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CHICAGO-Top lawyers for General Electric Co. and Eastman Kodak Co. told federal regulators this month that companies need more clarity in antitrust laws when it comes to the sale of products bundled in a discounted package deal, and to the sale of services and parts for a product. “Companies are concerned that the rules aren’t clear,” Ronald Stern, vice president and senior counsel for antitrust at General Electric, said in an interview after the hearing. Testifying in Chicago at a panel organized by the Federal Trade Commission and the Department of Justice’s Antitrust Division, the attorneys said regulators should help companies better understand when they might be stepping over the antitrust line in the two areas. Previous court rulings have left the law ambiguous on when corporate behavior may violate Section 2 of the Sherman Antitrust Act and make companies vulnerable to lawsuits by competitors, the lawyers said. Amicus encouraged They encouraged the agencies to file amicus briefs in court cases or to issue additional guidelines to make the law clearer. “These two areas are a clear problem for companies like Kodak,” Patrick Sheller, the chief compliance officer at Eastman Kodak, said in an interview after the hearing. David Balto, a former Federal Trade Commission policy director and a lawyer in Washington, agreed that amicus briefs could shed light on how companies are expected to follow the law, especially because most antitrust decisions occur in lower courts. Bundling confusion The price-bundling issue has come up in the courts more frequently than the aftermarket issue and therefore has created greater potential for liability, said Herbert Hovenkamp, an antitrust professor at University of Iowa College of Law. “The courts have been all over the place on bundling,” Hovenkamp said. Sheller told the panel that the line between the legal “bundling” of products and the illegal “tying” of products has been blurred. In bundling, a seller will offer a discounted price on the sale of two different products together, while in tying the seller requires the purchase of one product in order to get another product. Much of the confusion stems from the 3d U.S. Circuit Court of Appeals’ 2003 decision in LePage’s v. 3M, nos. 00-1368, 00-1473, in which 3M Co. was found to have violated Section 2 by bundling its transparent tape with other products. The decision “didn’t leave a clear standard,” Sheller said. “Plaintiffs’ lawyers will try to take advantage of it.” The key questions are: What legal test is there for determining when bundled pricing violates antitrust law? And in which market situations would it apply?, Stern said. He suggested to the panel that perhaps bundling shouldn’t be considered problematic in markets where sellers engage in competitive bidding or negotiations.

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