Cases in which vertical restraints are challenged under Section 1 of the Sherman Act often require proof that the defendant has “market power”—the power “to force a purchaser to do something that he would not do in a competitive market,” [1] which usually takes the form of a seller’s ability “to raise price and restrict output.” [2] Additionally, injury to an individual competitor is insufficient; there must be a showing of injury to marketplace competition. [3] A recent decision issued by the Tenth Circuit Court of Appeals, Suture Express, Inc. v. Owens & Minor Distrib., Inc., [4] focused on both of these requirements in considering a challenge by a medical products distributor against the “bundled” discount practices of two competitors, each of which was claimed to have market power in
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The US District Court of Appeals for the Tenth Circuit rejects claims challenging a medical-surgical distributor’s discount scheme (Suture Express / Cardinal Health / Owens & Micro)
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