In this issue:
Bundled Rebates and Exclusive Dealing: Recent Testimony before the FTC/DOJ
An increasing number of these exclusive dealing cases allege that slotting contracts impair rivals and ultimately harm competition. A theme in these cases appears to be that some form of exclusivity term explicitly limiting rivals – access to shelf space appears to be a necessary condition for antitrust liability.
Bundled discounts present a classic example of what Judge Easterbrook calls “the puzzle of exclusionary conduct.” That puzzle exists because “competitive and exclusionary conduct look alike,” and it is often difficult for courts to condemn the latter without discouraging the former.