Legal arguments about Hypex and NORD licensing

[Samoyed]

Finally, for those of you in bed at the Holiday Inn, after the disastrous remand to the Circuit Court of Appeals, the Leegin plaintiffs sought and were denied certiorari by the US Supreme Court, which, sub silentio, held the Fifth Circuit did not err in crap canning the complaint.

Addendum: to be clear and unambiguous, I express NO opinion with regard to non-US jurisdictions nor US state law (deceptive or unfair trade practice acts) but strongly suggest that the component manufacturer-integrating manufacturer legal relation is entirely separable and district from that of the device manufacturer-retail seller, governed by wholly distinct principles-this is just a guess, mind you.

This Mark Knophler song bears reasoning by analogy:



Song by Mark Knopfler

OVERVIEW
LYRICS
PEOPLE ALSO SEARCH FOR

1. 1 of 3
   
   
2. 2 of 3
   Don't often open up this floor
   Since I handed in my gun
   What all these keys are for
   Now my tour of duty's done
   You got to know the switches
   Now you got your turn
   Watch and learn, junior
   Watch and learn
   Now you will get your trouble spots
   Here's one from down voodoo way
   Bragged he had me by the you-know-what's
   Very funny, you don't say
   The big enchilada
   Stealing elections
   Had to go down there
   Trash collection
   Got his cojones on my desk in there
   Made into a souvenir
   Set of cufflinks, nice pair
   The rest of him's someplace up here
   Sometimes you got to
   Put a shoulder to the door
   Not so fast, junior
   Listen to your pa
   Here, son
   I'm handing over to you
   Don't crash the ambulance
   Whatever you do
   What we have here's a dung hole place
   Thought it was fly shit on the map
   Fat bastard, ugly face
   And the personal crap
   You can't move the barriers
   You can't mess with oil and gas
   Had to go down there
   Stick a couple aircraft carriers in his ass
   Fancy dress medals chest
   It's all in here for all the gigs
   Gas mask bullet-proof vest
   All the usual rigs
   There'll be things they missed
   They didn't mention
   You've even got a whistle in there
   For attracting attention
   Well, I think you're gonna be okay, son
   You've had the tour, I guess
   These two buttons by the way
   This one I hope you never press
   Some holy fool, just watch
   Who's not like you or me
   That one's the whole shooting match
   Right there
   It's the whole shitaree
   We don't forget who put us here, jack
   That's page one
   We talk soft but carry a big stick
   And pack the biggest gun
   We don't like accidents
   Major or minor
   You don't want yourself an incident
   Don't ever invade china here, son
   I'm handing over to you
   Don't crash the ambulance
   Here, son
   I'm handing over to you
   Don't crash the ambulance
   Whatever you do
   Songwriters: Mark Knopfler
   Don't Crash the Ambulance lyrics © Universal Music Publishing Group

 

[Samoyed]

And, to make the angels dance faster, there is this: https://www.ftc.gov/tips-advice/com...ust-laws/dealings-supply-chain/refusal-supply

So, I “suspect” Hypex’s lawyers earned their US fees....

 

[dinglehoser]

I'm an attorney, this is part of my ball of wax, and I just stayed at Fairfield Suites instead of Holiday Inn. Would definitely recommend over most Holiday Inns I've experienced.

 

[Samoyed]

Ever try a Sherman case? I have.

The irony of this load of crap coming up on this site is too much. This is an objectivists’ site. The test of lawful versus unlawful agreements is objective in that “reasonable restraints” are valid under the rule of reason. The is a mixed question of law and fact for the trier of fact. So, the subjective intent of the underlying parties is IRRELEVANT, even a mistaken belief that their agreement wouldn’t withstand scrutiny. Now, couple all this with the loads of SUBJECTIVE or speculative bullcrap being pushed here and the result is amusing at best.

Europe you say? Australia you say? Asia you say?

Who knows, who cares but there is the practical test: if you don’t have the net worth to withstand being cut off by the component manufacturer pending the outcome of litigation or some silly little administrative determination in Brussels, don’t pull your supplier’s tail.

A “monopoly” on a patented widget is not an unlawful monopoly regarding such if the market is crapulent with widget makers and who, by the loudest cry in the marketplace, hawk their functionally equivalent goods to any and all comers. Sum: if Hypex wishes to promote its patented goods by high prices and high claims, it is almost certainly free to do so, and that is a near legal certainty absent other facts or information not assumed to be true in this forum.

 

[amirm]

Europe you say? Australia you say? Asia you say?

Who knows, who cares but there is the practical test:

Nord is a British company under EU law. As is Hypex which a dutch company. The only thing that matters in this context then is EU/UK competition law, not anything we have to say about it in US. On that front, this is what the wiki says: https://en.wikipedia.org/wiki/Resale_price_maintenance

 

[Samoyed]

So, as the bootstrap expert who stirred a lot of this horse crap up from your room at the holiday Inn, do you seriously entertain the notion that US law doesn’t apply to Hypex products that arrive here through the commerce of nations or interstate commerce? Do you seriously entertain the notion that US courts don’t have in personam and quasi in rem jurisdiction over Hypex? Nord? Do you seriously entertain the notion that Hypex doesn’t direct its marketing efforts at the US? likewise for Nord?

You may be a skilled engineer but you are a crappy lawyer my friend.

Has it occurred to you that a patented device, anywhere in the world (EU, PU, or whatever) is substantively a monopoly, for a term, with few limits?

Has it occurred to you that you may have made a mistake of law under the EU conventions with regard to the term of art resale pricing maintenance, and whether it embraces component sales of patented devices to whomever the patent owner wishes?

You reckon, I expectorate.

Why all the palaver about the FTC advisory opinion if you didn't have even an attenuated understanding that Hypex and Nord have BOTH availed themselves of the benefits and protection of US law by directing their sales and marketing efforts here?

The proposition is quite simple: multiple jurisdictions’ laws apply CONCURRENTLY,which is not novel, and the US has an obvious interest in, and jurisdiction over this little imbroglio

Stick to what you know, and Wiki is not an authoritative source on any subject matter, before any agency or tribunal, in any jurisdiction.

You assume or impute so many evidentiary facts to Hypex that you assured the outcome. I like Colin, but he is no lawyer. All we have from him is compound hearsay and your conclusory contentions based on such. I suspect even in the EU Hypex can refuse products sales to anyone, and likely didn’t require some kind of adhesion contract from Colin or anyone else.

Jesus H. Christ man, it is check out time!

 

[amirm]

So, as the bootstrap expert who stirred a lot of this horse crap up from your room at the holiday Inn, do you seriously entertain the notion that US law doesn’t apply to Hypex products that arrive here through the commerce of nations or interstate commerce?

The contract is between Nord and Hypex. If NORD wanted to complain, it would complain in UK/EU justictions. What standing do they have in US and why would they have any motivation to make a claim here?

Surely you are not serious with this argument.

 

[Samoyed]

Are you freaking nuts? Can you say transitory? Do you believe Nord and Hypex’s agreement, if any, doesn’t affect US consumers, or the FTC? Standing? You wouldn’t know it if it jumped up and bit you on the A double S.

Do you know how much Colin sells in the US? Hypex? Do you deny they direct marketing efforts to the US?

Your legal positions are laughable misconceptions of law.

By the way, what contract? I suspect this is merely imputed by you.

 

[Samoyed]

First you squirt a cloud of ink with FTC advisory matter, which you mistakenly applied as authoritative, and now you wish to distinguish that mistake of law away by claiming neither Nord nor Hypex have subjected themselves to US law/jurisdiction, and that neither US consumers of eithers’ Products nor the FTC have standing to claim Sherman Act violations, regardless of merit?

You must be winding me up.

 

[amirm]

Why all the palaver about the FTC advisory opinion if you didn't have even an attenuated understanding that Hypex and Nord have BOTH availed themselves of the benefits and protection of US law by directing their sales and marketing efforts here?

I mentioned FTC because you challenged how I would conduct myself here.

Speaking of FTC, here is the 2017 revision of the doc I referenced:

This not at all a free pass to apply RPM to licensed technology:

Good luck proving that forcing a minimum price so high for these modules is procompetitive.

And then there is this footnote in the FTC's 2017 guidelines:

Given the per-se rule in CA and elsewhere, you have no leg to stand on there.

 

[Samoyed]

Let’s test your hypothesis with a hypothetical: A, a manufacturer of amplifiers with a UK principal place of business directs its marketing efforts to all US states. A’s amplifier contains a component manufactured by one with a principal place of business in the Netherlands, and it, too, directs its marketing efforts to the US, both as integrated by A and held out by it as B. A actually sells its goods in the US directly by common carrier, and B may do so directly, or in concert with A.

A and B are amenable to suit in federal and state court in the US, and any affected consumer or the FTC has STANDING to assert claims that fall within the Sherman Act, regardless of merit.

That Leegin may or may not support A or B’s motion to dismiss or summary judgment motion is of NO consequence to whether the FTC or any consumer has STANDING to assert a damage claim and have it adjudicated.

Jesus H....

 

[amirm]

You may be a skilled engineer but you are a crappy lawyer my friend.

I am not a lawyer. But I am no engineer either. I was corporate vice president at Microsoft, in charge of a division that included engineering, marketing, PR, and business development. We developed more IP than the rest of Microsoft combined in the way we licensed it to the world. We drove innovation at Microsoft in IPR strategy and had dedicated attorneys allocated to my team alone. We signed hundreds of contracts, developed countless licenses, set pricing, etc. with friend and foe. In countries that had anti-American stances to pro-American. I had to answer to all patent litigation against our technology and worry immensely about anti-trust behavior not just from legal point of view, but also PR.

As I said, I am not a lawyer but sure as heck know how one gets to the place Hypex did and how that can lead to trouble. Here is how it goes.

They finish the development of this module, put together a powerpoint deck and start a road show calling on major audio companies. They get to one of these high-end brands and salivate at the chance of winning their business. They show their deck, talk about how this is the best amplifier in the world, costs less by itself and is even more economical in the way it saves the weight and size of finished amplifiers. They then stand back expecting to get a sales order.

The reaction takes them off guard. The decision make look at them and says, "so you are saying that anyone in a garage shop can put together your amplifiers with a screwdriver and crimping tool? And sell them at 10% margin? How do you expect me to compete with them???"

Sales guy has no answer. Tells them that he will get back to him on that. On the way to the airport he first a an email to his boss, VP of sales, saying how this is a BIG problem and that likely all the other branded companies will complain about the commoditizing the market for high power amplifier.

They brianstorm in email and decide that they can set a retail price for the product and with it, keep all the asian companies, and little guys out of the business.

They go back to the company above, tell them that and hope to win the business. Turns out they don't anyway because there is a grumpy design engineer who is now put out of business and is doing everything in its power to keep Hypex out.

Meanwhile there is a full record of anti-competitive behavior here. No attorney was consulted on this since they thought this was a business decision. Worse yet, they have inexperienced sales people who go and tell companies like NORD that they can't have the product because they sell amplifiers too cheap.

All it takes then is a company like NORD to complain and the rest will unravel. Discovery process unearths emails for X years back, showing the anti-competitive discussion above, and exclusionary behavior. If they are smart, they settle for a penalty then. If not, they will have to hire an attorney like you and fight the government funded with their own tax dollars!

So no, what you say is not how it works in business world when run properly. An attorney would be involved day one who would have knowledge in all the countries/jurisdictions the product is sold and educates the business people on what to do, what not to do.

You are forgetting that by the time you get to defend yourself in court, you have already lost. We had our local city audit us and after spending two days in our office, they made a claim that our attorney was 100% sure was illegal. The case went to arbitration and we lost! Cost us $10,000. But get this: the city a year later sends us a letter saying that was a mistake and the policy was what we had said from the start! We were still out the $10,000 in our defense costs.

My experience and expertise is in understanding the many cross-domain disciplines in order to run a business well. Please don't cheapen that by calling me an engineer. Lest you want me to call you a law student.

 

[Samoyed]

I mentioned FTC because you challenged how I would conduct myself here.

Speaking of FTC, here is the 2017 revision of the doc I referenced:

View attachment 27491

This not at all a free pass to apply RPM to licensed technology:

View attachment 27492
Good luck proving that forcing a minimum price so high for these modules is procompetitive.

And then there is this footnote in the FTC's 2017 guidelines:

View attachment 27493

Given the per-se rule in CA and elsewhere, you have no leg to stand on there.

You are more full of crap than a Christmas goose. Go back and read for content. I said it was an objective test long before you and opined that in a market filled with similar goods Leegin would apply and the agrrement YOU ASSUME exists would be valid. I specifically stated I had NO opinion under state law, yet you now wrongly impute this to me. As for the agreement you assume exists, are you now admitting California law will also apply? If so, you should try READING the Leegin decision which though not binding on California will be PERSUASIVE. You assume that you understand how California law applies it’s per se test and further assume that your assumed agreement is one that violates its statutory schema even though it is likely a case of first impression in California and the Leegin case, likely persuasive, likely means the assumed (fictional agreement?) is nothing more than permissible INTRABRAND price protection.

You’ve made so many silly assumptions and outrageous mistakes of law it’s hard to untangle them.

It’s your forum. You can spread whatever mistaken bullcrap you want.

 

[amirm]

Let’s test your hypothesis with a hypothetical: A, a manufacturer of amplifiers with a UK principal place of business directs its marketing efforts to all US states. A’s amplifier contains a component manufactured by one with a principal place of business in the Netherlands, and it, too, directs its marketing efforts to the US, both as integrated by A and held out by it as B. A actually sells its goods in the US directly by common carrier, and B may do so directly, or in concert with A.

A and B are amenable to suit in federal and state court in the US, and any affected consumer or the FTC has STANDING to assert claims that fall within the Sherman Act, regardless of merit.

That Leegin may or may not support A or B’s motion to dismiss or summary judgment motion is of NO consequence to whether the FTC or any consumer has STANDING to assert a damage claim and have it adjudicated.

Jesus H....

"A" (NORD" would not at all be amenable to make its case in US when the UK law is more favorable to them, has the benefit of home court, and much less cost of hiring legal talent there, than litigating in US.

Are you taking me for a schmuck here? What kinds of arguments are these? If company A was your client, you would advise that he go and have a fight in Greece where the laws are less in his favor?

 

[Samoyed]

I am not a lawyer. But I am no engineer either. I was corporate vice president at Microsoft, in charge of a division that included engineering, marketing, PR, and business development. We developed more IP than the rest of Microsoft combined in the way we licensed it to the world. We drove innovation at Microsoft in IPR strategy and had dedicated attorneys allocated to my team alone. We signed hundreds of contracts, developed countless licenses, set pricing, etc. with friend and foe. In countries that had anti-American stances to pro-American. I had to answer to all patent litigation against our technology and worry immensely about anti-trust behavior not just from legal point of view, but also PR.

As I said, I am not a lawyer but sure as heck know how one gets to the place Hypex did and how that can lead to trouble. Here is how it goes.

They finish the development of this module, put together a powerpoint deck and start a road show calling on major audio companies. They get to one of these high-end brands and salivate at the chance of winning their business. They show their deck, talk about how this is the best amplifier in the world, costs less by itself and is even more economical in the way it saves the weight and size of finished amplifiers. They then stand back expecting to get a sales order.

The reaction takes them off guard. The decision make look at them and says, "so you are saying that anyone in a garage shop can put together your amplifiers with a screwdriver and crimping tool? And sell them at 10% margin? How do you expect me to compete with them???"

Sales guy has no answer. Tells them that he will get back to him on that. On the way to the airport he first a an email to his boss, VP of sales, saying how this is a BIG problem and that likely all the other branded companies will complain about the commoditizing the market for high power amplifier.

They brianstorm in email and decide that they can set a retail price for the product and with it, keep all the asian companies, and little guys out of the business.

They go back to the company above, tell them that and hope to win the business. Turns out they don't anyway because there is a grumpy design engineer who is now put out of business and is doing everything in its power to keep Hypex out.

Meanwhile there is a full record of anti-competitive behavior here. No attorney was consulted on this since they thought this was a business decision. Worse yet, they have inexperienced sales people who go and tell companies like NORD that they can't have the product because they sell amplifiers too cheap.

All it takes then is a company like NORD to complain and the rest will unravel. Discovery process unearths emails for X years back, showing the anti-competitive discussion above, and exclusionary behavior. If they are smart, they settle for a penalty then. If not, they will have to hire an attorney like you and fight the government funded with their own tax dollars!

So no, what you say is not how it works in business world when run properly. An attorney would be involved day one who would have knowledge in all the countries/jurisdictions the product is sold and educates the business people on what to do, what not to do.

You are forgetting that by the time you get to defend yourself in court, you have already lost. We had our local city audit us and after spending two days in our office, they made a claim that our attorney was 100% sure was illegal. The case went to arbitration and we lost! Cost us $10,000. But get this: the city a year later sends us a letter saying that was a mistake and the policy was what we had said from the start! We were still out the $10,000 in our defense costs.

My experience and expertise is in understanding the many cross-domain disciplines in order to run a business well. Please don't cheapen that by calling me an engineer. Lest you want me to call you a law student.

Call me whatever you want. Substantively, you are saying your former glory means your bullcrap opinions are right? I knew and liked Bill Newcomb. You are NO Bill Newcomb but you are full of self serving crap.

Did you READ the Leegin decision?

 

[amirm]

I specifically stated I had NO opinion under state law, yet you now wrongly impute this to me.

Then your advice is not very relevant. When I make a decision in business that operates worldwide like Hypex does, it has to by definition encompass all jouristicions. If you have no opinion or expertise, then you are not the proper advisor for this issue.

 

[amirm]

It’s your forum. You can spread whatever mistaken bullcrap you want.

This is a pro-consumer forum. For a customer of NORD such as yourself to be fine that they no ability to build certain products due to licensing restriction to protect high-priced companies, should make you mad. Not step up to defend Hypex.

So yes, if you are unhappy about these positions, you need to take your arguments elsewhere if they are peppered with such insults and emotions.

 

[Samoyed]

"A" (NORD" would not at all be amenable to make its case in US when the UK law is more favorable to them, has the benefit of home court, and much less cost of hiring legal talent there, than litigating in US.

Are you taking me for a schmuck here? What kinds of arguments are these? If company A was your client, you would advise that he go and have a fight in Greece where the laws are less in his favor?

See, you impute more of your own bullcrap to evade your erroneous, disproven proposition. It is US consumers and the FTC who have standing to seek damages, though Nord certainly could bring a transitory cause of action here against Hypex, but under forum non conveniens issues and choice of law issues it would probably be stayed until brought in the UK.

Do I take you for a schmuck?

Hardly. Chiamyankel is more like it.

 

[Samoyed]

This is a pro-consumer forum. For a customer of NORD such as yourself to be fine that they no ability to build certain products due to licensing restriction to protect high-priced companies, should make you mad. Not step up to defend Hypex.

So yes, if you are unhappy about these positions, you need to take your arguments elsewhere if they are peppered with such insults and emotions.

I advocate no one’s position. Yet again you groundlessly impute this to me to avoid embrassing your silly self.

I’d be delighted to leave you and your silly forum but for the last time, you are NO Bill Newcomb and you are mistaken about substantive and adjective law in any and all US jurisdictions.

Now, please crap can me so I don’t have listen to your further whining, groundless distinctions and manifold errors of law.

Stronger letter to follow.

 

[PappyBlue]

Call me whatever you want. Substantively, you are saying your former glory means your bullcrap opinions are right. I knew and like Bill Newcomb. You are NO Bill Newcomb but you are full of self serving crap.

Did you READ the Leegin decision?

Dude, seriously, you need to chill out!