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FORTNER ENTERPRISES, INC. V. UNITED STATES STEEL CORP., 394 U. S. 495 (1969)
U.S. Supreme Court
Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495 (1969)
Fortner Enterprises, Inc. v. United States Steel Corp.
Argued January 23, 1969
Decided April 7, 1969
394 U.S. 495
Petitioner filed this action for treble damages and injunctive relief for alleged violations of §§ 1 and 2 of the Sherman Act by respondents, U.S. Steel Corp. and its wholly owned subsidiary, U.S. Steel Homes Credit Corp., alleging an agreement between respondents to force petitioner and others as a condition of obtaining credit on advantageous terms from Credit Corp. to purchase at artificially high prices prefabricated houses manufactured by U.S. Steel. Petitioner claimed that, in order for it to obtain over $2,000,000 in loans to buy and develop land in the Louisville, Ky., area, it was required to agree to erect. a U.S. Steel-fabricated house on each of the lots it bought with the loan proceeds. On the basis of its complaint and affidavits and answers to interrogatories filed in the course of pretrial proceedings, petitioner claimed that, during the 1959-1962 period involved, petitioner could find no other financing in the Louisville area at such cheap terms and on the 100% basis that Credit Corp. offered. The District Court, holding that petitioner's allegations had raised no question of fact as to a possible violation of the antitrust laws, entered summary judgment for respondents. The Court of Appeals affirmed.
1. The District Court incorrectly assumed that the standards in Northern Pacific R. Co. v. United States, 356 U. S. 1, for determining the illegality per se of a tying agreement had to be met before petitioner could prevail on the merits. Pp. 394 U. S. 498-500.
2. In any event, the facts raised by petitioner, if proved at trial, make the per se doctrine applicable to the tying arrangement here. Pp. 394 U. S. 500-501.
3. The volume of commerce allegedly foreclosed was substantial when measured as it should be, not by the portion of the total accounted for by petitioner's contracts, but by the total volume of sales tied by respondents' challenged sales policy. Pp. 394 U. S. 501-502.
4. Economic power may be inferred from the seller's ability to raise prices, or impose other burdensome terms such as a tie-in,
with respect to any appreciable number of buyers within the market, and does not require (as the District Court erroneously assumed) a showing of the seller's dominance over the market for the tying product. By this standard, in view of petitioner's showing that houses comparable to U.S. Steel's were sold by its competitors for substantially less and the lack of financing through other sources on terms Credit Corp. made available to petitioner, petitioner should have been allowed to go to trial on the market power issue. Pp. 394 U. S. 502-506.
5. The arrangement here, where credit is provided by one corporation on condition that a product be purchased from another corporation, and where the borrower contracts to obtain a large sum of money beyond that needed to pay the seller for the physical products purchased, is readily distinguishable from the sale of a single product on credit by an individual seller. Pp. 394 U. S. 506-507.
6. Where credit is the source of tying leverage used to restrain competition, it is treated no differently under the antitrust laws from other goods and services. Pp. 394 U. S. 508-509.
404 F.2d 936, reversed and remanded.
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