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Roberts Supremes reverses 100 years of antitrust law
June 29, 2007 12:13 PM Subscribe

There's been much talk about the Supreme's decisions on desegregation and free speech, but another ruling with broad consumer impact has gone relatively unnoticed. In a 5-4 decision [PDF], the U.S. Supreme Court struck down a 96-year-old ban on minimum pricing agreements between manufacturers and retailers. Dissenting opinion believes that this ruling will hurt consumers, raise prices and keep new retailers out of the marketplace. The 1911 ruling that was overturned was Dr. Miles Medical Co. vs. John D. Park & Sons which decided that it is always illegal for a supplier to dictate minimum prices to a retailer.
posted by dejah420 (47 comments total) 4 users marked this as a favorite

Greg Mankiw posted on this a bit ago. It's by no means a clear-cut issue.
posted by Aloysius Bear at 12:17 PM on June 29, 2007

As obnoxious and anti-free-market as this ruling is, it should be pretty easy for small retailers to work around with a little creativity.

"The manufacturer won't let me sell you this item any cheaper, but they can't stop me from throwing in this other thing absolutely free!"
posted by Faint of Butt at 12:18 PM on June 29, 2007

"The manufacturer won't let me sell you this item any cheaper, but they can't stop me from throwing in this other thing absolutely free!"

I think it will be more like, "The manufacturer won't let me sell you this item any cheaper."
posted by Mr_Zero at 12:20 PM on June 29, 2007 [2 favorites]

No doubt "manufacturing" will be interpreted to mean "providing any service whatsoever".

Minimum charge to use AT&T's phone lines, anyone?
posted by telstar at 12:22 PM on June 29, 2007

Just to be clear. The Supreme Court did NOT say that vertical price restraints are totally cool and allowable. What the ruled was that they would not longer be per se illegal. That is, they are no longer automatically prohibited. Rather, vertical price restraints would now be governed by the "rule of reason" that governs much of anti-trust law. The Rule of Reason is that the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition. So now a trier of fact can decide. If they find them to be anti-competitive, then they can still be violative of the Sherman Act.

That's a bit different than suggesting that all vertical price constrains are now allowed no matter how much they screw consumers. I would also note that this is a statutory issue, not a constitutional one. Congress can easily step in and add a provision to the Sherman Act to make clear they are per se unreasonable if they would like.
posted by dios at 12:32 PM on June 29, 2007 [1 favorite]

A bit ironic as it all kind of started with Ralph Nader, champion of consumer rights.
posted by paulinsanjuan at 12:35 PM on June 29, 2007

Does this mean I have to be a cognitively dissonant apple fanboy for every bloody thing I buy?
posted by srboisvert at 12:36 PM on June 29, 2007

Despite some added expense to consumers this will benefit many small local businesses now being out competed on price by big box stores and internet retailers.
posted by caddis at 12:36 PM on June 29, 2007

As obnoxious and anti-free-market as this ruling is, it should be pretty easy for small retailers to work around . . .

Wait. Small retailers probably favor this ruling, on balance. Or at least, one classic justification for allowing resale price floors (as mentioned in the Mankiw link above) is that it protects Small Local Business against consumers who go there to learn all about the product from a helpful salesperson, then leave and actually buy the product for less from Big Box Discounter.
posted by chinston at 12:37 PM on June 29, 2007

it's good for you that you have to pay more now! don't you realize this? how stupid are you?
posted by bruce at 12:41 PM on June 29, 2007 [5 favorites]

I'll admit to knowing little about all this, but isn't this all useless in the era of Wal-Mart? Wal-Mart basically sets its prices and then demands the manufacturers sell to them at whatever price they deem fit. If there's suddenly a "minimum price" then Wal-Mart will simply just tell them they have to sell to them at whatever price Wal-Mart deems profitable enough, and fuck 'em if they can't meet that. I don't think Wal-Mart cares how much they sell something for, as long as it's cheaper than anybody else while still making xx% overhead.

On the side, I'm very interested in seeing how big an overlap there is between people who think there shouldn't be a ban on minimum prices and people who think there shouldn't be a minimum wage.
posted by XQUZYPHYR at 12:41 PM on June 29, 2007

"The manufacturer won't let me sell you this item any cheaper, but they can't stop me from throwing in this other thing absolutely free!"

I think it will be more like, "The manufacturer won't let me sell you this item any cheaper."
posted by Mr_Zero at 3:20 PM on June 29

You're both wrong. It will be more like: "The manufacturer won't let me sell you this item any cheaper, but here's an exact copy from China for half-price."
posted by Pastabagel at 12:43 PM on June 29, 2007

For the uninitiated, this is the good ol' contract law of resale price maintenance.

And dios is right. The case just overturned that it's per se illegal. Now the court will have to apply a rule of reason test to determine whether it's illegal or not, which is just ambiguous enough to scare the crap out of both supplier and retailer to force them to resolve their dispute contractually, and out of court.
posted by Pastabagel at 12:48 PM on June 29, 2007 [1 favorite]

"The manufacturer won't let me sell you this item any cheaper, but here's an exact copy from China for half-price."

Again, honestly curious: hasn't this been the case for the last, say, twenty years or so already? A ban on minimum prices hasn't exactly stopped the increasing U.S. reliance on cheap imports.
posted by XQUZYPHYR at 12:50 PM on June 29, 2007 [1 favorite]

I have an absolutely ridiculous amount of reading to do--a lot of it to see if anything I'm working on is affected. Still more to confirm or mollify my initial outrage, though this particular decision doesn't bother me too much (apart from the fact that this Court is unbelievably cavalier about stare decisis, apparently even in non-constitutional cases).

By no means do I expect the pace of the dramatic changes happening now to slow down over the next couple of years. Lots and lots and lots of very old cases are going to be overruled.

I also expect the last month to get a nickname, but I can't think of one right now.
posted by kosem at 12:57 PM on June 29, 2007

I thought that some manufacturers have effectively been setting minimum prices for years by denying coop advertising funds to retailers that don't comply.
posted by Slothrup at 12:58 PM on June 29, 2007

Would this reverse the "Minimum Advertised Pricing" court losses the big record companies had? I believe the deal was that you could sell a record for whatever you wanted but the record companies would stop giving you kickbacks or something if you advertised it for less than their desired minimum price or something along those lines.

Perhaps, but they would still have to convince a court that MAP is not anti-competitive. I can not think of a winning argument for them on this. Regardless, WalMart CD pricing is the least of their worries these days. Free is the price they are competing against.
posted by caddis at 1:01 PM on June 29, 2007

On the side, I'm very interested in seeing how big an overlap there is between people who think there shouldn't be a ban on minimum prices and people who think there shouldn't be a minimum wage.

Also people who are against vertical restrictions on price competition when it's called "resale price maintenance" and people who are for vertical restrictions on price competition when it's called "fair trade."

For my own part, I'm not sure.
posted by chinston at 1:04 PM on June 29, 2007

Roberts and Alito concurred 88% of the time. I guess people were wrong to call him Scalito. Robalito maybe?

Jack Balkin: "In all three cases, we see that Scalia and Thomas are much more willing to overturn existing doctrines that they oppose. Roberts and Alito, on the other hand, want to chip away at the doctrines slowly, using distinctions that make little sense on their own, but undermine older precedents-- leaving the possibility that they will be ripe for overruling later on."

Visualization of all the recent 5-4 decisions (.pdf).

The politicization of the SCOTUS under Bush isn't a pretty thing.
posted by bardic at 1:19 PM on June 29, 2007 [3 favorites]

Visualization of all the recent 5-4 decisions

Justice Kennedy seems like a very agreeable guy.
posted by peeedro at 1:24 PM on June 29, 2007 [1 favorite]

It's well known that the price of a brand can put that brand into its own niche market. There are many examples of brands which people will choose to pay a premium price for, even if that brand is attached to a product that has little or no innate functional value which improves it or otherwise sets it apart from its competitors.

If the Supreme Court's 5-4 decision is seen as ideologically motivated, i.e. as the usual conservative agenda of giving multinationals freer rein over the country's economy, this can be interpreted in one sense as allowing a shrinking number of large corporations greater freedom to forcefully market equivalent products into different pricing tiers, reaping greater profits from the same product, by simply pricing higher and rebranding.

Another way that weaker laws are troubling is that decades of consolidation means multinational corporations and distributors are now often one and the same — more markets in fewer hands — and they can decide not only how much supply they provide, but control demand by forcing arbitrarily high prices for it.
posted by Blazecock Pileon at 1:27 PM on June 29, 2007

You're both wrong. It will be more like: "The manufacturer won't let me sell you this item any cheaper, but here's an exact copy from China for half-price."
posted by Pastabagel at 12:43 PM on June 29 [+] [!]

And you get free anti-freeze!
posted by Mojojojo at 1:29 PM on June 29, 2007

I think the abstract assumption is that this could mean lots of things for lots of different situations. Maybe it could be a boon for manufacturers, but I think the most likely result is that it's a giant protection for a Walmart.

It stops competing businesses from using loss leaders to bring people into the store. Without special sales like that, there's little room for competition. In a way the law seems like a free-market decision, but it has the opposite effect because of Walmart's current grapple on the market. Walmart can demand that manufacturers have minimum pricing or refuse to do business with the manufacturer.
posted by destro at 1:31 PM on June 29, 2007

Another way that weaker laws are troubling is that decades of consolidation means multinational corporations and distributors are now often one and the same — more markets in fewer hands — and they can decide not only how much supply they provide, but control demand by forcing arbitrarily high prices for it.

Econ 101: even a monopolist with 100% of the market can't control demand and supply. A monopolist either picks the price he sells at, or he picks the quantity he produces.
posted by Aloysius Bear at 1:36 PM on June 29, 2007

Econ 101: even a monopolist with 100% of the market can't control demand and supply

I'm not talking about monopolies, but rather more real-world problems along the lines of price fixing, ala ADM, or to some degree gasoline distribution, which is easier to do when you control supply and can now more easily work around pesky demand issues with a shrinking number of competitors.
posted by Blazecock Pileon at 1:44 PM on June 29, 2007

And you get free anti-freeze!

Sweet!
posted by phatkitten at 1:47 PM on June 29, 2007 [2 favorites]

Walmart can demand that manufacturers have minimum pricing or refuse to do business with the manufacturer.

If past history is any indication, it's more like Walmart says, "We want this product at this price that you make no profit on, or we stop selling all your products." And the retailers cave because Walmart is such a chunk of their business. The retailers themselves then refuse to sell at that price to anyone else.
posted by smackfu at 1:55 PM on June 29, 2007

XQUZYPHYR: I'll admit to knowing little about all this, but isn't this all useless in the era of Wal-Mart?

Not really, because it's not likely to impact things which are carried by Walmart. For instance, the handbags in this case, if I'm not mistaken, cost hundreds of dollars. These are not items that Walmart would carry, because their demographic wouldn't support it.

I understand why manufactures would want X amount of money for their product; what I don't understand is why they care what the product sells for after that.

For example, I own a small manufacturing business. I service a few wholesale accounts, and they get a discount based on volume of purchase. I also have a retail presence online, so customers can see what I charge for the product...ergo, the suggested retail price is the retail price that I charge.

Some wholesale clients have a private label agreement, whereby I label their product with their name, and they sell for up to 300% higher than I charge. I also have a client who doesn't private label, and sells my product for less than my retail price, because they bundle it into a larger gift selection. In both cases, I've made my money before the product reaches the wholesaler...so what they do with it after they receive it is up to them.

It could be argued that someone who sells for less than my MSRP is hurting *me*, because of price shoppers, but in fact, it spreads my brand, and so I see it as win/win. The more people that have my product in hand, the better off the company is likely to be.

And again; at wholesale, I'm still making a profit, I'm just not making the profit I would make at full retail. But it's about the same profit I make when things are on sale, or when I offer coupons or seasonal discounts, or free shipping or whatever.

From my perspective, and again, I probably don't understand the law...or perhaps even economics well enough to make this statement...but from my perspective, this ruling doesn't seem to do anything but hurt the consumer by setting arbitrary price points from which no retailer can deviate.

Listen, the people who want to shop at Lord and Taylors and are willing to pay the prices to get that level of service don't care about itty bitty discount strip mall stores. Itty bitty strip mall stores can't afford to pretend like they can offer the service level of Lord and Taylor. If you take away the ability to compete on price, then you pretty much force these retailers out of business, or into the gray-market knockoff business.
posted by dejah420 at 2:16 PM on June 29, 2007 [1 favorite]

You know who else advocated counterfeiting?

HILTER!
posted by ROU_Xenophobe at 2:21 PM on June 29, 2007 [3 favorites]

Econ 101: even a monopolist with 100% of the market can't control demand and supply.

Econ 101: Rules from Econ 101 do not actually apply in the real world (In most cases).
posted by delmoi at 2:47 PM on June 29, 2007

Despite some added expense to consumers this will benefit many small local businesses now being out competed on price by big box stores and internet retailers.

Wrong wrong wrong, as I heard a commentator on NPR point out yesterday.

Do you think Sony is going to pull their products from Wal Mart's shelves, because Wal Mart is selling them below the minimum price Sony has set for them? Hell no. At this point, Sony needs Wal Mart a lot more than the other way around.

On the other hand, Sony could give a fuck about pulling their products from Joe 's Main Street Electronics.
posted by dersins at 2:49 PM on June 29, 2007

delmoi: Remind me how exactly a monopolist could set both price and quantity? If they set the price, they can't sell more than the market demand without frogmarching people into their stores and putting guns to their heads (and selling less than market demand for a fixed price would be stupid). If they set the quantity they produce (presumably below market demand), they can't set the price above the market price for that quantity.
posted by Aloysius Bear at 2:58 PM on June 29, 2007

Aloysius Bear, I learned about elasticity in Econ 1.

This ruling is good when it applies to highly technical or expensive products that require a lot of consumer education in the sales process. It enables the businesses that care enough to hire knowledgeable salespeople and give out detailed product brochures to compete with the stripped down big box or Internet merchant.

While I'm sure there are bad aspects to this ruling as well, I think except in the cases of inelastic goods it would hurt the manufacturer as much as the consumer to set a price floor.
posted by BrotherCaine at 3:04 PM on June 29, 2007

Pastabagel: The issue is not between the manufacturer and the retailer, and it is not a question of contract law. Keep in mind that price fixing is illegal, i.e., the government comes after you for doing it. If you could contract out of liability, then there would be little room for most antitrust law.
posted by Slap Factory at 3:35 PM on June 29, 2007

This is about brands that want to be sold through retailers that hire people who provide real customer service as opposed to just ring you up. This won't affect Wal-Mart because Wal-Mart doesn't compete in that market. They will sell different, yet equivalent brands. This is about companies that have showrooms where you can go an try things out, and sales people who will show you how the widget works. If people find value in a sales environment like that they should pay for the service, and not take the service and buy the thing at Wal-Mart anyway.
posted by betaray at 3:52 PM on June 29, 2007

Wait, so let me get this right:

It's now no longer per se illegal for a company to prevent anyone from selling my product too cheaply,

and

the determination of whether such an agreement is bad for the market is assessed on a case-by-case basis,

and

in order to bring suit against a retailer who does this, I have to prove that I've actually suffered from this personally (that is, have standing, right? wasn't there recently just an increase in the difficulty of proving that I have standing).

This plebe is failing to see the upside.
posted by TheNewWazoo at 4:22 PM on June 29, 2007

Aloysius Bear, I'm not an economist, but if advertising didn't at least hypothetically increase demand there probably wouldn't be so much of it.

Demand solely affected by supply in any but the simplest cases. Why do people buy diamond rings? Why does everyone with a car pay for car insurance? Why would PS2 sales right after the PS3 launch date was announced?

And I guess, why are donations to the 'help a mugger foundation' so popular?
posted by Orange Pamplemousse at 4:48 PM on June 29, 2007

um... Demand is not solely; PS2 sales drop right after

slinks away
posted by Orange Pamplemousse at 5:00 PM on June 29, 2007

Bush Court: We're not bound by precedent when there's "widespread agreement" among Chicago School economists-- ... In today’s dollars, Justice Breyer estimated that the agreements translated to a higher annual average bill for a family of four of about $750 to $1,000. ...
posted by amberglow at 6:25 PM on June 29, 2007 [1 favorite]

The impact on a small industry, in particular, tabletop gaming.
posted by bigbigdog at 8:50 PM on June 29, 2007 [2 favorites]

and big retailers too, will be hurt--won't all loss leaders disappear now? The power of retailers to discount to get shoppers in the door is less now, while the power of manufacturers/corps is now dominant.
posted by amberglow at 9:54 PM on June 29, 2007

... This “has been our best Supreme Court term ever,” said Robin Conrad, executive vice president of the U.S. Chamber of Commerce’s litigation group. Of the 15 cases decided this term in which the Chamber took a position, the court sided with the Chamber 13 times.
Maureen Mahoney, a Washington attorney who has argued cases before the justices, said the court under former Chief Justice William Rehnquist was famously favorable to business, “but we now know that the Roberts Court is even better.” ...
posted by amberglow at 10:18 PM on June 29, 2007

It could be argued that someone who sells for less than my MSRP is hurting *me*, because of price shoppers, but in fact, it spreads my brand, and so I see it as win/win. The more people that have my product in hand, the better off the company is likely to be.

posted by dajah420

So, you are the manufacturer of Doc Johnson 'marital aids'?
posted by beelzbubba at 11:39 PM on June 29, 2007

Is this going to have a ripple effect that causes reduce package shipments for UPS, FedEx, and USPS? I'd imagine there will be a shift from Internet sales to in store sales nationwide as most people will choose to go in store where they can buy at the same price minus shipping. There may be a huge increase in efficiency for some sectors, as there will be less shipping and packaging costs per unit moved.
posted by BrotherCaine at 12:27 AM on June 30, 2007

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Roberts Supremes reverses 100 years of antitrust law June 29, 2007 12:13 PM Subscribe

Roberts Supremes reverses 100 years of antitrust law
June 29, 2007 12:13 PM Subscribe