce’ or ‘relevant markets.’ This alone is their proper purpose.

Mr. Markham's Articles on
Trial Procedure and Contract Law

MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL (By William Markham, ©2011)

"I try in this article simply to set forth a list of simple rules to explain the key points of the law of evidence. I also offer several pointers on organizing evidence in order to present it competently at trial."

ANATOMY OF A LAWSUIT (By William Markham, ©2007)

"This article is written for non-lawyers, young litigators, and non-litigator attorneys who wish to understand how a lawsuit works in practice from start to finish."

AN OVERVIEW OF CONTRACT LAW (By William Markham, ©2002)

"Contract law lies at the heart of our system of laws and serves as the foundation of our entire society.... Our society depends upon free exchange in the marketplace at every level. Contract law makes this possible."