Amicus Brief - Open Markets Files Amicus Brief Laying Out Harms from Tying and Urging Court to Affirm Good Law on Practice

WASHINGTON — Open Markets Institute submitted an amicus brief on August 3 in the Court of Appeals for the Fifth Circuit describing the harms of tying arrangements and the legal restrictions on the practice. Jay Forester, at Forester Haynie in Dallas, generously served as the Open Markets Institute’s local counsel and filed the brief. 

When a powerful firm or business engages in tying, it conditions the purchase of one product on the purchase of a separate product. Tying by dominant firms is a form of unfair competition that excludes rivals and coerces customers. The tying of two separate products by a dominant firm is prohibited categorically, or per se, by the Sherman Act.

“Tying by monopolists and other dominant firms is a pernicious practice that forecloses rivals and robs consumers of the freedom to make informed judgments in the market,” said Sandeep Vaheesan, legal director of Open Markets Institute. “A powerful recent example is Microsoft bundling Teams with its dominant Office suite as a means of excluding Slack and other emerging rivals. Other Big Tech companies have employed tying, too. We call on the Fifth Circuit to protect rivals, consumers, and the public by affirming the per se rule against tying by firms with market power.”

Read the full brief below or download here.