Checklist of Antitrust Claims

Checklist of Antitrust Claims

Disclaimer

This article is designed to review overall antitrust claims and not just claims under the Robinson-Patman Act. In many cases the RPA plaintiff will have other antitrust claims in addition to the RPA claims. One reason for this is economic: price discrim ination usually exists because there is some monopolistic reason that the disfavored customers don't buy their goods more cheaply from some other, non-discriminating seller. The usual reason, which many persons do not understand, is that the seller has a monopoly in part of its overall market, and is exploiting that monopoly by charging whatever the market will bear in the different components of the overall market for the same product.

The monopoly usually is derived from trademarks, which when sufficiently strong will enable a monopolist to charge parts of the market very high prices because the reseller cannot do without the product. Consumers insist upon the branded product in too m any cases, and the reseller will lose business if he tries to buy and resell a substitute product.

The reader should be aware that no checklist can be complete or be used without involvement by an experienced antitrust attorney. Accordingly, you should not conclude that you have or do not have antitrust claims merely because of finding items which may apply to you, or not finding any items which apply to your own situation. The antitrust laws are very complicated and cannot be reduced to a checklist (or at least a checklist of the size being made available to you).

The checklist includes a variety of problems which may have some antitrust implications, but there may be other factors (such as, for example, a good-faith meeting competition defense to a price discrimination charge) which could destroy the value of an a pparent claim.

Yet, the checklist could point out areas for closer analysis both by you and an attorney looking into your problem. In any event, here is the checklist for you to consider:

• You are a retailer or wholesaler being charged more for goods than your competitor is paying.
• You are a retailer and the manufacturer of goods has advertising or other promotional programs which are not being made available to you.
• You are a retailer or wholesaler and the manufacturer is providing services to your competitors which the manufacturer is not making available to you.
• You are a retailer or wholesaler and one or more of your competitors are extracting payments from the manufacturer of goods which it is not making available to you.
• You are a retailer or wholesaler and the manufacturer of goods is paying slotting allowances to your competitors (or to customers of your competing wholesalers) which the manufacturer (a) is not making available to you or your retailer customers, or ( b) is not making available to you or your retailer customers in a proportionate amount.
• A company has so high a percentage of the market (say more than 50%, but this figure is not fixed and varies according to the type of antitrust claim) in a relevant geographic and product or service market and is doing things which injure you as a com pany competing in that market.
• A company has made acquisitions of stock and/or assets which has created a monopoly (say, more than 65%) of the relevant geographic and product/service market and you have been injured by this acquired monopoly.
• A company is making acquisitions which if continued would tend to substantially lessen competition in the relevant geographic and product or service market.
• Two or more companies have entered into a combination, conspiracy or agreement in restraint of trade causing your business or property to be injured.
• A manufacturer or other person is selling to its customers on the condition that they not buy goods or services from you.
• Two or more companies have agreed to boycott your company.
• Two or more companies are conspiring to fix prices and you are hurt by such price-fixing.
• A monopoly refuses to deal with you without justification, or the person who controls an essential facility is not making it available to you, causing injury to your business.
• One of your retailer or wholesaler competitors is knowingly inducing or receiving a discriminatory price from the manufacturer or supplier of goods.
• Your competitors have formed a trade association and will not let you join.
• A trade association is apparently being used as a cover for a conspiracy to fix prices or otherwise restrain trade.
• Someone is suing you in sham litigation for the purpose of putting you out of business.
• A group or association is importing goods at lower-than-cost prices which is causing you to be injured.

The foregoing are just a few of the possible events which could give rise to antitrust liability. At least, if any of the foregoing matters are taking place, you should talk with an antitrust lawyer to see if you have a case and whether the case is worth while to pursue.

If you want to talk with an antitrust lawyer without any obligation, about any of the above items or any other matter of possible antitrust concern to you, please send a fax to RPAmall editor (attorney Carl E. Person), at 212-307-0247 and state you would like to talk about items on the checklist. Also, you should include your fax and telephone numbers. As said elsewhere, there will be no charge or obligations for the consultation.

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Copyright © 1997 by Carl E. Person