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Ninth Circuit Affirms Antitrust Verdict Against Tyco in Pulse Oximetry Market

Posted  November 3, 2009

The Ninth Circuit has upheld a jury verdict against Tyco (now known as Covidien) for anticompetitive sole source agreements and market share discounts.  Masimo Corp. v. Tyco Health Care Group, L.P., No. 07-55960, 2009 WL 3451725 (9th Cir. Oct. 28, 2009).  The appellate court affirmed the District Court’s post-trial decision, which struck part of the jury verdict but left a significant liability finding intact.

The Ninth Circuit agreed with the trial court that Tyco had engaged in anticompetitive conduct in the market for “Pulse Oximetry Systems,” which are non-invasive sensors sold to hospitals that make use of red and infrared light to measure blood oxygen levels through the skin.

In March 2005, a jury found Tyco’s sole-source agreements and market-share based compliance pricing contracts were unlawful restraints of trade in violation of Section 1 of the Sherman Act and unlawful exclusionary dealing arrangements in violation of Section 3 of the Clayton Act.  The District Court vacated the jury’s liability finding in connection with certain bundled discounts, as well as its finding of some $420 million in trebled damages.  After a bench retrial on damages, the District Court found Tyco liable for $14.5 million, trebled under the Clayton Act.

On appeal, the Ninth Circuit agreed with the trial court that while the evidence was sufficient to support the jury verdict that the sole source and market share agreements violated the antitrust laws, the evidence did not support the jury verdict that Tyco’s bundling agreements violated Section 2 of the Sherman Act.

Although the Ninth Circuit agreed with Masimo that Tyco’s bundling contracts could be considered exclusive dealing arrangements because customers could only receive price discounts for unrelated products if they purchased of 90-95% of their requirements from Tyco, the Court found that was not sufficient to establish liability.  The Court agreed with the District Court that there was insufficient evidence to show that the bundling arrangements foreclosed competition in a substantial share of the market – an essential element of an exclusive dealing claim.

Tagged in: Antitrust Litigation,