Bundled discounts as potential anti-competitive exclusive dealing arrangements 

Regeneron Pharmaceuticals Inc. v. Amgen Inc., the District Court in Delaware dismissed Amgen's MSJ 

The ruling highlights that bundled discounts and exclusive rebate contracts, particularly among dominant pharmaceutical companies, will face close scrutiny when they significantly hinder competitors from entering the market.

Bundled discounts are usually seen as pro-competitive, benefitting buyers via lower prices and efficiencies. However, under certain circumstances, they can be exclusionary and violate antitrust laws. Where bundled discounts tie up substantial market share, particularly with customers who would otherwise consider rival suppliers, they can stifle competition and raise antitrust concerns. While courts recognize legitimate efficiency justifications (lower costs, improved logistics), discounts that exceed reasonable cost savings and are structured to maximize exclusion may be challenged under antitrust statutes.

Requirements

• Market Power Requirement (foreclosure concerns arise primarily when the bundling firm holds significant market power in at least one of the products in the bundle);
• Discount-Attribution Test (the test allocates the entire bundle's discount to the competitive product and asks if the resulting price falls below the defendant's incremental cost. If so, and if an equally efficient competitor cannot match, the arrangement may be deemed exclusionary and anticompetitive).

Ruling

On April 10, 2025, the federal court denied Amgen’s motion for summary judgment. The court found that Regeneron presented enough evidence for its antitrust and tortious interference claims to proceed to trial and that key factual disputes required jury consideration

The court determined there were unresolved factual questions regarding:

• Whether Amgen’s bundled discounts restricted Regeneron’s market access due to Regeneron's less diverse product portfolio.
• Whether Amgen’s rebate contracts with pharmacy benefit managers (PBMs) amounted to de facto exclusive dealing that substantially foreclosed Regeneron from the market.
• Whether Amgen’s pricing in certain portions of the market fell below cost under the "price-cost" test and whether recoupment was possible

Comment

The court cited precedent supporting the view that bundled discount practices and rebate arrangements could constitute actionable anticompetitive conduct if they result in market foreclosure (LePage’s Inc. v. 3M; ZF Meritor, LLC v. Eaton Corp.) The Cascade Health Solutions v. PeaceHealth test was referenced for below-cost pricing in bundled arrangements. The standard in Cascade makes the defendant's bundled discounts legal unless the “attributed” price of the competitive product is below the defendants incremental cost and the discounts have the potential to exclude a hypothetical equally efficient producer of the competitive product.

This ruling underscores that bundled discounts and exclusive rebate contracts, especially among dominant pharmaceutical companies, will be closely scrutinized when they may substantially foreclose competitors from the market. The case highlights increased litigation risk for pharmaceutical manufacturers whose PBM contracting practices leverage dominant drugs to secure exclusivity or preferred placement in formularies

Common Ownership and Antitrust 

FTC and  DOJ to support states' action against BlackRock, State Street, and Vanguard

The FTC and DOJ support the states' action accusing BlackRock, State Street, and Vanguard to harm competition as part of climate-related initiatives.

The asset managers collectively own substantial shares in multiple competing coal companies  (between 24 and 34 percent of seven of the nine coal companies, with smaller shares in the remaining two).

By acting in concert—through shareholder resolutions, engagement, or other means—they allegedly pressured the management of competing coal companies to obtain their commitment to limit carbon emissions by restricting the production of coal within the United States.

Output reduction can lead to higher prices and reduced consumer welfare, both of which are hallmarks of anticompetitive behavior.  Such conduct can be challenged under Section 1 of the Sherman Act (prohibiting agreements that unreasonably restrain trade) and Section 7 of the Clayton Act (addressing mergers or acquisitions that may lessen competition).

Main Arguments:

- The “solely for investment” exemption in Section 7 of the Clayton Act does not provide blanket immunity to asset managers if they use their stock holdings to harm competition

- Control is not required: Minority shareholdings can violate antitrust laws if used to influence competitors’ business decisions in an anticompetitive manner, even without controlling stakes

- The Clayton Act Prohibits the Anticompetitive Use of Minority Interest Acquisitions to Substantially Lessen Competition

- Concerted action under Section 1 of the Sherman Act can be established even without explicit agreements

- Anticompetitive output restraint requires an overall decrease in production: Output can increase but still be restrained below competitive levels, harming competition

Comment: Weaponizing Antitrust or Enforcement?

The lawsuits against asset managers like BlackRock, State Street, and Vanguard—alleging that their climate-related shareholder actions amount to antitrust violations—are widely seen by critics as an attempt to use antitrust law to undermine climate and environmental, social, and governance (ESG) initiatives.

The FTC and DOJ, in their joint statement of interest, emphasize that the case is about the misuse of market power to manipulate energy markets, not about attacking climate goals.

They argue that when institutional investors use their influence across multiple competitors to achieve anticompetitive outcomes—such as restricting output and raising prices—this falls squarely within the scope of antitrust enforcement, regardless of the underlying motivation.

This case applies Section 7 (which focus on prospective harm from mergers) retrospectively to challenge how existing minority shareholdings were used post-acquisition. The agencies argue that post-acquisition conduct can demonstrate that the stock was not held “solely for investment”.  The DOJ and FTC cite precedent (e.g., United States v. ITT Continental Baking Co.) affirming that Section 7 applies to stock holdings used anticompetitively, not just their acquisition.

In conclusion, the agencies stop short of condemning common ownership outright and emphasize that conduct—not just structural shareholding—determines antitrust liability. Importantly, the FTC/DOJ’s stance establishes a new enforcement frontier: using antitrust law to police shareholder conduct.

Minority Shareholdings Collusion Risks

Delivery Hero and Glovo: for the first time the European Commission has sanctioned the anti-competitive use of minority shareholdings

The €329 million European Commission's fine against Delivery Hero and Glovo signals a shift in European competition law, highlighting the significant risks  of collusion associated with minority shareholdings in rival companies.

The Commission found that Delivery Hero’s minority, non-controlling stake in Glovo (acquired from 2018 and increased to full control in 2022) enabled and facilitated unlawful coordination between the two companies. This included exchanging sensitive commercial information, dividing markets, and agreeing not to poach each other’s employees—practices that collectively constituted a cartel and violated Article 101 TFEU. This case is both the first time the European Commission has sanctioned the anti-competitive use of a minority shareholding in a rival company, and also the first EU enforcement case concerning labor market collusion (no-poach agreements), further broadening the scope of EU competition law.

The Commission clarified that minority shareholdings  become problematic, not only when used to gain inside information, but also to influence decisions in ways that harm competition. The Commission’s action sends a clear warning to companies across sectors—especially those with cross-shareholdings or investments in potential rivals (e.g., Big Tech, banking)—that even non-controlling stakes can trigger antitrust liability if used to coordinate behavior or exchange sensitive information, suggesting  increased vigilance regarding minority shareholder arrangements and labor market collusion and that further investigations and enforcement actions may follow.

Main Arguments:

- Minority Shareholding as a Collusion Channel: Delivery Hero’s minority stake was central to the infringement as it enabled Delivery Hero to access Glovo’s commercially sensitive information, influence its decisions, and coordinate strategies—well beyond what is permissible for a passive financial investor

- Mechanisms of Collusion: Formal (board representation, voting rights, and shareholder agreements, including no-poach clauses); Informal (Direct communications, including WhatsApp messages and emails, and the sharing of strategic business information that should have remained confidential)

- Nature and Scope of Collusion: the two companies exchanged sensitive commercial information (e.g., pricing, capacity, costs, market strategies); agreed not to poach each other’s employees and suppressed labor mobility and wages; and agreed to avoid entering each other’s national markets and coordinating entry into new markets

Comment: US/EU emerging convergence on minority shareholdings antitrust liability?

The FTC/DoJ and the European Commission actions establish a new enforcement frontier: using antitrust law to police shareholder conduct. A more nuanced, effects-based analysis of conduct and influence, making the line between legitimate investor oversight and anti-competitive coordination not always obvious.

Both US and EU authorities are thus converging on an approach that scrutinizes the effects and conduct associated with minority shareholdings, rather than condemning the structure itself.