Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

  Sections 2 (d) and (e) of the Clayton Act require that payment for services or facilities furnished in connection with processing, handling or sale of commodities bought for resale be made upon proportionally equal terms. These Sections are limited to advertising or promotional allowances provided in connection with the resale of the seller's goods.
  Section (d) is limited to discrimination bet …

Promotional allowances

Price discrimination is actionable under the Robinson-Patman Act, which amended the Clayton Act (15 U.S.C. § 13), as well as under Section 2 of the Sherman Act.

  Courts have defined price discrimination within the meaning of the Clayton Act as “merely a difference in price.” (Federal Trade Commission v. Anheuser-Busch, Inc., 363 U.S. 536 (1960)). Even where a commodity is sold to two buyers at the same price, the prohibition may apply if one receives significantly better terms for return, warranty services or other benefits. In order to establish a price difference, sales must be reasonably contemporaneous so that the differential is not the result of a changing market.

  The commodities at issue must be of “like grade and quality” (15 U.S.C. § 13 (a)). This inquiry considers whether there are differences affecting customer use, perception or marketability. The differences must be in the actual product, not merely in the trademark, and alterations must be “significant” to render goods unlike.

  Often, the most difficult element for the plaintiff at trial is to adequately demonstrate that there is a “reasonable possibility” that competitive harm will ultimately result from defendant's acts. Analytically, the inquiry differs depending on whether the injury asserted is at the seller's own competitive level (primary line injury) or at some lower level of the distribution hierarchy (secondary line injury).

  The Supreme Court has clarified that primary line injury under the Robinson-Patman Act is essentially the same as a predatory pricing claim under Section 2 of the Sherman Act. As set forth above in the context of actual or attempted monopolization, in order to find predatory pricing both statutes require evidence that the challenged prices were below an appropriate measure of costs and that the defendant had a reasonable prospect of recoupment.

  With regard to secondary line cases, competitive injury may be established by evidence of substantial price discrimination between competing purchasers over a significant period of time. No competitive injury exists unless the favored and disfavored purchasers operate in the same geographic market. Thus, at least one Court of Appeals has held that favorable pricing to direct end buyers falls outside the Clayton Act since the allegedly disfavored plaintiff was not in competition with the advantaged end users (Lycon, Inc. v. Juenke, 250 F.3d 285 (5th Cir. 2001)).

  Even where a prima facie case of price discrimination is established, a defendant has a number of affirmative defenses. A defendant may justify price discrimination on grounds that the price differential is due to cost savings from the different methods or quantities in which the product is sold or delivered, or to meet a competitor's low price (15 U.S.C. § 13(b)). Price discrimination can additionally be defended against on the grounds that the reduced price was also available to the allegedly disfavored customer. Finally, under the “functional discount” justification, a supplier can reward the additional services performed by a category of customers in the course of their distribution function as opposed to others not providing such services.

Buyer liability for knowing inducement or receipt of discriminatory prices is covered by Section 2(f ). Buyer liability is entirely derivative and it cannot be found absent seller liability.

Price discrimination

  Sections 2 (d) and (e) of the Clayton Act require that payment for services or facilities furnished in connection with processing, handling or sale of commodities bought for resale be made upon proportionally equal terms. These Sections are limited to advertising or promotional allowances provided in connection with the resale of the seller's goods.

  Section (d) is limited to discrimination between “customers,” while Section 2(e) is limited to discrimination between purchasers. A sales agent is not a customer under Section 2(d), but may be a purchaser under Section 2(e).

  The FTC has concluded that a prima facie case under both provisions must include proof that promotional offers were not affirmatively made available to the injured customer. A promotional offer is made available where a supplier takes reasonable steps to make the offer known to all competing customers.

   Tort law is a judge-made law which varies from State to State. Tort law also exists at the Federal level. One should read each of the major court cases discussing torts to get a clear picture of how to define tort. In the 1990's, new torts category appeared: business torts. General consensus includes as business torts unfair competition and tortious interference with contractual relations. Those also come under the scrutiny of Section 5 of the FTCA. Indeed, some competitor's activities may be found by a court to be unfair, such as using illegal methods to compete or using methods solely designed to destroy a competitor with no other purpose, or to create tortious interference with contractual relations.

Global Competition Law

1446. Promotional allowances

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Les notions juridiques connexes

1446. Promotional allowances

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise