Distribution, Competition, and Antitrust / IP Law

What You Need to Know About The Four Basic Types of Pricing Claims (Part 3)

This is the third in a series of posts.  The last post can be found here.

Price information exchanges that do not impact pricing.  Such an exchange by itself is probably not subject to private challenge. See, e.g., Blomkest Fertilizer, Inc. v. Potash Corp. of Sask., Inc., 203 F.3d 1028 (8th Cir. 2000) (price verifications only concerned charges on particular completed sales, not future market prices; no evidence supported inference that the verifications had an impact on price increases; the only evidence was that prices were possibly cut as a result; defense summary judgment affirmed).

Note, however, that a price information exchange could be viewed as a “plus factor” that tends to support an inference of an actual price agreement.  Therefore, it is always advisable to consider the antitrust implications of any exchange of price information before engaging in such an exchange.

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About Howard Ullman

Antitrust, competition, and IP law enthusiast.

Comments

  1. Thanks Howard,

    Terrific series on pricing types. I have a follow up question I think your readers would like know about. Given that there is always some risk when competitors exchange information as commercially sensitive as prices, there are many third party firms that are in the business of interposing themselves between the parties and collecting, analyzing, anonymizing, aggregating and then distributing information back to the participants while maintaining the -anonymity of each.

    Could you comment on the appropriate structuring of an exchange among horizontal competitors through the use of a third party benchmarking firm? Under what circumstances would that sort of arrangement clearly pass antitrust muster? What are the minimum safeguards that the participants should always require, even in highly de-concentrated industries? And, at what level of concentration should even benchmarking be avoided, if any?

    Regards,

    Steve.

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