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Person's DNA Code for Quantifying the Dollar Amount of Discrimination

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Since 1970 (the year in which I first commenced a Robinson-Patman action), I have seen a never- ending number of ways in which a manufacturer is able to provide money or valuable services to favored (major-retailer) customers, and not offer the same payments and services to smaller competitors. The smaller competitors are often told that they are getting the same price, and there is no way that the disfavored competitor can verify this. The disfavored competitor, over the years, has learned that the manufacturer's employees are lying, because there is no way that the major retailers can be selling at the low prices they are offering the same goods unless they are buying them at substantially lower prices, including the illegal payments and services under Sections 2(d)/2(e).

Today, there probably is not a single independent wholesaler, jobber or retailer in the United States that does not believe that its major-retailer competitors are being given substantially lower per-unit prices by the same manufacturer, in whatever way this occurs. The lower price may be from a lower invoice price (something which can be seen quite readily during pre-trial discovery) or more often through subterfuge, by providing a fee, allowance, payment or service, or non-payment of invoices, in some way that adds up to huge annual payments or other benefits to the favored retailer, but isn't readily provable because the amounts usually are not accompanied with paperwork tying in the payment or services to any specific purchases of goods by the major retailer and therefore does not appear on any invoice. The procedure for keeping score is informal, with the manufacturer trying to hold down the payments and the major retailer constantly taking payments and services to the extent it can, with the ever-present but seldom stated threat that if the major retailer is not able to take what it wants, the major retailer may find a more cooperating manufacturer from which to purchase goods. The independent competitor, of course, is not able to make these repetitive demands for money and services on the manufacturer, and the manufacturer needs to charge more to the independents to make up for the huge amounts of money it is forced to pay to the major retailers.

Instead, there are more than 100 identified ways (and more being created as I write this website) to get more and more money to the constantly-growing major retailers, without any corresponding payments to the independent competitors of the major retailers. This practice is driving the independents out of business. Ask any of them, if you have any doubts. From 1999 to the present (2006), more than 50% of my 143 original clients have gone out of business, in a variety of ways, but always because of the growing unprofitability caused by paying too much for goods when the major-retailer competitors are paying about 50% as much. This is a recipe for business and financial disaster, and the Robinson-Patman Act in 1936 was enacted to stop these practices.

The Federal government stopped enforcing the Robinson-Patman Act during the Nixon Administration, and the great growth of the major retailer chains can be traced from that period.

The only hope for independents is to commence for themselves the enforcement actions that routinely, pre-Nixon, were being brought by the FTC, with great success in preventing price and service discrimination.

I have listed and explained a variety of techniques used to violate the Robinson-Patman Act and call this a DNA Code. You have to painstakingly find out the value of each of the elements of discrimination, and then determine the amount of purchases that were made by the favored major retailer, then figure out how the discriminatory payments and services reduced the retailer real cost of the purchased items. You can see the DNA Code at The DNA Code for the Auto Parts Aftermarket