SAP Petition to Extend Rule of Reason to Software Ties, Overturn Per Se Rule Would Raise Bar for Tying Claims, Embolden Incumbents, Legal Experts Say

The Supreme Court will likely make is harder to prove tying claims if it decides to hear a petitions from SAP seeking to extend rule of reason to ties, especially those involving “technology integrated products. While the outcome wouldn’t necessarily affect how plaintiffs craft antitrust complaints, requiring additional stages of economic analysis in typing litigation would make it harder and more costly for plaintiffs to win tying lawsuits and may embolden incumbents to pursue contact they may have previously avoided. Robin Crauthers spoke with The Capitol Forum, about the case and its possible implications, noting that a decision on the per se rule may lead to higher costs for plaintiffs. “On the corporate [plaintiff ] side, they probably aren’t focused on costs that much, as opposed to trying to recover what they think they are losing.” She added, “But when you get to the customer side and class actions, that might be a different calculus.” Robin also discussed the DOJ’s lawsuit against Google’s advertising technology business in the Eastern District of Virginia and Epic v. Apple and Microsoft.