Supreme Court Decision on MSRP

JimRay

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There have been occasional discussions on this forum concerning Festool's pricing policies. A recent Supreme Court decison seems (to my decidedly un-trained legal mind) to affirm the right of a company such as Festool to set prices for its products. This may not qualify as "interesting" reading as compared to say, the new Festool catalog, but some of you may nevertheless be interested.

http://www.supremecourtus.gov/opinions/06pdf/06-480.pdf

Jim Ray, President
McFeely's Square Drive Screws
 
They can set one price for their tools, what is against the law is for Festool, Porter Cable, Dewalt, xxxxxx, and others to all agree that no sander will sell below $300, thus price fixing across a product category, or industry, not within a single company. Or at is at least how I understand it to be.
 
That is certainly my take on it. But I don't think anyone has been accusing any of those fine companies of collusion!

Jim Ray, President
McFeely's Square Drive Screws
 
The decision seem to specifically say that manufacturers and distributers *can* agree on minimum prices. And now it will all be decided on a "case-by-case basis". Perfect for corporations and lawyers, for consumers: maybe not-so-good.
 
I don't think you'll find any product who's quality is way above average being discounted anywhere.... Just look at Apple..... No mail order dealer will/can offer any Mac at a discount.... but you will see store-sponsored "package deals"... that is they throw in a third-party carrying case/backpack for a MacBook, or a printer for "free" after mail-in rebate, and you pay the shipping.... Usually an Epson, to which I "just say no".... Epson is like a drug dealer... practically give the printer away for free, so that they get you hooked on buying those puny ink cartridges that cost a lot more than cartridges from ... say Canon, which I prefer a whole lot more... I once asked why they don't have Canon Printers in the catalogue, and was told it's because Canon doesn't pay them to like Epson does. Even though they stock Canon and have them on their website.... Now that's something that should be looked into... having to pay someone to show your product in the catalogue, even though they stock it anyway.... Sorry for ranting, you have to remember I prefer Mac's to PC's, Canon's to Epsons... and Festool to most anything else.

Gary
 
Jim,
  I thank you for posting. I am only 3 pages into the 55 and I don't understand any of it. It's way worse than going to metric.
  But it is an important decision and I do not see that the collusion is the pertinent factor, but vertical marketing is.  And that Festool's pricing policies are AOK.  Anyone reading this please understand that this does not mean that I like high prices. It is not that at all. I do like that the manufacturer can establish a price and ensure that everyone sells at t hat price.
  Jim, I look at McFeeleys, and you, are people who understand the needs of the marketplace. You bring to that markeplace a wide array of products to take care of their needs. And you establish a price that you feel is fair to them and to you. That is the way it should be, but I am certain that there are many sellers who would like to compete with you on price alone...after all, you have established the service aspect. It means that ebay, amazon, China mfrs. and others can make selling fair almost an impossibility. End of Lucas rant for the day.

Thanks Jim.
 
This article will explain the decision without all the legal talk. 
http://www.forbes.com/feeds/ap/2007/06/28/ap3867730.html

The courts thinking, is pretty much what festool has said.  They don't want people to shop for price, they want people to shop for customer service.  The court views this type of activity part of the companies marketing strategy and thus want to give them the freedom to compete as they see fit rather than the government.  As others have said, this does not allow companies to collude, that is completely illegal.  I think the crying wolf on the part of Justice Breyer and others is just that.  Companies that have minimum price agreement are unique and their products must have significant value (not monetary) to consumers if they are willing to pay the higher price.  So companies like Festool, Leigh, Kreg Tools, etc. could have such agreements and not suffer lower sales.  Companies like Dewalt, Milwaukee, etc. would have a much harder time considering their products and how they make money (volume sales).

One interesting part of the decision seems like it could affect Festool's Domino.  Depending on how you determine what the domino does, i.e. does anything else legally do what the domino does.  Despite what Festool says in its marketing, I think in those court arguments, they would say that the biscuit joiner, pocket screws, multi router, etc. fit the tool category and keep the domino from being a singular product.  I would take the quote below differently, as I think a court would.

"Moreover, if only one brand is available, retailers and consumers can still sue manufacturers for anticompetitive conduct, Englert said. The courts will now evaluate such suits on the merits, rather than automatically finding them illegal."
 
I've posted about this subject before, but did not include a link to the full court decision.

Even if the court or US Dept of Justice anti-trust division should have of change of view regarding resale price maintenance agreements, Festool could circumvent that change of law by ceasing to sell tools to stocking dealers or others for resale, and instead own the inventory until the actual sale through their authorized outlets at a price dictated by FestoolUSA. 

Also, when the items being marketed are patented, many of the classic anti-trust law rules of thumb no longer apply, or apply in modified form.  More restraints on market practices are available for patented items.  There is no law requiring the owner of a patent to make or sell anything, or to license others to do so.  I have not checked, but I would expect that Festool has at least one patent pending that applies to Domino. 

Dave R.
 
Interesting thread.

Festool Australia recently had their collar felt by the Australian Competition and Consumer Commission (ACCC).

Tooltechnic Systems (Aust) Pty Ltd
s. 48. Alleged resale price maintenance

17 January 2007: the ACCC accepted court enforceable undertakings from both Tooltechnic Systems (Aust) Pty Ltd and its Company Secretary and Managing Director, Mr Holger Schulz.

30 January 2007: The ACCC instituted proceedings in the Federal Court, Brisbane against Tooltechnic Systems (Aust) Pty Ltd for allegedly attempting to induce power tool resellers not to discount from list prices. This matter is listed for a directions hearing before Justice Kiefel on 7 March 2007.

21 March 2007: The Federal Court of Australia ordered a penalty of $125 000 against Tooltechnic Systems (Aust) Pty Ltd, the importer of Festool power tools, for resale price maintenance. Justice Kiefel in the Federal Court, Brisbane made the orders by consent in proceedings instituted by the ACCC. The court declared that Tooltechnic engaged in resale price maintenance in 2001 and 2002, granted injunctions for three years against similar conduct and ordered the company to pay costs of $25 000.

The ACCC took action in relation to conduct by two (now former) Tooltechnic sales managers, who went too far in implementing new dealership agreements by attempting to discourage retailers from discounting from recommended prices.

In settling the proceedings, Tooltechnic also gave a court-enforceable undertaking that it would implement a trade practices compliance program and Tooltechnic?s managing director, Mr Holger Schulz, gave a court-enforceable undertaking in relation to his training and supervision of staff.

 
Llap Goch said:
Interesting thread.

Festool Australia recently had their collar felt by the Australian Competition and Consumer Commission (ACCC)

Pat,

I assume this may well result in dealership agreements being reviewed and not renewed based upon "other than price discounting" reasons.  :) Herr Doktor Festool will not just roll over and play dead.
 
In a case probably started by some working stiff making a complaint to the court about a manufacturer's pricing for a product he most likely could afford but did not NEED to buy in the first place, I find it ironic only to have the court force a penalty upon the manufacturer who can raise his price's for defending litigation.

In the end who won other than the slime bag lawyer? Sorry to see lawsuits like this come about anywhere.  We have so many trial lawyers mucking up things in this country it is mindboggling that now again one is seeking the Presidency. Like that'll happen???
 
Woodenfish said:
In the end who won other than the slime bag lawyer? Sorry to see lawsuits like this come about anywhere.  We have so many trial lawyers mucking up things in this country it is mindboggling that now again one is seeking the Presidency. Like that'll happen???

Does anyone in USA Congress or running for President not have law degree?  [Answer: Yes].  But there seems to be fewer and fewer as time progresses.
 
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