Text of Radio Infomercial "ONE MILLION FORTUNES LOOKING FOR THEIR RIGHTFUL OWNERS"

The following is the text of a 29-minute (or "one-half hour") infomercial of attorney Carl E. Person providing legal information of interest to small businesspersons and others interested in the welfare and prosperity of small business. The show focusses on the Robinson-Patman Act and explains little-known aspects of this federal antitrust statute enacted in 1936.

Attorney partners from anywhere in the U.S. are invited to join with attorney Carl E. Person in presenting this infomercial in the state or locality served by the attorney partner. Please call 212-307-4444 or send a fax to Carl E. Person at 212-307-4444 for more information about this joint advertising and legal-representation endeavor.

Last Update: June 21, 1999

Hi. My name is Carl Person. I'm an attorney located in New York, New York and this is my show. The subject? ONE MILLION FORTUNES LOOKING FOR THEIR RIGHTFUL OWNERS.

During the next half hour I'm going to tell you how more than 1,000,000 individuals -- possibly you or your immediate family -- each has a right to receive from $25,000 to nine million dollars or more. It amazed me to learn that almost none of these million persons is aware of their right to this fortune.

I'm going to reveal to you who is entitled to receive the money, and what they can do to obtain it. But first, here is some background about myself.

I'm a graduate of Harvard Law School, a member of the New York bar, and I take cases into court for small business owners.

One of my areas of interest is unusual, highly-visible cases calling for innovative solutions. You may have seen me recently on Dateline or read about me and my unusual cases in The New York Times or New Yorker magazine.

For most of my 38 years as an attorney, I have fought for and championed small business and I have been in business or legal practice for myself most of this time.

I have learned how small businesses are often injured or destroyed by illegal activities. The effect of these practices is to rob small business owners, managers and employees of the income, profits and opportunities they would otherwise enjoy, and deprive this country and its people of the benefits of small business, including new and improved products and services, business opportunities and the American Dream, and a higher standard of living and quality of life.

I want to tell you about one of the most evil of such activities now occurring throughout the country -- price discrimination -- and how the million or more small-business victims of unlawful price discrimination can recover three times the amount of their monetary damages.

Price discrimination, simply put, is where a small retail store owner pays more per unit for his or her inventory of goods than is paid by the competing superstore down the road. This price discrimination drives customers away from the small store and into the large chain stores, which enables the chain stores to provide greater selection, lower prices and other amenities or services, and hurting the small business competitor even more.

To estimate the amount of money involved for just one small business injured by unlawful price discrimination -- perhaps yours -- just multiply by 9,000 the estimated dollar loss during one typical day.

Let's assume this one-day loss is $200. In such case, the amount of money to be recovered for the small business could be as much as $1,800,000 -- which is $200 times 9,000. But $200 is far less than many small drug, book, hardware, appliance, convenience, video, department and other small stores are each typically losing in a single day.

But let me go back and tell you more about price discrimination. I have worked in this legal area since 1970, a total of 29 years, off and on.

Price discrimination is prohibited by a 1936 federal statute known as the Robinson-Patman Act.

The Robinson-Patman Act was enacted to protect small business by making it a federal crime (with a treble damage civil remedy for injured persons) for a manufacturer or wholesaler in interstate commerce to sell goods of the same type and quality, at the same time, to competing retailers or wholesalers at a different price per unit unless the price difference is either "cost justified" or the lower price was provided on the spot to "meet competition".

You'll immediately recognize that the small convenience, hardware, drug, video, appliance or book store usually charges more for an item than you would pay for the same item at a major chain-store retailer. The reason for this difference in retail price is that the major chain store is almost always paying substantially less per unit to buy its inventory than the small competitor across the street, and sells for less, which enables the large store to take customers away from the small retail stores.

In fact, the small store is often charged so much more that the owner simply buys the needed goods from his/her competitor for less per unit than he would pay the manufacturer or wholesaler.

Every time you go to a large chain store to buy at a lower price, you may be depriving the competing small store of a sale, and a profit margin on the lost sale. Don't feel guilty about this. All of us tend to buy according to price, which is why price discrimination is so injurious to small business. The reason that small stores are finding it difficult to remain in business is that they lose too many sales to the large competitors who are buying the same goods at substantially lower per-unit prices, often 10-40% less than the price paid by the small store competitor. Small businesses merely go out of business or are preparing to go out of business, forcing customers increasingly to make their purchases at superstores and forcing more and more persons to work at chain stores instead of owning their own businesses.

Even so, there may be a claim by each injured small business for up to millions of dollars, for the injuries which have occurred. You should alert your small-business friends and associates to this valuable but unknown asset of theirs - even as to already-failed businesses. Think of failed businesses as possible hidden-value opportunities for you or others to exploit through investment or purchase.

Not only is the manufacturer liable to the small business for unlawful price discrimination, but so is the large retail competitor (typically the big box or category killer chain store) which knowingly induced or received the favorable prices from the manufacturer.

Both are liable to the small business for three times (or treble) the amount of the damages suffered by the small business during the 4-year period preceding the filing of the lawsuit. The typical small business retailer probably is owed today between $100,000 and $9,000,000 under my 9,000 Times One-Day's Damage Rule. I explain this in my Robinson-Patman Act website at lawmall.com/rpa.

In addition, the manufacturer is probably liable to the small business for failing to make its advertising and promotional programs proportionally available to the small business. However, only the manufacturer is liable for this violation of law, not the competitor.

[1st ADVERTISEMENT]

I can help small businesspersons or their friends or advisers look further into this valuable asset in 4 main ways: (i) by speaking before interested business associations or other groups; (ii) by meeting or talking directly to small business owners on a one-to-one basis; (iii) by my Robinson-Patman Act website at lawmall.com/rpa; and (iv) by offering a FREE set of useful materials consisting of:

the Act itself,
the FTC Guidelines or rules for pricing and advertising or promotional programs;
a list of recent court decisions;
a form of complaint;
a list of anticipated lawsuit expenses;
a list of litigation steps;
a form for calculating your estimated recovery;
a self-audit form; and
my form of fee agreement with clients and a resume describing some of my litigation experience.

You can look at and download these and other materials at my website, URL , that's lawmall.com/rpa. I am available to speak to interested merchants, merchant organizations or trade associations anywhere in the U.S. about the Robinson-Patman Act or about small business.

To obtain a FREE set of materials or to arrange for me to speak to a trade association or other group, or if you just want to talk about your own situation or the acquisition or financing of a failing retail business, please call me, attorney Carl E. Person, at 212-307-4444, that's 212-307-4444.

And now, back to Our Topic of ONE MILLION FORTUNES LOOKING FOR THEIR RIGHTFUL OWNERS.

The most important point for you to remember is that almost all major manufacturers or wholesalers of goods are violating the Robinson-Patman Act. They are maximizing their profits by charging whatever the market will bear instead of obeying the Robinson-Patman Act by charging the same unit price to all. Thus, any small retailer of goods (even one already forced out of business or in bankruptcy) has numerous claims for treble damages against his manufacturers and other suppliers and, most probably, against his main competitor or competitors, the big box retailers.

You might be wondering how you can prove the price discrimination in court. This is no problem for most small retailers. It is usually done through discovery in the lawsuit, with the defendants or third-party witnesses being required to produce documents and data processing records showing their dealings with you and your competitors.

Price discrimination occurs in many ways, including uncontrolled advertising allowances, unwarranted deductions from invoices, renegotiation and cancellation of unpaid invoices, profit-margin guarantees, markdowns, volume discounts, end-of-year rebates and the infamous slotting allowances (which are payments by a manufacturer to the big box retailer for shelf space). How many of these benefits has any small business owner ever received?

Earlier, I mentioned two statutory defenses: The defense of cost justification is seldom alleged as a claimed defense because the amount of the discrimination (i.e., the difference between the two prices) is far greater than any cost justification (or cost saving) arising from the difference in volume involved.

Games, toys, cards, beverages and many other products are manufactured in comparatively small quantities, so that the cost of manufacturing and shipping 20,000 games, for example, costs about as much per game as the manufacturing and shipping of 1,000,000 games.

The other statutory defense -- meeting competition -- is also ineffective in most instances. Most or many manufacturers have a pricing system which is inherently discriminatory in a variety of ways and pricing does not ordinarily take place where one manufacturer is directly bidding, on the spot, against another. Pricing instead has become very complicated and requires a computer to track.

Most of the benefits given to the big box retailer have a monetary value and when they are totalled up they reveal the overall amount of the discrimination, even if the payments cannot be directly traced to any specific purchase by the favored retailer.

Thus, there usually is no significant defense to a typical Robinson-Patman Act suit, other than to try to reduce the amount of damages claimed by the injured small businessperson. In other words, Robinson-Patman Act suits, from the small-business plaintiff's standpoint, are an attractive investment situation, assuming the plaintiff can prove damages. Damages are usually proven with the help of an expert witness economist, to show in dollar amount how the price-discrimination injured the small business plaintiff.

Let's take a small hardware store having to compete against a big box or category killer competitor located, say, 2-3 miles away. The small retailer probably has a claim against numerous manufacturers for failure to provide the same discounts, guarantees, allowances, rebates, refunds, and other payments or credits given to the large competitor, and for the manufacturer's failure to make proportionally available the same advertising and promotional programs to the small business owner.

The small retailer should ask himself/herself, "Do I actually want to sue any of my manufacturers or suppliers?" Here are some things to consider.

The competitor-retailer may have the same liability for price discrimination and enable you to avoid suing your manufacturers or suppliers. Instead, you can sue your competitor for unlawfully receiving or inducing the discriminatory prices from all of these same suppliers. In the case where a major competitor is receiving higher discounts per unit, it makes sense to sue one or two competitors instead of 100 common suppliers. Of course, if you owe substantial amounts of money to one or more of your major suppliers which you cannot pay (probably because of the financial injuries they caused to your business), it may be appropriate and advantageous for you to sue these suppliers also, which probably owe you more for unlawful price discrimination than you owe them for unpaid goods.

Here is how you can maximize your efforts and help to small business. If you are an employee, spouse, other relative, friend, customer or business associate of a small business owner, you may be able to provide the information needed by him or her to save the business and make it prosper -- for the benefit of the owner, the owner's family, the employees of the business, and the country as a whole. Accordingly, you should try to follow what I'm saying about price discrimination and the way of asserting a claim for unlawful price discrimination.

The Robinson-Patman Act is a federal statute and in New York State (as in some other states) there is no comparable law which prohibits price discrimination. Any action to recover treble damages for price discrimination would have to be brought in federal court, which has exclusive jurisdiction over such claims. I am a member of the New York bar and when commencing an action in any other state I associate with an attorney from that state, preferably the client's regular attorney.

The costs of such an action can be surprisingly modest and will be spread out over a year or more. The out-of-pocket expenses for this type of lawsuit are not prohibitive at all for many small businesses and can be estimated in advance. In include an estimate in the FREE set of materials.

The other significant expense is for an attorney. This is negotiable, and it depends on the type of law firm you are dealing with. Many law firms would require payment by the hour.

Some law firms including my firm - I am an individual practitioner - charge a modest one-time legal fee to get the case started and do the rest of the case on a contingent-fee basis, refunding the one-time fee out of the lawyer's percentage of any recovery. In this way, the costs to the client are low and affordable.

This arrangement avoids a bottomless pit of legal fees. Instead, with a single-payment arrangement, there are no legal fees payable before any settlement or other recovery except a reasonable single payment to the attorney to start the action.

You should remember my Rule of 9,000 Times ONE-Day's Loss. By this formula, you can calculate the maximum amount of money you could recover in your Robinson-Patman Act lawsuit. Just estimate the amount of loss you have suffered, on the average, in a typical day during the past four years, and multiply this amount by 9,000.

If a retailer loses $1,000 per day in sales, and has a profit margin on sales of 33% (after deducting direct expenses), the owner's profit-margin loss per day is $333 on sales not made, but there is also a loss of profit margin on the sales actually made. Assume that this loss of profit margin (after direct expenses) amounts to $167.

The total loss for the average day is $500, and 9,000 times $500 amounts to a maximum recovery of $4,500,000. In my website or FREE set of materials you will find a form you can use (with instructions) to calculate this maximum possible recovery.

But make a quick calculation right now. How much in profit margin (after direct expenses) do you believe your small business loses in a typical day because of price discrimination and non-availability of advertising and promotional programs from most if not all of the manufacturers you represent? Is it $100, $500, $1,000 or even more? Just multiply this amount by 9,000 and you have the maximum amount you could recover. Just keep in mind that $1,000 in daily losses translates to a maximum recovery of $9,000,000.

[2nd ADVERTISEMENT]

I can help small businesspersons or their friends or advisers look further into this valuable asset in 4 main ways:

(i) by speaking before interested business associations or other groups;

(ii) by meeting or talking directly to small business owners on a one-to-one basis;

(iii) by my Robinson-Patman Act website at lawmall.com/rpa; and

(iv) by offering a FREE set of useful materials consisting of:

the Act itself,
the FTC Guidelines or rules for pricing and advertising or promotional programs;
a list of recent court decisions;
a form of complaint;
a list of anticipated lawsuit expenses;
a list of litigation steps;
a form for calculating your estimated recovery;
a self-audit form; and
my form of fee agreement with clients and a resume describing some of my litigation experience.

You can look at and download these and other materials at my website, URL , that's lawmall.com/rpa. I am available to speak to interested merchants, merchant organizations and trade associations anywhere in the U.S. about the Robinson-Patman Act or about small business.

And now, back to Our Topic: "ONE MILLION FORTUNES LOOKING FOR THEIR RIGHTFUL OWNERS."

I have been asked whether a small business which has gone out of business could sue for violation of the Robinson-Patman Act. In other words, can a company no longer in business sue for violation of the Robinson-Patman Act? The answer is YES, if it is suing only for monetary damages (and not injunctive relief). If the small business failed because of its purchase of inventory at discriminatory prices, the damages could be the value of the business but for the Robinson-Patman Act violations, and instead of a company being without assets and out of business, the company could have a contingent asset worth up to millions of dollars.

Some persons have asked me whether it would be possible to have a class action under the Robinson-Patman Act to recover damages for the benefit of all injured members in a specific industry. Generally, the answer to this is NO. Each injured business member has so much at stake that he/she would have to sue as a plaintiff instead of sitting back and waiting to be a member of a business class. As a general rule, there are no class actions for recovery of damages under the Robinson-Patman Act, at least as to business plaintiffs.

However, this does not mean that two or more small retailers could not get together and file a single Robinson-Patman Act lawsuit. They are permitted to do so, and would have the advantage of reducing the overall cost to each, as to out-of-pocket expenses and as to the one-time legal fee in advance paid to the attorney.

Another question I am frequently asked is: What if I have been paying more for my goods than the nearby chain competitor is paying, but less than a nearby smaller competitor? Would I be disabled from suing because I too was receiving discriminatory payments when compared to the smaller competitor? The answer is NO. The "unclean hands" doctrine which might prevent recovery for wrongdoing in other fields of law has been specifically held to be not applicable to Robinson-Patman Act cases. Furthermore, disqualification of the business owner doesn't make sense when you think about it.

Manufacturers will sell the same item for, let's say, $1 to $4 depending on the volume of the purchaser. There may be 10 purchasers buying at $1 per unit on very high volume; there may be 5,000 purchasers buying between $2 per unit on intermediate volume; and 30,000 small businesses buying at $3 per unit, and only 1 business buying at the absolutely highest price of $4 per unit. The Robinson-Patman Act does not protect only the business buying at the highest price ($4). The Act also protects the 30,000 small businesses buying at $3 per unit, as well as the larger businesses buying at $2 per unit. The purchasers receiving the highest discount (i.e., buying at $1 per unit) obviously have no claim against the manufacturer, and instead may have liability to the other, competing retailers for inducing and/or knowingly receiving the discriminatory prices. The Robinson-Patman Act protects virtually all but the most favored purchasers.

In fact, the Robinson-Patman Act may also give a cause of action to villages and towns which have lost a part of their tax base through the destruction of small retailers located in the town or village.

As you will see from the form of complaint which is part of the FREE set of materials you can order (or download from my website), violation of the Robinson-Patman Act is not the only claim which a business plaintiff would probably have. There are various claims under state law which might be applicable, such as unfair competition, unlawful interference, breach of contract, fraud and unjust enrichment, just to name a few. Each case depends on the facts.

Robinson-Patman Act litigation is commercial litigation, and the type of lawyer who handles this type of case is called a commercial litigator. I have been a commercial litigator for 29 years.

The courts exist to enable business to resolve disputes, and to protect the value of the business. Major companies and others use the courts to enforce patents, trademarks and copyrights, and to resolve disputes arising under joint venture agreements and other contracts. Small businesses should use the courts to recover the most valuable asset they may ever have.

The decline of small business retailers in the United States today seems to be the result of unlawful price discrimination, with the public able to buy goods at 10-40% lower prices in major chain stores than they can in the small competing stores nearby. This price differential is caused by unlawful price discrimination, not by superior business acumen. The continued price discrimination caused more than 50% of the book retailers in the U.S. to go out of business during the last 6-7 years, and the same problem is taking place with small drug, hardware, appliance, department, video, beverage stores, and many other types of small stores.

The loss in value of the business can be recovered. In fact, treble damages can be recovered upon proving that the losses suffered by the small business were caused by price discrimination or by the manufacturer's or wholesaler's failure to make reasonably available the manufacturer's advertising and promotional programs on a proportional basis.

Here is your opportunity to help someone who owns a small business. Talk with the owner about the availability of Robinson-Patman Act information for him or her to consider. If you or anyone else has any questions about the Robinson-Patman Act or other commercial litigation, please give me a call.

Our time is up. Don't pass up this opportunity to help yourself or a small-business relative or friend. You can obtain further information from my Robinson-Patman Act website, at lawmall.com/rpa, and download the FREE materials. Also, go to the website if you want to read the full text of this half-hour. Or, if you want a FREE set of materials mailed to you, or want to speak with me or arrange to have me speak to a trade association meeting or other meeting of businesspersons, call me, attorney Carl Person, at 212-307-4444, that's 212-307-4444. The Robinson-Patman Act is key to success for many small businesses in America. Act now. Call me, attorney Carl Person, at 212-307-4444 and let's discuss your problem or the problem of your trade association or other group of small businesses.

I hope you enjoyed this show. My offices are at 325 W. 45th Street, New York NY.