## Facts

- Fortner Enterprises, Inc., a Louisville-area real estate developer, sought over $2 million in financing to buy and develop land.
- United States Steel Corporation manufactured prefabricated houses; its wholly owned subsidiary, United States Steel Homes Credit Corp., provided financing for purchasers.
- Credit Corp. allegedly offered Fortner 100% financing at unusually favorable terms on the condition that Fortner build a U.S. Steel–fabricated house on each lot acquired with the loan proceeds.
- Fortner alleged that, during 1959–1962, no comparable financing on such favorable terms was available in the Louisville area.
- Fortner characterized the arrangement as a tying scheme: the tying product was credit (financing), and the tied product was U.S. Steel prefabricated houses.
- Fortner alleged the tied houses were priced substantially above comparable competitors’ houses and sought treble damages and injunctive relief under §§ 1 and 2 of the Sherman Act.

## Issues

1. Whether summary judgment was improper because Fortner raised genuine disputes of material fact on the elements of a per se unlawful tying arrangement under Sherman Act §§ 1 and 2.
2. Whether the “not insubstantial” commerce requirement for per se tying is measured by total tied sales under the challenged policy, rather than by the plaintiff’s transactions alone.
3. Whether allegations of favorable, allegedly unique credit terms and supracompetitive tied-product prices can support a triable issue of “appreciable economic power” in the tying product without proof of market dominance.
4. Whether credit from one corporate entity conditioned on purchases from an affiliated entity, where financing exceeded the price of the goods, can be treated as a tying arrangement rather than a single credit sale.

## Decision

- The Supreme Court reversed the grant of summary judgment for U.S. Steel and Credit Corp. and remanded.
- The Court held that the lower courts misapplied tying standards by treating them as requirements to be conclusively established at the summary judgment stage.
- The Court ruled that the affected commerce inquiry should consider the total volume of tied sales attributable to the challenged policy, not merely Fortner’s contracts.
- Viewing the record favorably to Fortner, the Court found triable issues on whether defendants had appreciable economic power in the credit market sufficient to impose the tie.
- The Court concluded the financing-and-purchase arrangement could be treated as a distinct tie, not merely a single product sold on credit.

## Legal Principles

- A tying arrangement is per se unlawful where (1) two distinct products are involved, (2) purchase of the tying product is conditioned on purchase of the tied product, (3) the seller has sufficient economic power in the tying product to restrain competition in the tied product, and (4) a not insubstantial amount of commerce is affected.
- “Appreciable economic power” in the tying product may be inferred from the ability to impose burdensome terms (including a tie) on an appreciable number of buyers and does not require proof of market dominance.
- The “not insubstantial” commerce element may be assessed by the total volume of tied sales produced by the challenged practice, not solely by the plaintiff’s purchase volume.
- Summary judgment is improper in tying cases when the plaintiff produces evidence creating genuine disputes about the existence of a tie, economic power in the tying product, and substantiality of affected commerce.

## Conclusion

The Court held that Fortner’s allegations and supporting materials created genuine issues of material fact on per se tying under the Sherman Act, including economic power in credit and substantial tied commerce, making summary judgment inappropriate and requiring a trial.


Fortner Enters., Inc. v. U.S. Steel Corp., 394 U.S. 495 (1969)