Law and Economics Scholars Argue District Court Got It Right in SIS v Intuitive

Jim Fellinger November 6, 2025

PORTLAND, Ore. (Nov. 6, 2025) – While the U.S. Supreme Court’s 1992 decision in Eastman Kodak Co. v. Image Technical Services, Inc. acknowledged that a firm with a large base of installed users in a foremarket could exploit that base anticompetitively in an aftermarket, it’s important that the decision also recognized such anticompetitive opportunism was unlikely, a new amicus curiae brief filed by the International Center for Law & Economics (ICLE) and 19 distinguished scholars of law and economics argues. 

Filed with the 9th U.S. Circuit Court of Appeals in Surgical Instrument Service Company, Inc. v. Intuitive Surgical, Inc., the brief asks the appellate court to affirm the district court’s ruling, which it finds grounded in clear precedent. It notes that, in describing the conditions under which such anticompetitive opportunism might happen, the Kodak decision never found that an allegation of market power in the foremarket should provide plaintiffs with a shortcut to establish anticompetitive tying with a downstream “aftermarket.” 

Instead, the amicus argues, the Kodak decision established the need for economic screens to test whether consumers are able to “knowingly and voluntarily” make choices when purchasing in the foremarket. To ignore those considerations, the amici write, “would open the door wide to rightly disfavored single-brand aftermarkets.”

“SIS’s antitrust allegations depend entirely on the existence of a single-brand aftermarket for Intuitive’s EndoWrist instruments,” they write. “Courts are rightly skeptical of single-brand-aftermarket characterizations, which require unusual economic conditions. Most importantly, SIS is incorrect that market power in the foremarket alone is legally or economically sufficient to support such a theory.”

Moreover, the brief notes that the Supreme Court has expressed serious concerns about judicially imposed duties to deal, which the plaintiffs seek here. In particular, the 2004 Verizon Communications v. Law Offices of Curtis V. Trinko, LLP decision found that courts should be especially loath to impose duties to deal in regulated-product markets, such as the Class II medical products in this case. 

The brief’s signatories include:

•  Alden F. Abbott, Senior Research Fellow, Mercatus Center
• Brian C. Albrecht, Chief Economist, International Center for Law & Economics
• Donald J. Boudreaux, Professor of Economics, George Mason University
• Ronald A. Cass, Dean Emeritus, Boston University School of Law
• Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University
• Tammi Etheridge, Associate Professor of Law, Washington & Lee University
• Daniel J. Gilman, Senior Scholar of Competition Policy, International Center for Law & Economics
• Justin (Gus) Hurwitz, Senior Fellow, University of Pennsylvania Penn Carey Law
• Benjamin Klein, Professor of Economics Emeritus, University of California, Los Angeles
• Abbott (Tad) Lipsky Jr., Assistant Professor of Law, George Mason University
• John E. Lopatka, A. Robert Noll Distinguished Professor of Law, Penn State University
• Daniel A. Lyons, Professor of Law and Dean’s Distinguished Scholar, Boston College
• Geoffrey A. Manne, President & Founder, International Center for Law & Economics
• Jeffrey T. Prince, Harold A. Poling Chair in Strategic Management, Indiana University Kelley School of Business
• Vernon L. Smith, George L. Argyros Endowed Chair in Finance and Economics, Chapman University
• Edward A. Snyder, William S. Beinecke Professor of Economics and Management, Yale University
• Michael Sykuta, Associate Professor of Economics, University of Missouri
• David J. Teece, Professor of the Graduate School, University of California, Berkeley
• Alexander Volokh, Professor of Law, Emory University

Click here to download the full brief. To schedule an interview or connect with a scholar, contact Jim Fellinger at [email protected]. 

About ICLE

The International Center for Law & Economics is a nonprofit, nonpartisan research center working with a roster of more than one-hundred academic affiliates and research centers from around the globe. ICLE scholars promote the use of law and economics methodologies to inform public policy debates.