Guest post by Dan Crane, responding to Steve’s post responding to Dan’s earlier post and Thom’s post on the appropriate liability rule for loyalty discounts.
Something that Thom and I both said in our earlier posts needs to be repeated at the outset: I don’t know of anyone who disagrees with Steve and Josh that raising rivals’ costs (“RRC”) and economic analysis drawn from exclusive dealing law belong in an analysis of loyalty discounts. There’s also no claim on the table that a loyalty discount that fails the “contestable share”/discount attribution test that Steve mentions should be treated anything like presumptively illegal. The current debate is solely about whether there should be a price-cost screen in loyalty discount cases. We aren’t even talking about what the measure of cost should be or how that screen should work (although, with Steve, I’m happy to assume marginal or average variable cost and the aforementioned contestable share/discount attribution approach for the sake of argument). Josh and Steve are well justified in pointing out how aspects of RRC theory can apply in loyalty discount cases—but that doesn’t meet the objection that a screen should also apply.
It’s also important to recognize that the argument in favor of a price-cost screen for loyalty rebates does not need to entail a general argument in favor of a “profit sacrifice” theory for all monopolization offenses. What we’re talking about here is unilaterally determined discounts to customers—something that is presumptively procompetitive, although potentially exclusionary under some circumstances. Such discounts could be harmful if they resulted in customer foreclosure, but they would not result in customer foreclosure if the rival could profitably match the loyalty discount. That is the point of the price-cost screen. You might wonder why a rival would ever complain about a loyalty discount if they could profitably match it. The reasons are many. The rival might be losing sales because customers don’t like its product. It might have failed for reasons completely apart from the accused firm’s loyalty discounts. It might be attempting to use antitrust law to thwart price competition, as a large body of literature suggests. (See work by Will Baumol and Janusz Ordover, Preston McAfee and Nicholas Vakkur, and Edward Snyder and Tom Kauper, among others).
One thing I didn’t just mention—although it could often be true—is that the complaining rival isn’t an equally efficient competitor (“EEC”). Steve is wrong to suggest that the price-cost test depends on adopting an EEC theory. Although there is much merit to the EEC test (heck, even the Europeans have adopted it), one could formulate a version of the price-cost screen that simply requires the rival to show that the discount foreclosed a hypothetically equally efficient competitor or even this particular rival given its actual costs, as some have suggested. The current argument is not over the formulation of the test, but whether we should dispense with a price-cost screen altogether in loyalty discount cases.
In any event, observe that the entire structure of modern predatory pricing law is premised on an EEC assumption. If an incumbent firm with marginal costs of $50 and a current price of $100 faces entry by a new rival with marginal costs of $75 and drops its price to $74 in order to exclude the new rival, it enjoys categorical immunity under a long line of Supreme Court cases. In another forum, Steve suggested that the difference in those cases is that the customer is getting the benefit of a lower price, so the law is hesitant to condemn the price as predatory. But that exposes something problematic about Steve’s starting premise—he assumes that it’s uncertain whether loyalty discounts generally lower prices. Prima facie, that seems wrong. Customers routinely offer to trade loyalty for lower prices precisely because the prices are . . . lower.
Steve suggests that maybe loyalty discounts aren’t really discounts at all. Maybe the seller, who was previously charging a price of $100, raises the price to $105 and then gives a discount back down to $100 in exchange for customer loyalty. Steve notes that Thom and I didn’t consider this scenario. That’s because Josh didn’t raise it in his speech. It would have been very surprising if Josh had raised it in his speech, since Josh and I co-authored a paper several years ago debunking this same theory in the bundled discount context. I discuss the “disloyalty penalty” theory at length in a forthcoming article in the Texas Law Review, really just extending the work that Josh and I started several years ago.
There are many problems with this “disloyalty penalty” theory, including the empirical one that it doesn’t fit the pattern of almost any of the recent loyalty discount cases. But there is also a problem of basic economics. Unless it is engaging in limit pricing, the accused firm’s $100 price is a monopoly (or market power) profit-maximizing price. By definition, any price increase will be unprofitable to the seller. Obviously, the $105 price would be unprofitable. But it’s also true that a price of $100 coupled with a new obligation to buy a certain percentage of requirements from the seller to achieve that price is unprofitable because it exceeds the profit-maximizing price. The addition of a contractual term that restricts the buyer’s freedom is economically equivalent to a price increase if the buyer valued the prior freedom from the restriction (if the buyer didn’t value the prior freedom from the restriction there’s no effective price increase but also no anticompetitive effect, since the buyer wouldn’t have bought from the rival anyway). Hence a price of $100 with loyalty term is effectively higher than a price of $100 without a loyalty term that restricts the buyer’s purchasing freedom. By adding a loyalty term to obtain the $100 price, the seller exceeds its profit-maximizing monopoly price.
My claim is not that “penalty pricing” for disloyalty is impossible, but that the presumption should be that loyalty discounts are true discounts off the but-for price. Loyalty discounts belong squarely in the “hospitability” tradition for unilaterally determined pricing structures—all those judicial decisions that talk about how important it is not to chill vigorous price competition.
Steve argues that loyalty discounts may “tie up customers” before competitors arrive on the scene. I’m not sure what Steve means by “tie up customers.” Suppose that a monopolist, knowing that rivals are about to enter the market, goes to all of its customers and offers them a 5% discount if they will agree to purchase 95% of their requirements from the monopolist for the next three years. At that point we have a partial exclusive dealing contract and the cost-price screen shouldn’t be required. But, there, the exclusionary mechanism—the thing that keeps rivals from competing—is not the loyalty discount but rather the contractual commitment not to buy any more than 5% of requirements from rivals. Customers would have to breach their contract in order to consider even the most advantageous offers from rivals. The point that amici made in our Meritor v. Eaton brief was that when the claimed mechanism of exclusion is a price term and not a contractual restriction on purchasing from rivals, some version of the price-cost screen should apply.
The example I’ve just attributed to Steve (and sorry Steve if this is not what you have in mind) is not what we’re talking about in almost any of the current generation of loyalty discount cases. In Meritor, for example, the Third Circuit acknowledged that the loyalty provisions at issue did not require customers to buy any of their requirements from Eaton. It’s just that if the customers didn’t meet the loyalty thresholds, they would lose a possible rebate. Meritor could compete for that business by offering its own counter-rebates so long as it wouldn’t have had to price unprofitably to do so.
Steve’s point about economies of scale is one that I covered in my post and is fully accounted for by the cost-price screen. A rival who can profitably match a loyalty discount scheme is not foreclosed from operating at any particular scale.
The same is true of Steve’s point about loyalty discount schemes foreclosing a new seller’s ability to make incremental sales that don’t reduce the accused firm’s own sales. Again, so long the rival can profitably match the discounts, there is no reason that output should be reduced.
Finally, Steve asserts that loyalty discounts obtained by intermediaries may not be passed onto ultimate consumers. That’s equally true of conventional single-firm price reductions that are categorically immunized from antitrust liability under a long line of precedent. One may not like the price-cost test in any context for that reason or others, but there’s nothing special about its application to loyalty discounts. The common denominator of all of these points is that loyalty discounts aren’t exclusionary unless they force rivals to price below cost in order to match the customer’s loss of the loyalty discounts if they fail to meet the loyalty threshold.
Steve thinks the price-cost screen exhibits “formalism”—that dreaded epithet in the post-realist world—but it’s actually just an expression of economic common sense. Steve and Josh are excellent economists and it’s hard for me to imagine a case in which they would condemn a loyalty discount if there was undisputed evidence that the allegedly excluded rival could have completely neutralized the financial inducement of the loyalty discount by offering a counter-discount of its own without pricing below cost. If they can offer an example of a circumstance where such a loyalty discount should be condemned, I would be very interested to hear it. If they can’t, then they have implicitly adopted a version of the price-cost screen and, to repeat a point from my earlier post, all we’re haggling over is the price.
