Bundled Discounts and Antitrust Compliance Amid Inconsistent Court Treatment and Heightened DOJ Scrutiny

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, April 27, 2017
Recorded event now available


This CLE webinar will provide antitrust counsel with an examination of the Department of Justice methods for analyzing bundled discounts and the conditions that trigger investigations. The panel will also discuss the split among the federal circuits and best practices for steering clear of antitrust violations.

Description

The DOJ and the FTC continue their longstanding efforts to develop standards to review bundled discounts. The DOJ is pursuing an aggressive position toward what it considers to be competitive foreclosure.

The Eisai v. Sanofi-Aventis decision (3d Cir. May 2016) may muddy the waters regarding bundled discounts. The court provided some guidance on how companies with significant market share can use bundled discount programs under antitrust laws. However, while not answering the question, the court raised the issue of whether price-cost test is the test to be used for evaluating bundled discounts.

Counsel continue to struggle as they deal with inconsistent treatment by the federal courts and operate with unclear guidance due to the circuit court split (the Third Circuit’s LePage standard vs. the Ninth Circuit’s PeaceHealth standard).

Listen as our authoritative panel of antitrust attorneys examines the methods used by the DOJ in analyzing bundled discounts, discusses the conditions that determine which method is used, analyzes the split in the federal circuits, and offers best practices for avoiding antitrust violations.

Outline

  1. Impact and approaches to bundled discounts
    1. Anticompetitive impact of discounts
    2. Per se legality
    3. Raising rivals’ costs
  2. Split in the circuits
    1. 3d Circuit and LePage
    2. 9th Circuit Cascade Health v. PeaceHealth
    3. Other circuits’ and lower court decisions
    4. Agency action
  3. Best practices for avoiding antitrust violations

Benefits

The panel will review these and other key issues:

  • 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?
  • Which methods of analysis does the DOJ call for and what factors trigger when each is to be used?

Faculty

Lauren E. Battaglia, Esq.
Hogan Lovells US, Washington, D.C.

 

James J. Long, Shareholder
Briggs & Morgan, Minneapolis

Mr. Long's litigation and counseling practice is concentrated in the areas of antitrust law, franchise law, and dealer/distribution/sales representative law. He has more than 26 years of experience in his practice areas, along with a background in economics. He counsels a number of clients on a variety of antitrust issues, including bundled rebate plans and other pricing practices.

Michael B. Miller, Partner
Morrison & Foerster, New York

Mr. Miller's practice includes all aspects of complex antitrust and commercial litigation in federal and state courts, at both the trial and appellate levels and in administrative proceedings. He also frequently counsels clients on antitrust, privacy, and data security-related issues.


Recordings

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Customer Reviews

The real case examples and case citations were very helpful.

Tyler Wilkinson

Axley Brynelson

Very practical and useful advice for antitrust lawyers.

Michaelynn Ware

Hogan Lovells US

I found the speakers knowledgable and informative.

Angus E. Crane

NAIMA

Content was excellent.

Jonelle Burnham

Kimberly-Clark

Strafford webinars are timely, offer practical advice, and are very well prepared.

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Harter Secrest & Emery

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Antitrust Law Advisory Board

Clifford H. Aronson

Partner

Skadden Arps Slate Meagher & Flom

Tyler A. Baker

Partner

Fenwick & West

W. Joseph Bruckner

Partner

Lockridge Grindal Nauen

Gregory J. Casas

Shareholder

Greenberg Traurig

David B. Goroff

Partner

Foley & Lardner

Allen P. Grunes

Partner

GeyerGorey

Robert N. Kaplan

Partner

Kaplan Fox & Kilsheimer

Christopher J. Kelly

Partner

Mayer Brown

James J. Long

Shareholder

Briggs and Morgan

Milton Marquis

Partner

Dickstein Shapiro

Janet L. McDavid

Partner

Hogan Lovells

Kevin D. McDonald

Partner

Jones Day

Daniel F. McInnis

Partner

Akin Gump Strauss Hauer & Feld

Saul P. Morgenstern

Partner

Kaye Scholer

John Thomas Rosch

Of Counsel

Latham & Watkins

Douglas Rosenthal

Partner

Constantine | Cannon

M. Sean Royall

Partner

Gibson Dunn & Crutcher

Joseph J. Tabacco, Jr.

Partner

Berman DeValerio

Douglas M. Tween

Partner

Linklaters

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