Bundled Discounts: Emerging Antitrust Challenges

Description

In Cascade Health Solutions v. PeaceHealth, the Ninth Circuit adopted a new standard for bundled discounts and established a split between it and Third Circuit (LePage v. 3M) in analyzing bundled discounts. This leaves the treatment of bundled discounts unclear.

The district courts' approaches to bundled discounts have also been inconsistent and have not applied a consistent test to determine whether anti-competitive conduct has occurred. This further heightens the confusion for business.

In its 2007 report, the Antitrust Modernization Commission noted that Sherman Act Section 2 standards are not fully developed, particularly with respect to bundling, and there is a need for additional clarity of the standards. In Europe, the antitrust treatment on bundling is similarly in flux.

Listen as our panel of antitrust specialists examines the state of the law and recent developments regarding bundling. The panelists will discuss and derive insights regarding how antitrust enforcement agencies may view bundling, how the U.S. and E.U. approaches compare, and how to avoid, or at least anticipate, antitrust challenges.

Outline

1. Background to Antitrust Analysis of Bundling
   1. Brief Statutory Overview
   2. Recent Decisions and Divergence in Standards
      1. LePage’s
      2. PeaceHealth
2. Perspectives from an Antitrust Division official
   1. Comments on Agency approach to bundling issues
   2. Illustration of how ubiquitous bundling is — healthcare networks
3. Bundling in the European Union
   1. Current Issues and Controversies
   2. Comparison to the U.S. approach
4. Counseling on Bundling
   1. Steering clear of trouble
   2. Red flags
   3. Intellectual Property developments

Benefits

The panel reviewed these and other key questions: 

• What business conduct is permissible in offering bundled discounts?
• How does discounting a range of products put a company at risk of violating antitrust laws?
• How should price be measured in the multi-product discount context?
• What practices should defense counsel use to negotiate settlement agreements that are fair and reasonable to their clients — and avoid costly and time-consuming litigation?

CLE Credit

Strafford seminars qualify for CLE credits in every state that accredits teleconferences. They offer you a high quality, cost effective, and convenient CLE option, with no lost travel time or expenses.

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