Plaintiffs' attorney had not earlier mentioned the jurisdictional issue and did not mention it on rebuttal. Forrest v. Capital Bldg. Loan Ass'n, 385 F. Supp. 831 (M.D.La. 1973), aff'd, 504 F.2d 891 (5th Cir. 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975). The Fifth Circuit affirmed a holding on the merits — that there was but a single product.

In a suit brought by individual attorneys, the District Court rejected the contention that the loan practice constituted a per se illegal tie-in of legal services, and concluded instead that no two products were involved. 385 F. Supp. 831 (M.D.La. 1973), aff'd per curiam, 504 F.2d 891 (5th Cir. 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975). See also Kinee v. Abraham Lincoln Federal Savings Loan Ass'n, 1974-1 Trade Cas. ¶ 74,927 (E.D.Pa. 1973), cert. denied, 419 U.S. 999, 95 S.Ct. 314, 42 L.Ed.2d 273 (1974); Spens v. Citizens Federal Savings Loan Ass'n, 364 F. Supp. 1161 (N.D.Ill. 1973).

At best, plaintiffs have only questionable standing to raise this second aspect of the claim in count three and the whole of count four, for if anyone suffered directly from the alleged exclusive dealing arrangement it was other attorneys in the area. See Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977); cf. Forrest v. Capital Buildings Loan Ass'n, 504 F.2d 891 (5th Cir. 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975) (similar practice challenged by lawyers excluded). Moreover, Henderson, Franklin acted as the bank's attorney; plaintiffs paid their fee only because they undertook to do so in negotiations with the bank.

Some courts have expanded the concept of two separate products by permitting business justifications for aggregation of the products to enter into the single product analysis. See, Dehydrating Process Co. v. A. O. Smith Corp., 1 Cir. 1961, 292 F.2d 653, 655-57, cert. denied 1961, 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 194; Forrest v. Capital Buildings Loan Assn., E.D.La. 1974, 385 F. Supp. 831, 838-39, aff'd per curiam, 5 Cir. 1974, 504 F.2d 891, cert. denied, 1975, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470; Automatic Radio Mfg. Co. v. Ford Motor Company, D.Mass. 1965, 242 F. Supp. 852, 856-57; United States v. Jerrold Electronics Corporation, E.D.Pa. 1960, 187 F. Supp. 545, 558-60, aff'd per curiam 1961, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806; L. A. Sullivan, The Law of Antitrust, 443 (1977). By holding that a challenged arrangement constitutes only a single product, courts have avoided the strictures of the per se approach entirely, even though at times producing rather unusual results.

I. per seForrest v.Capital Building Loan Ass'n, 385 F. Supp. 831 504 F.2d 891 [Sibley] v. Federal LandBank of New Orleans,Board of Commissioners v. Federal Land Bank, 444 U.S. 941 100 S.Ct. 296 62 L.Ed.2d 308 Foster v.Maryland State Sav. Loan Ass'n, 590 F.2d 928 439 U.S. 1071 59 L.Ed.2d 37 Amey Inc. v. Gulf Abstract Title, Inc., 758 F.2d 1486 borrower, II.

See Sibley v. Federal Land Bank of New Orleans, 597 F.2d 459, 461, 464 (5th Cir.), cert. denied, 444 U.S. 941, 100 S.Ct. 296, 62 L.Ed.2d 308 (1979). See also Forrest v. Capital Buildings Loan Assn., 504 F.2d 891, 891 (5th Cir. 1974), cert. denied, 421 U.S. 478, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975) ("this method of doing business does not constitute a sale of two products or a violation of the tied product prohibition of the antitrust laws"). An additional observation is necessary regarding the tying arrangement claim.

See id. at 1346: "To respond to this argument with more than a few perfunctory cites to decisions such as Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 . . . and Williamson v. Lee Optical Co., [ 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563], supra, gives it a statute it scarcely deserves." If the Bank is a private entity, the appellant's antitrust claim is precluded by our decision in Forrest v. Capital Building Loan Association, 504 F.2d 891 (5th Cir. 1974). aff'g 385 F. Supp. 831 (M.D.La. 1973).

State of Arizona v. Cook Paint Varnish Company, 391 F. Supp. 962, aff'd 541 F.2d 226, cert. den. 430 U.S. 915, 97 S.Ct. 1327, 51 L.Ed.2d 593 (1975). Generally speaking, Section 1 deals with the means used to restrain trade while Section 2, which condemns the result to be achieved, deals with the ends. Forrest v. Capital Building and Loan Association, 385 F. Supp. 831, aff'd 504 F.2d 891, cert. den. 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1973). Therefore, Section 2 is not aimed at allegedly improper conduct but at the resulting market structure.

Ungar, supra, 531 F.2d at 1224.          Defendants rely on Forrest v. Capital Building & Loan Association, 385 F.Supp. 831 (M.D.La.1973), Aff'd per curiam, 504 F.2d 891 (5th Cir. 1974, Cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975), and argue that the only product offered for sale was the loan by First Federal, and, since it was the only product offered, there could not logically be any tying violation. Specifically they contend that the legal services of Johnstone & O'Dwyer were not offered to borrowers, and that First Federal's loan could not have been conditioned on borrowers contracting or purchasing services which were not offered to them.

As an essential element of a tie-in is the existence of two separate products or services, see, Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. at 507, the Court found that no tie-in existed. Accord, Forrest v. Capital Building Loan Association, 385 F. Supp. 831 (M.D. La. 1973), aff'd, 504 F.2d 891 (5th Cir. 1974), cert. denied, 421 U.S. 978 (1975). The Court also found that, because the practice was authorized by federal and state regulations and the lender had a right to protect its interest by insisting that the loan documents be prepared by counsel in whom it had confidence, any restraint of trade imposed was not unreasonable. GHI would have us find its practice analogous to that in Foster.