And, quickly looking at Australian law, it seems to have incorporated familiar Leegin type analyses, including intrabrand competition and free ride concepts, to allow RPM agreements to exist (though it seems clear Nord didn’t have one). Here is a précis from an Aussie law firm’s site which is one of many showing the analysis is nearly identical, SHOULD such an agreement exist viz the manufacturer-distributor relation (by negative implication, the statute may not extend manufacturer to manufacturer):
“What factors will be considered by the ACCC before granting approval for RPM?
Tooltechnic lodged an application for authorisation based on a proposed amendment to its distribution contracts for its Distributors not to sell below minimum prices. The ACCC provided in its determination
[2] that:
“it can authorise resale price maintenance where it is satisfied that in all the circumstances the conduct is likely to result in public benefits which outweigh the public detriments likely to result from the conduct”.
The ACCC accepted that the proposed conduct would eliminate price competition between Festool dealers selling Festool products in addition to minimising public detriment. It was accepted by the ACCC that the detriment would be limited by:
- a wide range of trade quality power tools being available to customers; and
- the fact that Tooltechnic had little incentive to set minimum retail prices above competitive levels because doing so would likely reduce sales of Festool products overall; and
- the fact that there was no evidence of coordinated conduct by Suppliers of power tools.
It was accepted that Festool products were complex and highly differentiated, and that the provision of ‘services’ (
Services) was important in the pre-sales and after sales process. Because of this, only full service retailers were in a position to service customers pre- and post-sale. Without RPM it was said that customers could access retail services from one retailer and then purchase the product from another at a discount. In other words, one retailer could gain a benefit at the expense of another (
Free Riding). The issue of Service was also considered by the ACCC in the context of allowing Distributors to differentiate themselves via the provision of Services instead of price.
It was considered by the ACCC in making its determination that, on balance, the public benefits (end to Free Riding by some distributors, and increase in Services) would likely outweigh the detriments.
The ACCC’s assessment of Tooltechnic’s application considered the following background facts:
- Tooltechnic has a very small market share in a highly competitive market; and
- trade quality power tools are highly differentiated products and Festool products are particularly complex. In selling Festool products, therefore, customers obtain significant benefit from investment by retailers in both pre- and post-sales services;
- trade quality power tools are readily sold online or by discount retailers who have not made this significant investment in services but who may benefit from other retailers who have done so.
Whilst it may seem that the ACCC’s authorisation provided to Tooltechnic would open the floodgates to Suppliers with distribution networks, care needs to be taken as the arguments involved complex economic rationale that applied to one particular market.”
So, you see, though US law is relevant and material to Nord and Hypex sales in the US, it is routinely part of any scholarly discussion regarding anti trust subject matter, and in many ways substantially similar to Australian substantive law.
It seems “obvious” that you entertain mistaken notions regarding the import and importance of Australian anti trust law.
“Maybe someone has pointed out they were treading on thin ice....”. As we say here, “maybe” don’t feed the bulldog, and your compound speculation and pyramid of inferences is just a load of .... The more likely “maybe” is that of mere market forces.