Perhaps at some later date, if demand warrants, the editor will publish a 50-state survey of statutes and case law prohibiting price and/or service discrimination.
Meanwhile, New York and California have just gone separate ways.
Although both states have antitrust statutes, and the statute in New York is considered by the federal and state courts to be a carbon copy of the federal Sherman Antitrust Act, the New York courts have held that the New York antitrust statute does not pr ohibit price discrimination, unless (possibly) the defendant is committing price or service discrimination together with activities prohibited by the Sherman Act. These prohibitions include boycotts, price fixing, monopolization and attempting to monopol ize.
The New York decision, decided in 1976 by the New York Court of Appeals (New York's highest state court), held that the New York Legislature knew how to outlaw price discrimination in other statutes and failed to do so in the New York Donnelley Act, Secti on 340 of the New York General Business Law. See State v. Mobil Oil Corp., 38 N.Y.2d 460, 344 N.E.2d 357, 381 N.Y.S.2d 426 (1976).
New York law should be changed to prohibit price discrimination and help to offset the unwillingness of the federal government (FTC and Justice Department) to enforce the Robinson-Patman Act.
Just recently, the California courts held, without any specific statute prohibiting price discrimination at the secondary line level, that California law prohibits price discrimination. See ABC International Traders, Inc. v. Matsushita Electric Corpor ation of America, 14 Cal. 4th 1247, 931 P.2d 290, 1997 Cal. LEXIS 405 (2/27/97) construing Section 17045 of the California Business & Professions Code, which is part of the California Unfair Practices Act.
This recent California case held that secondary-line competitors (such as wholesalers or retailers purchasing from a manufacturer) are protected under California business-regulation statutes from discriminatory pricing practices. Thus, the prohibitions o f the Robinson-Patman Act were extended by the California courts to businesses in California without any need for them to prove interstate transactions. Of course, there are no treble damages under the California statute. This is offset, however, by bei ng able to have the antitrust claims heard and resolved by the state courts in California who have shown a desire to prohibit price and service discrimination in California.
We'll keep you informed of further developments.
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