Courts have struggled with determining when bundled discounts constitute unlawfully anticompetitive behavior. The current circuit split reflects an absence of consensus. This lack of legal guidance creates uncertainty in the market, with firms being given inconsistent – and sometimes contradictory - standards on how to avoid antitrust liability.
For the most part, we consider a standard paradigm for analyzing bundled discounts. Suppose that there are two firms. Firm 1 produces a monopoly product, A, and also another product, B, which competes with another version of B produced by Firm 2. The concern is the extent to which the price paid for A is linked to the purchase of B from Firm 1: has the bundling resulted in anticompetitive conduct in violation of Section 2 of the Sherman Act?
We analyze three main approaches: the discount attribution test, the Elhauge proposal, and the Profit Sacrifice Test. Each of these has received much recent discussion, but very little of the debate takes into account the effects of bundled discounts where all firms are setting prices that maximize profits, i.e. in equilibrium. . With homogeneous goods in the B market, the attribution test should be failed is all firms are maximizing profits. The Elhauge proposal makes sense with equilibrium prices in some types of markets, but not others. The profit sacrifice test turns out to be vacuous when applied to bundled discounts, since in equilibrium there turns out to be no profit sacrifice. i. We explore related issues with tying arrangements.
The lack of legal clarity regarding bundled discounts matters because legal uncertainty creates its own cost; firms may be reluctant to provide bundled discount plans that benefit their customers and increase profits, and, conversely, anticompetitive behavior harming consumers may escape regulation.
- bundled discounts,
Available at: http://works.bepress.com/melanie_williams/10/