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Sheridan v. Marathon Petroleum Co. LLC

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ARGUED MAY 5, 2008

Before CUDAHY, POSNER, and ROVNER, Circuit Judges.

The plaintiffs, a Marathon dealer in Indiana and a company owned by him to whom he assigned his dealership contract, filed suit against Marathon under section 1 of the Sherman Act, 15 U.S.C. § 1, charging it with tying the processing of credit card sales to the Marathon franchise and also with conspiring with banks to fix the price of the processing service. The tying arrangement is challenged under section 1 of the Sherman Act rather than section 3 of the Clayton Act because the things alleged to be tied-the franchise and the processing service-are services rather than commodities. Though some old cases say otherwise, the standards for adjudicating tying under the two statutes are now recognized to be the same. E.g., Southern Card & Novelty, Inc. v. Lawson Mardon Label, Inc., 138 F.3d 869, 874 (11th Cir. 1998); Town Sound & Custom Tops, Inc. v. Chrysler Motors Corp., 959 F.2d 468, 495-96 (3d Cir. 1992) (en banc); Smith Machinery Co. v. Hesston Corp., 878 F.2d 1290, 1298!99 (10th Cir. 1989).

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