The Fall of the Kodak Aftermarket Doctrine: Dying a Slow Death in the Lower Courts

The Supreme Court’s 1992 decision in Eastman Kodak Co. v. Image Technical Services, Inc . is now slightly more than a decade old. It has generated hundreds of law review articles and no doubt hundreds of millions of dollars in litigation costs. In antitrust iconography, Kodak has come to stand for the propsition that summary judgment is generally inappropriate in antitrust aftermarket cases because competition in the primary market, as a matter of law, does not necessarily preclude the possibility of market power (and anticompetitive conduct) in the aftermarkets for parts and service. In Kodak itself, it was the possibility of such market imperfections as switching and information costs and lockin effects — which prevented consumers from switching to substitute products in the primary market — that ultimately led to the Supreme Court’s reversal of summary judgment.