Framing Franchise Antitrust Litigation : The Legacy of Kodak and Queen City Pizza

A decade ago, many antitrust commentators were predicting a “revival” of franchise antitrust claims flowing in the wake of Eastman Kodak Co. v. Image Technical Services, Inc. The thinking was that Kodak's recognition of a claim for monopolization of an “aftermarket” for parts and services separate from each other and from a primary product might be extended to cover franchise relationships in which the franchisee is required to purchase fungible products from its franchisor, even though those products could be purchased elsewhere on more favorable terms. Fairly quickly, though, the Third Circuit decided Queen City Pizza, Inc. v. Domino's Pizza, Inc., which held that a Kodak-type antitrust claim will not lie for allegations that a franchisor “forced” unwanted — but contractually agreed-to — purchases of products on franchisees in the course of the franchise relationship. That case continues to bedevil franchisees suing under antitrust theories. This Article looks back at the Queen City Pizza legacy and where, as a consequence, franchise antitrust litigation stands today