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Ch. 4: The Legal and Regulatory Environment
The Legal and Regulatory Environment
Legislation provides a level playing field for companies that may not otherwise be able to compete
Well-developed and effective marketing plans usually avoid most legal issues
Business Legislation
Protect Companies from each other
Protect consumers
Protect the interests of Society
Enforcement Responsibilities
Enforcement is the responsibility of the executive
branch of the federal government or a federal administrative agency
a choice
Various Legislative Acts
1890 Sherman Antitrust Act 1914 Clayton Act
Federal Trade Commission Act
1936 Robinson-Patman Act 1950 Celler-Kefauver Act
1975 Consumer Goods Pricing Act
Sherman Antitrust Act (1890)
Monopolies, attempts to monopolize Civil and criminal penalties. Injunctions to cease activities Injured parties may recover treble
damages in civil court.o Treble damages: three times the
actual loss as a result of a violation of antitrust law.
Criminal penalties (substantial fines, and jail time up to three years)
Clayton Act (1914)
Supplement to the Sherman Act Limitations on
o Tying agreementso interlocking directorateso intercorporate stockholding
Provides for civil penalties only.
Federal Trade Commission Act (1914)
Broadly defined unfair competition or competitive situations
Established the Federal Trade Commission The Wheeler-Lea Act (1938) expanded
powers:o To regulate unfair or deceptive practices
whenever the public is deceived. Common method of enforcement is the
Consent Decreeo Consent decree: written agreement between
defendant and prosecution to avoid undertaking an act that would violate law.
Robinson-Patman Act (1936)
Often known as “the price discrimination act” o Buyers as well as sellers can be
held liable for actions that violate antitrust law
o Requires proportionally equal terms to buyers in common markets.
Celler-Kefauver Act (1950)
The “Antimerger Act.”o Broadened power to prevent
acquisitions where they may substantially impact competition.
Consumer Goods Pricing Act (1975)
Prohibits price maintenance agreements among manufacturers and resellers
Repealed Miller-Tydings Act (1937)oHad allowed “fair trade,” a form
of price maintenance.
Securities Laws
Designed to protect investing public, rather than business competitors and customers.
From a marketer’s perspective, important provision is the silent period relating to Initial Public Offerings (IPO’s )
Uniform Commercial Code
Standard set of laws that govern contracts and associated case law
Most portions of the UCC adopted by 49 of 50 states (excluding Louisiana)
Consistency in the UCC between states helps with the administration and enforcement of contracts across state lines
Sarbanes-Oxley Act and Offspring
Public Company Accounting Reform and Investor Protection Act of 2002
Commonly called “SOX” Est. Public Company Accounting
Oversight Board SOX inspired:
o “Canadian Sarbanes-Oxley Act,” Bill 198 (C-SOX)
o Australian Corporate Law Economic Reform Program, (CLERP)
o Japanese Financial Instruments and Exchange Law, (J-SOX)
Business Legislation Issues
I
Intercorporate Stockholding
Interlocking Directorates
Price Maintenance
Refusal to Deal
Resale Restrictions
Price Discrimination
Intercorporate Stockholding
When a company owns another company in the same market in an attempt to control the company so that competition is reduced
Not necessarily illegal for one company to own another company in the same market
However, it is illegal to use that ownership to reduce competition and choice.
Interlocking Directorates
When a company has members of its board of directors serve on the board of another company.
Companies that compete in the same market cannot have common directors such that actions would lessen competition in their markets.
Key: what is a “market?”
Price Maintenance
When a manufacturer attempts to dictate the resale price of an item – generally illegal.
Manufacturers may “suggest” resale prices Influence allowed when added value provided by
manufacturer or channel partners (e.g., providing financing for inventory, etc.)
Attempts to protect full-service retailers from free rider retailerso Free ride retailers provide fewer services and a
reduced selling price.o Without this protection, consumers would
likely go to full service retailers for product information, but purchase from free ride retailers
Refusal to Deal
When a company refuses to restock or supply associated services to dealer that has not followed suggested pricing guidelines.
Refusal to deal is generally illegal. Courts have recognized the right of a
seller to sell or not sell to whomever it desires, as long as the reason is not to fix prices or restrain trade.
Resale Restrictions
Occurs when a company:o Maintains house accounts
(customers that are within the reseller’s market but are served directly by the supplier)
o limits resellers to certain territories The courts have not come down
on clearly on either side of this issue.
Price Discrimination
Major issue B-2-B marketers will faceo Application of Robinson-Patman Act
Occurs when a supplier sells the same product to the “same class” of buyers at different prices such that it reduces competition in the buyer’s market
Selling products at different prices to customers that are not in competition with one another is not considered discriminatory
Marketing Implications and Nuances
Pacific Model 10005000 units/month
$38 per unit
Desktop Computer Market
Pacific Model 10005000 units/month
$38 per unit
NBM Computer
s
Palo Alto Computers
PACIFIC DRIVES
Exhibit 4-4 Pacific Drives supplies the same product to two customers who compete in the same
market.
Marketing Implications and Nuances
Exhibit 4-5 United Memories aggressive price at NBM Computers
Pacific Model 10005000
units/month$38 per unit
Desktop Computer Market
Pacific Model 10005000
units/month$38 per unit
NBM Computer
s
Palo Alto
Computer
PACIFIC DRIVES
UniMem Model 3005000 units/month
$32 per unit
UNITED MEMORIES
Exhibit 4-6: Spartan Computers Enters the Market
Marketing Implications and Nuances
UNITED MEMORIES
UniMem 3005000 units/mo.
$32 per unit
Pacific Model 1000
500 units/mo.$55 per unit
Desktop Computer Market
Pacific10005000
units/mo.$38/unit
NBM Computers
Palo Alto Computer
PACIFIC DRIVES
Spartan Computer
s
Pacific10005000
units/mo.$38/unit
Major Tenants of Price Discrimination Legislation
Offerings sold:o for different useso to separate marketsoat different timeso that are not identicalo to government agenciesoat prices that meet a competitive threat
are generally not a violation of price regulations.
Offerings created through supplier-customer collaboration, partnering, customizations are not identical and therefore not subject to price regulations
Substantiality Test
This test has three considerations:o SIZE: of organization involvedo VOLUME: of business involvedo SIGNIFICANCE: of market preemption
Intellectual Property
1. Patents2. Copyrights
3. Trade Secrets4. License
5. Cross-License6. Joint Venture
1. Patents
Protection granted by the federal government to inventors of original products, processes, or compositions of matter.
Functional patents last 20 years. Design patents last 14 years.
2. Copyrights
Protection for the original works of authors, musicians, and photographers.
Protects the expression of an idea, not the underlying idea itself.
Copyrights are granted to individuals for their lifetimes plus fifty years.
Copyrights automatically apply to all work created since 1989.
3. Trade Secrets A process, technique, or competitive
advantage whose owner has chosen not to seek legal protection to avoid disclosure.
It cannot be something that is common knowledge, and the owner must have taken reasonable efforts to keep the trade secret a secret.
Owners are not able to license, sell, or trade them with the same degree of legal protection as patents or copyrights
4. License
Permission to use an asset as one’s own without any right of ownership
Granted by the owner of the asset
5. Cross-License
Occurs when two businesses each have patents or other intellectual property that is of value to the other
Greater advantage in same or different markets
6. Joint Venture
Organization where two firms combine to approach a particular market or share a particular technology
Venture operates as an independent business