DOJ and FTC Weigh Anticompetitive Effects of Conditional Pricing Practices, Probe Usefulness of Price-Cost Test

In a joint workshop on June 23rd, the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) questioned top economists and practitioners on potential anticompetitive effects of conditional pricing practices and their enforcement options. The agencies specifically asked whether it would be “wrong” for an agency to pursue a case against such practices—which include market-share discounts, volume discounts, and bundled discounts— without using the price-cost measure in its analysis. Workshop participants largely answered “no,” but could not reach consensus on an alternative legal test that would meet the three guiding principles that FTC Commissioner Maureen Ohlhausen described at the outset of the workshop: predictability, fairness, and transparency. The agencies are continuing to solicit comments on conditional pricing practices until August 22, 2014.