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Types of Discrimination Prohibited by
Sections 2(d)/2(e)

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Clear-cut examples of 2(d)/2(e) discrimination (assuming all other conditions are met) include (i) paying a 6% advertising allowance to a major retailer and no advertising allowance or any substitute payment of proportionate value to the disfavored competitor; (ii) paying $50,000 to a major retailer to cover all or part of design, printing or distribution costs of a major retailer's promotional brochure, but paying nothing to the competitor and having no substitute payment of proportionate value to the disfavored competitor; and (iii) paying for changes in a major retailer's software (to enable the retailer and manufacturer to have computer-to-computer communications) while providing no proportionate program of any type to the disfavored competitor.

The more difficult issues include discriminatory warranty programs; discriminatory return policies; the additional costs to the manufacturer of complying with the contractual requirements imposed on the manufacturer by the major retailer in the highly-detailed, long-term supply agreement between manufacturer and major retailer.

The plaintiff in a 2(d)/2(e) action against a manufacturer or supplier normally wants to include as many discriminatory payments and services as possible, which will be a prime area for discovery and trial. The plaintiff will argue and try to prove, for example, that special sales personnel and costs to service a major retailer and discriminatory because a proportionate emphasis and expenditure is not made in servicing the plaintiff.

Sometimes the defendant will spend $100,000 or $1,000,000 or more to prevent a $5,000 or $50,000 claim from succeeding. The defendant is thinking about 1,000 other lawsuits that could follow, whereas the plaintiff is only worried about the present lawsuit and the plaintiff's claim of $5,000 or $50,000 or more.