An Evidence-Based Approach to Exclusive Dealing and Loyalty Discounts

Posted by D. Daniel Sokol

Josh Wright of George Mason Law School advocates An Evidence-Based Approach to Exclusive Dealing and Loyalty Discounts.

ABSTRACT: At the recent Section 2 hearings focused on the antitrust analysis of exclusive dealing contracts, a sensible consensus view emerged that a necessary condition for anticompetitive harm in an exclusive dealing or de facto exclusive contract is that the contract deprives rivals of the opportunity to compete. These contracts, including market-share discounts and loyalty discounts, can harm competition when they deprive rivals of an entrenched firm from accessing distribution sufficient to achieve a minimum efficient scale. The recently-withdrawn Section 2 Report reflects this consensus. This article discusses the strengths and weaknesses of the Section 2 Report approach to exclusive dealing and loyalty discounts.