Endure Industries, Incorporated v. Vizient Incorporated, a Delaware corporation, et al.

Since Brown Shoe Co. v. United States, 370 U.S. 294 (1962), this Court has held that antitrust market definition must reflect commercial realities. That principle requires consideration of what Brown Shoe called “practical indicia” about a proposed market, including evidence about distinct customers and prices, industry custom, specialized distribution channels, and switching constraints. In this case, the record has some evidence of cross-shopping and substitution by marginal consumers in the market for disposable medical supplies. The record also has evidence that a distinct channel and customer group—a classic antitrust submarket— faces distinct competitive conditions, shaped and exploited by Vizient’s power as a large group purchasing organization. That record presents these issues for consideration:

1. Whether a proposed submarket must be rejected if evidence shows that some customers can shift their purchases to other channels, even if other evidence establishes the unique competitive constraints that face another group of customers.

2. Whether a proposed submarket may be defined by sales that are made through an intermediarycontrolled purchasing channel, when the market includes multiple suppliers and is not limited to a single brand or seller.