Signif barriers mean that mkt share is an approp stat – consumers prefer O/S with lots of apps, and developers prefer O/S with existing customer base Dominance is being unlawfully maintained – thwarted distrib of rival browser by incorporating it into hardware preventing mod/removal Justification of valid copyright fails b/c changes to browser would not alter stability or consistency of program – not a tech necessity here. Outcome of Case No liability for alleged invitation to collude Liability for exclusive dealing with OEMs/ISPs and for creation of incompatibility Note – no balancing takes place Remanded on Tying and for the Remedy Bundling LePage’s Inc v. 3M (3d Cir 2003) – no Brooke Group analysis Mere fact pricing is core of issue doesn’t make it a predatory pricing claim Cascade Health Solutions v. PeaceHealth (9th Cir 2008) Bundling can provide benefits for both Buyers – get more for less, better match consumer pref Sellers – lower production costs Thus, needs a case-by-case evaluation of bundle for legality. Bundling considered a/c when below “an approp measure of D’s costs” Low prices benefit consumers so long as above predatory levels (BG) Given widespread use of bundling, above cost pricing is a necessary prong. Measured by “discount attribution standard” (need to prove) Full amount of discount allocated to competitive product If resulting price below incremental cost, may not be found exclusionary Legal unless has potential to exclude hypothetically equally efficient producer. Incremental Cost measured by MC or AVC Loyalty Programs 2 methods – bonus paid per sale OR bonus paid when pass threshold British Airways A/C Conduct – rebate system diverted sales away from competing airlines by inducing agents to commit all or most efforts to BA tix Requisite harm can take the form of either injury to consumers or injury to competitors and the competitive process Can infer consumer injury from injury to competitive process ECJ on Proof – can be actual or likely harm; provided adequate factual basis to satisfy both; rivals cannot replicate bonus system
Signif barriers mean that mkt share is an approp stat – consumers prefer O/S with lots of apps, and developers prefer O/S with existing customer base Dominance is being unlawfully maintained – thwarted distrib of rival browser by incorporating it into hardware preventing mod/removal Justification of valid copyright fails b/c changes to browser would not alter stability or consistency of program – not a tech necessity here. Outcome of Case No liability for alleged invitation to collude Liability for exclusive dealing with OEMs/ISPs and for creation of incompatibility Note – no balancing takes place Remanded on Tying and for the Remedy Bundling LePage’s Inc v. 3M (3d Cir 2003) – no Brooke Group analysis Mere fact pricing is core of issue doesn’t make it a predatory pricing claim Cascade Health Solutions v. PeaceHealth (9th Cir 2008) Bundling can provide benefits for both Buyers – get more for less, better match consumer pref Sellers – lower production costs Thus, needs a case-by-case evaluation of bundle for legality. Bundling considered a/c when below “an approp measure of D’s costs” Low prices benefit consumers so long as above predatory levels (BG) Given widespread use of bundling, above cost pricing is a necessary prong. Measured by “discount attribution standard” (need to prove) Full amount of discount allocated to competitive product If resulting price below incremental cost, may not be found exclusionary Legal unless has potential to exclude hypothetically equally efficient producer. Incremental Cost measured by MC or AVC Loyalty Programs 2 methods – bonus paid per sale OR bonus paid when pass threshold British Airways A/C Conduct – rebate system diverted sales away from competing airlines by inducing agents to commit all or most efforts to BA tix Requisite harm can take the form of either injury to consumers or injury to competitors and the competitive process Can infer consumer injury from injury to competitive process ECJ on Proof – can be actual or likely harm; provided adequate factual basis to satisfy both; rivals cannot replicate bonus system