Has NARM Stated a Section 1 Reciprocal Dealing Claim?
NARM has suggested that its Count 1 might alternatively be viewed as stating a claim for “reciprocal dealing.” NARM Mem. 20. Reciprocal dealing is “a dealing in which two parties face each other as both buyer and seller and one party agrees to buy the other party’s goods on condition that the second party buys other goods from it,” Betaseed, Inc. v. U and I Inc., 681 F.2d 1203, 1216 (9th Cir. 1982); in short, “if you buy from me, I’ll buy from you,” sometimes as a result of coercion. Id. When the arrangement is imposed by coercion, the impact on competition is similar to that of tying. Id. at 1219-20. In particular, such an agreement can result in comparable abdication of independent judgment, insulation from the competitive stresses of the open market, and foreclosure — in this case, foreclosure of other buyers, since the agreement precludes selling to them what is, by agreement, to be sold to the reciprocating buyer-seller. Id. at 1220. NARM, however, alleges no such agreement, and
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