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.


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.


  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


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?


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.


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Antitrust Law Advisory Board

Clifford H. Aronson


Skadden Arps Slate Meagher & Flom

W. Joseph Bruckner


Lockridge Grindal Nauen

Gregory J. Casas


Greenberg Traurig

David B. Goroff


Foley & Lardner

Allen P. Grunes

Co-Founder and Attorney

The Konkurrenz Group

Robert N. Kaplan


Kaplan Fox & Kilsheimer

Christopher J. Kelly


Mayer Brown

James J. Long


Briggs and Morgan

Milton Marquis


Cozen O'Connor

Janet L. McDavid


Hogan Lovells

Kevin D. McDonald


Jones Day

Daniel F. McInnis


Thompson Hine

Saul P. Morgenstern


Kaye Scholer

Douglas Rosenthal


Constantine | Cannon

M. Sean Royall


Gibson Dunn & Crutcher

Joseph J. Tabacco, Jr.


Berman DeValerio

Douglas M. Tween



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