by ruling that the plaintiff had failed to prove market power in the tying market.
Hence Judge Easterbrook's citation to Sandburg, incorporating that case's citation to Justice O'Connor's concurrence in Jefferson Parish, simply cannot be construed as the law of the Will case or as the law of the circuit abolishing per se treatment entirely in tying cases.
As for P & E I and P & E II, in neither of the P & E appeals did our Court of Appeals issue a substantive ruling on the tied market power issue that motivated Judge Holderman's grant of j.n.o.v. Instead each of those appeals was disposed of on purely procedural grounds.
P & E I was a waiver case, not an antitrust case (826 F.2d at 719):
In any event, whatever the law [of tying] may be or ought to become, in this case the question is moot since the issue of threatened market power in the tied market was waived at trial by Sterling.
Nonetheless, to the extent that Judge Cudahy's opinion touched on substantive issues of antitrust law, it confirmed the analysis already voiced in this opinion. That much is clear not only from the already-quoted citation to P & E I that concluded this opinion's discussion of Will but also from this further statement by Judge Cudahy ( id. at 718):
We note, however, that both Will and [Sandburg], on which Will relies, are controlled by [Jefferson Parish].. . . The Stevens opinion does not seem to suggest any role for the threat of market power in the tied product market as a factor in the analysis.
On remand following P & E I, Judge Holderman refused Sterling's request for a new trial. And then on appeal in P & E II the Court of Appeals again faced no substantive questions of antitrust law. Judge Bauer's opinion discusses antitrust law only to the limited extent needed to illuminate the panel's rulings on the law governing the grant of a new trial.
To the extent that Judge Bauer did touch in passing on substantive issues of antitrust law, it is clear that this final panel--like the earlier P & E I panel--had no quarrel with the Jefferson Parish majority. No other interpretation lends itself to Judge Bauer's dictum that "this is a threadbare antitrust claim under both the law of tying cases as it is and, certainly, under tying law as certain people argue it should be" (866 F.2d at 234). That reference to "certain people" unmistakably speaks of Justice O'Connor's concurrence and its adherents, and it just as unmistakably treats Justice Stevens' majority view as the law of this Circuit.
* * *
At first glance it might seem that our Court of Appeals' tying cases are not easily harmonized. By citing Justice O'Connor's Jefferson Parish concurrence, the Sandburg and Will panels doubtless intended to signal their general agreement with its approach--something that hardly makes those cases outliers in either the scholarly or the judicial communities.
But those cases surely did not make Justice O'Connor's concurring view the law of this Circuit.
Perhaps that generalized signal by the Sandburg and Will panels has made it somewhat more difficult to discern the exact contours of tying law in this circuit.
Yet any appearance of tension with Supreme Court authority on this issue--whether real or fancied--does not represent the sort of wilful disobedience chastised by Justice Stevens, and somewhat less forcefully by the majority opinion, in Rodriguez de Quijas. Instead it is part of the healthy give-and-take between the circuits and the Supreme Court that is so much a part of our legal system and contributes to the way in which the law evolves.
In the end one thing is clear enough. Careful reading of the Seventh Circuit cases demonstrates that tied market power was not and is not an essential element of a per se tying case in the Seventh Circuit. And in turn that means that there is no basis for believing that a timely motion for directed verdict or j.n.o.v. in the P & E litigation would ultimately have saved Sterling from defeat. After all, the P & E jury expressly found every element of a traditional per se tying claim (omitting only the nonexistent element of market power in the tied product) in favor of P & E and against Sterling. As a matter of Illinois tort law, then, Law Firm's failure to preserve the issue of tied market power could not have been the proximate cause of Sterling's defeat.
Further discovery and trial preparation on the issue of breach of duty would serve no useful purpose.
Though Sterling brought its present motion under Rule 16 to simplify the case from its own perspective, it has succeeded in shooting itself in the foot (or, to frame a more accurate metaphor under the circumstances, in the temple). Its motion has ended the case. This Court hereby orders the action dismissed.