a "concerted refusal to deal" is the Working Group's decision not to award
the IIPS contract to Intellective. As discussed above, this decision did
not result in an antitrust injury, and therefore cannot be used to
support a "concerted refusal to deal" claim. Since there is no viable
allegation of activity to support Count Three, this count must be
C. Count Five: Tying
Intellective's final federal claim is illegal "tying" in violation of
Section 3 of the Clayton Act which makes it unlawful to "make a sale or
contract for sale of goods . . . on the condition, agreement, or
understanding that the . . . purchaser thereof shall not use or deal in
the goods . . . of a competitor or competitors of the . . . seller, where
the effect . . . may be to substantially lessen competition or tend to
create a monopoly in any line of commerce." 15 U.S.C. § 14.
Simplified, "[a] tying arrangement is an agreement by a party to sell one
product but only on the condition that the buyer also purchase a
different (or tied) product." De Jesus v. Sears, Roebuck & Co., Inc.,
87 F.3d 65, 70 (2d Cir. 1996) (internal quotations omitted).
In order to state a claim for tying in violation of the Clayton Act,
Intellective must allege (1) a tying product; (2) a tied product; (3)
evidence of actual coercion by the seller that forced the buyer to accept
the tied product; (4) sufficient economic power in the tying product
market to coerce purchaser acceptance of the tied product; (5)
anticompetitive effects in the tied market; and (6) involvement of a "not
insubstantial" amount of interstate commerce in the tied market. Hack,
237 F.3d at 86 (quoting Gonzalez v. St. Margaret's House Housing.
Development Fund Corp., 880 F.2d 1514, 1516-17 (2d Cir. 1989)).
Intellective alleges that "[t]he Working Group, which has substantial
market power through its asserted use of historical investment
performance information (the tying product), is attempting to use that
power to force insurance companies to use the services of its agent,
Sagamore, to perform the their investment performance studies (the tied
product)." Compl. ¶ 50. This formulation does not make sense; the
"tied product" is actually Sagamore's services, not the investment
performance study. Either way, Intellective has not stated a cause of
action for tying. The antitrust injury resulting from the Working Group's
alleged anticompetitive control of the historical investment performance
data is the monopolization of supply that creates an insurmountable
barrier to entry, an injury accounted for in Counts One, Two and Four.
D. Count Six: Donnelly Act Violations
Intellective's final cause of action arises under the Donnelly Act, New
York's antitrust law. The Donnelly Act was modeled after the Sherman
Act, and the courts generally apply federal antitrust precedent in
construing it. Re-Alco, 812 F. Supp. at 393. Intellective's Donnelly Act
claim therefore cannot be dismissed to the extent Intellective still has
viable Sherman Act claims.
For the reasons stated above, I dismiss Counts Three and Five of the
Amended Complaint as against all defendants. I also dismiss the remainder
of the Amended Complaint as against defendants PwC and Sagamore. The
Clerk of Court is directed to remove their names from the caption.