Attorney Wendelynne Newton, of the Pittsburgh-based firm Buchanan Ingersoll & Rooney PC is no stranger to CHESS audiences. She has spoken to IHA groups in the past and delivers complex information in a straightforward manner. She set the stage for her remarks by stating that the rapidly changing marketplace is hazardous: the retail sector is not for the faint of heart. The market is trying to figure out who will be the winners and losers. With pricing transparency and the explosion of consumer choice, manufacturers are dealing with serious issues in real time while operating in an environment of changing regulations as well.
Companies look for solutions to issues such as brick & mortar stores demanding price enforcement against retailers that “showroom.” Consumers shop in stores with their cell phones in hand to compare prices and the number of consumer shopping trips is decreasing. Newton cautioned manufacturers to be mindful of the U.S. antitrust laws in the sale and resale of their products online and in physical stores. She addressed issues related to the Sherman Act and the Robinson-Patman Act, and the 2007 Supreme Court decision in Leegin Creative Leather Products v. PSKS, Inc. 551 U.S. 877. She stated that this court case did not address internet realities in its review of economic considerations.
It is increasingly difficult to define competitors, channels of trade, and pricing policies when the boundaries are blurring between brick & mortar and online sellers. Additionally, while there are federal antitrust laws, many states take contrary positions with their state laws. She focused on five antitrust challenges:
- Illegal Price Agreements
- Minimum Advertised Price (“MAP”) Policies
- Non-Price Restrictions
- Price/Promotion Restrictions
- Unauthorized Resellers
In defining each issue, Newton cited pertinent cases and their rulings and then offered some practical approaches. Manufacturers should confer with experienced attorneys to help them navigate these situations. Be sure to educate employees who communicate with retail customers in order to protect your company and avoid disagreements.
For further information, contact Wendelynne Newton, via email or at 412-562-8932.
