Tenth Circuit Limits Tying-Claim Plaintiffs to “Efficient Enforcers” and Bars End-Run Appeals of Class-Cert Denials via Voluntary Dismissal

1. Introduction

In North Brevard County Hospital District v. C.R. Bard (10th Cir. Dec. 31, 2025), North Brevard County Hospital District, doing business as Parrish Medical Center (“Parrish”), brought a putative antitrust class action against medical-device manufacturer C.R. Bard, Inc. and Bard Access Systems, Inc. (collectively “Bard”).

Parrish alleged that Bard unlawfully tied two medical-device products—peripherally inserted central catheters (“PICCs”) and tip-location systems (“TLSs”)—and used its position in the TLS market to monopolize the PICC market. The alleged mechanism was a proprietary “stylet” required to integrate a Bard PICC with a Bard TLS, which (according to Parrish) effectively forced hospitals using Bard TLSs to purchase Bard PICCs.

The case presented two central appellate issues:

Antitrust standing for a tying claim: Can a hospital that purchased only the alleged tied product (PICC), but not the alleged tying product (TLS), sue for unlawful tying under the Clayton Act’s private-remedy provisions?
Appellate jurisdiction over class-certification denial: After the district court denied class certification on a remaining monopolization claim and the Tenth Circuit denied Rule 23(f) review, can a plaintiff voluntarily dismiss the underlying claim with prejudice to manufacture a final judgment and then appeal the class-certification denial as of right under 28 U.S.C. § 1291?

2. Summary of the Opinion

2.1 Tying claim (Section 1): dismissal affirmed

The panel affirmed the dismissal of Parrish’s tying claim, but on a different rationale than the district court. Rather than deciding whether Parrish suffered an “antitrust injury” as a tied-product-only purchaser, the Tenth Circuit held Parrish lacked antitrust standing because it was not an “efficient enforcer” of the antitrust laws in this tying context.

2.2 Class certification (Section 2): appeal dismissed for lack of jurisdiction

The panel dismissed Parrish’s appeal from the order denying class certification. Applying Microsoft Corp. v. Baker and the Tenth Circuit’s Anderson Living Trust v. WPX Energy Production, LLC, the court held it lacked § 1291 jurisdiction where Parrish voluntarily dismissed the underlying monopolization claim with prejudice to obtain appellate review of the class-certification order.

2.3 Sanctions/fees request: denied without prejudice (procedurally)

The panel denied Bard’s request for fees and costs associated with its motion to dismiss because such relief must be sought by a separately filed motion under Fed. R. App. P. 38; the denial was without prejudice to a post-judgment request.

3. Analysis

3.1 Precedents Cited

A. Substantive tying law and its structure

Eastman Kodak Co. v. Image Technical Services, Inc. (definition of tying and additional requirements, including “appreciable economic power” in the tying market and a “substantial volume of commerce” in the tied market). The opinion uses Eastman Kodak to define tying and to frame tying as a species of restraint potentially violating Sherman Act § 1.
Northern Pac. Ry. Co. v. United States (classic tying definition; illustrates why market power and substantiality matter). The court quotes Northern Pac. (via Eastman Kodak) for the canonical tying formulation.

B. Private enforcement limits: antitrust standing as a statutory gatekeeper

Associated General Contractors of California, Inc. v. California State Council of Carpenters (“AGC”) (core framework for antitrust standing factors). The panel repeatedly anchors its “efficient enforcer” analysis in AGC—especially the “directness” principle and the significance of “an identifiable class of persons” better positioned to sue.
Lexmark Intern., Inc. v. Static Control Components, Inc. (clarifies that “statutory standing” is not jurisdictional and is better understood as whether a legislatively conferred cause of action covers the plaintiff). The opinion uses Lexmark to situate antitrust standing as a “breed of statutory standing,” even though the court continues to use the conventional “antitrust standing” label.
Sports Racing Services, Inc. v. Sports Car Club of America, Inc. (Tenth Circuit’s two-element test: antitrust injury + direct causal connection; also contains tying-specific discussion about who typically has standing). The panel relies on Sports Racing, especially its observation that tying-product purchasers are “the targeted victims” and “in the best position” to sue.
Abraham v. Intermountain Health Care Inc. (rearticulates the second element as whether plaintiff is an “efficient enforcer”; factors include directness/remoteness and presence of more directly injured plaintiffs). Abraham supplies the doctrinal label and factor-based approach the panel applies.
B-S Steel of Kansas, Inc. v. Texas Industries, Inc. (emphasizes that antitrust standing is about having an “effective” plaintiff, not merely an “adequate” one; also recognizes efficient-enforcer considerations apply even when injunctive relief is sought). The panel uses B-S Steel to reject Parrish’s attempt to lower the efficient-enforcer bar.
Black v. Occidental Petro. Corp., Cargill, Inc. v. Monfort of Colorado, Inc., and Atlantic Richfield Co. v. USA Petroleum Co. (reinforce the requirement that the injury be of the type antitrust law prevents and that standing doctrine reflects competition-protecting purposes). These cases support the court’s insistence that private suits must map onto harms to competition and effective enforcement.

C. Antitrust purpose and “competition, not competitors”

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. (antitrust laws protect “competition, not competitors”). The panel invokes Brunswick to emphasize that the standing inquiry is tethered to public competition concerns, not purely private loss.
Brown Shoe Co. v. United States (quoted through Brunswick). Used to underscore the policy foundation.

D. Efficient enforcer: factor list and causation framing

Sharp (cited for factors such as speculative damages and risk of duplicative recovery/complex apportionment). The panel cites Sharp to situate efficient-enforcer analysis within familiar AGC-type considerations.

E. Rule 12(c)/pleading posture and appellate review standards

Corder v. Lewis Palmer Sch. Dist. No. 38 and Martin Marietta Materials, Inc. v. Kan. Dep't of Transp. (Rule 12(c) treated like Rule 12(b)(6); de novo review; accept pleaded facts and reasonable inferences). The court uses these to frame the standard of review for the standing dismissal.
City of Albuquerque v. Soto Enters., Inc. (jurisdiction reviewed de novo). Supports the class-cert jurisdiction analysis.
Richison v. Ernest Group, Inc. and Walton v. Powell (court may affirm on any basis supported by the record; efficiency and avoiding “needless bouncing”). These cases justify deciding the tying standing issue on efficient-enforcer grounds even though the district court relied on antitrust injury.

F. “Other plaintiffs exist” and actual competitor litigation

AngioDynamics, Inc. v. C.R. Bard, Inc. (competitor suit through trial; cited to show enforcement is feasible by better-positioned plaintiffs and to reduce concern about an “enforcement gap”). The panel uses this as real-world evidence that competitors can and do litigate these theories against Bard.

G. Finality, merger, and manufactured appeals of class-cert orders

Microsoft Corp. v. Baker (no appellate jurisdiction over class-cert denial after voluntary dismissal tactic; such tactics subvert final-judgment rule and Rule 23(f)’s discretionary regime). This is the controlling Supreme Court authority the panel applies.
Anderson Living Trust v. WPX Energy Production, LLC (Tenth Circuit applies Baker; class-cert denial does not merge into final judgment produced by voluntary dismissal). This is the direct circuit precedent foreclosing jurisdiction here.
Edmonds-Radford v. Sw. Airlines Co. (general merger doctrine for interlocutory orders) is used to frame the rule and then carve out the Baker exception.
Cummings v. Dean (pendent appellate jurisdiction standards). The panel refuses pendent review because class-cert issues were not “inextricably intertwined” with the tying dismissal.

H. Concurrences: interpretive method and intra-circuit tension

Judge Federico’s concurrence cites Reiter v. Sonotone Corp. (don’t parse opinions like statutes), Leegin Creative Leather Products, Inc. v. PSKS, Inc. (antitrust adjudication is common-law-like), and Colorado River Water Conservation District v. United States (the “virtually unflagging” duty to exercise jurisdiction), among others, to argue the panel should have clarified the antitrust-injury question.
Judge Hartz’s concurrence flags that he reads Sports Racing similarly to Judge Federico, but believes the panel is “bound” by Abraham footnote 10—highlighting a potential fault line in how earlier dicta/footnotes constrain later interpretations.

3.2 Legal Reasoning

A. The key move: affirming on “efficient enforcer” rather than “antitrust injury”

The district court dismissed the tying claim on the theory that Parrish—having not purchased the alleged tying product (TLS)—fell outside the set of plaintiffs recognized in Sports Racing. On appeal, the panel declined to decide that interpretive dispute and instead affirmed on an alternative, independently required element: whether Parrish is an “efficient enforcer.”

Invoking Richison v. Ernest Group, Inc., the panel emphasized that it may affirm “on any basis supported by the record,” particularly where the parties brief the alternative ground and deciding it avoids unnecessary remand-and-return.

B. Efficient enforcer applied to tying: why tied-only purchasers lose here

The panel treated tying-product purchasers and restrained competitors as generally more directly injured and better incentivized to sue. It leaned heavily on AGC’s “identifiable class of persons” principle and on Sports Racing’s statement that tying-product purchasers are “the targeted victims” with the most incentive to enforce.

Even assuming Parrish suffered higher PICC prices in the tied-product market, the panel concluded the harm was comparatively less direct than the “lack of choice” and coercion experienced by those compelled to buy the tied product to obtain the tying product. On that comparative assessment—central to efficient-enforcer analysis—Parrish did not plausibly explain why it should be the private attorney general for a tying theory when more directly injured parties exist.

The court also cited the existence of real competitor litigation (AngioDynamics, Inc. v. C.R. Bard, Inc.) as evidence that enforcement does not depend on suits by tied-only purchasers, reducing any concern that denying Parrish standing would create an antitrust enforcement gap.

C. Monopolization vs. tying: analytically distinct standing

Parrish argued that findings (or concessions) connected to its monopolization claim should carry over to tying. The panel rejected that linkage, noting (consistent with Sports Racing) that antitrust standing can differ by claim type: a plaintiff may be a suitable enforcer for one antitrust theory but not another.

D. Class certification appeal: final-judgment rule and Rule 23(f) preserved

After class certification was denied, Parrish sought Rule 23(f) permission to appeal and was denied. Parrish then voluntarily dismissed the underlying monopolization claim with prejudice to create an appealable final judgment.

The panel held that Microsoft Corp. v. Baker forecloses this maneuver. Such voluntary-dismissal tactics:

“subvert[] the final-judgment rule,”
“invite[] protracted litigation,” and
“undercut[] Rule 23(f)’s discretionary regime.”

Applying Anderson Living Trust v. WPX Energy Production, LLC, the court held the class-certification denial order did not merge into the final judgment and thus fell outside § 1291 appellate jurisdiction. The panel also refused pendent appellate jurisdiction under Cummings v. Dean.

3.3 Impact

A. Practical standing consequences in tying cases (Tenth Circuit)

The decision strengthens a defendant-friendly pathway to defeat tying claims at the pleadings stage where the plaintiff bought only the tied product: even if higher prices are alleged, the plaintiff must plausibly show it is an efficient enforcer—i.e., that its injury is sufficiently direct and that more directly injured parties (typically tying-product purchasers or competitors) do not already provide a better enforcement vehicle.

Critically, the panel did not announce a categorical antitrust-injury bar for tied-only purchasers; instead, it created (or at least reinforced) a robust efficient-enforcer screen in tying contexts, making “who is best positioned to sue” a decisive battleground.

B. Appellate procedure: reinforcing Rule 23(f) gatekeeping

On class actions, the ruling is a clear reminder that within the Tenth Circuit, litigants cannot convert a discretionary Rule 23(f) denial into an appeal-as-of-right by dismissing claims with prejudice. This preserves Rule 23(f)’s intended function: appellate review of certification orders remains exceptional and discretionary, not a litigant-controlled right.

C. Doctrinal tension flagged by the concurrences

Judge Federico’s concurrence urges future clarification: he argues that Sports Racing should not be read to categorically bar tied-only purchasers on the “antitrust injury” element, and that footnote 15 is better understood as efficient-enforcer reasoning. Judge Hartz responds that footnote 10 in Abraham v. Intermountain Health Care Inc. may bind the court otherwise. The upshot is that litigants should expect continued debate in the circuit about how broadly earlier tying-standing language controls, particularly at the antitrust-injury step.

4. Complex Concepts Simplified

Tying arrangement: Selling one product only on the condition the buyer also purchases a separate product. Here, the alleged tie is that use of Bard’s TLS effectively requires Bard PICCs because of proprietary integration (the “stylet”).
Tying product vs. tied product: The “tying product” is the product the buyer wants (and that provides leverage); the “tied product” is the additional product the buyer must purchase because of the tie.
Antitrust standing: A limitation on who can sue for antitrust remedies under the Clayton Act. Even if conduct might violate the Sherman Act, only certain plaintiffs can recover.
Antitrust injury: Injury of the type antitrust laws aim to prevent—typically harm stemming from reduced competition (e.g., supracompetitive prices caused by anticompetitive conduct).
Efficient enforcer: A plaintiff whose injury is direct enough, and whose position is suitable enough, to serve as a private attorney general—often assessed by asking whether there are more directly injured parties, and whether damages would be speculative or duplicative.
Rule 23(f): A mechanism allowing discretionary interlocutory appeals of class certification orders. The key is “discretionary”—the appellate court decides whether to take the appeal.
Final-judgment rule (28 U.S.C. § 1291) and “merger”: Most appeals must wait until final judgment; many interlocutory orders “merge” into that final judgment. But under Microsoft Corp. v. Baker, class-cert denials do not become appealable through final judgments manufactured by voluntary dismissal tactics.

5. Conclusion

North Brevard County Hospital District v. C.R. Bard delivers two consequential rules. First, in tying litigation, the Tenth Circuit can dispose of claims by holding that tied-product-only purchasers are not efficient enforcers where tying-product purchasers or competitors are better positioned to sue—even if tied-product purchasers plausibly allege supracompetitive prices. Second, in class actions, the court reaffirms that plaintiffs may not manufacture appellate jurisdiction over class-certification denials by voluntarily dismissing underlying claims with prejudice after a Rule 23(f) denial.

The concurrences underscore that the “antitrust injury” side of tying standing remains contested within the circuit, but the panel’s holding makes one point clear: in the Tenth Circuit, tying claims will rise or fall not only on competitive harm, but on whether the plaintiff is the right private enforcer to vindicate that harm.