Blake I. Markus


Most courts and commentators agree that the ultimate goal of antitrust is efficiency. Accordingly, an antitrust aim is to guarantee competitive markets, which both increases output and lowers prices to the benefit of consumers. Bundled discounts, packages of goods put together by a seller that are sold at a lower price than if each good were purchased separately, may provide a means of enhancing competition. Such bundles are prevalent in nearly every market including fast food value meals, season tickets to sporting events, and buy one, get one half-price schemes. Sellers provide bundled discounts for a variety of reasons including the reduction of transaction costs, engendering customer loyalty, or sometimes in response to pressure from large, diversified buyers. These discounts often result in increased output and decreased prices, which are consumer welfare increasing outcomes. However, it is possible for a seller who has multiple products to use bundled discounts to exclude an efficient competitor who only sells one product. This exclusionary conduct is exactly what antitrust laws are meant to discourage. However, because bundled discounts are so pervasive and are often procompetitive, any liability rules governing their legality should be narrowly drawn to avoid chilling such a desirable practice. In 2003, the Third Circuit decided a case, LePage's, Inc. v. 3M, involving a plaintiff that claimed the defendant's bundled discount was exclusionary. The Third Circuit held the bundling practices of office supply manufacturer 3M to be in violation of antitrust laws. However, in doing so, the court failed to set an effective standard to evaluate the anticompetitive nature of bundled discounts. In a recent decision, Cascade Health Solutions v. PeaceHealth, the Ninth Circuit strayed from the approach set forth in the LePage's decision and set a cost-based standard to be used in the analysis of bundled discounts. While the standard set in Peacehealth is a positive step in analyzing bundled discounts, the Ninth Circuit may not have reached far enough. Because bundled discounting is typically a procompetitive practice, the court should fashion as narrow a rule as possible. It is possible to theorize a situation where, under the Ninth Circuit's standard, a competitor could bring a successful lawsuit against a bundled discounter even though the competitor could offer an equally competitive bundle if it collaborated with another firm. Therefore, the standard set forth by the Ninth Circuit falls short by ignoring the possibility of rival competitors collaborating to compete with a bundled discounter.

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