"Bundling" And "Loyalty Discount" Claims Continue To Generate Confusion

A well-attended program on antitrust treatment of "bundled pricing" and "loyalty discounts" at the American Bar Association Antitrust Section Spring Meeting highlighted the confusion generated by the antitrust law implications of such conduct and the disagreements on the proper standards to evaluate them. In this environment, any significant company considering these types of marketing and pricing changes should engage experienced legal counsel in early-stage evaluation and planning.

Just What is "Bundling"?

• All of the lawyers, economists and regulators agreed that the term "bundling" can be applied to almost any conduct where more than one product or ingredient is combined together (e.g., "whitening toothpaste is a bundle because it combines whitening agent and toothpaste, both of which could be purchased separately"), or where two or more products are marketed together and in which market power in one product is used to impair competitors selling a truly