Note:
Terrell W. Oxford, Antitrust—Tying Arrangements—Class Actions—Each Franchisee Must Prove Individual Coercion. Ungar v. Dunkin’Donuts of America, Inc., 531 F.2d 1211 (3d Cir.), cert denied, 97 S. Ct. 74 (1976), 55 TEXAS L. REV. 343 (1976).
 

Abstract:
This note examines tying arrangements, the agreement by a party to sell one product, the tying product, only on the condition that the buyer also purchase a second product, the tied product. Specifically, the author analyzes tying arrangements in the context of Unger v. Dunkin’Donuts of America, Inc., in which fourteen franchisees brought suit against their franchisor, Dunkin’ Donuts, for alleged tying arrangement in violation of section 1 of the Sherman Act. The Third Circuit injected a new criterion to determine whether an illegal tying arrangement exists in franchise relationships—proof of individual coercion. The author analyzes the Third Circuit’s decision and criticizes its strong emphasis on the element of coercion. He ultimately argues that the Third Circuit merely paid lip service to the tying doctrine, devising a test—individual coercion—that by definition required the exclusion of any common element of proof. According to the author, the decision grew out of a genuine concern for the future of franchising, but the court failed to indicate how a contrary decision would have endangered franchise systems. Further, the court did not properly weigh the policy reasons for condemning tie-ins. Dunkin’ Donuts might not have violated the established tying doctrine, or the tying doctrine might need to be revised to protect the franchising industry, but the court failed to demonstrate the correctness of either conclusion.