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Legal arguments about Hypex and NORD licensing

invaderzim

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Advertised price is not the same as selling price. To avoid Internet price shopping, manufactures often set MAP or minimum advertised price. They are very careful to NOT tell you how much you can sell it for. You just can't advertise that sale price publically.

Or they do like Weathertech does with their mats and tells the retailer that if they sell it for less than the MAP they will get their wholesale discount pulled and only be able to buy from Weathertech at the retail MAP price. Basically saying we can't force you to sell it for a set price but your discount is linked to you selling it at a set price and if you can't get it at a discount then you can't sell it at all. Lawyers seem to find ways around most everything. Several other companies like Pop-Sockets and Nebo also have strict pricing rules and Pop-Sockets goes into rules on even giving their products away.

The truly funny thing here is the mentality of "expensive is good" is so strong with consumers that companies have to keep their products priced high to keep people thinking they are better than the cheaper products. I saw where some 'high end' clothing company incinerated millions of dollars of their clothes to avoid having them end up on discount racks.
 

suttondesign

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High-end audio has a slightly different problem, which is trying to maintain physical dealer presences so that buyers and see and audition products. The margins are supposed to help the dealers stay in business. Do they? Some observations:

Years ago, I knew a high-end salesman in Maryland who did extremely well selling very high-end audio. Sell a few $25,000 amps and $50,000 speakers each month, and you're raking in the money. He had no interest -- like many good salespeople -- in getting into management or ownership; he knew how to sell. I suspect that he's still going and has a good client list -- the DC area is booming, and there are many exotic products with huge margins that only a few dealers have access to. Not my gig, but fair enough, and millionaires can float other people's boats. I wish they were funding low-income housing instead, but, fortunately or unfortunately, no one made me king.

More recently, however, I observe that old-line high-end audio shops are scarce. My beloved Marvin Electronics, in Fort Worth, where I ogled and dreamed impossible dreams as a kid, closed a few years ago -- it was the very epitome of a local high-end shop that also sold things like NAD to introduce people into non-mass-market goods. Now, from my limited observation, it appears that the few remaining hi-fi-shop owners (and their children) run and staff these places on a lean budget and without traditional sales staffs. Cloud-based business software reduces back-office expense considerably. They sell lines that are unusual, or niche, or sold-not-bought (snake-oil-resin cables). In addition, Best Buy sells McIntosh, B&W, and other traditional, high-end lines. Neither of these brick-and-mortar, as far as I can tell, is willing to discount -- how can they with rent to pay and inventory to maintain?

Yet it is equally plain that the interwebs has made it cinch to do direct mfr-to-consumer and dealer-to-websurfer sales, avoiding brick-and-mortar entirely. SVS does a good job; my local sub mfr. Rythmik does too (talk about lean and mean!). Audeze and Benchmark, though I deal in those, also sell direct. I note that SVS recently starting selling through Best Buy, as well. These companies use generous return policies to deal with the -- presumably -- rare return. I have had few returns over the years, but I have a re-stock charge given the pricing structure I have. Good products probably don't get returned that often. I've been tricked by a buyer who claimed that a 200-lb speaker we inspected in its crate was, he later discovered, "scratched," so I insulate myself against all such claims now by requiring a waiver of shipping damage as a precondition to any sale. I guess the message is that companies are adapting to e-commerce in various ways. Change or die. I know there are a lot of small dealerships, like mine, that are side businesses for fun and profit.

I had a local, post-grad student come down to my law office yesterday to audition some Audeze cans. The office is down the street from my house and very quiet on a Saturday. She got all the time she needed, and I saw and did law work while she handled gizmos. My overhead is near zero, she got a good audition, she gets a good price, and I make a little extra money and meet a nice new person. There are worse things to do in this long waiting room called life.

Anyhow, we are extremely fortunate that super-high-performance products are increasingly available at historically-low prices. Let the millionaires sneer; I'm happy.
 

suttondesign

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You seem like one of the good ones, and a sorely needed exception to the rule... I amend my "never helpful" to "occasionally helpful" with you in mind. ;)

How many times have I had to tell clients: "Yes, you can sue or defend against the lawsuit that was filed against you, and the ones who will certainly win will be the lawyers after the clients have bled each other dry." It's not always the case -- probably 1/2 of the time -- but it's true often enough that I'm upfront about it. Some clients tell me straight out: "We would rather send your kids to college than give in!" Others just take the advice to settle (or give up) and move on. Nevertheless, as bad as the legal system can be, it's better than people pulling out weapons and killing one another -- consider the middle-ages in the various city-states of what is now Italy, where violence and vendettas were a daily occurrence. We don't want to live that way.
 

Ron Texas

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Dealer agreements in the US allow for price protection by the manufacturer. If the brand is strong enough to demand dealers sign a contract, they can do it. Some examples are Oakley, Nikon and Rolex. There are sales, but only when authorized by the manufacturer. It sometimes stands out like a sore thumb. When REI has a 10% off everything sale the fine print says Oakley is excluded. You will find this behavior is rampant in Hi-Fi.

I don't believe intellectual property is being licensed here. The completed module utilizing IP is being sold. It would be different if the right to build the module from scratch using Hpex's IP was licensed to Nord.

Finally, does it really matter? Do Hypex amps really sound better than Ice Power or whatever in a blind test? Is it that big of a deal that the NC1200 is more expensive when the NC400 does the job?
 
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suttondesign

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Woops! I looked up the Leegin decision of the U.S. Supreme Court, from 2007. It does appear that "vertical" price agreements which set a minimum sale price can be valid. I had not paid attention to those cases -- I don't do any antitrust work. The court was worried about "horizontal" minimum price agreements where competitors set prices, which is a no-no. Samoyed was correct, though I am distressed at his tone.
 

StevenEleven

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I believe Leegin was a 5-4 decision in which the Supreme Court found that the old Supreme Court precedent that vertical price agreements were per se illegal was no longer valid and so the rule was changed to a rule of reason based on anticompetitive effects in the particular case. I believe the Court found that the Sherman Act was a “common law” Statute so that they didn’t have to worry about their old precedents.

Even under the new rule of reason test I doubt Microsoft would have had any luck or sympathy at all if it tried to establish vertical price restrains for certain products (e.g., Windows) and thus perhaps @amirm ’s continued sensitivity to the issue even in the U.S.

I believe the Plaintiffs newly introduced the issue of horizontal (cartel-like) price fixing before the Supreme Court and so the Supreme Court refused to hear that issue because it was not properly on appeal.

There was I believe a very strong and forceful dissent.
 
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andreasmaaan

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I believe the Court found that the Sherman Act was a “common law” Statute so that it didn’t have to worry about its old precedents.

Good summary :) However, could you explain what "common law statute" means? I'm not familiar with the US legal system in detail, but in my legal system this term would be an oxymoron.
 

Ron Texas

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At one time in the US there were "far trade" laws. These allowed for vertical price fixing. They were controversial because only one dealer had to sign the agreement to bind all dealers in the state. These laws were overturned.
 

digicidal

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Woops! I looked up the Leegin decision of the U.S. Supreme Court, from 2007. It does appear that "vertical" price agreements which set a minimum sale price can be valid. I had not paid attention to those cases -- I don't do any antitrust work. The court was worried about "horizontal" minimum price agreements where competitors set prices, which is a no-no. Samoyed was correct, though I am distressed at his tone.

Although there were some arguments in that direction - part of the spontaneous combustion in the thread seemed to stem from the point that both companies were outside of US jurisdiction... and that EU guidance was more strict (although without a thorough re-read of the whole thread I cannot remember if proof was cited or not).

Of note possibly to you (since you mentioned a friend's high-end shop in MA):
Maryland has expressly rejected Leegin, amending its antitrust statute to treat minimum resale price agreements as a per se violation. ( See Md. Code Ann., Comm. Law § 11-204(a)(1) (“Prohibited conduct. — A person may not: … By contract, combination, or conspiracy with one or more other persons, unreasonably restrain trade or commerce.”); seealso 2009 Md. ALS 43 (adding Md. Code Ann., Comm. Law § 11-204(b), which states that “For purposes of subsection (a)(1) of this section, a contract, combination, or conspiracy that establishes a minimum price below which a retailer, wholesaler, or distributor may not sell a commodity or service is an unreasonable restraint of trade or commerce”).)
- Found in an interesting read here: Supreme Court Leegin Decision Offers Little Clarity 10 Years Later

Directly regarding EU law (which would be the 'home court' for a Hypex/Nord contract): Recommending and agreeing retail prices: the limits under competition law

Of particular note would be the two bullet points (third paragraph) which is what I was guessing might be the rationale in my last post (emphasis mine).
Nevertheless, as an exception, it may be possible to justify RPM in certain circumstances, if it would lead to benefits for consumers. For example:
where a manufacturer introduces a new product, RPM may be permitted for an introductory period where it provides retailers with the means and incentives to increase promotional efforts and expand overall demand for the product, so making the entry a success
; and where RPM may be necessary to organise a coordinated short term (two to six weeks) low price campaign in a franchise system or similar distribution system.

@Ron Texas It does not (necessarily) matter to the consumer - you are correct in that - however, mostly as a direct result of these same laws. Whether there is an audible difference between two products, in any given application, is not as important as having the choice between them and others. Isn't that the very reason why measurements are useful when considering metrics outside our ability to perceive the differences?

The major differences between the two designs (objectively) are how they handle their limits and at which point noise stops being just 'hair' on a meter and starts becoming something audible or destructive - or at least that's what my limited research seems to indicate thus far. Any of the mass produced modules from either company should be more than just 'good enough' - but if the cost difference is negligible... wouldn't you rather have the 'best' one? I don't plan on keeping 10 grand pianos in my loft... but if I see specifications indicating that only one of two houses I'm considering have been stress tested to hold that much weight - I'd rather buy that one. ;)
 

andreasmaaan

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I believe I am digging deep here, but a common law statute is probably a statute in which Congress codified (put into a statute) a rule that was first established as a body of case law by the Federal judicial branch. In other words a bunch of judges made it up in appealed cases and then Congress wrote the rule up as a Statute (part of the U.S. Code) and the President signed off on it.

Ok that makes sense, thx.
 

suttondesign

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Even under the new rule of reason test I doubt Microsoft would have had any luck or sympathy at all if it tried to establish vertical price restrains for certain products (e.g., Windows) and thus perhaps @amirm ’s continued sensitivity to the issue even in the U.S.

I believe the Plaintiffs newly introduced the issue of horizontal (cartel-like) price fixing before the Supreme Court and so the Supreme Court refused to hear that issue because it was not properly on appeal.
t.

Agreed as to Microsoft. A small audio company in a very competitive industry is a different story.
 

digicidal

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Good summary :) However, could you explain what "common law statute" means? I'm not familiar with the US legal system in detail, but in my legal system this term would be an oxymoron.

It's an oxymoron here as well... just like 'common sense' and 'common courtesy' seem to be. :D

The idea is simply (as I understand it at least): if it's outside the 'letter' of the law but well within the 'spirit' of the law... it can be construed as covered by law regardless. An easy example is "common law partnerships"... if you've been living together for 10 years - you're married, whether you ever actually filed for it or not. There are arguments that can be made against, but very few will work.
 

andreasmaaan

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It's an oxymoron here as well... just like 'common sense' and 'common courtesy' seem to be. :D

The idea is simply (as I understand it at least): if it's outside the 'letter' of the law but well within the 'spirit' of the law... it can be construed as covered by law regardless.

Haha :) No actually, @StevenEleven explained it correctly earlier. It simply means that the statute codified already existing judge-made law.

FWIW, in any common law legal system (i.e. one derived from the English legal system, such as that of the USA), both judges and the parliament have the power to make laws.* Some classic examples of common law (i.e. judge-made law) include negligence and the law of contract. Sometimes, laws made by judges will be codified in statutes passed by the parliament (typically with some modifications). Apparently, in the USA, antitrust law began life as common law, which was then codified into statutory law by the Sherman Act.

The concept is very familiar to me as an Australian lawyer; it was just the phrase itself ("common law statute") that I was not familiar with.

*This contrasts with so-called "code systems", like those of continental Europe, in which (to slightly oversimplify) only the parliament is empowered to make new laws, with the courts' role restricted to one of application and interpretation.
 

Ron Texas

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All I know is the Emotiva PA-1 amps are getting very positive reviews and cost $600 a pair. They may not measure as well as the best Hypex modules, but I bet the difference could not be heard in a blind test.
 

digicidal

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All I know is the Emotiva PA-1 amps are getting very positive reviews and cost $600 a pair. They may not measure as well as the best Hypex modules, but I bet the difference could not be heard in a blind test.

OK. I'm not sure how that pertains to this specific topic really, and I have more than a little bit of caution regarding their products. Before you call this blind bias... I have 3 of their amps currently (2 XPA-100's and an XPA-3), their XLR volume pot, and 2 subs. My past experiences with them prevent me from being too enthusiastic about anything of theirs until I see proof of a radical improvement in the QC and noise level. I'd actually be pleasantly surprized if they even tested as well as a Crown XLS - but I'd still probably want an nCore-based variant. Admittedly, I got burned before they started doing most of their assembly in-house - but considering the 3 amp replacements under warranty that my subs alone required (and one subsequent failure out-of-warranty)... :rolleyes:

EDIT: To their credit (and I assume, your point) since the PA-1 is basically just an ICEPower module - it could be repaired out-of-warranty with an order from Parts Express. I'd definitely trust that before an in-house design of theirs again. And the casework is nice - so that's a plus.

@andreasmaaan - Thanks for the clarification... in many ways that makes me wish I lived in Europe. Although several other aspects - especially in recent years - also make me glad that I don't. I feel our legal system here was inadequate for quite awhile... but then it blew right past all the stops and has turned into a 'word soup' these days. Our tax code alone now has 9843 sections... and we've got over 4,500 federal crimes - many more at the state/local level. You'd think this would be the most fair, safe, honest place on the planet!
 
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invaderzim

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..... the interwebs has made it cinch to do direct mfr-to-consumer and dealer-to-websurfer sales, avoiding brick-and-mortar entirely. SVS does a good job; my local sub mfr. Rythmik does too (talk about lean and mean!).

I'm drifting way off topic but Rythmik subs really interest me but their website needs a good clean modernizing. Unfortunately, someone will come in and charge them 6 figures to make it terrible but glossy instead of just updated with more pictures and a size adaptive layout.

These companies use generous return policies to deal with the -- presumably -- rare return. I have had few returns over the years, but I have a re-stock charge given the pricing structure I have. Good products probably don't get returned that often.

I've often wondered what the returns percentages are that these places run. A fair amount of buyers will get buyers remorse even on a quality product.

I know there are a lot of small dealerships, like mine, that are side businesses for fun and profit.

It sounds like the modern equivalent of the local shops where they people really loved audio. About 30 years ago I spent nearly a paycheck on a receiver and speakers at one of those shops but thanks to the salesperson taking time to explain and demo a lot I'm actually listening to them right now.
 

andreasmaaan

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@andreasmaaan - Thanks for the clarification... in many ways that makes me wish I lived in Europe. Although several other aspects - especially in recent years - also make me glad that I don't. I feel our legal system here was inadequate for quite awhile... but then it blew right past all the stops and has turned into a 'word soup' these days. Our tax code alone now has 9843 sections... and we've got over 4,500 federal crimes - many more at the state/local level. You'd think this would be the most fair, safe, honest place on the planet!

Ha, yes, the common law system is a strange and complex beast that can only really be explained IMO from an historical point of view: In the 12th century, a system whereby judges were bound to follow prior decisions of other judges (i.e. the rule of precedent) emerged in place of the previous ad hoc judicial system as an efficient way to homogenise the law throughout all of England (in the process consolidating Henry II's power), hence the name common law.

Back in those days, there was no separation of legislative, judicial, and executive powers in different "branches" of government: the king simply held all roles.* The fact that judges, acting as representatives of the king, could both interpret/apply and make laws was thus entirely consistent with the system of government at the time. I wasn't until several hundreds of years later that the first English parliament was established and the concept of legislation arrived in England.

Sorry for the long-winded historical explanation! This started out as a short post and then it wasn't...

*It was more complicated than this in practice, and I've conveniently ignored the complex relationship between the authorities of the Crown and the Church here, which was in fact a key trigger for Henry II's desire to consolidate his power through the rule of precedent in the first place.
 

digicidal

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Sorry for the long-winded historical explanation! This started out as a short post and then it wasn't...

*It was more complicated than this in practice, and I've conveniently ignored the complex relationship between the authorities of the Crown and the Church here, which was in fact a key trigger for Henry II's desire to consolidate his power through the rule of precedent in the first place.

Nothing wrong with a thorough explanation. The 'complex relationship' continues today (by proxies mostly) IMO... at least the influence and interference does - on both sides of the state-church divide.

Another member has made me aware of this link:
https://www.justice.gov/opa/press-release/file/926481/download
It's long and difficult.

Considering the topic, I'd actually consider that 'short and simple' in comparison to the source documents. HAHA.

Situation: Corporation 1 and Corporation 2 have factories in Country Alpha where they manufacture Widget X. Corporation 1 and Corporation 2 agree to charge higher prices for Widget X. They sell Widget X to customers around the world, including in the United States.
Discussion: Corporation 1 and Corporation 2 manufacture Widget X outside the United States and sell Widget X in or for delivery to the United States. Thus their conspiracy to fix the price of Widget X is conduct involving U.S. import commerce. Accordingly, the conduct is prohibited by Section 1 of the Sherman Act as a conspiracy in restraint of “trade . . . with foreign nations,” and Section 6a would not exempt this conspiracy from the antitrust laws. The circumstance that the price-fixing agreement concerned worldwide sales and did not specifically identify sales into the United States would not change the analysis. Likewise, even if the sales of Widget X in import commerce were a relatively small proportion or dollar amount of the price-fixed goods sold worldwide, the analysis would remain unchanged. (88)

Once again, despite being a citizen of the country that's being 'protected' (protective?) in this case... I still call foul on it! Then again I guess economic emperialism isn't exactly new...

@Ron Texas Thanks for posting link here... I'd say simply having access to that 'Cliffs Notes' summary might have kept the fires in a slow burn.

The bottom line is that now any violation has already been resolved (if there was indeed one in the first place) and the number of producers of very high-powered, and reasonably (ish?) priced amps should increase. A win-win for everyone... even attorneys. :p

The example is 'fairly' close but still isn't actually directly pertinent as far as I can see... since Corp 1 and Corp 2 weren't in collusion as much as Corp 1 simply preventing (potentially) Corp 2 from playing the game at all.

Not sure that any of this would apply one way or another to what would really be a simple contract dispute in a foreign jurisdiction... but if there was enough money in it... I'm sure the US would be involved. LOL!
 
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MerlinGS

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I just found this thread when reading about an amp Amir measured. I don't particularly care for how Samoyed handled the discussion, but I think two points should be made. Samoyed is generally right about the USA law, and his understanding of EU and Australian law are probably correct. Amir, like many people who interact with lawyers, made numerous mistakes based on assumptions from his prior "legal" interactions. Many of his assumptions were wrong, his reliance on some excerpt he took from a statute (or worse a wiki page) and ignorance of case law belied his lack of understanding of the importance of case law as it pertains to the application of the law. From many respects Amir's mistakes were glaring, which probably frustrated Samoyed, since to some it could appear as if more credence was being given to a dilettante than a practitioner in the field (to be honest, many posts in this thread seemed to exemplify the Dunning–Kruger effect). At this point I should note I do practice law, but not in litigation; however, I do a lot of work in licensing and IP in the IT space. If I had to guess, much of Amir's lack of understanding stems from his poor understanding of anti-trust and competition legislation and the related case law. A company such as microsoft is not the same as hypex. Hypex's actions have virtually no effect in competition in amplifier audio market (be it low-fi, mid-fi, or hi-end); whereas microsoft was (and still is) virtually a monopoly and frequently used its clout to try and kill the competition (hi netscape). Thus, I'm sure the legal team at microsoft knew the company's behaviour with its IP would always be scrutinised (especially in the EU) from the perspective of anti-trust and competition legal frameworks. Thus, they tried to ensure (when the company saw it as applicable) Amir's division (which produce most of the corporate IP) licensed the IP in manner that would not expose them to scrutiny (or legal exposure), explaining Amir's filtered exposure to anti-trust and competition laws. Just an outsider's view.
 
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