Image Technical Service, Inc. v. Eastman Kodak Co.

903 F.2d 612, 1990 WL 54348
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 1, 1990
DocketNo. 88-2686
StatusPublished
Cited by7 cases

This text of 903 F.2d 612 (Image Technical Service, Inc. v. Eastman Kodak Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Image Technical Service, Inc. v. Eastman Kodak Co., 903 F.2d 612, 1990 WL 54348 (9th Cir. 1990).

Opinions

WIGGINS, Circuit Judge:

Appellants are independent service organizations, or ISOs, that service copier and micrographic equipment manufactured by appellee Eastman Kodak Co. They appeal summary judgment dismissing their antitrust claims against Kodak. We reverse and remand.

At the heart of this case are two of Kodak’s business policies: First, Kodak will not sell replacement parts for its equipment to Kodak equipment owners unless they agree not to use ISOs. Second, Kodak will not knowingly sell replacement parts to ISOs. Kodak admits that the purpose of these policies is to prevent ISOs from competing with Kodak’s own service organization for the repair of Kodak equipment.

On appeal, appellants argue that they raised triable issues concerning: (1) whether Kodak’s refusal to sell parts to equipment owners unless they agree not to use ISOs constitutes a tying arrangement viola-tive of Section 1 of the Sherman Act; and (2) whether Kodak’s refusal to sell parts to ISOs is an act of monopolization violative of Section 2 of the Sherman Act.

We have jurisdiction under 28 U.S.C. § 1291 (1982). We review the district court’s grant of summary judgment de novo. Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.1987). We must determine, viewing the evidence in the light most favorable to appellants, whether issues of material fact exist and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

Viewed in the light most favorable to appellants, the facts are as follows: Prior to 1982, Kodak serviced almost all of its micrographic and copier equipment. Kodak would sell replacement parts (at a profit) to any party who intended to use them to repair Kodak equipment. ISOs generally do not manufacture the replacement parts they use in providing equipment service. ISOs do, however, maintain regular inventories of such parts. In reliance on Kodak’s practice of freely selling replacement parts, ISOs developed and began to compete significantly with Kodak in 1984 and 1985. ISOs offered service for as little as half of Kodak’s price. To better compete, Kodak in some cases cut its price for service. Some customers found ISO service superior to Kodak service.

Concerned with ISO competition, Kodak reviewed its replacement parts policies in 1985 and developed its current policies of not selling replacement parts to ISOs or to customers who use ISOs. Kodak exempted micrographic equipment manufactured before 1985 from these new policies. Since 1985, Kodak has had difficulty identifying ISOs and customers who use ISOs. Kodak, therefore, unknowingly sold parts to ISOs and customers who use them since it implemented the 1985 policies. Kodak is currently attempting to enforce more effectively its policies.

I. The Tying Claim

Section 1 of the Sherman Act declares illegal “[e]very contract, combination ..., or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1 (1982). The Supreme Court has consistently interpreted this provision to prohibit only unreasonable restraints of trade. Business Elec. Corp. v. Sharp Elec. Corp., 485 U.S. 717, 108 S.Ct. 1515, 1519, 99 L.Ed.2d 808 (1988). [615]*615Appellants contend that they have presented genuine issues for trial as to whether Kodak’s refusal to sell spare parts to equipment owners unless they agree not to use ISOs constitutes a tying arrangement per se unreasonable under this section.1

A tying arrangement is “an agreement by a party to sell one product but only on the condition that the buyer also purchase a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.” Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958) (emphasis added, footnote omitted). A tying arrangement is per se unreasonable if the defendant has sufficient economic power in the tying product market to restrain competition appreciably in the tied product market and if the arrangement affects more than an insubstantial volume of interstate commerce in the tied product.2 Fortner Enterprises, Inc. v. U.S. Steel Corp., 394 U.S. 495, 499, 89 S.Ct. 1252, 1256, 22 L.Ed.2d 495 (1969); Mozart Co. v. Mercedes-Benz of N. Am., Inc., 833 F.2d 1342, 1345 (9th Cir.1987), cert. denied, — U.S. -, 109 S.Ct. 179, 102 L.Ed.2d 148 (1988); General Business Systems v. North American Philips Corp., 699 F.2d 965, 977 (9th Cir.1983).

The district court held that appellants failed to show evidence of a tying arrangement, noting that Kodak does not “condition the sale of one product on the buyer’s purchase of another product” since a “Kodak customer can buy equipment without having to buy parts; and he can buy parts if he simply owns Kodak equipment.” Image Technical Services, Inc. v. Eastman Kodak Co., No. C-87-1686WWS, at 5, 1988 WL 156332 (N.D.Cal. Apr. 18, 1988) (Memorandum of Opinion and Order Granting Summary Judgment). Appellants argue that the district court misconstrued one of their theories, explicitly presented in their memorandum in opposition to Kodak’s motion for summary judgment. This theory is that Kodak has tied parts to service, not equipment to parts or parts to equipment.

Kodak responds that even viewed as appellants suggest, its policy is not a tying arrangement. First, Kodak points out, it does not force owners to buy service in order to receive parts; Kodak only requires owners not to buy ISO service to receive parts. Kodak will sell parts to owners who agree to self-service their machines. Kodak, however, misconceives the nature of tying agreements. As we stated above, a tying arrangement is “an agreement by a party to sell one product but only on the condition that the buyer also purchase a different (or tied) product, or at least agrees that he mil not purchase that product from any other supplier.” Northern, 356 U.S. at 5-6, 78 S.Ct. at 518 (emphasis added; footnote omitted).

Second, Kodak argues that its policy is not a tying arrangement because parts and service form a single product market, and without two distinct markets there can be no tying arrangement. See Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 21, 104 S.Ct. 1551, 1562, 80 L.Ed.2d 2 (1984). The critical question in determining whether two distinct product markets exist is whether it is economically efficient to offer two products separately. Id. at 21-22, 104 S.Ct. at 1562-63. That, in turn, depends on whether the demand for each can be separated. Id.

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