Comments on: More on Leegin Creative v. PSKS http://www.scotusblog.com/2007/07/more-on-leegin-creative-v-psks/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Phil Smith http://www.scotusblog.com/2007/07/more-on-leegin-creative-v-psks/#comment-13630 Phil Smith Wed, 12 Dec 2007 18:51:34 +0000 http://www.scotusblog.com/wp/uncategorized/more-on-leegin-creative-v-psks/#comment-13630 If Mr. Don Edmonds would post contact information, I would be very interested in discussing "Saving Dr. Miles". If Mr. Don Edmonds would post contact information, I would be very interested in discussing “Saving Dr. Miles”.

]]> By: Phil Smith http://www.scotusblog.com/2007/07/more-on-leegin-creative-v-psks/#comment-13605 Phil Smith Tue, 11 Dec 2007 23:17:43 +0000 http://www.scotusblog.com/wp/uncategorized/more-on-leegin-creative-v-psks/#comment-13605 Part three The manufacturer will favor certain retail customers (especially dual distributing manufactuers) over other retail customers with RPM. The manufacturer (utilizing RPM) can allow deviations and secret deals with favored retail customers to the detriment of its other retail customers and the consumer. The manufacturer using RPM has too many monetary incentives not to go along with its most favored customers. Some retailers would be allowed to discount while others would not be allowed to. With all the pricing power, can the manufacturers be trusted to treat the market in a fair manner ? Without the legally protected right of price competition, the small retailer and the consumer will always be on the losing end. This is an issue for Congress !! Senator Kohl, Clinton and Biden have already introduced a bill to overturn the Leegin decision. That bill is titled "The Discount Pricing Consumer Protection Act" The American consumer will pay dearly if this 5-4 Supreme Court decision stands. Part three The manufacturer will favor certain retail customers (especially dual distributing manufactuers) over other retail customers with RPM. The manufacturer (utilizing RPM) can allow deviations and secret deals with favored retail customers to the detriment of its other retail customers and the consumer. The manufacturer using RPM has too many monetary incentives not to go along with its most favored customers. Some retailers would be allowed to discount while others would not be allowed to. With all the pricing power, can the manufacturers be trusted to treat the market in a fair manner ? Without the legally protected right of price competition, the small retailer and the consumer will always be on the losing end. This is an issue for Congress !! Senator Kohl, Clinton and Biden have already introduced a bill to overturn the Leegin decision. That bill is titled “The Discount Pricing Consumer Protection Act” The American consumer will pay dearly if this 5-4 Supreme Court decision stands.

]]> By: Phil Smith http://www.scotusblog.com/2007/07/more-on-leegin-creative-v-psks/#comment-13604 Phil Smith Tue, 11 Dec 2007 22:57:20 +0000 http://www.scotusblog.com/wp/uncategorized/more-on-leegin-creative-v-psks/#comment-13604 This is part 2. The small/medium retailer in its own desire to maintain the flow of popular branded goods for resale will probably be forced to sign RPM agreements. I believe that RPM will only be the start of inefficient, regretful and eventual illegal behavior. It will not be hard to imagine significant numbers or retailers spying on each other to catch and report to the manufactuer deviations from RPM cartel agreements. Now armed with powerful RPM contracts (especially liqidated damage clauses) the manufacturer is now the commerce police. Small/medium retailers will lose control of vital inventory and cash flow decisions. The manufacturer is not in a position to correctly respond to individual market conditions with the same expertise as the local retailer. With RPM, the small/medium retailer will come under the powerful thumb of the manufactuer to operate thier stores contrary to their own economic best interest. It is an insult on the status of small business owners to have prices dictated by a manufactuerer. Part three to come This is part 2. The small/medium retailer in its own desire to maintain the flow of popular branded goods for resale will probably be forced to sign RPM agreements. I believe that RPM will only be the start of inefficient, regretful and eventual illegal behavior. It will not be hard to imagine significant numbers or retailers spying on each other to catch and report to the manufactuer deviations from RPM cartel agreements. Now armed with powerful RPM contracts (especially liqidated damage clauses) the manufacturer is now the commerce police. Small/medium retailers will lose control of vital inventory and cash flow decisions. The manufacturer is not in a position to correctly respond to individual market conditions with the same expertise as the local retailer. With RPM, the small/medium retailer will come under the powerful thumb of the manufactuer to operate thier stores contrary to their own economic best interest. It is an insult on the status of small business owners to have prices dictated by a manufactuerer. Part three to come

]]> By: Phil Smith http://www.scotusblog.com/2007/07/more-on-leegin-creative-v-psks/#comment-13602 Phil Smith Tue, 11 Dec 2007 22:39:25 +0000 http://www.scotusblog.com/wp/uncategorized/more-on-leegin-creative-v-psks/#comment-13602 With Leegin in place, suppliers can now dictate the resale prices of goods. The purchasing process for retailers is now interrupted with a contract that will be required to be signed prior to the acceptance of the order and later shipment. Retailers should be reluctant to sign an antitrust contract without an attorney's advice.The additional time and cost associated with these multiple restraint contracts will be a heavy burden on all small/medium retail operations. It has already been suggested that the manufacturers are going to include liquidated damage clauses in these price restraint contracts to further pressure the retailers to sell to the consumer at the mandated price. The small/medium retailer having built a solid business with certain manufacturer's products could not risk the certain loss of sales and would be economically forced to sign. With or without an attorney's approval, willing or not, the small/medium retailer will have little choice but to sign on with the manufacturers price restraint contracts. If these price restraint contracts are ever challenged in court by consumers, the small/medium retailer (by signing) could face antitrust liability. The ping brief of innefficiency under colgate is dwarfed by the introduction of RPM contracts. A manufacturer only has to pay an attorney once to prepare an antitrust restraint contract. The ten thousand or more retailers that manufacturer (requiring liquidated damage clause restraint contracts) sells to will have to seek an attorney's approval before signing. Do the math---consumer welfare is harmed by allowing RPM. This is part one of my argument. With Leegin in place, suppliers can now dictate the resale prices of goods. The purchasing process for retailers is now interrupted with a contract that will be required to be signed prior to the acceptance of the order and later shipment. Retailers should be reluctant to sign an antitrust contract without an attorney’s advice.The additional time and cost associated with these multiple restraint contracts will be a heavy burden on all small/medium retail operations. It has already been suggested that the manufacturers are going to include liquidated damage clauses in these price restraint contracts to further pressure the retailers to sell to the consumer at the mandated price. The small/medium retailer having built a solid business with certain manufacturer’s products could not risk the certain loss of sales and would be economically forced to sign. With or without an attorney’s approval, willing or not, the small/medium retailer will have little choice but to sign on with the manufacturers price restraint contracts. If these price restraint contracts are ever challenged in court by consumers, the small/medium retailer (by signing) could face antitrust liability. The ping brief of innefficiency under colgate is dwarfed by the introduction of RPM contracts. A manufacturer only has to pay an attorney once to prepare an antitrust restraint contract. The ten thousand or more retailers that manufacturer (requiring liquidated damage clause restraint contracts) sells to will have to seek an attorney’s approval before signing. Do the math—consumer welfare is harmed by allowing RPM. This is part one of my argument.

]]> By: Don Edmond http://www.scotusblog.com/2007/07/more-on-leegin-creative-v-psks/#comment-13325 Don Edmond Mon, 03 Dec 2007 08:25:04 +0000 http://www.scotusblog.com/wp/uncategorized/more-on-leegin-creative-v-psks/#comment-13325 On December 4th, 2007, I will be submitting my analysis of possible state law responses to Leegin. The working title is "Saving Dr. Miles: How Massachusetts Law May Protect Consumers From Post-Leegin Vertical Price Fixing Agreements" In this paper I discuss and analyze how the Massachusetts Consumer Protection Act, MGL ch. 93A along with a landmark case from our Supreme Judicial Court, Ciardi v. L. Hoffman LaRoche Ltd., stand as powerful and conclusive state authority that may fill the regulatory void created by the Roberts majority. If anyone is interested in finding out what may be coming in the future of antitrust/UDAP litigation, please stay tuned or let me know. On December 4th, 2007, I will be submitting my analysis of possible state law responses to Leegin. The working title is “Saving Dr. Miles: How Massachusetts Law May Protect Consumers From Post-Leegin Vertical Price Fixing Agreements”

In this paper I discuss and analyze how the Massachusetts Consumer Protection Act, MGL ch. 93A along with a landmark case from our Supreme Judicial Court, Ciardi v. L. Hoffman LaRoche Ltd., stand as powerful and conclusive state authority that may fill the regulatory void created by the Roberts majority. If anyone is interested in finding out what may be coming in the future of antitrust/UDAP litigation, please stay tuned or let me know.

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