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SYSTEMCARE, INC. v. WANG LABORATORIES CORP.

No. 95-1032.

117 F.3d 1137 (1997)

SYSTEMCARE, INC., Plaintiff-Counter-Defendant-Appellant, v. WANG LABORATORIES CORPORATION, Defendant-Counter-Claimant-Appellee, v. Michael WRIGHT, Counter-Defendant, United States of America, Amicus Curiae.

United States Court of Appeals, Tenth Circuit.

June 24, 1997.

Attorney(s) appearing for the Case

Ronald Katz, Coudert Brothers, San Francisco, CA (Janet Arnold Hart and Paul S. Schmidtberger with him on the briefs), for Plaintiff-Counter-Defendant-Appellant.

Jerrold J. Ganzfried, Howrey & Simon, Washington, DC (Thomas E. Gilbertsen and Timothy K. Armstrong, Howrey & Simon, Washington, DC, Michael J. Cook, Faegre & Benson, Denver, CO, and Florinda J. Iascone, Wang Laboratories, Inc., Billerica, MA, with him on the brief), for Defendant-Counter-Claimant-Appelee.

David Seidman, Attorney, U.S. Department of Justice, Washington, DC (Anne K. Bingaman, Assistant Attorney General, Joel I. Klein, Deputy Assistant Attorney General, and Catherine G. O'Sullivan, Attorney, with him on the brief), for Amicus Curiae.

Before SEYMOUR, Chief Judge, HOLLOWAY, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, and MURPHY, Circuit Judges.

ON REHEARING EN BANC

TACHA, Circuit Judge.

On May 29, 1996, a panel of this court held that a tying arrangement between a buyer and a seller does not satisfy the concerted action requirement of section 1 of the Sherman Act, 15 U.S.C. § 1. Systemcare, Inc. v. Wang Labs. Corp., 85 F.3d 465 (10th Cir. 1996). The panel held that to bring a claim under section 1, a plaintiff must establish a conspiracy between a seller...

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