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Contract clauses that might make you a monopolist

[Last reviewed May 2014]
If your company has significant market share, and you put certain provisions in your contracts, you might be risking having a court (or the FTC or the Justice Department) conclude that you’re engaging in “exclusionary conduct” and thus monopolizing or attempting to monopolize your market, in violation of the antitrust laws (specifically the Sherman Act). Vinson & Elkins lawyers Alden L. Atkins, James A. Reeder Jr. and Nicholas N. Shum go into this in What Companies Don’t Know Can Hurt Them: Monopolization Offenses. Some examples from part III of the article:

  • Exclusive dealing
  • Tying the sale of one product or service to another
  • “Loyalty” discounts
  • “Bundled” pricing
  • Most-favored-nation clauses

Read it all.

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