In the deep, dark antitrust dungeon reserved for per se offenses, only one species of conduct remains that does not involve a horizontal conspiracy: tying arrangements. Minimum resale pricing agreements tunneled their way out thanks to the Supreme Court’s 2007 Leegin decision, even though Congress and the states are in hot pursuit, with every intention of recapturing RPM agreements and casting them back into their per se cells. It may be, however, that tying arrangements have already escaped without being detected, leaving a cunningly designed dummy under the blankets to fool the guards.
Tying arrangements have always been the per se offense with a difference. A per se unlawful tyin [...]