Corporate counsel is asked to assess on loyalty rebates and conditional pricing practices. Is there a safe harbor corporate counsel may rely on? Is it possible to anticipate the approach a court may adopt when analyzing loyalty rebates? May a company with a substantial market share still pursue these practices towards increasing its share, its sales, or both? What are the aspects that would need to be considered in the analysis? This paper attempts to describe the tension that exists in the legal standards that courts have applied, how those legal standards have evolved, and provide elements for corporate counsel to give thoughtful and reliable guidance.
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