ROBINSON PATMAN ACT.
THE BASIC PROHIBITION IS: IT IS UNLAWFUL TO CHARGE COMPETING CUSTOMERS DIFFERENT PRICES WHERE THE EFFECT MAY BE TO SUBSTANTIALLY LESSEN COMPETITION OR TEND TO CREATE A MONOPOLY FOR THE PRODUCTS OF THE SELLER.

THE MEETING COMPETITION DEFENSE IS THE ONE DEFENSE THAT COP WOULD MOST BE ABLE TO RELY ON IN A CASE INVOLVING A CLAIM OF UNLAWFUL PRICE DISCRIMINATION.

DID MEET IN GOOD FAITH THE EQUALLY LOW PRICE OF A COMPETITOR?

THE GOOD FAITH ASPECT OF THIS DEFENSE IS COMPLICATED. THIS IS ONE OF THE INSTANCES WHERE WE MUST HAVE OR MAKE A WRITTEN RECORD OF THE EQUALLY LOW PRICE OF THE COMPETITOR.

THE SUCCESSFUL DEFENDANTS IN THESE TYPES OF CASES ARE THOSE THAT ARE ABLE TO OBTAIN FROM THE CUSTOMER A STATEMENT, A COMPETITOR’S INVOICE OR QUOTATION, INDICATING THE COMPETITIVE PRICE.

IN THE RETAIL END OF THE BUSINESS THE COMPETITIVE PRICE IS USUALLY PROMINENTLY DISPLAYED ON THE STREET CORNER PRICE SIGN.

LUNDBERG SURVEYS REPORTING COMPETITIVE DTW PRICES ARE GENERALLY CONSIDERED RELIABLE PROOF OF COMPETITIVE PRICES FOR THE MEETING COMPETITION DEFENSE IN THE DEALER CHANNEL OF TRADE.

IT IS UNLAWFUL TO ESTABLISH ANY DIRECT AS WELL AS INDIRECT DISCUSSIONS WITH THE COMPETITOR REGARDING THEIR PRICES, EVEN IF THE PRICE HAS PREVIOUSLY BEEN "POSTED" BY THAT COMPETITOR. COMMUNICATIONS SUCH AS THESE ARE AN INFERENCE OF CONSPIRATORIAL ACTIVITY AMONGST COMPETITORS.

WHERE THERE IS NO PUBLICLY AVAILABLE SOURCES OF COMPETITIVE INFORMATION WE URGE ASKING THE CUSTOMER FOR PROOF OF THE COMPETITORS’ PRICE, OR DEVELOP THIS INFORMATION FROM SOME OTHER MEANS, OTHER THAN CONTACTING THE COMPETITOR.

IT IS NOT ONLY THE SELLER OF THE GOODS OR SERVICES WHO HAS LIABILITY UNDER THE ROBINSON PATMAN ACT. THE CUSTOMER MAY ALSO BE LIABLE UNDER THE PRICE DISCRIMINATION LAWS. SECTION 2(F) OF THE ROBINSON PATMAN ACT PROVIDES

IT SHALL BE UNLAWFUL FOR ANY PERSON ENGAGED IN COMMERCE TO KNOWINGLY INDUCE OR RECEIVE A DISCRIMINATION IN PRICE PROHIBITED BY THIS SECTION.

THUS, IF YOUR CUSTOMER KNOWINGLY AND WRONGFULLY INDUCES YOU TO OFFER A LOWER PRICE TO IT, THE CUSTOMER MAY HAVE COMMITTED AN UNLAWFUL ACT.

VERTICAL RESTRAINTS

THE SHERMAN ACT MAKES IT A PER SE VIOLATION FOR A SUPPLIER TO AGREE WITH A CUSTOMER REGARDING THE PRICE AT WHICH THE CUSTOMER WILL RESELL ITS PRODUCTS.

THE PROHIBITION APPLIES TO: SPECIFIC PRICES, MINIMUM PRICES, OR MAXIMUM PRICES.

THE PROHIBITION EXTENDS TO CONTROL OF THE CUSTOMER'S RESALE PRICES BY MEANS OF THREATS, DEMANDS, REQUIREMENTS, OR COERCION.

DO NOT RESTRICT ADVERTISING OR PROMOTION OPPORTUNITIES, MAINTENANCE SERVICES, ETC. TO CUSTOMERS SELLING ABOVE OR BELOW A CERTAIN POINT. YOU MAY NOT RESTRICT CREDIT, IN ANY WAY CONTROL THE MARKUP, MARGINS, OR DISCOUNTS THE CUSTOMER MAY ALLOW WHEN RESELLING OUR PRODUCTS.

SOME PRACTITIONERS SUGGEST YOU SHOULD NEVER CIRCULATE PRICE LISTS GENERALLY; i.e, SUGGESTED RETAIL PRICES.

DO NOT THREATEN TO TERMINATE THE DEALER, DISTRIBUTOR, JOBBER, IF HE DOESN'T PRICE A CERTAIN WAY PRESCRIBED BY YOU.

NEVER CIRCULATE A LIST OF PRICE CUTTERS OR PRICE GOUGERS.

COP HAS A LEGITIMATE BUSINESS INTEREST IN GIVING BUSINESS ADVICE TO ITS CUSTOMERS AND THIS CAN INVOLVE SUGGESTIONS FOR RESALE PRICES.

YOU WANT TO ALWAYS TO BE ABLE TO SAY THAT YOU STOPPED SHORT OF REQUIRING THE DEALER, JOBBER, OR DISTRIBUTOR TO PRICE A CERTAIN WAY IN THE MARKETPLACE.

YOU WANT TO ALWAYS BE ABLE TO SAY THAT UPON ADVICE OF THE COMPANY’S LAW DEPARTMENT, AND CONSISTENT WITH THE COMPANY’S ANTITRUST COMPLIANCE GUIDELINES, YOU GAVE BUSINESS ADVICE TO YOUR DEALERS, JOBBERS, AND DISTRIBUTORS IN GOOD FAITH , BUT THAT YOU ALWAYS MADE IT CLEAR TO EACH CUSTOMER THAT IT HAD THE FREEDOM TO MAKE ITS OWN DECISION REGARDING THE RESALE PRICE.

EVERY CUSTOMER MUST BE ENTIRELY FREE TO RESELL THE PRODUCTS FURNISHED BY COP AT ANY PRICE THE CUSTOMER SO CHOOSES.

LAWFUL PRICE COUNSELLING TECHNIQUES

OK to DO

ADVISE