3423. Tying Economic Power Explained

3423. Tying--"Economic Power" Explained Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 In determining whether [name of defendant] has sufficient economic power in the market for [tying item], you may consider whether [name of defendant] has such a large share of the market for [tying item] that buyers do not have alternate sources of [tying item] or a reasonably available substitute. If [name of defendant] has economic power, it may be established even though it exists with respect to some, but not all, buyers. You may also consider whether a buyer would be unable to easily locate a similar or equally desirable product in the marketplace. If buyers do not generally consider other products to be substitutes, this fact may give [name of defendant] economic power over its [tied item]. The fact that [name of defendant] can produce [tying item] in an efficient manner or at a high level of quality does not, by itself, mean that competitors do not offer a similar product. ________________________________________________________________________________ New September 2003