United States: Vertical Restraints

This article reviews developments in vertical restraints law in the US since 1 June 2016. For an overview of the law of vertical restraints generally, the reader should consult the chapter on US vertical restraints in The Antitrust Review of the Americas 2014.

Price restraints

Resale price maintenance (RPM) claims against contact lens manufacturers continue to receive judicial attention. Class actions against the four major manufacturers, alleging unlawful RPM in the implementation of unilateral pricing policies (UPPs) in 2013 and 2014, have been consolidated in the United States District Court for the Middle District of Florida in In re Disposable Contact Lens Antitrust. In ruling on motions to dismiss filed by the manufacturers, the court held that the plaintiffs (consumers of disposable contact lenses) had adequately alleged a vertical conspiracy under the rule of reason between manufacturers and the independent optometrists and ophthalmologists engaged in the resale of contact lenses, referred to as eye care professionals (ECPs).¹

Applying the Supreme Court's analytical framework in Leegin,² the court held that plaintiffs had adequately alleged a relevant product market - soft disposable contact lenses - and geographic market - the United States.³ Acknowledging that proof of a violation of section 1 of the Sherman Act⁴ under the rule of reason requires a showing of market power sufficient to cause harm to competition in the relevant market, the defendants argued that the complaint failed to allege that any one of them had market power. Even though no manufacturer had a market share greater than 30 per cent, the court relied on the fact that, collectively, the four firms controlled 97 per cent of the market and that plaintiffs had alleged that the UPPs had been implemented pursuant to a horizontal conspiracy among them. Noting that ‘the alleged vertical agreements are an integral part of a larger alleged hub-and-spoke conspiracy,' the court held that the defendants ‘may not deconstruct the larger alleged conspiracy to avoid liability for vertical conspiracies by arguing that each individually impacts less than a large percentage of market share.'⁵

Drawing upon the Supreme Court's observation in Leegin that RPM may run afoul of the rule of reason if it were induced by a retail cartel,⁶ the court also looked at market power at the retail level. Taking into account allegations that a single large distributor, ABB Concise Optical Group, LLC, supplied most of the ECPs and was alleged to have functioned as the hub in the hub-and-spoke conspiracy to which the manufacturers were party, and considering, also, that the ECPs controlled two-thirds of the disposable contact lens retail market, the court reasoned that the ECPs possessed market power as a retail cartel.⁷ Although not stating so explicitly, the court apparently viewed market power in this downstream market applicable to analysis of the anticompetitive impact of RPM to the same extent as market power alleged to exist at the manufacturer level by operation of the hub-and-spoke conspiracy.

Non-price restraints on distribution

In an important ruling analysing a two-sided market under section 1 of the Sherman Act, United States Co. v American Express Co.,⁸ the United States Court of Appeals for the Second Circuit found no illegality in restrictions imposed by American Express Company on merchants accepting its credit cards.

Under its agreement with a merchant, American Express prohibits the merchant from informing a customer that the merchant may prefer another card (Visa, MasterCard or Discover) and ‘steering' the customer to use that card. The fee American Express charges a merchant is typically higher than that charged by other credit card networks, and American Express deemed these anti-steering provisions, called non-discrimination provisions (NDPs), necessary to preserve its premium brand positioning. The government, joined by a number of states, challenged the NDPs on the ground that they unreasonably restricted merchants from offering lower-priced card alternatives to customers. Following a trial on the merits, the district court agreed, holding that the NDPs violated section 1 under the rule of reason.⁹

The court of appeals reversed and directed the district court to enter judgment for American Express. It held that the market was two-sided and that the district court had erred in confining attention to effects of NDPs on merchants, without considering their effects on cardholders. While the NDPs may have restrained trade in a market limited to merchants (in which American Express had only 26.4 per cent of the volume of purchases), the trial court was obliged, under the rule of reason, to evaluate their impact on ‘the market as a whole.'¹⁰ The district court had defined the relevant market as the market for network services, focusing solely upon functions provided by credit card networks ‘which allow merchants to capture, authorise, and settle transactions for customers.'¹¹ Properly defined, however, the market as a whole includes both cardholders and merchants. The court of appeals described the interdependence of each side on the other:

The NDPs simultaneously affect competition for merchants and cardholders by protecting the critically important revenue that Amex receives from its relatively high merchant fees. The revenue earned from merchant fees funds cardholder benefits, and cardholder benefits in turn attract cardholders. A reduction in revenue that Amex earns from merchant fees may decrease the optimal level of cardholder benefits, which in turn may reduce the intensity of competition among payment-card networks on the cardholder side of the market.¹²

As plaintiffs in a vertical restraints case subject to the rule of reason, the government and states had the burden of proving anticompetitive effects. The court of appeals held that they had failed to carry their burden. Because the NDPs affect competition for cardholders as well as merchants, the plaintiffs' burden was to ‘show that the NDPs made all Amex consumers on both sides of the platform - i.e., both merchants and cardholders - worse off overall.'¹³ The court observed that there was no evidence ‘of the net price affecting consumers on both sides of the platform' and that the district court could not properly have ‘concluded that a reduction in the merchant-discount fee would benefit the two-sided platform overall.'¹⁴

Non-price restraints on purchasing

Tying arrangements

Tying aftermarket service to the original equipment sale

Alleged tying in the provision of aftermarket parts and services was examined in Aerotec International, Inc. v Honeywell International, Inc.¹⁵ and Avaya Inc. v Telecom Labs, Inc.¹⁶ After distinguishing Kodak,¹⁷ both courts held that the facts would not support a tying claim.

Aerotec International (Aerotec) performs repair and maintenance services for auxiliary power units (APUs) that provide aircraft with electricity needed to power air conditioning, cabin lighting and other electrical functions during flight. Honeywell International (Honeywell) is one of two manufacturers of APUs, with a market share of 70 per cent or more, depending upon the type of aircraft. Honeywell provides aftermarket services for APUs that it manufactures, repairing as much as 54 per cent of them. Aerotec competes against Honeywell in the repair of its APUs, and it also repairs APUs of the other major manufacturer, Hamilton Sundstrand. Aerotec has about 1 per cent of the market for the repair and service of APUs.

In order to compete effectively against Honeywell, Aerotec needed a steady supply of repair parts, and, because of federal regulations, almost all of them had to be sourced from the original equipment manufacturer. To repair Honeywell APUs, Honeywell OEM parts therefore had to be used. Aerotec argued that Honeywell tied the sale of OEM parts to Honeywell's performance of service on a customer's APUs. Aerotec's tying theory foundered on evidence that Honeywell sold OEM parts to any person that ordered them, including owners (airlines) and independent service organisations, like Aerotec, without regard to whether Honeywell provided service. Because Honeywell favoured owners with which it had service contracts and gave independent service organisations low priority when parts had to be allocated because of shortages, Aerotec argued that Honeywell's procedures made it ‘less desirable' for an owner to purchase service from Aerotec and thereby tied parts sales to Honeywell service.¹⁸ The court held that delay by Honeywell in filling Aerotec's orders fell short of establishing any tie:

Ultimately, Aerotec's arguments fall off the rails for lack of any evidence that airlines were presented with an offer for the sale of parts that could have been reasonably perceived as conditioned on refraining from the purchase of parts or services from any other service provider besides Honeywell. The claim that Honeywell clogs and complicates the parts distribution pipeline to independent servicers cannot substitute for the necessary evidence of an implied condition embedded in the sale of the tying product.¹⁹

In Avaya, the Third Circuit rejected aftermarket tying claims because the independent service provider failed to show that the manufacturer's service was unlawfully tied to sale of its product in the original equipment market. Avaya, Inc (Avaya), spun off from Lucent Technologies, Inc in 2000, manufactured telecommunications equipment. Among its products was a predictive dialing system (PDS), which was an automated telephone dialling system embodying certain features intended to increase the chances that a call would be answered. Telecom Labs, Inc and its affiliates (collectively, TLI) were a group of small independent service providers that functioned as a dealer for Avaya products until the dealer relationship was terminated by Avaya in 2003.

TLI alleged that Avaya tied the availability of software updates for PDS, called ‘patches,' to the sale of PDS in violation of section 1 of the Sherman Act. Following a trial on the merits in which the jury awarded damages to TLI, the court of appeals reversed. With respect to Avaya's treatment of patches prior to 2007, the court held that there was no tying, because the patches were available for free to PDS customers on Avaya's website. TLI pointed to a letter Avaya had sent to customers in 2005 threatening to cut off access to patches if they were to engage an unauthorised service provider - such as TLI - to perform service on PDS, but the court observed that this was simply evidence that Avaya was ‘intent on dominating its own intra-brand market.'²⁰ It rejected TLI's tying contention: ‘Were TLI to prevail on vague allegations that a strongly-worded letter was as effective as a technological or contractual tie, that would dramatically expand the reach of tying liability.'²¹

Avaya changed its policy on PDS service in October 2007, requiring PDS customers to purchase service from Avaya and discontinuing free access to patches. A customer could thereafter obtain patches only from Avaya. The court rejected TLI's argument that patches were unlawfully tied to Avaya service under the new policy. Noting that the service requirement was clearly disclosed by Avaya in its purchase contract with PDS customers and that the primary market was ‘indisputably competitive,' the court held that TLI could make no argument for ‘Kodak-style lock-in or aftermarket surprise.'²² Citing Queen City Pizza,²³ the court reasoned that, since the service requirement was fully transparent in purchasing documents, a customer was free to turn to a different brand if it wanted to avoid the obligation to source service exclusively from Avaya.

Power in the tying market

Failure by plaintiffs to allege or prove power in the market for a tying product was fatal in two significant cases reported in the past year - Suture Express, Inc. v Owens & Minor Distribution, Inc.²⁴ and Kaufman v Time Warner.²⁵ We address these in order.

In Suture Express, the court looked at the market for the distribution of disposable, single-use items purchased by hospitals, clinics and other healthcare providers, called ‘med-surg' products. The market is divided into two submarkets: a comparatively small market for sutures and endomechanical supplies (used for laproscopic surgery), called the suture-endo market; and the market for all other med-surg products, called the other-med-surg market. The plaintiff, Suture Express, distributed products only in the suture-endo market, whereas the defendants, Owens & Minor Distribution, Inc (O&M) and Cardinal Health 200, LLC (Cardinal), distributed a full line of med-surg products, covering some 30 categories. In response to competition from Suture Express, each of O&M and Cardinal had adopted policies giving customers better overall pricing when they purchased suture-endo products from them along with other-med-surg products. Suture Express claimed that this bundling by O&M and Cardinal had unlawfully tied the sale of suture-endo products (the tied product) to the purchase of other-med-surg products (the tying product).

In granting summary judgment for defendants, the trial court had rejected Suture Express's market power contentions, and the Court of Appeals for the Tenth Circuit affirmed. Analysing the tying claim under the rule of reason, the court found no evidence that either defendant had the power to exclude competition or control prices. The evidence showed that regional and national competitors were growing and expanding and that O&M's and Cardinal's profit margins had actually been declining in the other-med-surg market.²⁶ The court rejected Suture Express's contention that, in a rule of reason case, the shares of O&M (38 per cent) and Cardinal (31 per cent) in the tying product market evidenced market power precluding entry of summary judgment for the defendants, holding that the market shares were ‘insufficient to counteract the other market realities present here that point to increased competition and lower prices.'²⁷

The court turned aside Suture Express's argument that, under bundling analysis, the defendants were able to coerce customers to purchase the tied products and that this circumstance demonstrated power in the other-med-surg market. Suture Express contended that application of the discount attribution test in PeaceHealth²⁸ showed that the defendants were able to coerce purchase of the tied products, but the court observed that this did not prove market power and that, in any event, there was no case law support for use of the discount attribution test to show coercion by a non-monopolist.²⁹ The court held, further, that Suture Express had failed to show antitrust injury flowing from the bundling, because there was no evidence that the conduct of O&M and Cardinal had produced substantial adverse effects on competition: ‘The evidence in this case […] reveals a med-surg market that is becoming more, not less, competitive.'³⁰

The plaintiffs in Kaufman were subscribers to cable television services provided by various Time Warner entities nationwide. They alleged that Time Warner had unlawfully tied the lease of cable boxes, called set-top boxes or bi-directional cable boxes, to a subscription to its premium cable services. The Second Circuit affirmed dismissal of the complaint on the ground, among others, that plaintiffs had failed plausibly to allege that Time Warner had power in the market for premium cable services.

In addition to providing premium cable services, Time Warner offered basic cable services. The complaint defined premium cable services as digital cable services incorporating interactive functions. In addition to receiving a television signal from Time Warner, a subscriber to premium cable services can communicate with the cable box provided by Time Warner to obtain, for example, programme guides, parental control features or on-demand programming of movies or sports events. A bi-directional cable box is needed to permit these interactive functions.

The court first held that plaintiffs had failed to allege facts supporting an inference that there were two products or services for tying purposes. It held that, because of commercial realities and regulatory barriers, there could be no allegation that consumer demand existed for bi-directional cable boxes separate and apart from demand for premium cable services.³¹ It then considered whether plaintiffs had alleged power in the market for the tying product, even assuming that there were separate products or services.

Plaintiffs alleged that Time Warner had power in the market for premium cable services in 53 separate local geographic markets, but the court held that they had failed to allege facts that would support any inference of actual market power. Because they had not alleged facts bearing on Time Warner's share of the market for premium, two-way services, as opposed to the market for basic cable services, the court held that ‘they have not plausibly pled market power.'³² It also noted that in 22 of the 53 geographic markets Time Warner competes with other, non-cable companies in the provision of premium cable services but that the complaint alleged no facts ‘concerning Time Warner's share of these markets or how the presence of non-cable competitors affects Time Warner's power over price in these markets.'³³

Exclusive dealing arrangements

Pure exclusive dealing

The Seventh Circuit considered the legality under section 1 of the Sherman Act of exclusive-dealing contracts in Methodist Health Services Corp. v OSF Healthcare System.³⁴ The largest hospital in a three-county area in central Illinois, Saint Francis Medical Center (Saint Francis), had contracts with healthcare insurers, the largest of which was Blue Cross Blue Shield, under which the insurers were required to deal exclusively with Saint Francis. The exclusive-dealing requirement prevented them from contracting with the other major hospital in the market, Methodist Health Services Corp. (Methodist). The Saint Francis contracts covered more than half of all of the commercially insured patients in the market, and Methodist contended that, as a result, it was prevented from obtaining a sufficiently high volume of patients to enable it to invest in quality-improving projects that it otherwise would have undertaken.

In affirming summary judgment for Saint Francis, the court held that Methodist had shown no adverse competitive effects from the exclusive dealing arrangement. It noted that the contracts were of fixed duration, permitting Methodist to compete for an insurer's business when a new contract were up for bid, and it noted that the Blue Cross Blue Shield contract had expired every two or three years during the period Methodist claimed injury from exclusive dealing.³⁵ The court commented that Methodist's failure to out-bid Saint Francis supported a ‘logical inference' that ‘Saint Francis offered the health insurer a better deal, doubtless based on its offering a broader and deeper range of services than Methodist does.'³⁶ The court observed, also, that there was no evidence that the contracts adversely affected competition by driving up prices or preventing Methodist from duplicating the special services, such as Level 1 trauma care, that make Saint Francis ‘so special.'³⁷ It concluded by stating that Methodist is ‘simply an unsuccessful competitor with a hospital [Saint Francis] that offers patients insured by health insurance companies more health care than it does.'³⁸

Partial exclusive dealing

Even though a contract may not explicitly require exclusive dealing, it may have an equivalent effect, foreclosing competition in a relevant market. Courts looked at partial, or de facto, exclusive dealing in two cases we discuss below.

In OrthoAccel Technologies, Inc. v Propel Orthodontics, LLC.,³⁹ the United States District Court for the Eastern District of Texas held that a firm affected by a competitor's contractual arrangements with its customers had adequately alleged exclusive dealing in violation of sections 1 and 2 of the Sherman Act and section 3 of the Clayton Act. OrthoAccel Technologies, Inc (OrthoAccel) and Propel Orthodontics, LLC (Propel) manufactured dental devices used to accelerate tooth movement in orthodontic treatment. Propel alleged in a counterclaim that OrthoAccel had entered into contracts with its customers, orthodontists, which had the effect of preventing them from purchasing Propel's competing devices. After holding that Propel had adequately alleged a relevant market - the accelerated vibratory orthodontic device market - it held that Propel had alleged ‘facts that plausibly support an exclusionary contracting claim' against OrthoAccel.⁴⁰

Propel alleged that OrthoAccel had controlled nearly 100 per cent of the relevant market before Propel introduced its competing product. It alleged that a promotional programme introduced by OrthoAccel, the AccelDent NOW Program (the Program), which gave special pricing to participating customers, had the effect of requiring customers to purchase all or nearly all of the devices in question from OrthoAccel, precluding them from buying devices from Propel and other competitors. The court did not consider the text of the contract used for the Program, because there was a dispute as to authenticity of the copy accompanying the motion to dismiss, but it held that the Program's reordering and enrolment requirements could ‘effectively preclude competition,' especially in view of OrthoAccel's dominance in the market. Since it did not consider the text of the contract, the court reserved judgment as to whether the Program ‘is truly an exclusive-dealing arrangement' and noted that discovery may or may not demonstrate that the Program is ‘a de facto exclusionary contract.'⁴²

The Court of Appeals for the Ninth Circuit discussed de facto exclusive dealing in Aerotec International, Inc. v Honeywell International, Inc.⁴³ We have already considered the court's tying analysis,⁴⁴ and we will not restate the basic facts of the case. Aerotec contended that Honeywell had violated section 1 of the Sherman Act by engaging in exclusive dealing, but the court held that there was no evidence that Honeywell's contracts with customers for aftermarket service actually contained any exclusionary terms. Aerotec did not suggest that the contracts had explicit exclusive dealing requirements. Instead, it pointed to the fact that purchasers of repair services typically contract for three to seven years at a time, along with the fact that Honeywell gives airline customers a 15 per cent discount on parts. It argued that Honeywell had the power to induce airlines to accept Honeywell's services in lieu of those of independent service organisations and that this evidenced de facto exclusive dealing, without regard to whether service contracts expressly imposed exclusivity.

The court observed that the Ninth Circuit had not yet recognised ‘a "de facto" exclusive dealing theory,' unlike the Third Circuit in ZF Meritor⁴⁵ or the Eleventh Circuit in McWane,⁴⁶ but it stressed that, even under a de facto exclusive dealing theory, the plaintiff must ‘show that express or implied contractual terms in fact substantially foreclosed dealing with a competitor for the same good or service.'⁴⁷ Because Aerotec provided no details about the terms of Honeywell's contracts with airlines, there was no basis for conducting any analysis of de facto exclusive dealing, and the court rejected the claim. It described the failure of proof as follows:

What are the details? What is the term of the contract? Is it a spot market contract or a long-term contract? What restrictions or conditions are imposed on the customer? We don't know because Aerotec didn't tell us, either through copies of the contracts, analysis of the contract terms, or expert testimony.⁴⁹

Most-favoured nation clauses

Finally, we look at a case that does not neatly fit under conventional vertical restraint categories: US Airways, Inc. v Sabre Holdings Corp.⁵⁰ In this case, US Airways, Inc challenged a combination of restraints imposed by a supplier, some of which operated as most-favoured nation clauses. We therefore address the case under the heading of most-favoured nation clauses.

US Airways sued Sabre Holdings Corporation and certain of its affiliates (collectively, Sabre) for prohibiting it from offering lower fares to travel agents with which Sabre did not have a supply relationship. Sabre operated what is referred to as a global distribution system (GDS), through which it provided US Airways' schedule, fare and booking information to travel agents. Travel agents used the information to book flights on US Airways, and US Airways paid a booking fee to Sabre for each ticket sold. From booking fees received from US Airways, Sabre, in turn, paid incentive fees to travel agents. US Airways alleged that certain of the terms in its contract with Sabre violated section 1 of the Sherman Act. Following a jury verdict in favour of US Airways, the United States District Court for the Southern District of New York denied Sabre's motion for judgment or a new trial and held that the contract violated section 1 under the rule of reason.

The restraints imposed by Sabre on US Airways included the following:

• a no-discount provision, prohibiting US Airways from providing lower fares through other, non-Sabre, booking channels;
• a no-surcharge provision, preventing US Airways from charging or collecting from travel agents a fee or higher prices for booking through Sabre; and
• a no-better-benefits provision, requiring US Airways to provide Sabre subscribers access to the same types, amounts and levels of products, services and benefits that US Airways offers to users of any other booking channel.⁵¹

These and other provisions in the Sabre contract with US Airways were referred to collectively as the ‘full-content provisions.'

Applying rule of reason, the court methodically advanced, step by step, through analysis of the restraints and their effects on competition.

The court began by holding that US Airways had proved that the restraints had an adverse effect on competition by facilitating supracompetitive pricing by Sabre, raising barriers that blocked new entrants, reducing the quality of options available in the market and leading to ‘technological stagnation.'⁵² It held that the proof supported, as well, a finding of anticompetitive effects based on indirect evidence (ie, proof of market power plus some other ground for concluding that the challenged behaviour could harm competition).⁵³ Among the ‘plus factors' considered by the court in weighing anticompetitive effects were evidence that the full content provisions raised entry barriers and reduced consumer choice:

A reasonable jury could have concluded that the full content provisions were anticompetitive by preventing the airlines from steering travel agents away from the GDSs [like Sabre] to lower cost distribution channels […] with inducements of lower fares or greater benefits to reflect the airlines' lower distribution costs. The full content provisions precluded this result and reduced consumer choice by requiring that the same fares and benefits available anywhere be available on the GDS platform.⁵⁴

The court then considered whether Sabre had proved that the full content provisions had created competitive benefits that were sufficient to offset the foregoing anticompetitive effects. Noting that Sabre had introduced evidence that the provisions led to increased competition among airlines by enabling travel agents to shop efficiently among multiple airlines and compare fares to get the lowest fare, the court assumed, for purposes of analysis, that Sabre had carried its burden of proving offsetting competitive benefits.⁵⁵

The court then looked at the final step in rule-of-reason analysis (ie, whether the competitive benefits proved by Sabre could have been achieved by less restrictive means). It held that US Airways had carried its burden to show that the same efficiencies - efficient comparison shopping and booking - could have been achieved by ‘reasonably available alternatives' having less potential harm to competition.⁵⁶ It introduced evidence ‘of several potentially less restrictive alternatives for travel agents to compare and book airline tickets efficiently without the full content provisions,'⁵⁷ thereby carrying its burden to prove a violation of section 1 under the rule of reason.

Although the court did not discuss any of the provisions under most-favoured nation clause taxonomy, its opinion demonstrates how full rule of reason analysis can be brought to bear in a case examining vertical restraints with effects comparable to those resulting from most-favoured nation clauses.

Notes

1. In re Disposable Contact Lens Antitrust, 2016 U.S. Dist. LEXIS 186984 (M.D. Fla. 2016).
2. Leegin Creative Leather Prods. v PSKS, Inc., 551 U.S. 877 (2007).
3. 2016 U.S. Dist. LEXIS 186984, at *168-69.
4. 15 U.S.C. § 1.
5. 2016 U.S. Dist. LEXIS 186984, at *170-71.
6. 551 U.S. at 897-98.
7. 2016 U.S. Dist. LEXIS 186984, at *171-72.
8. 838 F.3d 179 (2d Cir. 2016).
9. United States v American Express Co., 88 F.Supp.3d 143 (E.D.N.Y. 2015).
10. 838 F.3d at 204-05.
11. Id. at 197.
12. Id. at 205.
13. Id. at 205.
14. Id. at 206.
15. 836 F.3d 1171 (9th Cir. 2016).
16. 838 F.3d 354 (3d Cir. 2016).
17. Eastman Kodak Co. v Image Technical Services, Inc., 504 U.S. 451 (1992).
18. 836 F.3d at 1180.
19. Id.
20. 838 F.3d at 408.
21. Id.
22. Id. at 408-09.
23. 124 F.3d 430 (3d Cir. 1997)
24. 851 F.3d 1029 (10th Cir. 2017), pet. for cert. pending, No. 16-1487 (U.S. 9 June 2017).
25. 836 F.3d 137 (2d Cir. 2016).
26. 851 F.3d at 1041-42.
27. Id. at 1042.
28. Cascade Health Solutions v PeaceHealth, 515 F.3d 883 (9th Cir. 2008). Under the discount attribution test, ‘the full amount of the bundled discount is allocated to the tied product, and if the resulting price of that product is below the defendant's incremental cost to produce it, then the bundle is possibly coercive.' Suture Express, 851 F.3d at 1042.
29. Id. at 1043.
30. Id. at 1045.
31. 836 F.3d at 144-47.
32. Id. at 148.
33. Id.
34. 2017 U.S. App. LEXIS 10275 (7th Cir. 2017).
35. Id., at *5-6.
36. Id., at *6.
37. Id.
38. Id., at *7-8.
39. 2017 U.S. Dist. LEXIS 50008 (E.D. Tex. 2017).
40. Id., at *12.
41. Id., at *11-12.
42. Id., at *12 n.2.
43. 836 F.3d 1171 (9th Cir. 2016).
44. See notes 18 and 19 supra and accompanying text.
45. ZF Meritor LLC v Eaton Corp., 696 F.3d 254 (3d Cir. 2012).
46. McWane, Inc. v FTC, 783 F.3d 814 (11th Cir. 2015).
47. 836 F.3d at 1182.
48. Id. at 1183.
49. Id. at 1181.
50. 2017 U.S. Dist. LEXIS 40932 (S.D.N.Y. 2017).
51. Id., at *15-16.
52. Id., at *36.
53. Id., at *37.
54. Id., at *40.
55. Id., at *44-45.
56. Id., at *45-46.
57. Id., at *46.