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Legal arguments about Hypex and NORD licensing
- Thread starter restorer-john
- Start date
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:
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:
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.
“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 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.
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.
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(Before being moved, the context was that of bridging Hypex 400 modules, and the following was responsive as humor. Even in Australia, context is everything. )
Oh, no doubt that would offend the sensibilities of European and Australian regulators....
Or, per se, it would present serious issues in California.
Addendum: gee, Beaver, it smells a whole lot like Leegin analyses, and even provides for administrative determinations or advisory opinions approving specific RPM agreements: https://www.australiancompetitionlaw.org/law/rpm/index.html
Tooltechnic sure sounds analogous, but hey, I’m sure somebody paid a big fine and sits in the calabose as we speak.
Oh, no doubt that would offend the sensibilities of European and Australian regulators....
Or, per se, it would present serious issues in California.
Addendum: gee, Beaver, it smells a whole lot like Leegin analyses, and even provides for administrative determinations or advisory opinions approving specific RPM agreements: https://www.australiancompetitionlaw.org/law/rpm/index.html
Tooltechnic sure sounds analogous, but hey, I’m sure somebody paid a big fine and sits in the calabose as we speak.
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Nonsense. NORD is not able to produce this product so has nothing to sell to US as to be subject to its rules. They have a complaint against a Dutch company as a parts/IP supplier (not end product) and they can sue them for relief in their own country. They need to have a hole in the head to try to sue here, especially if as you are claiming, the laws are less in favor of them here.
Surely you gave advice to your clients to sue in jurisdiction that has a) standing in the matter and b) has the best chance of favoring your case.
OP
restorer-john
Grand Contributor
- Thread Starter
- #65
Pure nonsense. You don’t even comprehend the issues.
Subject matter jurisdiction relates to the class of cases a COURT can decide. Standing, in US federal court, arguably, is a constitutional doctrine relating to a PERSON, not the court, and means one has an injury in fact, economic or otherwise. Standing and jurisdiction are wholly different. As to “advising” forums, I didn’t, and you wrongly, as usual, imputed such to me: I merely pointed out that the claims are transitory, and could be pursued in a US forum though I also pointed out they would likely be stayed owing to forum non conveniens and choice of law issues. You apparently enjoy circumlocution, confusion and wrongful imputation.
But, it is ironic that US choice of law principles might result in the application of Leegin since EU and Australian law, in some regard, may offend the forum’s public policy, hence forum law, Leegin, would apply.
Regarding your confused and confusing hypothetical, first, you impute an unlawful agreement to Nord and then you claim he will try to assert rights under it? Jesus H., for the millionth time it is US consumers or the FTC who have STANDING to bring an action for economic damages for Sherman anti trust violations though on the likely facts they would fail on the merits as there appears to be NO contract fixing prices, Colgate analysis viz withholding applies, and it is MOOT!
You couldn’t even carry Bill Newcomb’s water and I’m sure he flinched when you spouted all this nonsense.
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This is your first formal warning to be polite. If your argument is strong, it should have no need for nastiness.
So you say. Problem is, you have had no experience with licensing technology into products that are sold internationally. I do. That lack of experience, knowledge of technology is steering you wrong in these discussions.
I love for you to get into manufacturing a product, go and license something and have that vendor tell you: "your products are too cheap for us to license to." It is the old argument of you sit in the back of the bus...
Now that is a smart thought.
OP
restorer-john
Grand Contributor
- Thread Starter
- #72
Injected some much needed whimsy into what was rapidly becoming a rather unattractive thread.
Licensing is a false issue and a load of crap. Your self bolstering, cross disciplinary crap is getting old, and nothing but an ad hominem.
As for my experience applying international conventions, I assure you it greatly exceeds yours.
So, ad hominems are all you have left now that Australian law isn’t as you posited?
You are full of crap. Please remove my membership and all my posts. You are a silly little puffed up twit, who is too ignorant to know how stupid he really is, and of no import, in or out of Microsoft.
Take your forum and ram it.
OP
restorer-john
Grand Contributor
- Thread Starter
- #76
I say just leave all the posts here, for all eternity, as a reminder to others who sign up at ASR on how not to behave.
You know, like most Australians, you really like to wind people up for amusement.
So, all you have left are ad hominems since Australian RPM law left on the last bus?
Beethoven surely would have recognized you.
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I am enjoying the conversation or I would not keep going at it. I just don't want your insults directed at members. Surely a lawyer is more professional than you are demonstrating. While you are posting anonymously, your poor conduct reflects on your profession so keep that in mind before you get the urge to post with angst and insults.
I’m retired, and in this context not bound by the rules of professional conduct in this purely educational endeavor. What you enjoy is provoking people and manufacturers beyond all measure.
Again, please A. Close my account and B. Remove all my posts.
All your ad hominems neither cure nor conceal your embarrassing mistakes of law.
Since you appear not to have translated Beethoven’s quote, I’ll do it for you.
What I shit is better than anything you can think up.
Please close the account and remove my posts.
Again, please A. Close my account and B. Remove all my posts.
All your ad hominems neither cure nor conceal your embarrassing mistakes of law.
Since you appear not to have translated Beethoven’s quote, I’ll do it for you.
What I shit is better than anything you can think up.
Please close the account and remove my posts.
The module is provided under contract from Hypex and gets integrated into a larger product. Tell us, calmly, why it is a "false issue."
Until then, we both know that your position here is incorrect. You are trying to confuse us by saying US law matters because then you can claim your expertise there. Which by the way, is NOT in question. What is in question is your understanding of international law, practices for licensing IP/technology, what advice one needs to follow in a corporation/business as opposed to trial, etc.
When running a business, you want to stay well away from risks that could involve matters as serious as anti-trust. Other countries love to protect their internal businesses and given any cause, they will go after you and then you have to defend yourself remotely. The only companies that don't follow this are the ones that a) get in trouble one day and b) don't have prior experience in this regard.