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The usual disinformation

Posted by John Marks (M) on March 26, 2007 at 08:01:04

In Reply to: Price-fixing or MSRP, what's the difference? posted by Jay on March 25, 2007 at 12:41:25:

Hi-

Antitrust law is full of distinctions that may strike a common-sense-based layperson as theoretical, theological, Jesuitical, or stoopid. But that's they way it is.

Repeat after me: "Price fixing is not illegal. Conspiracies to fix prices are."

Now, deciding which category a specific act falls into is what all the shouting is about. And, as a general rule, journalistic accounts of legal proceedings are dumbed down, or start dumb and get worse.

I have previously posted a web link to FTC guidance that states that a refusal to deal, based on previous discounting, is legal. If I start a loudspeaker company, and __unilaterally__ inform all potential dealers that they cannot discount more than 5%, and __do not__ solicit their agreement, the current state of the law is that there is no conspiracy and therefore no violation. Whereas a normal person would plainly see that the same result has been reached. If I learn that a dealer has sold a pair at dollars above cost, I refuse to fill his next order, and that is that. A unilateral refusal to deal in support of a non-consensual unilateral price support policy is legal, so legal that even the FTC has to admit it on their web site.

Given this background, the statement above that MSRP is part of the franchise agreement is technically wrong. There may be such contracts, but they are not Kosher under most guidance and reported cases.

I am not familiar with the facts of this case, but the usual pattern is that someone lost patience with the Jesuitical fandango and either had their customers sign a contract making RPM (resale price maintenance) a contractual obligation, or in some other way solicited agreement.

There is nothing sacrosanct about MAP (minimum advertised price) agreements. A court that wanted to take a left turn (e.g., the 9th Circuit) could bar them as instrumentalities of conspiracy. Not likely, but it's not as though these things were spelled out nearly 100 years ago in the Clayton Act and the Sherman Act. It's a layer of judge-made fudge over a mountain of bureaucrat-made fudge.

I thought that CJ Roberts' recent quizzing of a lawyer in the Bong Hits 4 Jesus case was absolutely perfect. He established that the school principal had taken a course that covered the three leading cases, and so he said words to the effect that of course, she knew exactly what she could and couldn't do, just as do we--and the transcript then says "laughter."

I hope that when this case is argued, the CJ similarly makes fun of 80 years of Jesuitical antitrust lawyers' assaults on common sense.

Cheerio,

JM

Pro se et in forma pauperis.

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