Identifying Exclusionary Conduct

Where are the Boundaries for Anti-Competitive Activity?

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

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Conducted on Wednesday, August 22, 2007

Course Materials


Exclusionary conduct under Sec. 2 of the Sherman Act remains an area of uncertainty and confusion for businesses and attorneys. Because the statute provides little guidance, outcomes in court are unpredictable.

Even the U.S. Supreme Court's decision in Verizon Comms. v. Law Offices of Curtis Trinko, which discussed exclusionary conduct, did not establish clear guidance.

In April 2007, the Antitrust Modernization Commission issued its recommendations, including a discussion on exclusionary conduct. Noting that Sec. 2 standards are not fully developed, particularly with respect to bundling and refusals to deal, the report called for improved clarity of the standards.

Listen as our panel of antitrust legal specialists analyzes the state of exclusionary conduct law since Trinko and other key decisions, identifies the types of bundling, leveraging and loyalty programs considered relatively safe, and provides their perspectives to ease some of the confusion surrounding exclusionary conduct.



The panel will review these and other key questions:

  • What are the current standards applied by courts in evaluating exclusionary conduct by businesses?
  • How is exclusionary conduct by a business treated by the courts when there are unambiguous efficiency benefits?
  • What types of conduct are being found permissible -- and what types of exclusionary conduct should clearly be avoided?
  • What types of DOJ and FTC enforcement actions are currently being pursued over exclusionary conduct?
  • What does the Antitrust Modernization Commission recommend to clarify guidance on exclusionary conduct standards?


Tyler A. Baker
Tyler A. Baker

Fenwick & West

He focuses on complex litigation, with an emphasis on antitrust and intellectual property law. He represents plaintiffs...  |  Read More

Aton Arbisser
Aton Arbisser
Kaye Scholer

He litigates antitrust cases in federal and state court. He has successfully defended or resolved numerous antitrust...  |  Read More

Gregory J. Casas
Gregory J. Casas
Greenberg Traurig

He practices in antitrust, complex business litigation, and energy and natural resources law. His antitrust practice...  |  Read More