Skills, Services and Interests Sought by RPATA, Relating to RPA Enforcement

Initial Publication: 11/28/99; Latest Revision: 8/4/01 08:00

Successful RPA litigation requires a variety of skills, services and interests spread among a variety of professionals and others. The types of individuals (or firms) needed for use by plaintiffs and their attorneys in RPA litigation include: attorneys, paralegals, economist experts, industry experts, survey experts, other experts, investigators, trial prep persons, former employees (especially with an axe to grind), media persons; persons with political, educational or social interest; or persons with business or other economic interest; or persons with some other interest in RPA litigation.

For persons with a more academic interest in the RPA, price discrimination, and what happens if price discrimination is not ended, my partially-completed book entitled "DROPPING OUT" suggests what victims should do to fight back. See Ending Price Discrimination through a DROPPING OUT Lifestyle in a DROPPING OUT COMMUNITY.

Virtual RPA Law Firms. No law firm has all the persons needed by the plaintiffs in an RPA lawsuit. Some law firms will have more attorneys and paralegals than others, but a single practitioner can retain different types of persons, as needed, to provide the services required in an RPA antitrust suit, especially where the plaintiffs are from different parts of the country. The concept of the "virtual law firm" is discussed by me elsewhere in the parent lawmall website, at Description of the Virtual Law Firm.

The fight for a level playing field in business in a battle fought in multiple arenas including the courts, politics, legislatures, government agencies, the press, business, economics, university economics departments, society, and bar association committees.

The increasing concentration of our United States economy has significantly reduced the ability of level-playing field advocates to be heard, which has reduced the political pressure on government to enforce the antitrust laws generally, and the Robinson-Patman Act specifically.

What is needed is an overall approach to creating a level playingfield for business, including but not limited to affordable RPA litigation. The categories of persons needed in the overall approach to curing the price discrimination problem, and a brief explanation of what they can do or should do, follows:

  1. Attorneys experienced in commercial litigation. The main thrust of RPA enforcement is by private (i.e., non-governmental) lawsuit brought by one injured business or a group of injured businesses against the manufacturers or suppliers charging discriminatory prices and/or the chain-store competitors who are given the favored prices, services and programs. The attorney with commercial litigation experience (which, incidentally, does not refer to collection lawsuits against business) in the federal courts are needed to represent plaintiffs in RPA suits throughout the United States (to handle the action alone or with co-counsel, or to act as local counsel, or to conduct local proceedings such as the taking of a deposition or the making of a motion). Attorneys who have commercial litigation experience in state courts can readily adapt themselves to a federal RPA lawsuit, but would have to be admitted to the local federal district court before filing a RPA action on behalf of a client. The term "local counsel" is a reference to the requirement in most courts in the United States that an out-of-state attorney retain a local attorney (called "local counsel") to keep the out-of-state attorney informed about local practice, and to sponsor the outside attorney for admission to the court for the one case only. The comparative lack of RPA litigation over the past 30 years has significantly reduced the number of attorneys having RPA litigation experience. This should change dramatically over the next 5 years.

  2. Paralegals, Legal Assistants or Litigation Assistants. Much of the work in any lawsuit could be done by a non-lawyer. I know. I helped to create the paralegal field back in 1972 when I founded the second paralegal school in the country. The problem in using paralegals (also called legal assistants, or a more specialized litigation assistant) is that they are of little or no use to do a single task the first time. It is much easier, faster and less costly, often with higher-quality results, for the attorney to do the paralegal task himself/herself. If, however, a paralegal (or lawyer or other person) can be employed on a repetitive basis, to obtain experience in doing the same type of work, such as in answering interrogatories, summarizing deposition transcripts, analyzing and coding discovery documents, or preparing motion papers to compel document production, the use of paralegals becomes very cost-effective and desirable. RPATA needs paralegal who are interested in working on a parttime, independent contractual basis, not conflicting with any other work they are doing. The compensation could be hourly, daily or by the defined task. There is also some argument for contingent-fee compensation, see Payment of Expert Witnesses on a Contingent-Fee Basis - A Possibility with Various Possible Pitfalls; and see Financing of Litigation Through the Sale of Lawsuit Shares. The extension of these ideas for giving shares in lawsuits could enable a paralegal to purchase shares in the lawsuit with the value of his/her services, at least arguably.

  3. Economist Experts. Economists are needed to review business data, do independent research (into market shares, for example), and prepare reports (known as "expert opinions") on the amount of damages suffered by the plaintiff and the effect of the unlawful price and service discrimination practices on the plaintiff's business. Without expert testimony, there is often little or no chance to prove the largest part of a plaintiff's damages. Usually, the economist is a university professor, but this does not have to be so. An expert does not have to have prior experience, although experience would be highly desirable. An expert can be found qualified by the courts based on his education, training or work experience. The expert's compensation is generally on a hourly basis (often $100-$200 or more), but there is a possibility for paying the expert on a contingent-fee basis; see Payment of Expert Witnesses on a Contingent-Fee Basis - A Possibility with Various Possible Pitfalls.

  4. Specific Industry Experts. Persons who, through their education, experience or training, have become experts in a specific industry, such as book publishing, distribution of automotive parts and distribution of beverages, are needed to testify in RPA cases involving price and service discrimination, and discriminatory advertising and promotional allowances, in the industry. The testimony could include the extent of the discrimination, the companies which are disfavored, the companies which are disfavored, the reason for the discrimination, and the effect of the discrimination on the plaintiff's sales and profits. Each industry in which RPA violations are taking place needs to have one or more experts who can testify as to the effect of price discrimination on a plaintiff's market share, as well as to give an opinion on the effect on the plaintiff's bottom line as to other events which could account for the loss of sales, such as a fire which destroyed the plaintiff's warehouse and inventory. These industry experts can be qualified as experts by reason of their experience in the industry, as distinguished from an educationally-acquired expertise. No prior experience as an industry expert is required or even expected. For a discussion of compensation, see Economist Experts above.

  5. Other Expert Witnesses. There could be other experts used in an RPA case, but rather than try to list them, I would like suggestions from potential experts as to where they might be of help. Thus, this is a catch-all category for experts other than economists, industry and survey experts.

  6. Survey Experts. The courts permit proof of facts through introduction into evidence of "projectable surveys". A survey is a sampling or polling of a percentage of a whole or universe of a group of persons having something in common. A projectable survey begins with a survey or polling of the part of the group, asking each person within the small group the same question, from a carefully-prepared list of questions (designed to minimize misunderstanding, and to ensure each person being interviewed was answering the same questions). Then, the answers are correlated by statistical means and the results are then projectable onto the entire universe, with a known range of possible deviation. The survey is then accepted as evidence of the conclusions reached in the survey, similar to an expert opinion. If, for example, 90% of persons who buy books from Amazon.com would have otherwise purchased the book at a bricks and mortar bookstore, and 5% would not have bothered to purchase the book at all, and the remaining 5% did not know what they would have done, the survey would be used to establish those facts. RPATA is very much in need of persons seeking to establish themselves as survey experts for RPA litigation. These persons should have a statistical background, probably some economics, and should study the methods used to create court-admissible, projectable surveys, and the court decisions explaining what is needed. For a discussion of compensation, see Economist Experts above.

  7. Investigators and Trial Prep Persons. There is a significant amount of investigative work required in an RPA lawsuit, work which can be given to independent contractors such as investigators and trial prep[aration] persons, as well as paralegals and even attorneys (functioning as paralegals or investigators). This work entails locating and communicating with prospective witnesses and often trying to obtain an affidavit or (non-notarized, federal-court) declaration from them, but use by the plaintiff in opposing a defendant's summary judgment motion. Lost customers need to be contacted, to have them explain why they stopped buying goods from the plaintiff. Present customers also need to be contacted, to explain why they started buying some of their product needs elsewhere. This is a great chance for persons to start or expand an investigative, trial prep or paralegal business.

  8. Former Employees and Discrimination Victims No Longer in Business. Some of the best sources of information and witnesses are former employees of the RPA defendants, as well as persons who were put out of business by the discriminatory practices (and have nothing to lose by testifying against their former supplier or manufacturer or chain-store competitors). Some of these persons are willing to reveal what they know about the defendants' unlawful practices about which you are inquiring, as well as other illegalities they know about. Some of these former employees have been hurt themselves when they made the leap from being an employee of the defendant into becoming a competitor of the defendant; and others are so-called "disgruntled" because of the unfair way in which they may have been treated by the defendant. RPATA wants to create a list of such persons as valuable sources of information for RPA lawsuits in different industries. Also, the former employee or other person willing to tell all will have the surprise advantage of being able to learn whether there is any basis for him/her to commence a lawsuit. For example, the disgruntled employee might have been fired and may have valid claims for wrongful termination.

  9. Interactive Website Developers-Programmers Who Write in CGI, Perl and Have Website-Related Database Experience. The value of high-quality website communications is becoming increasingly obvious, and RPATA needs one or more persons with experience in writing interactive websites using the Common Gateway Interface language (CGI) and Perl, and have experience with database applications; more and more RPA litigation will be run from intranet websites enabling easier communication of drafts of documents among the plaintiffs and attorneys, and for the service upon defendants' attorneys and the filing of final litigation documents electronically. Please call Carl Person right away if you are interested, at 212-307-4444 (weekdays) or by fax, at 212-307-0247.

  10. Reporters, Columnists, Editors & Other Media Persons. RPATA wants to identify the people who are interested in following and doing stories about unlawful price discrimination. These people can be reporters, columnists, editors, publishers, stringers or others writing for having input with trade journals, industry newsletters, business and other magazines, daily and weekly newspapers, and radio and television stations. RPATA will keep them informed with periodic news reports about new RPA lawsuits, lawsuits being formed within a specific industry, and industry problems along the way. Of course, what the reporter does not know is whether the targeted publication for the story would even publish it, because many publications are dependent on revenues from the RPA violators (often major chain stores), and would be reluctant to run a story offending their major sources of revenue.

  11. Persons with Political, Educational, Economic, Business, Social or Other Interests. Everyone is affected by rampant violations of the RPA. The effect of the violations is to create mega retailers who, along the way, put tens of thousands of small businesses out of business; investors in the mega-retailers prosper; small business owners and their families suffer; politicians have fewer sources from campaign financing and are required to do less (for the public) to get more (campaign funding); government and the media dominated by the wealthy, and theothers become similar to economic slaves, providing the low-pay services to the mega-stores instead of owning and running their own businesses. Everyone has an interest in the RPA, and this is the default category, for anyone not covered by any of the above categories.

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Copyright 1999, 2001 by Carl E. Person