[TriLUG] OT: Developer Rates

Aaron S. Joyner aaron at joyner.ws
Fri Apr 23 12:03:19 EDT 2004


Andrew Perrin wrote:

>IANAL either, but a couple of points:
>
>- I believe RICO is different from price fixing; RICO is about organized
>crime (although it's been misused against, e.g., anti-abortion
>protesters).
>  
>
The reason I suggested RICO is not that I was aware of any particular 
aspect of RICO that deals with price fixing, I chose it simply as an 
example of an abused / over-used statute(?) that deals with crime in 
that area (mobsters are often accused of price fixing, at least in my 
mind :) ).

>- Price fixing is basically an antitrust issue, and at least in theory it
>therefore has everything to do with the actor's market power. An actor or
>group of actors who are essentially "price takers", meaning their pricing
>decisions, alone or as a group, can't change the structure of the market
>they're participating in, ought to be allowed to discuss pricing all they
>want. Price fixing comes into play when one or a few market actors have
>the ability to change the pricing structure by their (individual or
>collective) decisions; to wit, Microsoft with Windows or Kodak with film
>processing.
>

I decided of my own curiosity to do a touch more cursory research.  I 
found an interesting article[1] which sites the supreme court stating 
this in 1940:

> That *price-fixing* includes more than the mere establishment of 
> uniform prices is clearly evident....  [P]rices are fixed ... if the 
> range within which purchases or sales will be made is agreed upon, if 
> the prices paid or charged are to be at a certain level or on 
> ascending or descending scales, if they are to be uniform....  They 
> are fixed because they are agreed upon. [2]

And in a different case (in 1956), faced with more direct price fixing:

> [i]t makes no difference whether the motives of the participants are 
> good or evil;  whether the *price fixing* is accomplished by express 
> contract or by some more subtle means;  whether the participants 
> possess market control;  whether the amount of interstate commerce 
> affected is large or small;  or whether the effect of the agreement is 
> to raise or to decrease prices. [3]

So my (IANAL) assessment of that is that it doesn't matter how big or 
small you are, or even what the real motivations are.  The kicker 
appears to be if you are attempting to define a set price, range, or 
scale for goods or services to be sold at.

It's an interesting legal issue, and I tend to like interesting legal 
issues.  As with most things of this nature, there's very little black 
and white, and an awful lot of grey.

Friendly public service announcement / reminder: IANALPOOBS  (I am not a 
Lawyer, Paralegal, or other Blood Sucker).

Aaron S. Joyner

1. http://www.law.emory.edu/11circuit/wpds/feb98/95-4714.man
Google html-lization available here: 
http://216.239.41.104/search?q=cache:dsKsx2HYAiwJ:www.law.emory.edu/11circuit/wpds/feb98/95-4714.man+rico+%22price+fixing%22&hl=en

2. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222-23, 60 
S.Ct. 811, 843-44, 84 L.Ed. 1129 (1940)
3. United States v. McKesson & Robbins, Inc., 351 U.S. 305, 310, 76 
S.Ct. 937, 940, 100 L.Ed. 1209 (1956)



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