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Discounted Pricing Clauses: Drafting Enforceable and Compliant Provisions After Collins

Utilizing Bundles, Minimum Requirements Clauses, and Tiered or Volume-Based Pricing Incentives

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

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Conducted on Tuesday, May 17, 2016

Recorded event now available

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This course will address potential pitfalls in drafting discounted pricing clauses in commercial contracts, particularly in light of the Sixth Circuit's decision in Collins Inkjet Corp. vs. Eastern Kodak, 14-3306 (6th Cir. 2015). The panel will review the efficacy of bundled pricing provisions, minimum requirements contracts, and tiered or volume-based pricing schemes, as well as provide best practices for drafting compliant clauses.

Description

Bundled pricing arrangements are typically used to incentivize customers to agree to advantageous terms for the supplier. However, these clauses may be considered anti-competitive if not drafted precisely. The key consideration is whether the discounted pricing is tied only to the customer's purchase of another product in the bundle.

As Collins Inkjet Corp. v. Eastman Kodak demonstrates, these pricing policies may be considered inappropriate tying of products. In Collins, the Sixth Circuit applied the "discount attribution test" to a bundled price to find that the aggregate of the discounts was improper because it was below the cost of the bundle’s individual products. The holding was a departure from other circuits, leaving this matter open for interpretation, perhaps by the Supreme Court.

Commercial counsel must review the potential bundled pricing scheme to consider the following factors, among others: the client's relative market power; the extent of the client's pricing influence in the relevant market; the proportion of the discount compared to the individual pricing of the individual products; and whether a business justification exists. If these factors fail to justify the pricing scheme, counsel should evaluate other pricing models, including exclusivity contracts and tiered pricing arrangements.

Listen as our authoritative panel of practitioners reviews the different pricing models in light of the Collins decision and provides strategies for using them compliantly and effectively in commercial transactions.

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Outline

  1. Types of pricing clauses—bundled, minimum requirements, tiered/volume-based
  2. Collins decision and application of the discount attribution test
    1. Divergent holdings across the circuits
    2. Implications for future decisions
  3. Best practices for drafting effective and compliant pricing clauses

Benefits

The panel will review the following issues, among others:

  • How are the various types of discount pricing schemes structured and applied?
  • What are the tenets and implications of the Collins holding?
  • How can counsel minimize risk in utilizing these pricing clauses?

Faculty

Thomas J. Collin
Thomas J. Collin
Partner
Thompson Hine

Mr. Collin heads the firm's Antitrust, Competition & Distribution practice. He has broad antitrust, dealer...  |  Read More

Ullman, Howard
Howard M. Ullman
Of Counsel
Orrick Herrington & Sutcliffe

Mr. Ullman is a member of the Firm's Litigation and the Antitrust and Competition Groups. He focuses his...  |  Read More

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