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

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?