Big Tech and Tying Arrangements: Are Antitrust Revisions Needed?

Abstract

Abstract One area of antitrust law in which many Big Tech organizations fight antitrust lawsuits is tying arrangements. Tying arrangements, which occur when a seller requires the sale one product to be tied to the purchase of another product, are subject to the partial per se analysis introduced in Jefferson Parish Hospital District No. 2 v. Hyde. Partial per se does not automatically assume that a tying arrangement is illegal, but rather sets conditions to determine when a tie between two products is an antitrust violation. However, criticism of the partial per se standard has existed for decades. This article argues that proposed changes to antitrust laws should include changing the standard used to evaluate tying arrangements to a consistent rule-of-reason approach.