Quote:
Originally Posted by Sydney's Mom
My clients like me to say no, so they can blame Legal, but most times what they are looking to do is not per se illegal (although this was . . .
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Others should check out your
whole #33 post, since I've edited out important parts. But, re the point quoted above, note that vertical price fixing, according to
a 2007 US Supreme Court case, is
not "per se" illegal. It instead is subject to the "rule of reason," itself subject to case law that may have changed by the time Apple exhausts its appeals.
A lot of Apple's spectacular success is due to its ability to prevent consumers from showrooming at store.apple.com, or physical Apple stores, and then buy the same product from discounters. Apple does this by setting minimum prices on its own products. Since Amazon can't be trusted not to discount, Apple generally refuses to market products through them (documented
here). Is that legal? It depends a lot on judgment concerning motive, just like with the vertical price control publisher agreements. What determines the legality is not whether Apple manufactures the product they seek to stop from being discounted, but whether they can come up with the right reasoning about the price fixing promoting consumer welfare. Literary culture, anyone? It also is important that executives avoid sending emails expressing alternative motives.
According to Robert Bork, famously influential with current Supreme Court justices despite his failure to win Supreme Court confirmation,
"vertical agreements" between companies can be just fine. If Apple wins its appeal, or big publishers resume agency pricing after their period of anti-trust supervision ends -- and get away with it -- US big publisher book buyers can fairly say "I've been Borked." People who buy Apple hardware have already been Borked, because I don't think Apple could get away with its restrictions on discounting without his influence. And Apple stockholders -- and employees -- can also say "I've been Borked," just with an opposite tone of voice.