High prices and contract terms, examined in isolation, can provide misleading evidence of market power when prices result from interconnected bilateral negotiations. If an intermediary negotiates separately with suppliers and buyers, documents like RFPs and intermediary-buyer contracts can falsely suggest that the intermediary has high bargaining power when, in fact, the intermediary is simply complying with the supplier’s requirements. Therefore, accurate assessment requires examining the structure of the economic interaction and the resulting contractual evidence across the supply chain to identify the true source of the negotiated prices.

In a recent article published by the ABA Antitrust Law Section, Consultant Strahil Lepoev examines several structures of interconnected bilateral negotiations that determine the final transactional price and highlights the risk of misinterpreting the evidence from the resulting contracts when evaluating the market power of the negotiating parties for antitrust analysis purposes.

This article is available to ABA members only.