Antitrust Pitfalls for Manufacturer-Imposed …media.straffordpub.com/products/antitrust-pitfalls-for...Antitrust Pitfalls for Manufacturer-Imposed Requirements ... The “Ebooks”

Antitrust Pitfalls for

Manufacturer-Imposed Requirements Structuring RPM Provisions and Overcoming Antitrust Risk in Territory and Customer Restrictions

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TUESDAY, APRIL 16, 2013

Presenting a live 90-minute webinar with interactive Q&A

Logan M. Breed, Partner, Hogan Lovells, Washington, D.C.

James M. Burns, Member, Dickinson Wright, Washington, D.C.

Adrian Emch, Partner, Hogan Lovells International, Beijing, China

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Resale Price Maintenance:

Federal and State Overview

James M. Burns, Esq.

1875 I Street, N.W., Suite 1200

Washington, DC 20006

(202) 659-6945

[email protected]

Wikipedia:

Resale price maintenance (RPM) is the practice whereby a

manufacturer and its distributors agree that the distributors will sell the

manufacturer's product at or above a price floor (minimum resale price

maintenance) or at or below a price ceiling (maximum resale price

maintenance). If a reseller refuses to comply with such an agreement,

the manufacturer may stop doing business with it.

What is RPM?

- 5 -

1911 In Dr. Miles Medical Co. v. John D. Park and Sons, 220 U.S. 373 (1911), the United States

Supreme Court held that a minimum resale price maintenance agreement violated Section

1 of the Sherman Act. Subsequent decisions characterized Dr. Miles as holding that

minimum resale price maintenance is unlawful per se - that is, without regard to its impact

on the marketplace or consumers – and per se treatment was extended to maximum resale

price maintenance in Albrecht v. Herald Co. 390 US 145 (1968).

2007 In Leegin Creative Leather Products v. PSKS, 551 U.S. 877 (2007), the United States

Supreme Court overruled Dr. Miles, holding that minimum resale price maintenance would

no longer be subject to per se condemnation (per se treatment of maximum resale price

maintenance had previously been overturned in State Oil Co. v. Khan, 522 US 3 (1997)). In

reaching this result, the Court noted that, in some circumstances, vertically imposed RPM

can be procompetitive, not anticompetitive.

Federal Law

- 6 -

Potential Procompetitive Effects of RPM identified by the Court:

1. Eliminates intrabrand competition, which can encourage

retailers to invest in services or promotional efforts designed

to aid the manufacturer in competing against rival

manufacturers;

2. Prevents “free riding” by retailers not providing customer

service so that retailers compete on service, to the benefit of

consumers; and

3. Increasing interbrand competition by facilitating market

entry of new firms and brands.

Why the change?

- 7 -

In the aftermath of the Leegin decision . . .

The rule of reason has rendered federal challenges to RPM largely

unsuccessful • Jacobs v.Tempur-Pedic Int’l, Inc. 626 F.3d 1327 (11th Cir. 2010) (Affirming dismissal for

failure to allege proper relevant market).

• Vaughn Medical Equip. Repair Service, LLC v. Jordan Reese Supply Co., 2010 WL 3488244

(E.D.La. 8/26/10) (RPM claim dismissed for failure to allege relevant market).

• Rick-Mik Enters. v. Equilon Enters., 532 F.3d 963 (9th Cir. 2008) (claim “failed for

vagueness” under Twombly).

The “Colgate Doctrine” also remains a complete defense to any RPM

challenge, further reducing plaintiff success in federal court • Valuepest.com of Charlotte, Inc. v. Bayer Corp., 561 F.3d 282 (4th Cir. 2009) (Genuine

agency arrangement not subject to challenge based upon absence of agreement between

two independent entities).

- 8 -

Post – Leegin Cases in Federal Court, cont’d

Market Power – the cases that have proceeded past motions practice have

typically required a showing of market power on the part of the manufacturer:

• Toledo Mack Truck Sales & Services, Inc. v. Mack Trucks, Inc. 530 F.3d. 204 (3d Cir. 2008)

• McDonough v. Toys “R” Us, Inc. 2009 WL 2055168 (E.D. Pa. 2009)

• BabyAge. com, Inc. v. Toys “R” Us, Inc., 558 F. Supp. 2d 575 (E.D. Pa. 2008)

However, no reported post-Leegin decision to date has held that an RPM

agreement violates Sherman One under the rule of reason

-- Jury verdict for defendant in Toledo Mack Truck, affirmed on appeal.

Recent Cases – Turik v. Expedia. One of over 30 challenges to online travel company

“best price guarantee” provisions between hotels and OTCs that have now been

consolidated into an MDL proceeding in Dallas.

- 9 -

What about Dual Distribution Arrangements?

Per se or Rule of Reason?

Many manufacturers sell both to resellers and to consumers -

Leegin did.

Does dual distribution transform rule of reason analysis into per se

condemnation? Probably not.

Spahr v. Leegin 2008 US Dist. LEXIS 90079 (E.D. Tenn. 2008)

(applying rule of reason to dual distribution arrangement).

PSKS v. Leegin, 615 F.3d. 413 (5th Cir. 2010) (Leegin on remand;

in dicta).

- 10 -

FTC Activity regarding RPM

2008 Nine West Review: Leegin factors should be used to determine

“when RPM might be subjected to a closer analytical scrutiny”

-- Nine West allowed to resume RPM because of its “modest market

share.” In re NineWest, FTC Docket No. C-3937.

In 2009 the FTC held an RPM Workshop, which was intended “to

explore []how to best distinguish between uses of RPM that benefit

consumers and those that do not.” Unfortunately, no findings or

recommendations were ever issued after the workshop.

- 11 -

United States v. Apple, 12-CV-2826 (S.D. N.Y. 2012)

The “Ebooks” case

In April of 2012 the DOJ filed an action against Apple and five large

publishers alleging they had restrained competition in the sale of electronic

books.

While involving the resale price of ebooks, the DOJ’s claim included the

allegation that the publishers had entered into a horizontal agreement as

well, making the claim materially different than a traditional manufacturer-

imposed RPM agreement.

All publishers have since settled, leaving only Apple as a defendant.

DOJ Activity Regarding RPM

- 12 -

Federal Legislative Efforts

Discount Pricing Consumer Protection Act of 2011 would have trumped

Leegin by adding a sentence to Sherman One stating:

‘‘Any contract, combination, conspiracy or agreement setting a minimum price

below which a product or service cannot be sold by a retailer, wholesaler, or

distributor shall violate this Act.’’

41 State A.G.s wrote to Congress expressing their support of Leegin

repeal, but the legislation failed to be enacted.

New legislation has NOT been introduced this Congress, but Assistant AG

William Baer endorsed Leegin repeal in his confirmation hearing last July,

providing additional support ; on the other hand, new FTC Commissioner

Wright has strongly supported Leegin . . .

- 13 -

State RPM Issues Post-Leegin

Confusion and Uncertainty

- 14 -

State Authority

“Congress intended the federal antitrust

laws to supplement, not displace, state

antitrust remedies. . . and on several prior

occasions, the Court has recognized that the

federal antitrust laws do not pre-empt state

law.” - California v. ARC America Corp., 490 U.S. 93

(1989)

- 15 -

State Court RPM Actions After Leegin

• Early post-Leegin enforcement action by New York, Illinois and

Michigan

• More recent enforcement actions by the California and New York

Attorneys General

• Kansas Steals the Show With O’Brien v. Leegin

- 16 -

In 2008, New York, Illinois and Michigan

challenged office furniture Herman

Miller’s use of RPM; New York v.

Herman Miller, 08-cv-02977 (S.D. N.Y.)

- Complaint alleges Herman Miller coerced

retailers not to discount furniture below suggested

retail price. While the complaint does not expressly

allege per se violations, no attempt to plead a rule

of reason violation is evident in the pleadings (no

allegations about market share, etc.)

Who Cares about Leegin?

We have a State Antitrust Statute to Enforce

- 17 -

Consent Decree quickly accepted by Herman

Miller, only four days after the filing of the

complaint, precluding detailed analysis into

the legal merits of the claims.

Herman Miller agrees to refrain from enforcing its

suggested retail prices and fined $750,000.

Herman Miller Action, cont’d

- 18 -

California:

People v. DermaQuest

• California AG Jerry Brown files complaint on

Feb. 5, 2010, alleging that “DermaQuest has

engaged in vertical price fixing in per se violation

of the Cartwright Act.”

• The DermaQuest agreements provide:

– “Distributor may not resell product in a

price structure that yields a product price

below Dermaquest's Suggested Retail

Price (DSRP)”

– “Reseller may not resell product . . . at

resale below . . . DSRP”

- 19 -

DermaQuest Consent Decree

• Enjoined DermaQuest from

– Entering agreements that bind

distributors “not to sell . . . below a

common standard figure or fixed value”

• Required DermaQuest to send written notice of

the discontinuation of its pricing policies to its

distributors

• Required DermaQuest to pay $70,000 in civil

penalties, plus $50,000 in costs

- 20 -

California: Bioelements Case

• California AG Brown follows up DermaQuest

with People v. Bioelements, Inc., File No.

10011659 (Cal. Super. Ct., Riverside

County, filed Dec. 30, 2010)

• Allegation that Bioelement’s agreements with

distributors and resellers “constitute vertical

price-fixing in per se violation of the

Cartwright Act’” and “unfair competition”

under the California Unfair Competition Law

- 21 -

Bioelements, cont’d

• While initiated under California Attorney General Brown, the Bioelements action was concluded by a Consent Judgment in Jan. 2011 that was approved by Attorney General Kamala Harris

• Despite a change in administration, the Bioelements consent terms mirror those in Dermaquest

• Agreement to permanently refrain from fixing resale prices for its merchandise

• Agreement to inform distributors and retailers that the existing contract provision is void and that Bioelements would not try to enforce it

• Bioelements required to pay $15,000 in civil penalties and $36,000 for

the State’s attorney fees

- 22 -

New York: People v. Tempur-Pedic Int’l

• In 2010, the NY Attorney General brought an action contending

that a contractual prohibition on discounting contained in

Tempur-Pedic’s “Retail Partner Obligations and Advertising

Policies” agreement violated NY General Business Law §369-a,

which provides:

• “Any contract provision that purports to restrain a vendee of a

commodity from reselling such commodity at less than the price

stipulated by the vendor or producer shall not be enforceable at

law.”

• The action sought to enjoin Tempur-Pedic from enforcing its “anti-

discounting policy” and restitution to consumers

- 23 -

New York v. Tempur-Pedic

• People v. Tempur-Pedic International Inc. 30 Misc. 3d

986, 916 N.Y.S. 2d 900 (2011); aff’d 95 A.D. 3d 539, 944

N.Y.S. 2d 518 (2012)

• Section 369-a makes RPM agreements unenforceable, but not

actionable

─ “there is nothing in the text to declare those contract

provisions to be illegal or unlawful; rather the statute

provides that such provisions are simply unenforceable in

the courts of this state”

• The court further held that the only “agreement” between the

parties applied to advertised prices, not prices themselves

– “Advertising agreements cannot be the subject of a vertical

RPM claim, because they do not restrain resale prices, but

merely restrict advertising”

- 24 -

Kansas: O’Brien v. Leegin Creative Leather Products

• Same basic facts as in the Leegin federal case heard by the U.S. Supreme

Court

• A challenge to Leegin’s retailer agreement, which

required that a retailer "[s]ell Brighton products for

the suggested price every day, 365 days a year.“

• At the trial court level, the court held that the rule of reason applied to the

conduct

- 25 -

Kansas Supreme Court Rejects Leegin

• Kansas antitrust statute does not mention “reasonableness” or the rule of

reason in proscribing anticompetitive conduct

• The plain language of the Kansas Antitrust Act prohibits all arrangements,

contracts, agreements, trusts or combinations . . . designed, or which tend

to advance, reduce or control, the price or the cost to the producer or to the

consumer of any such products or articles”

• Rejects deference to federal cases

─ “federal precedents interpreting . . . federal statutes have little or no

precedential weight when the task is interpretation and application of a

clear and dissimilar Kansas statute”

• Holds that Leegin’s conduct is per se unlawful under Kansas law

- 26 -

What Do the State Court RPM Cases Seem to Suggest?

• The likelihood of plaintiff success varies considerably by state, with those

states that have a history of challenging RPM agreements in the past and/or

those that do not strictly apply federal precedent presenting the greatest risk

• Actions by State Attorneys General probably create heightened risk,

although the legal principles are likely to be the same

• Challenges are almost always going to be to minimum RPM agreements;

challenges to “maximum RPM,” though still possible under some state laws,

are not being brought

• The Colgate Doctrine remains the best defense to RPM claims

- 27 -

Legislative Efforts in the States

- 28 -

Maryland Leegin Repeal

Maryland Commercial Law Code Section 11-204(b)

“A contract, combination or conspiracy that establishes a

minimum price below which a retailer, wholesaler or

distributor may not sell a commodity or service is an

unreasonable restraint of trade.” - 29 -

Pennsylvania Legislation

Senate Bill 848, introduced last month, would prohibit

“Contracts, combinations or conspiracies to establish a

minimum price below which a retailer, wholesaler or

distributor may not sell a commodity or service.”

- 30 -

Kansas Legislation

SB 124, an extensive revision of the Kansas Antitrust Act, was passed in

different forms by the Kansas Senate and House. Each version includes a

“reasonableness” component to permit rule of reason treatment for RPM. The

bill was subsequently harmonized in conference committee and passed. It

now awaits the Governor’s signature. - 31 -

States Likely to Present the

Greatest Legal Risk under

State Antitrust Law

Maryland (unlawful by statute)

Kansas (unlawful by Kansas Supreme Court decision – at least for the moment)

North Carolina (State AG pronouncement that RPM remains per se unlawful)

Alabama, California, Connecticut, Mississippi, Montana, Nevada, New Hampshire,

Ohio, South Carolina, Texas and West Virginia - 32 -

April 16, 2013

Vertical Non-Price Restraints Logan Breed, Partner Hogan Lovells 202.637.6407 [email protected]

www.hoganlovells.com

Overview

• Vertical non-price restraints generally subject to rule

of reason treatment

• Several common types

– Territorial and customer restrictions

– Exclusive distributorships

– Location clauses and areas of primary responsibility

– Minimum Advertised Price (MAP) policies

– Dual distribution

34


Standard for Vertical Non-Price Restrictions

• Vertical non-price restraints frequently increase overall competition by promoting interbrand competition more than they reduce intrabrand competition

• Theory predicts that a vertical non-price restraint can affect consumer welfare only if the supplier has market power, i.e., if the supplier can price above marginal cost – Some courts have accepted this theoretical claim and

have held that a vertical non-price restriction is reasonable, and thus legal, if the supplier has no market power

35



• Procompetitive justifications:

– May enable distributors to strengthen their organizations

and compete more effectively with distributors of

competitive products

– May lower distribution costs by enabling each distributor

to make the investment in its distributorship necessary to

obtain economies of scale

– May lead to improved product quality, service and safety

by fostering close, long-term relationships between

suppliers and distributors

– May facilitate entry of a new producer by enabling

distributors to recover initial market development costs

36



• Potential anticompetitive effects:

– May eliminate or unnecessarily reduce intrabrand

competition

– May allow the prices of other brands to rise, thereby

reducing interbrand competition

– May facilitate collusion among competitors

37


Territorial and Customer Restrictions

• Dealer is restricted with respect to the territory in

which, or the customers to whom, it may sell

• Relevant factors in rule of reason analysis include:

– the purpose of the restriction

– the effects on inter- and intrabrand competition

– the manufacturer’s market share

– any offsetting procompetitive benefits of the restraint

– whether there is a less-restrictive means to accomplish

the procompetitive benefit

38


Exclusive Distributorships

• Provides dealer with the right to be the exclusive

outlet for supplier’s product in a given geographic

area

• They are evaluated under the rule of reason and are

“presumptively legal.”

– Republic Tobacco Co. v. North Atlantic Trading Co., 381

F.3d 717, 736 (7th Cir. 2004)

39


Exclusive Distributorships

• Relevant factors include whether:

– the dealer or manufacturer has market power

– the geographic scope is unreasonably broad

– the duration is excessive

– the distributor has exclusive appointments from other suppliers

– the exclusive dealer is given “veto” power over new dealers

– the supplier and exclusive dealer are in substantial competition

resulting in a horizontal allocation of markets

– there is a product shortage or a shortage of alternative sources

of supply

– the arrangement is part of a broader restrictive scheme

– the product is patented

40


Location Clauses & Areas of Primary

Responsibility

• Location clauses restrict the dealer to selling the supplier’s products from a designated location

• “Area of primary responsibility” clauses provide that each dealer must sell the supplier’s products primarily (but not necessarily entirely) within a specified geographic area – In some cases, if the dealer fulfills its sales obligations (in

quotas or dollar terms) in the primary region, it may sell products outside the primary region

• Generally upheld under rule of reason – They might limit, but will not necessarily eliminate, intrabrand

competition; thus, there is less cause to find these less restrictive agreements unreasonable restraints of trade

41


MAP Policies

• Under a MAP program, the manufacturer warns a

dealer not to advertise the product below a specified

price, but the dealer remains free to charge any

price it wants once a customer walks in the door

– Suppliers sometimes enforce a minimum advertised price

by refusing to share the cost of cooperative advertising

with dealers who advertise at some lower price

– Suppliers sometimes enforce by terminating dealers who

violate the policy

42


MAP Policies

• Not subject to Sherman Act § 1 if unilateral

• Subject to rule of reason if there is an agreement

• Factors include – the manufacturer’s justification for the advertising policy

– the manufacturer’s market share and market power with regards to each product to which the advertising program is applied

– the importance of price advertising to competition in the sale of such products

– the ability of dealers to convey price information to consumers by other means

• Internet MAP is perhaps the most difficult to assess

43


MAP Policies – Federal Enforcement

• FTC Guides for Advertising Allowances

– Manufacturer’s decision to condition availability of cooperative

advertising funds on the dealer’s use of the suggested retail

price in advertisements paid for through the cooperative

advertising funds should be analyzed under the rule of reason

and deemed illegal only where it is shown to injure competition

• FTC consent orders with recorded music companies

– FTC alleged the agreements were implemented with the

anticompetitive intent to limit retail price competition and to

stabilize the retail prices in this industry

– By defining “advertising” broadly enough to include all in-store

displays and signs, the policies effectively precluded retailers

from communicating prices below MAP to their customers

44


MAP Policies – State Enforcement

• MAP is an enforcement priority for NAAG, which

regards minimum advertised price co-op advertising

programs as per se illegal

– Some state Attorneys General will challenge if MAP is

used to support an RPM policy

– Herman Miller involved MAP

45


MAP Policies – Best Practices

• Ensure that cooperative advertising programs do not restrict the price actually charged by dealers to their customers

• Do not impose excessive penalties for minor or isolated violations

• Limit the definition of “advertising” so cooperative advertising programs do not prevent in-store promotion of discounted prices

• Ensure cooperative advertising programs do not prevent dealers from advertising discounted prices in advertising not paid for by the manufacturer

• Do not provide cooperative advertising contributions that exceed retailers’ actual promotional costs

46


Dual Distribution Arrangements

• A dual distribution system exists where a supplier markets its products both through its own outlets and through independent dealers

• The difficult issue with these agreements is how to characterize them – Is the agreement a horizontal agreement between competitors

because the supplier’s own outlets compete with the independent dealers? Or is the agreement a vertical agreement between a supplier and a dealer?

• The trend is to consider these restraints to be vertical agreements and therefore subject to the rule of reason – Some courts simply apply the rule of reason in analyzing these

arrangements without characterizing the restraints as vertical or horizontal

47

RPM in Asia / China

Adrian Emch +86 10 6582 9488 [email protected] April 16, 2013

49

Introduction


Antitrust regimes in Asia

• Many new competition laws around the world in the past decade, including in Asia – many antitrust regimes follow EU law

• In Asia, some are established regimes – eg, Japan or Korea

• Others are more recent – Singapore (2004) China (2008), India (2002+), Malaysia

(2012) and Hong Kong (2013/4)

• Antitrust rules also exist in smaller jurisdictions

50


Antitrust regime in Malaysia

• Competition Act – enacted in June 2010

– effective from January 2012

• Other pre-existing statutes with antitrust

provisions – Communications and Multimedia Act 1998

– Energy Commission Act 2001

• Malaysian Competition Commission (MyCC)

is enforcement body

51


Antitrust regime in Singapore

• Competition Act enacted in October 2004, and

effective from January 2005

• Competition Commission of Singapore is main

enforcement body – Ministry of Trade and Industry, with some powers

– Sectoral regulators with antitrust oversight, such as MDA

• Variety of regulations, guidelines and case

decisions on authority website

52


Antitrust regime in Taiwan

• Fair Trade Act enacted in 1991 – effective from February 1992

– amended five times, eg, in 2011 adoption of leniency

program

• Combination of antitrust and unfair competition law

• Taiwanese Fair Trade Commission is main enforcer

53


Antitrust regime in Hong Kong

• Competition Ordinance – passed in June 2012

– staggered effectiveness, likely to be completed in 2014

• Competition Commission and Tribunal being set up

• Guidance to be issued after bodies are operational

• Parallel jurisdiction for media sectoral regulator

54


Antitrust regime in China

• AML enacted in 2007, effective from August 2008

• Prior to AML – and now in parallel – other statutes have antitrust provisions – in particular, Anti-Unfair Competition Law and Price Law

• Three enforcement agencies, with different structures and priorities – all of them issued AML implementing rules

• NDRC in charge of enforcement against RPM

55

56

RPM in Asia


RPM in Malaysia

• Competition Act 2010 explicitly mentions 'vertical

agreements' as potentially anti-competitive

– if object or effect is to significantly restrict competition

• MyCC guidelines specifically list fixed and minimum

price RPM – but not clear if per se offense

– "In general, the MyCC will take a strong stance against

minimum RPM and find it anti-competitive"

– not certain whether 25% safe harbor applies to RPM

– possibly, MyCC may challenge maximum and recommended

RPM

57


RPM in Malaysia

• In theory, RPM could be justified for pro-

competitive effects

• In February 2013, MyCC rejects Nestlé

application for exemption of scheme with RPM

clause

58


RPM in Singapore

• Vertical restraints including RPM are

generally excluded from the application of

the Competition Act

• But Ministry of Trade and Industry may

order that vertical agreement be subject

to competition law if anti-competitive

outweighs pro-competitive effect

• Applicable to RPM

59


RPM in Taiwan

• RPM in principle per se unlawful under Fair Trade Act – no distinction between minimum, maximum and range of

resale prices

• Recent fines for RPM in leisure sector

• TFTC reportedly submitted proposal to legislator to

move RPM to 'rule of reason' analysis

60


RPM in Hong Kong

• 'First conduct rule' focused on cartel-like

agreements

• Vertical agreements are subject to

'warning notice' system

– direct prosecution by Competition Commission

not possible

– only upon non-compliance or repetition

61

62

RPM in China


RPM in China

• Fixing resale prices is prohibited

• Recommended and maximum resale prices not addressed in law

• RPM may be exempted based on non-exhaustive list of justifications

• In short, RPM seems subject to 'rule of reason' analysis

63


RPM in China (2)

• Johnson & Johnson case in 2012 indicates

difficulties for plaintiffs to challenge RPM

• Shanghai court requires plaintiffs to prove that RPM

practice actually harms competition

• Analysis of anti-competitive effects should include

– examination of market shares

– level of competition in upstream and downstream markets

– RPM's impact on supply quantity and price

64


RPM in China (3)

• NDRC local offices fine Maotai and Wuliangye RMB

247 / 202 million (around USD 40 / 32 million)

– combined, new record for antitrust violation in China

• Wuliangye's RPM policy held to be illegal – intra-brand price competition eliminated

– inter-brand competition restricted ('bad example')

– consumer interests harmed, due to strong market position

and low degree of substitutability

• Difficult to interpret, but case shows risks

65

66

In a nutshell

www.hoganlovells.com 67








For any questions, please contact:

Adrian Emch

Tel: +86 10 6582 9510

Email: [email protected]


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Antitrust Pitfalls for Manufacturer-Imposed …media.straffordpub.com/products/antitrust-pitfalls-for...Antitrust Pitfalls for Manufacturer-Imposed Requirements ... The “Ebooks”