Tying Arrangements and Class Actions

This Article does not attempt to identify socially harmful tying arrangements. Rather, it draws upon the vast literature and case law of tying arrangements to suggest possible solutions to a perplexing problem in the law of antitrust class actions: under what circumstances do common questions predominate over individual questions in tying arrangement cases and thereby justify class action treatment? Courts today agree generally that although the amount of damages may vary considerably from one prospective class member to another, certification of a class action requires that the fact of injury be demonstrable by proof common to all members of a class. As this Article shows, some tying arrangements injure all customers or competitors of the seller in the same way and are socially injurious. Cases concerning tie-ins of this kind usually are suitable for class action treatment. Other tie-ins, however, injure one set of customers while they benefit another set. These kinds of tying arrangements may or may not be socially injurious. They are not suitable for class action treatment unless the customers injured by the arrangement are somehow distinguishable from the customers that the tie-in benefits