Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH December 31, 2025 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
NORTH BREVARD COUNTY HOSPITAL DISTRICT, d/b/a Parrish Medical Center,
Plaintiff - Appellant,
v. No. 24-4039
C.R. BARD, INC.; BARD ACCESS SYSTEMS, INC.,
Defendants - Appellees. _________________________________
Appeal from the United States District Court for the District of Utah (D.C. No. 2:22-CV-00144-RJS) _________________________________
R. Stephen Berry of Berry Law PLLC, Washington, D.C. (Brent O. Hatch of Hatch Law Group PC, Salt Lake City, Utah; Velvel Freedman, Edward Normand, and Richard Cipolla of Freedman Normand Friedland LLP, New York, New York, with him on the briefs), for Plaintiff-Appellant.
Brian P. Quinn of O’Melveny & Myers LLP, Washington, D.C. (Andrew J. Frackman and Colleen Powers, New York, New York; Sergei Zaslavsky and Emily Murphy of O’Melveny & Myers LLP, Washington, D.C.; Andrew G. Deiss and Corey D. Riley of Deiss Law PC, Salt Lake City, Utah, with him on the briefs), for Defendants-Appellees. _________________________________
Before HARTZ, EID, and FEDERICO, Circuit Judges. _________________________________ Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 2
FEDERICO, Circuit Judge. _________________________________
North Brevard County Hospital, doing business as Parrish Medical
Center, filed an antitrust class action complaint against C.R. Bard, a
medical device manufacturer. 1 Parrish alleged that Bard engaged in
unlawful tying of products and monopolization in violation of the Sherman
Act and the Clayton Act. The district court dismissed Parrish’s tying claim
for lack of antitrust standing and denied class certification for Parrish’s
monopolization claim. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm the dismissal of Parrish’s tying claim and dismiss Parrish’s appeal
from the denial of class certification.
I
Bard produces a range of medical devices, including a type of catheter
known as a peripherally inserted central catheter (PICC). PICCs are used
to administer fluids into the bloodstream by passing through a patient’s
arm vein and into a vein near the heart. It is important that a PICC be
precisely placed within the patient’s body. Traditionally, this was done
using separate chest x-rays and fluoroscopy. Today, doctors generally use a
1 According to the complaint, Bard Access Systems, the other named
Defendant-Appellee, is a subsidiary and division of C.R. Bard. We therefore refer to the Defendants-Appellees as one entity “Bard” for the purposes of this opinion, just as the parties do.
2 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 3
tip-location system (TLS) that automatically reports the PICC’s location
through a combination of ultra-sound, magnetic tracking, and
electrocardiography.
Parrish alleges that Bard is a leader in the TLS market and controls
70 percent market share. It also alleges that Bard has used its commanding
position in the TLS market to manipulate the PICC market. Bard PICCs
are sold with a proprietary tool known as a stylet that is required to
integrate the PICC with a Bard TLS. If a hospital wanted to use another
brand of PICC, it could not use a Bard TLS to determine the PICC’s location
unless the hospital also purchased a Bard PICC to use the stylet.
In simple terms, Parrish alleges that using one Bard product
effectively forces hospitals to buy the other. This is known as “tying,” and,
under certain circumstances, it may be a violation of federal antitrust law.
While Parrish did not buy Bard’s TLS (the alleged tying product), it claims
that Bard’s practices have allowed it to monopolize the PICC market (the
3 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 4
alleged tied product), 2 suppressing competition and harming all buyers
whether or not they purchase PICCs in conjunction with TLSs. As a result
of this purported tying between PICCs and TLSs, Parrish alleges that
hospitals pay 9.7 to 34.5 percent higher prices for PICCs than they would
in a competitive market.
II
In March 2020, Parrish filed suit against Bard. 3 Parrish’s complaint
contained two claims: illegal per se tying of separate products under Section
1 of the Sherman Act and illegal monopolization under Section 2 of the
Sherman Act. See 15 U.S.C. §§ 1, 2. Parrish sought to certify a class
2 This opinion will repeatedly distinguish between tying products and
tied products. As a simple illustration to help keep them straight in mind, think of a balloon tied to a birthday cake. The buyer really wants the cake, which is the best in town. But the baker will only sell cakes on the condition that the buyer also buys her balloons, which are a separate cost. So, the balloon tags along, tied to the cake. The cake is the tying product – the product that the consumer really wants. The balloon is the tied product – the product that the consumer doesn’t want but must buy to access the cake. This arrangement raises the overall cost to the buyer.
Sometimes, the tie-in is explicit, like a contract that includes a term requiring the purchase of the tied product. Other times, it is more subtle, as alleged here, when the seller requires the purchase of one product in order to use and operate another product. See Daniel A. Crane, Tying Law for the Digital Age, 99 Notre Dame L. Rev. 821, 847, 851–56 (2024) (providing historic examples of tying arrangements). 3 Parrish originally filed in the District Court for the Northern District of New York. In February 2022, its case was transferred to the District of Utah, where Bard’s PICC business is headquartered.
4 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 5
comprised of hospitals, hospital systems, and clinics that had purchased
Bard PICCs, and requested damages and injunctive relief for this class
under the remedial provisions of the Clayton Act. See 15 U.S.C. §§ 15, 26.
Parrish filed a motion for class certification, while Bard filed a motion
for judgment on the pleadings. In November 2022, after hearing oral
argument, the district court granted Bard’s motion with respect to Parrish’s
tying claim. The district court found that Parrish did not have antitrust
standing to bring its claim for illegal tying because Parrish did not allege
that it also purchased Bard’s TLS (the alleged tying product), and so Parrish
did not show that it was forced to buy Bard’s PICCs (the alleged tied
product).
The district court allowed Parrish’s monopolization claim to proceed.
In response, Parrish filed a renewed motion for class certification. The
district court, however, denied this motion. It found that Parrish’s proposed
class failed to meet the required elements for class certification, and that
its pleadings were insufficient to establish a basis for either a damages class
or an injunctive class.
Parrish petitioned for permission from this court to appeal the district
court’s order denying class certification. See Fed. R. Civ. P. 23(f) (“A court
of appeals may permit an appeal from an order granting or denying class-
action certification[.]”) This petition was denied. As a result, Parrish then
5 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 6
moved for the district court to dismiss its monopolization claim with
prejudice so that Parrish could appeal the entry of final judgment, which
the district court granted. Parrish then appealed. On appeal, Bard filed a
motion to dismiss the appeal from the district court’s class certification
order, arguing that Parrish’s voluntary dismissal of the underlying
monopolization claim forecloses our jurisdiction over the class certification
order. 4
III
We review a Rule 12(c) judgment on the pleadings just as we would a
Rule 12(b)(6) motion to dismiss. Corder v. Lewis Palmer Sch. Dist. No. 38,
566 F.3d 1219, 1223 (10th Cir. 2009) (citation omitted). That is, we review
de novo whether a plaintiff fails to plead facts that state a plausible claim.
Id. at 1223–24. In doing so, we take all facts in the complaint as true and
draw all reasonable inferences in favor of the plaintiff. Martin Marietta
Materials, Inc. v. Kan. Dep’t of Transp., 810 F.3d 1161, 1171 (10th Cir. 2016)
(citation omitted). Likewise, “[w]e review questions of our appellate
jurisdiction de novo.” City of Albuquerque v. Soto Enters., Inc., 864 F.3d
1089, 1091 (10th Cir. 2017).
4 Bard also seeks an order that Parrish pay fees and costs associated
with this motion, alleging that Parrish knowingly filed an appeal that is contrary to controlling law from the Supreme Court and the Tenth Circuit.
6 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 7
Our disposition of this appeal begins with a general overview of
substantive antitrust law before proceeding to whether Parrish has
antitrust standing to pursue its tying claim against Bard. After describing
the antitrust standing doctrine in broad strokes and the parties’ arguments,
we hold that Parrish does not have antitrust standing to pursue its tying
claim against Bard because it is not an efficient enforcer of the antitrust
laws in this context.
We turn next to Parrish’s class certification appeal and hold that we
do not have jurisdiction to review the district court’s denial of class
certification because Parrish voluntarily dismissed the underlying
substantive claim below. We therefore grant Bard’s motion to dismiss this
part of the appeal. At this stage, however, we deny Bard’s request for
sanctions.
A
The Sherman Act of 1890 sets out the major substantive rules of
antitrust law. The Clayton Act of 1914 followed and, inter alia, provides private
parties with relief for the violation of these rules. We begin this section by
briefly describing the substantive antitrust rule that Parrish accuses Bard of
7 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 8
violating before turning to the Clayton Act and whether it provides a cause of
action for Parrish to pursue its claim against Bard.
The Sherman Act prohibits “[e]very contract, combination in the form of
trust or otherwise, or conspiracy, in restraint of trade[.]” 15 U.S.C. § 1.
Sometimes, a tying arrangement may fall within this prohibition. “A tying
arrangement is ‘an agreement by a party to sell one product but only on the
condition that the buyer also purchases a different (or tied) product, or least
agrees that he will not purchase that product from any other supplier.’”
Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 461 (1992)
(quoting Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5–6 (1958)). For
example, when a grocer sells sugar only on the condition that a buyer also
purchases flour, the grocer has tied the purchase of flour to the purchase of
8 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 9
sugar and made a tying arrangement. Where a tying arrangement satisfies
certain additional requirements, it may violate the Sherman Act. 5
Under the Clayton Act, private parties may sue alleged antitrust
violators and obtain treble damages or an injunction. Clayton Act, ch. 323, §§
4 (damages), 16 (injunction), 38 Stat. 730, 731, 737 (1914) (current version at
15 U.S.C. § 15, 26). 6 But although the Clayton Act authorizes broad access to
relief, “the mere fact that the claim is literally encompassed by the Clayton Act
does not end the inquiry.” Associated General Contractors of California, Inc. v.
California State Council of Carpenters, 459 U.S. 519, 537 (1983) (hereinafter
AGC).
A claimed injury “must be analyzed to determine whether it is of the type
that the antitrust statute was intended to forestall.” Id. at 540. “An additional
factor is the directness or indirectness of the asserted injury.” Id. Relatedly,
5 The Supreme Court requires proof of other elements to ensure that
antitrust enforcement is focused on conduct that is anticompetitive: the seller of the products must have “appreciable economic power” in the tying market, and the tying arrangement must affect a “substantial volume of commerce” in the tied market. Eastman Kodak, 504 U.S. 451, 462 (1992). Northern Pac. Ry. Co., 356 U.S. 1, 7 (1958) (“[I]f one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself.”). 6 The remainder of this opinion, like most antitrust cases, will cite to
the Clayton Act using the section numbers found in the session law, not the United States Code.
9 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 10
“[t]he existence of an identifiable class of persons whose self-interest would
normally motivate them to vindicate the public interest in antitrust
enforcement diminishes the justification for allowing a more remote party” to
sue. Id. at 542. These principles, along with others not relevant here, together
describe the doctrine known as antitrust standing, which a plaintiff must
satisfy to obtain relief under the Clayton Act. 7
This court has distilled the Supreme Court’s caselaw into the
following rule for antitrust standing: “a plaintiff must show (1) an ‘antitrust
injury;’ and (2) a direct causal connection between that injury and a
defendant’s violation of the antitrust laws.” Sports Racing Services, Inc. v.
7 The Supreme Court has explained that the term “standing” can be
misleading when used to refer to statutory or “prudential” standing. Lexmark Intern., Inc. v. Static Control Components, Inc., 572 U.S. 118, 125, 128 n.4 (2014). Whereas constitutional standing is jurisdictional, statutory standing really refers not to the jurisdiction of the court, but rather to “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Id. at 127. Antitrust standing is a breed of statutory standing. Id. at 126. The phrase “antitrust standing” could be similarly misleading, but since our cases and the parties uniformly use this phrase, we will do the same.
10 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 11
Sports Car Club of America, Inc., 131 F.3d 874, 882 (10th Cir. 1997). 8 We
explained that with respect to the first element, “the standing analysis must
take into account the type of antitrust claim being asserted.” Id. Where the
plaintiff asserts an antitrust injury based on a tying claim, “two types of
parties may have standing . . . the purchasers who are forced to buy the tied
product to obtain the tying product (the prototypical tying plaintiff), and
the competitor who is restrained from entering the market for the tied
product.” Id. at 887.
In Abraham v. Intermountain Health Care Inc., this court
rearticulated the second element of the antitrust standing analysis: the
causal connection between the antitrust injury and the defendant’s
8 Sports Racing is a Clayton Act § 4 case – that is, it described the rule
of antitrust standing with respect to compensatory damages, not injunctive relief. Our cases, however, have not made a distinction between § 4 (damages) and § 16 (injunctions) cases with respect to these two elements of antitrust standing analysis. See, e.g., B-S Steel of Kansas, Inc. v. Texas Industries, Inc., 439 F.3d 653, 667 (10th Cir. 2006) (acknowledging that more than antitrust injury is required in order to establish antitrust standing even for injunctive relief); Roman v. Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir. 1995) (enumerating factors relevant to second element of antitrust standing analysis without distinguishing the relief sought). Even if it were otherwise, however, Parrish has not argued that there is any material difference between antitrust standing for damages and injunctive relief. As Bard correctly points out, then, the matter is waived. United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019). We therefore assume for the purposes of this case that Sports Racing applies regardless of the relief sought.
11 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 12
unlawful conduct must be direct enough to demonstrate that the plaintiff
“is an efficient enforcer of the antitrust laws.” 461 F.3d 1249, 1268 (10th
Cir. 2006). “Factors to be considered in this analysis include the directness
or remoteness of the injury suffered by the plaintiff, which, in turn, depends
on the existence of other more directly-injured possible plaintiffs.” Id.
(citing, inter alia, AGC, 459 U.S. at 542). We held that the existence of other
parties who “would be more directly harmed by” the anticompetitive
conduct will ordinarily defeat a plaintiff’s antitrust standing. Id.
Our cases therefore establish the following framework: to obtain a
private antitrust remedy under the Clayton Act, plaintiffs must establish
an “injury of the type the antitrust laws were intended to prevent and that
flows from that which makes defendants’ acts unlawful[.]” Black v.
Occidental Petro. Corp., 69 F.4th 1161, 1175 (10th Cir. 2023) (citation
omitted). An antitrust plaintiff “must also demonstrate that it is an efficient
enforcer of the antitrust laws.” Abraham, 461 F.3d at 1268. These two
requirements faithfully apply the overarching principle: only plaintiffs who
best vindicate “the central interest in protecting the economic freedom of
participants in the relevant market” have a right to sue under the Clayton
Act. AGC, 459 U.S. at 538; see also Cargill, Inc. v. Monfort of Colorado, Inc.,
479 U.S. 104, 109 (1986); Atlantic Richfield Co. v. USA Petroleum Co., 495
U.S. 328, 334 (1990).
12 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 13
The district court in this case held that Parrish lacked antitrust
standing under the first element of our test, antitrust injury. The district
court read our precedent – specifically Sports Racing – as setting out an
exhaustive list of potential plaintiffs who have an antitrust injury sufficient
to challenge tying arrangements: “the purchasers who were forced to buy
the tied product to obtain the tying product, and the competitor who is
restrained from entering the market for the tied products.” Aplt. App. I at
202–03. In other words, Sports Racing, as interpreted by the district court,
establishes a categorical rule excluding plaintiffs who bought only the tied
product, and not the tying product. Because Parrish purchased only the tied
product here, the district court relied on Sports Racing to reject Parrish’s
antitrust standing.
Parrish disputes this reading of our cases. It argues that because
tying arrangements allow the seller to compel purchases of the tied product,
direct purchasers of the tied product are forced to pay higher prices in the
market and that alone suffices to demonstrate an antitrust injury. Sports
Racing neither considered nor decided this argument, according to Parrish,
so that case should not be read to control this case. And Parrish argues
Sports Racing did not purport to set forth a categorical list of plaintiffs,
excluding all others, who have the right to challenge tying arrangements
under the Clayton Act.
13 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 14
Bard responds by agreeing with the district court that Sports Racing
dictates the outcome here. According to Bard, Sports Racing announced a
“rule” that two types of plaintiffs have antitrust standing: tying product
purchasers and competitors. Additionally, Bard argues that Sports Racing’s
rule was necessary to its outcome: without a rule excluding tied product
purchasers, Sports Racing would not have needed to relax the direct
purchaser requirement so that the tying product purchaser in that case
could proceed.
Taking these arguments into account, we instead resolve this case on
an alternative ground. The district court did not analyze the second element
of the antitrust standing analysis, efficient enforcer, because it granted
Bard’s Rule 12(c) motion based on the first element. Nor did Parrish address
the second element in its opening brief. That said, we are free to affirm on
any basis supported by the record, even if it was not reached by the district
court or addressed by the parties before us. Richison v. Ernest Group, Inc.,
634 F.3d 1123, 1130 (10th Cir. 2011). Indeed, we commonly and properly do
so, for as we said in Richison, the courts of appeals stand “ready to affirm
whenever the record allows.” Id. For several reasons, we reach and decide
this appeal based upon the efficient enforcer element.
First, the parties did brief the second element, after Bard raised it as
an alternative basis to affirm in its response brief. Second, because we have
14 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 15
enough information before us to decide the issue, reaching it now would
prevent this case “from needlessly bouncing back and forth between” us and
the district court. Walton v. Powell, 821 F.3d 1204, 1212 (10th Cir. 2016).
And third, as mentioned above, our application of the second element of
antitrust standing is closely related to our interpretation of the first
element. We therefore discuss the efficient enforcer element of our antitrust
precedent, hold that Parrish is not an efficient enforcer, and affirm the
district court’s Rule 12(c) order on that basis.
B
As we have recounted, Sports Racing held that in addition to antitrust
injury, a plaintiff must show “a direct causal connection between that injury
and a defendant’s violation of the antitrust laws.” 131 F.3d at 882. “The
existence of an identifiable class of persons whose self-interest would
normally motivate them to vindicate the public interest in antitrust
enforcement diminishes the justification for allowing a more remote party
. . . to perform the office of a private attorney general.” AGC, 459 U.S. at
542. In other words, we infer from the existence of more directly injured
parties that the plaintiff before us is indirectly, or at least less directly,
injured. This inference is consequential because antitrust standing is not
merely a question of whether we have before us a proper plaintiff, but rather
15 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 16
whether we have an “effective” plaintiff. B-S Steel of Kansas, Inc. v. Texas
Industries, Inc., 439 F.3d 653, 667 (10th Cir. 2006). 9
The rationale for this procedural requirement is rooted in substantive
antitrust law. Generally, antitrust laws “were enacted for ‘the protection of
competition, not competitors[.]’” Brunswick Corp. v. Pueblo Bowl-O-Mat,
Inc., 429 U.S. 477, 488 (1977) (quoting Brown Shoe Co. v. United States, 370
U.S. 294, 320 (1962)). Put differently, the substantive prohibitions on
anticompetitive conduct are concerned not with “its effect upon any
individual in the marketplace, but rather [] its effect generally upon
competition in a particular market.” Daniel C. Richman, Note, Antitrust
Standing, Antitrust Injury, and the Per Se Standard, 93 Yale L.J. 1309,
1310 (1984). Thus, we “have required the plaintiff . . . to relate his private
injury to a more public wrong – a threat to competition in his own market.”
9 The efficient enforcer element of the antitrust standing inquiry is
necessarily comparative. But we caution that district courts should not end a plaintiff’s suit solely because it is not the best, most effective, or most efficient plaintiff. The Clayton Act’s promise of “justice to every man, whenever he may be injured by those who violate the antitrust laws,” would hardly be vindicated if only one plaintiff in the world had antitrust standing to sue. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 486 n.10 (1977). The efficient enforcer element does not require a plaintiff to exclude all others to then seek relief. There will be instances (maybe many) where even a “second-best” or third-best plaintiff is an efficient enforcer of the antitrust laws. SAS of Puerto Rico, Inc., 48 F.3d at 44. Even so, the efficient enforcer element is more exacting than the antitrust injury element. Antitrust injury alone is insufficient to state a cause of action.
16 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 17
Id. at 1312. The “broad principle of compensation” under the Clayton Act is
therefore qualified by a second element of antitrust standing. Id.
We held in Abraham that the second prong of the antitrust standing
inquiry requires a plaintiff to show “that it is an efficient enforcer of the
antitrust laws.” 461 F.3d at 1268. “Factors to be considered in this analysis
include the directness or remoteness of the injury suffered by the plaintiff,
which, in turn, depends on the existence of other more directly-injured
possible plaintiffs.” Id. Other factors that may bear on the question include
the defendants’ motivations, “the speculative nature of the damages
sought,” and “the risk of duplicative recoveries or complex damages
apportionment.” Sharp, 967 F.2d at 406–07.
Bard argues that Parrish’s alleged antitrust injury is too distantly
removed from the alleged antitrust violation. Relying on Sports Racing,
Bard points out that it is the tying product purchasers who are the “targeted
victims of an illegal tying arrangement.” Resp. Br. at 34 (quoting Sports
Racing, 131 F.3d at 889 n.15). Parrish, by contrast, does not experience
market restraint to the same extent as victims who purchase both the tied
and tying product because only those victims experience the “lack of choice”
that tying arrangements induce. Id. Parrish responds that the causal
connection between its antitrust injury and the alleged antitrust violation
17 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 18
is straightforward: because of the tying arrangement, Parrish must pay
supracompetitive prices for the tied product.
On this point, we agree with Bard. Sports Racing held that in the
usual case, “tying product purchasers . . . are in the best position to identify
an illegal tie and have the most incentive to bring an action to enforce the
prohibition against tying.” 131 F.3d at 889 n.15 (emphasis added). Although
both the tied-product purchaser and the tying-product purchaser may
experience an anticompetitive harm, Parrish does not contest that the
tying-product purchaser experiences the harm to a greater extent. Thus,
ordinarily it is the tying product purchaser whose self-interest is best
aligned with the public interest, and therefore best positioned “to perform
the office of a private attorney general.” AGC, 459 U.S. at 542.
Parrish fails to persuade us that this is the rare case where tied-
product purchasers are the efficient enforcer plaintiff as opposed to tying-
product purchasers or competitors. Parrish claims that “the standard for
antitrust causation is low,” citing out of circuit precedent. Reply Br. at 10–
11. While that may well be true with respect to the antitrust injury element,
Parrish’s claim is irreconcilable with the efficient enforcer element. Parrish
further argues that our task is “only to determine whether Parrish has
adequate standing.” Id. at 12. But we foreclosed this argument in B-S Steel,
439 F.3d at 667, as did the Supreme Court in AGC, 459 U.S. at 542. Finally,
18 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 19
we are aware of at least one case where a competitor did sue Bard and
litigated its claims all the way through trial. AngioDynamics, Inc. v. C.R.
Bard, Inc., 537 F. Supp. 3d 273 (N.D.N.Y. May 5, 2021), (denying cross-
motions for summary judgment); Judgment in a Civil Case, AngioDynamics,
Inc. v. C.R. Bard, Inc., 2022 WL 18402240 (Oct. 6, 2022) (No. 1:17-cv-00598)
(jury verdict in favor of Bard). The fact that Bard has already faced a
competitor suit diminishes any concern that affirmance would leave an
enforcement gap and underscores that there are other plaintiffs who are
better positioned to enforce the antitrust laws. Parrish points to no other
factor favoring its right to sue.
In a footnote, Parrish claims the district court found that Parrish was
an efficient enforcer with respect to its monopolization claim, and that Bard
conceded that the question of whether Parrish was an efficient enforcer of
the monopoly claim would be the same or overlap with the question of
whether Parrish was an efficient enforcer of the tying claim. But Sports
Racing holds that a plaintiff may be an efficient enforcer for one antitrust
purpose but not another. 131 F.3d at 884–85, 889 n.15. The district court’s
later findings with respect to monopolization (which are not binding on us
in any event) do not prevent us from finding otherwise with respect to the
tying claim. Moreover, we do not understand Bard’s purported concession
to stand for anything more than antitrust standing for a monopolization
19 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 20
claim is “obviously related to but analytically distinct from the tying claim.”
Id. Monopolization and tying claims are related, but each survives, or not,
on its own terms.
Here, Parrish’s tying claim does not survive. Parrish is not an efficient
enforcer of the antitrust laws and therefore does not have antitrust
standing to sue Bard for its alleged per se violation of Section 1 of the
Sherman Act for the product tying arrangement.
In addition to the tying claim, Parrish also alleged a monopolization
claim in the district court under Section 2 of the Sherman Act. After the
district court declined to certify a class for this claim, and we thereafter
declined discretionary interlocutory review, Parrish voluntarily dismissed
with prejudice its monopolization claim to induce an appealable final
judgment. Parrish now seeks our review of the district court’s order denying
class certification. But Supreme Court and Tenth Circuit precedent
foreclose our jurisdiction over the class certification order, so we cannot
consider it.
We have mandatory jurisdiction over “appeals from all final decisions”
of the district court. 28 U.S.C. § 1291. Our jurisdiction over a final judgment
extends to all interlocutory orders that merge into the final judgment.
Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 985 (10th Cir. 2021).
20 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 21
But not all interlocutory orders merge. Where a plaintiff abandons
remaining substantive claims to obtain immediate review as of right over a
class certification denial, the Supreme Court has held that there is no
jurisdiction over the class certification denial. Microsoft Corp. v. Baker, 582
U.S. 23, 27 (2017). This voluntary dismissal tactic “subverts the final-
judgment rule,” “invites protracted litigation,” and “undercuts Rule 23(f)’s
discretionary regime.” Id. at 37, 39.
Applying Baker, we have held that when a plaintiff voluntarily
dismisses their claims with prejudice and then seeks appellate review of a
class certification denial order, that order does not merge with final
judgment, and our § 1291 jurisdiction therefore does not extend to the order.
Anderson Living Trust v. WPX Energy Production, LLC, 904 F.3d 1135,
1144–45 (10th Cir. 2018). 10 Parrish’s appeal from the district court’s class
certification order falls neatly within the scope of this rule and we therefore
have no jurisdiction to consider it. 11
10 The fact that the plaintiffs in Anderson Living Trust settled their
individual claims before voluntary dismissal was immaterial to this court’s holding that Baker applies. 11 We also decline to exercise pendent appellate jurisdiction over the
district court’s class certification order because it is neither “inextricably intertwined with” nor “necessary to ensure meaningful review of” the district court’s Rule 12(c) order dismissing Parrish’s tying claim. Cummings v. Dean, 913 F.3d 1227, 1235 (10th Cir. 2019).
21 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 22
Also pending before us is Bard’s motion to dismiss this portion of the
appeal relating to the class certification denial order. Doc. 23-1; see also
Fed. R. App. P. 27; 10th Cir. R. 27.3(A)(1). Because we dispose of this
argument in a way that provides part of the primary relief Bard requested,
we therefore grant Bard’s motion to dismiss insofar as it seeks dismissal of
the appeal from the district court’s order denying class certification. 10th
Cir. R. 2.1 (we have discretion to overlook technical errors under our local
rules). However, at this point we deny Bard’s request for associated fees
and costs, which must be sought by a “separately filed motion.” Fed. R. App.
P. 38. Our denial of Bard’s request is without prejudice to any renewed
request Bard may make post-judgment in accordance with applicable rules.
IV
Although we diverge from the rationale for the district court’s decision,
we AFFIRM its bottom line. Parrish does not have antitrust standing to pursue
its tying claim against Bard. Parrish’s remaining claims of error are
DISMISSED for lack of appellate jurisdiction.
22 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 23
No. 24-4039, N. Brevard Cnty. Hosp. Dist. v. C.R. Bard, Inc., et al. FEDERICO, Circuit Judge, concurring.
Although I join with my colleagues in the opinion of the court, I also
write separately to address and discuss the injury element of antitrust
standing, which was the sole basis for the district court’s decision
dismissing Parrish’s tying claim. The parties’ arguments on this legal
question present a confounding understanding of our antitrust injury
precedent. The district court, relying upon Sports Racing Services, Inc. v.
Sports Car Club of America, Inc., 131 F.3d 874 (10th Cir. 1997), interpreted
our caselaw to strictly exclude parties who purchase only tied products as
tying claim plaintiffs. However, consistent with first principles of antitrust
law, our case law sets forth a broad, flexible rule of antitrust standing.
This court’s failure to reach and decide this critical issue is not an
exercise of prudence. I first address our need to clarify this important
element of antitrust law – if not in this case, then in a future one. I then
explain why the district court’s decision, though understandable, was
erroneous. Neither Sports Racing nor any subsequent case sets forth the
kind of categorical rule excluding plaintiffs who purchase only the tied
product from the antitrust laws’ remedial protections. In my view, district
courts should read our antitrust cases contextually and in harmony with
the general corpus of antitrust law, not against it. 1 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 24
The existential purpose of appellate courts is the duty to correct legal
errors made by the district court. As an incident to this error-correcting
duty, appellate courts also serve “the institutional function of announcing,
clarifying, and harmonizing the rules of decision employed by the legal
system in which they serve.” Matter of McLinn, 739 F.2d 1395, 1401 (9th
Cir. 1984). We do not perform these functions in the abstract. The appellate
judge is not a “knight-errant,” tasked to sally forth and correct errors and
announce rules at will. Benjamin N. Cardozo, The Nature of the Judicial
Process 141 (1921). But where, as here, such errors are properly brought
before us, we should rightly correct them and expound our reasons for doing
so.
Parrish argues that the district court committed an error, which was
the sole basis for the decision on antitrust standing that we were tasked to
review. On appeal, this claimed error was fully briefed by all parties. It is
within our jurisdiction to consider whether the district court erred here.
And having properly invoked our jurisdiction to address this issue, Parrish
has also triggered our “virtually unflagging” duty to say what the law is.
Colorado River Water Conservation District v. United States, 424 U.S. 800,
817 (1976). The court’s decision to resolve this appeal on alternative
grounds certainly does not deprive us of the authority to address the error
2 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 25
that Parrish complains of. If this court has the discretion to affirm on any
basis supported by the record, we also have the discretion to decide the issue
that was reached by the district court, is fully briefed by the parties, and is
thereby central to the appeal before us. In my view, that was the correct
way to proceed in deciding this appeal.
First, the parties’ arguments set out opposite interpretations of the
rule in Sports Racing (one of which aligned with the district court’s
reasoning), which illustrates there is uncertainty or confusion concerning
how that decision applies in other market contexts. By looking the other
way, we now add to the uncertainty and confusion that has been directly
brought to our attention.
That uncertainty and confusion is particularly intolerable with
respect to antitrust law. Antitrust law relies on highly simplified, common-
law-esque rules of decision and decentralized enforcement. That is why
courts applying antitrust principles must articulate clearly the law’s
expectations as to regulated parties. See A. Douglas Melamed, Antitrust
Law and Its Critics, 83 Antitrust L.J. 269, 271–74 (2020) (observing that
antitrust “principles and rules are largely made by judges.”). This case
smacks of confusion about our precedent, so there is a compelling need to
address it.
3 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 26
Second, our application of the second element of antitrust standing
(efficient enforcer) is closely related to our interpretation of the first
element (antitrust injury). Indeed, before Sports Racing, the Supreme Court
articulated efficient enforcement as merely one factor in a holistic inquiry,
rather than a two-step test. Associated General Contractors of California,
Inc. v. California State Council of Carpenters, 459 U.S. 519, 536–45 (1983).
Thus, it makes good sense in this case to also consider antitrust injury so
that we may properly analyze whether Parrish has standing as an efficient
enforcer. But in failing to address the antitrust injury element, the court’s
opinion leaves regulated entities and district courts to speculate as to our
antitrust injury rules, which will collaterally affect the efficient
enforcement analysis, given the strong ties between these doctrines.
Although I join and respect my colleagues’ decision to travel down
another, narrower path of decision, I am concerned that by doing so we have
also needlessly added to the uncertainty regarding the antitrust injury
element. Our decision should address the properly presented, fully briefed,
and central issue of whether the district court erred in its interpretation of
our antitrust injury precedent. Our failure to do so leaves the parties, the
district court, and this court in impoverished circumstances. I write
separately with the goal to narrow the gap between uncertainty and clarity
4 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 27
and turn now to the antitrust injury element that we should have
addressed.
Because the parties’ arguments turn so heavily on our language and
reasoning in Sports Racing, I will first examine that case in more detail. I will
then turn to the parties’ arguments and conclude that Parrish has the better
read of our cases.
Before diving into Sports Racing, it is worth observing that “the language
of an opinion is not always to be parsed as though we were dealing with
language of a statute.” Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979). That
is especially true in the antitrust context, where common law-type adjudication
prevails. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877,
899 (2007).
Sports Racing involved a unique set-up. The Sports Car Club of
America required all racers who wished to participate in its car races to
purchase specialty cars and car parts from an authorized third-party
distributor. Sports Racing, 131 F.3d at 878. The third-party distributor, in
turn, purchased the specialty cars and parts from the Club itself. Id. By
tying participation in car races to the purchase of cars and parts, the Club
was able to charge higher prices for cars and parts and establish a monopoly
5 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 28
in that market. Id. at 879. Two plaintiffs – a car racer and a distributor –
sued the Club for antitrust violations. 1 Id at 878–79. As to the tying claim,
we held that both plaintiffs had antitrust standing.
The distributor had antitrust standing because it was a “potential
competitor,” or at least, at the summary judgment stage, had raised a
genuine dispute as to whether it was a “potential competitor.” Id. at 887.
The car racer had bought both the tied and the tying product and so had to
pay higher prices. Id. Thus, we said: “[r]elevant to plaintiffs’ claim, two
types of parties may have standing to challenge illegal tying arrangements
– the purchasers who are forced to buy the tied product to obtain the tying
product (the prototypical tying plaintiff), and the competitor who is
restrained from entering the market for the tied product . . . Both types of
plaintiffs are present here[.]” Id.
But the racer-plaintiff had a problem. Longstanding precedent
restricted antitrust suits to plaintiffs who purchase the relevant product
directly from the defendant. Illinois Brick Company v. Illinois, 431 U.S. 720,
729–36 (1977); Apple, Inc. v. Pepper, 587 U.S. 273, 277 (2019). The racer
bought access to the races (tying product) directly from the Club, but
The racer (Freeman) was also the sole owner of the distribution 1
company (SRS). Sports Racing, 131 F.3d at 878.
6 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 29
because the Club required all racers to buy their cars and parts (tied
product) from an authorized third-party distributor, the racer did not
directly purchase the tied product from the Club – indeed, no racer ever
could. Sports Racing, 131 F.3d at 889. There was thus no direct purchaser
of both the tying and the tied product.
We relaxed the direct purchaser rule and held that it was sufficient
that the Club had a “direct economic interest” in the sale of the tied product
to the racer, even though it did not directly sell the product to him. Id. at
888–89. Our analysis was driven in large part by the fact that the “only
other possible” direct purchaser of the tied product was the distributor
aligned with the Club. Id. at 889 n.15. But that distributor was neither tied
nor injured by the tie. Id. We said: “[b]ecause the tying product purchasers
(here, the purchasers of racing services) are the targeted victims of an
illegal tying arrangement, these purchasers are in the best position to
identify an illegal tie and have the most incentive to bring an action to
enforce the prohibition against tying.” Id.
With the context and key aspects of Sports Racing now in view, I turn
to the task of discerning whether, as Bard argues, Sports Racing
categorically forecloses the suit brought by Parrish. Even if Parrish is
correct that the district court misinterpreted Sports Racing’s language, I
7 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 30
am sympathetic to the district court’s dilemma. There is certainly language
in Sports Racing that leans in Bard’s favor.
First, there is the list, where we appeared to suggest that only
purchasers of both the tied and the tying product and competitors have
antitrust standing to challenge tying arrangements. Id. at 887. Second,
there is footnote 15 in the opinion, where we expressly rejected the
possibility that the tied product purchaser could challenge the tying
arrangement. Id. at 889 n.15. But I am persuaded that our precedent does
not set forth a categorical rule that automatically excludes tied product
purchasers from the list of potential plaintiffs who have suffered an
antitrust injury.
To begin with, the “list” of potential antitrust plaintiffs does not
enumerate an exclusive set of entities who may challenge tying
arrangements. As Parrish correctly points out, context points the other way.
We qualified the pertinent statement in Sports Racing by acknowledging
that the list was only as “[r]elevant to plaintiffs’ claim.” Id. at 887.
Restricting our discussion of antitrust standing to those archetypes
“relevant to plaintiffs’ claims” signaled two things: 1) the unique market
arrangement in Sports Racing implicated those two types of possible
plaintiffs, and only those two types; and 2) we did not intend to approve or
disapprove other types of potential plaintiffs because those other types, not
8 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 31
present in the case, were not relevant to plaintiffs’ claims. I therefore do not
read this language in Sports Racing to consider or decide the question of
whether a plaintiff who buys only the tied product has suffered an antitrust
injury sufficient to confer standing to challenge a tying arrangement in all
cases.
Bard asks us to adopt a maximalist reading of footnote 15 to exclude
all tied product purchasers from Clayton Act suits, but again, I conclude
that context demands a narrower interpretation of the rule from that case.
The tying arrangement in Sports Racing, by the court’s own terms, was “not
a typical tying situation.” Id. at 887. The structural role of third-party
distributors in the tying arrangement made it a unique market, and Sports
Racing merely recognized this fact. Because the distributor was not,
practically speaking, a true consumer of the tied product, it was not the
truly injured party. Id. at 889 n.15; see also Serpa Corp. v. McWane, Inc.,
199 F.3d 6, 11 (1st Cir. 1999) (“[A] commercial intermediary, such as a
distributor or sales representative, generally lacks standing because its
antitrust injury is too remote.”). But this determination was made without
distinction between tied and tying product purchasers.
Moreover, the last sentence of footnote 15 strongly suggests that it is
foreshadowing the efficient enforcer element of the antitrust standing
analysis, not opining on the antitrust injury element. Recall that we said:
9 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 32
“Because the tying product purchasers (here, the purchasers of racing
services) are the targeted victims of an illegal tying arrangement, these
purchasers are in the best position to identify an illegal tie and have the
most incentive to bring an action to enforce the prohibition against tying.”
Sports Racing, 131 F.3d at 889 n.15 (emphasis added). The court’s focus on
the best positioned party with the most incentive to sue for an antitrust
violation fits neatly with the efficient enforcer requirement we described in
Abraham v. Intermountain Health Care Inc., as part of the second element
in the antitrust standing analysis. 461 F.3d 1249, 1268 (10th Cir. 2006). So,
although there is some ambiguity in footnote 15’s analysis, I read it to
address the second element of antitrust standing concerning efficient
enforcement.
Additionally, the district court relied on footnote 10 of Abraham,
where without further reasoning we quoted Sports Racing to reject the
antitrust standing of the plaintiffs there. 461 F.3d 1249, 1266 n.10 (10th
Cir. 2006)) But in Abraham, the plaintiffs did not buy any products at all –
they were competitors. 461 F.3d at 1266 n.10. Indeed, Abraham actually
supports Parrish’s reading of the caselaw, because it suggests that had the
Abraham plaintiff purchased the tied product, the result might have been
different. Id. (“As the Plaintiffs neither purchase nor provide SEC [the tied
product], they lack standing to assert this claim.”). Also, by tucking this
10 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 33
language in a footnote only, the Abraham court treated this principle of law
as an aside. The language is at minimum ambivalent about antitrust injury
and at most supports the view that purchasers of tied products alone can
have antitrust standing in the appropriate circumstances. That perhaps
explains why Bard did not respond to Parrish’s arguments about Abraham
in its response brief.
In all, I do not read Sports Racing or any of our other cases to set forth
a categorical rule excluding plaintiffs who purchase only the tied product
from challenging a tying arrangement. My interpretation of Sports Racing
is consistent with the Supreme Court’s repeated rejection of “formalistic
distinctions” in the interpretation and implementation of the antitrust
laws. E.g., Eastman Kodak Co., 504 U.S. at 466–67. We have also
acknowledged that “the Supreme Court has avoided black-letter rules about
antitrust standing.” Sharp v. United Airlines, Inc., 967 F.2d 404, 406 (10th
Cir. 1992). Bard’s position requires us to assume that we silently but
sharply departed from this norm in Sports Racing. Bard offers no
explanation for why we would have inexplicably abandoned this norm, and
I think that assumption is implausible.
My interpretation of Sports Racing also minimizes any divergence
from our sister circuits. In Ware v. Trailer Mart, Inc., the Sixth Circuit
rejected the argument that because a plaintiff declined to participate in the
11 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 34
tying arrangement, he lacked antitrust standing to challenge a tying
arrangement. 623 F.2d 1150, 1153 (6th Cir. 1980). It explained “that this
argument begs the question. [Plaintiff] has alleged a wrongful deprivation
of money[.] He incurred this loss because of [Defendant’s] anticompetitive
conduct[.]” The Sixth Circuit “therefore [found] that [Plaintiff] has properly
claimed an injury under Section 4 and may, accordingly, sue to recover
damages for the alleged violations of Section 1 of the Sherman Act.” Id.
Whatever the factual distinctions between Ware and this case, the rule of
antitrust injury that the Sixth Circuit applied is certainly more capacious
than the one Bard asks us to adopt via Sports Racing.
Additionally, in Novell, Inc. v. Microsoft Corp., the Fourth Circuit
rejected a rule of antitrust injury that would have turned on the plaintiff’s
status instead of a more holistic, fact-bound inquiry. 505 F.3d 302, 310–14
(4th Cir. 2007). Relying on circuit precedent like Bard does here, Microsoft
asked the court “to adopt a bright-line rule that only consumers or
competitors in the relevant market have antitrust standing.” Id. at 311.
Such a rule would have excluded Novell, which was neither. Id. at 308. But
the Fourth Circuit declined Microsoft’s invitation to potentially bring circuit
precedent into conflict with the Supreme Court. Id. at 311–14. Although
Novell did not involve a tying claim, it set forth a general holding with
respect to antitrust standing that would encompass tying claims and
12 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 35
foreclose Bard’s argument. My rejection of Bard’s categorical interpretation
of our caselaw is therefore in harmony with at least the Fourth and Sixth
Circuit. I am aware of no precedent to the contrary. 2
In sum, I do not read Sports Racing as setting forth a brightline,
categorical rule of antitrust injury that constructs a permanent wall
between tying and tied product purchasers. Direct purchasers of only tied
products may sometimes have an antitrust injury and therefore satisfy the
first element of our antitrust standing inquiry. Any language in Sports
2 Although the argument that Parrish raises does not appear to be directly resolved by other courts, nearly all the circuits caution against black letter or brightline rules for antitrust standing. See, e.g., SAS of Puerto Rico, Inc. v. Puerto Rico Telephone Co., 48 F.3d 39, 43–44 (1st Cir. 1995); Crimpers Promotions Inc. v. Home Box Office, Inc., 724 F.2d 290 (2d Cir. 1983); City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 264–65 (3d Cir. 1998); Los Angeles Memorial Coliseum Com’n v. National Football League, 791 F.2d 1356, 1363 (9th Cir. 1986) (no “mechanical tests”); Todorov v. DCH Healthcare Authority, 921 F.2d 1438, 1450–51 (11th Cir. 1991). So too have district courts declined to apply hard and fast rules for antitrust standing, sometimes in cases analogous to this one. See, e.g., Warner Management Consultants, Inc. v. Data General Corp., 545 F. Supp. 956, 967 (N.D. Ill. 1982); Heartland Payment Systems, Inc. v. MICROS Systems, Inc., 2008 WL 4510260, at *11 (D.N.J. Sept. 29, 2008). I am therefore satisfied that Bard’s position is contrary to the majority position of the circuit courts. Were I firmly convinced that Bard is nonetheless correct about the law or the state of our precedent, this court would be duty-bound to depart from our sister circuits. But the consensus of our sister circuits (even at a high level of generality) is good evidence of the correct interpretation of the law, and here, we are offered little more than a strained interpretation of one of our cases as a basis to break from that consensus – too thin a reed to bear the weight of a possible circuit split. United States v. Thomas, 939 F.3d 1121, 1130–31 (10th Cir. 2019).
13 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 36
Racing to the contrary is best read as addressing antitrust standing’s
second element, the efficient enforcer requirement. 3
Almost four decades ago, the Seventh Circuit observed that the “issue of
antitrust standing has become somewhat confused.” Local Beauty Supply, Inc.
v. Lamaur Inc., 787 F.2d 1197, 1201 (7th Cir. 1986). To the extent that
confusion persists about our precedents, which seems obvious given how this
case was presented and the district court’s decision that we are reviewing in
this appeal, we should not side-step our obligation to attempt to provide clarity.
I would hold that Sports Racing does not categorically foreclose antitrust
challenges to tying arrangements that are brought by plaintiffs who have
purchased only the tied product. Instead, our law establishes a broad, flexible,
and fact-bound standard for antitrust standing: the plaintiff must show that
1) they bear an antitrust injury; and 2) they are an efficient enforcer of the
antitrust laws. Sports Racing does not establish any brightline rule under
either of these elements, but with respect to the latter, Sports Racing and other
3 The panel opinion is correct to hold that Parrish fails to demonstrate
that it is an efficient enforcer of the antitrust laws in this context. But since I would have held that tied product purchasers can, in some instances, have an antitrust injury sufficient to challenge a tying arrangement, my concurrence should not be construed to foreclose the possibility that, in a future case, a tied product purchaser could have an antitrust injury and also be an efficient enforcer of antitrust law.
14 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 37
precedent requires that tied-product purchasers show why they are efficient
enforcers against tying arrangements, when tying-product purchasers and
competitors are usually more directly injured. Here, Parrish has not met this
burden. I respectfully concur in the opinion of the court and the affirmance of
the district court’s judgment.
15 Appellate Case: 24-4039 Document: 90-1 Date Filed: 12/31/2025 Page: 38
24-4039, N. Brevard Cnty. Hosp. Dist. v. C.R. Bard, Inc., et al. HARTZ, J., concurring
I join the opinion of Judge Federico for the court. As for his concurring opinion, I
would be inclined to agree with his reading of Sports Racing, but I think we are bound by
footnote 10 in Abraham, which I view as rejecting that reading.