Saturday, January 5, 2013
Bundling and Tying: Should Regulators Use the Per Se Approach or the Rule-of-Reason Approach? Lessons from the Economics Literature
Posted by D. Daniel Sokol
Sonia Di Giannatale (Centro de Investigacion y Docencia Economicas) & Alexander Elbittar (Centro de Investigacion y Docencia Economicas) ask Bundling and Tying: Should Regulators Use the Per Se Approach or the Rule-of-Reason Approach? Lessons from the Economics Literature.
ABSTRACT: A firm that practices tying in the United States can be committing a per se violation of the an- titrust law, and it can be also considered a per se violation of the Article 102 of the EC Treaty. However, there is evidence for the use of the rule-of-reason approach in some courts' decisions in tying cases, such as United States vs. Microsoft in 2001 and the case against Microsoft in the EC in 2004. Therefore, the question of when a tying case should be ruled under the per se approach or under the rule-of-reason approach is valid and has policy implications. This article is written to shed light into what could be the appropriate answer by presenting several lessons that we can learn from the economics literature.