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ViolationGram Website - to Notify Major Retail Chains (by a Violation E-Mail or "ViolationGram") that They Are Purchasing Goods at Substantially Lower Per-Unit Prices than Their Independent Competitors for Use in RPA Lawsuits to Prove the Major Retailers Knowingly Received Lower Per-Unit Prices

1st Published: 03/31/02; Last Update: 02/14/03 08:00 am - STILL UNDER CONSTRUCTION - DEVELOPING DATABASE OF SUPERSTORE CONTACTS AND "VIOLATIONGRAM" PROGRAMMING
This ViolationGram Website is an important part of the RPAMall website, located at RPA Mall Website - for Basic Information about the Robinson-Patman Act

Index and Quick Links to Website Material

  1. How the Nation's Major Retail Chains (or "SuperStores") Are Trying to Avoid RPA Liability for Obtaining Substantially Lower Per-Unit Prices
  2. A Successful NYC Street Pothole Notification and Registration Service by the New York State Trial Lawyer's Association
  3. The E-Mailed Notice -- or ViolationGram (tm) -- Sent to the C.E.O./Chairman and C.F.O. of the Major Retail, with a List of the DNA Code Elements which Are Not Made Available to the Small-Business Competitor
  4. List of Major Retail Chains to which Your E-Mailed Notice -- or ViolationGram (tm) -- Can Be Sent by You
  5. Send a ViolationGram to the Owners of the Major Retail Chains Stores Which Are Hurting Your Business
  6. Print Out and Mail a Violation Notice to the Major Retail Chains or Manufacturers Which Are Hurting Your Business - with an Evidentiary Copy to this Website (or Participating National RPA Trade Association) for Possible Use in RPA Litigation
  7. Your Help Is Needed

How the Major Retail Chains Are Trying to Avoid RPA Liability for Obtaining Substantially Lower Per-Unit Prices

The problem which I am attempting to cure with this "ViolationGram" Website is the one created when the major retail chains or superstores, as their primary defense to RPA actions alleging they are liable under Section 2(f) of the Robinson-Patman Act, claim that they are totally unaware that the massive rebates and other benefits they are obtaining from the manufacturers were not also being given to the superstores' independent competitors.

Independent retailers which are still in business are reluctant to sue their supplying manufacturers, for fear of not being able to buy directly from them any longer (which of course would put the independent out of business, in many or most instances), but the same is not true as to suits against competitors.

The only problem is that the competitors may have a defense available to them which is not available to the manufacturer, the defense that the competitor did not unlawfully induce or knowingly receive the favorable price.

RPA litigation against competitors winds up for the most part to focus on whether the competitor knew it was receiving unlawfully low prices, and this website is an effort to reduce the scope of that litigation by providing proof that each superstore knew, by hundreds or thousands of notices being received each year from independent competitors, that the independents are not receiving any or most of the DNA Code rebates which the superstores know that they (the superstores) are demanding and receiving from manufacturers.

Of course, we know that such defense of not knowing is not true, but the problem is how do you prove that the superstores knew they were getting a lower price than the independent stores they are putting out of business?

If you ask the top executive of the superstores in a pre-trial deposition whether they knew or not, they will inevitably deny that they knew, and sometimes even try to explain why they had no reason to know -- as if they never heard of any RPA actions against them before.

Thus, regardless of how much extra discount from invoice they obtain, the superstores fall back on a defense in RPA Section 2(f) that requires (to establish liability) it be proven that the superstores (or other purchasers from a manufacturer) unlawfully induced or knowingly received the discriminatory price.

This website provides a mechanism where the nation's independent retailers can notify their superstore competitors (and in due course we'll add an option to notify the manufacturers at the same time) that they are obtaining a lower per-unit price than the notifying, small-business competitor.

The notice will be kept for further use by this website, and should also be kept by the small business sending the notice.

In discovery, these emails will provide a trail to show who knew about the discriminatory prices, and what each of the persons did with such knowledge, which generally tends to be not very much, except go to the bank with the sales taken from the victimized independent retailers.

RETURN TO: Index and Quick Links to Website Material

A Successful NYC Street Pothole Notification and Registration Service by the New York State Trial Lawyer's Association

The New York State Trial Lawyers Association during the late 1970's and early 1980's was faced with a similar situation. NYC was denying that it knew about the existence of hundreds or possibly thousands of major holes in the city's thousands of miles of roads and sidewalks, even though NYC's employees (police, fire, sanitation, elected officials, schoolteachers, travelled over the same roads and sidewalks every day.

The courts in New York held that there had to be actual notice that NYC knew about the existence of a specific pothole before NYC could be held liable for the damage caused to a motorist or pedestrian or other person for NYC's failure to repair the pothole.

The NYS Trial Lawyers Association started its NYC Pothole & Sidewalk Protection Committee, and describes it in the Association's website NYS Trial Lawyers Association Website, as follows:

Since 1982, Big Apple Pothole & Sidewalk Protection Committee has provided New York City with the legally required written notice of sidewalk, curb and crosswalk defects in the five boroughs of New York. Thorough and professional searches save attorneys countless hours in preparing their clients' cases. Every year, Big Apple provides hundreds of customers with completed searches, enabling attorneys to go forward with their cases. Attorneys using Big Apple's services are provided (usually within 48 hours) with accurate information, two clear and legible maps and our assistance down the road should you need it. Big Apple is able to support its findings by testifying in court.

I had an office two floors above the Association (at 132 Nassau St., NY NY) when it started this service, and have been aware of the growth of this notification and reporting service from its inception. I believe that a similar service would be useful for enforcement of the RPA. This is another good reason that there should be a single trade association throughout the U.S. for enforcement of the RPA (which would presumably cause an offsetting trade association to be created by the persons who are violating the RPA, if they don't already have a de facto association for such purpose).

RETURN TO: Index and Quick Links to Website Material

The E-Mailed Notice -- or ViolationGram (tm) -- Sent to the C.E.O./Chairman and C.F.O. of the Superstore Chain, with a Description of the Independent's Per-Unit Price When Purchasing Directly from the Same Manufacturer and/or a List of the DNA Code Elements Which Are Not Made Available to the Small-Business Competitor by the Same Manufacturer

The technique is simple. A competitor of any one or more superstore chains merely has to send an email in the form below to the superstore chain. The email contains the independent's price and/or a list of the DNA Code elements to be sent to superstore executive, except for elements deleted by the sender of the ViolationGram List of Elements in DNA Code, and the independent competitor before sending the email should

.....(i) strike any DNA Code elements which he/she has been receiving from the manufacturer(s); and

.....(ii) provide an email address to which a copy of the ViolationGram will be sent for safekeeping and possible further use in months or years to come, as material evidence of knowing violation of the RPA by the superstore.

Also, a copy automatically will be sent to this website for safekeeping and to make available to attorneys for businesses seeking to enforce their rights under Section 2(f) of the RPA against the superstore chains.

RETURN TO: Index and Quick Links to Website Material

List of SuperStores to which Your E-Mailed Notice -- or ViolationGram (tm) -- Can Be Sent by You

Email addresses for the following superstore owners follow:

  • AutoZone
  • Advance Auto
  • Barnes & Noble
  • Borders Group, Inc.
  • Bed Bath & Beyond
  • BJ's Wholesale Club, Inc., One Mercer Road, Natick, Massachusetts 01760, Tel. 508-651-7400, Fax 508-651-6114, Herbert J. Zarkin, Chairman; John J. Nugent, President and C.E.O.;
  • Costco
  • CSK Auto
  • CVS Pharmacy
  • Firestone
  • Goodyear
  • Home Depot
  • Keystone Automotive
  • Kmart
  • Kroger's
  • O'Reilly's Automotive
  • Pep Boys
  • Rite-Aid
  • Sam's Club,
  • Target
  • Venture
  • Wal-Mart Stores, Inc., xxx, Tel. xxx-xxx-xxxx, Fax xxx-xxx-xxxx, S. Robson Walton, Chairman; H. Lee Scott, Jr., President and C.E.O.; Thomas Schoewe, CFO, Exec. Vice President; email address of H. Lee Scott, Jr., hlscott@walmart.com

RETURN TO: Index and Quick Links to Website Material

Send an E-Mail ViolationGram (sm) to the Owners of the Superstores Which Are Hurting Your Business

ViolationGram to Notify Superstore of RPA Violations by Purchasing at Unlawfully Low Prices from Manufacturers

    While awaiting the development of the programming and database information required to support a fast electronic version of the ViolationGram, I have created a form of letter (and most importantly, form of accompanying affidavit or declaration) which can be printed out and mailed according to the instructions therein. I suggest that interested persons start using this form and making whatever changes are needed to have the letter go to the superstore(s) which are causing you, the independent competitor, the most problem. The letter (written for Wal-Mart, which also owns Sam's Club, as a division) is available for printing out at Form of ViolationGram Letter to Wal-Mart for Temporary Use Pending Completion of this Website

    RETURN TO: Index and Quick Links to Website Material

    Print Out and Mail a Violation Notice to the Superstores or Manufacturers Which Are Hurting Your Business - with an Evidentiary Copy to this Website for Possible Use in RPA Litigation

    While waiting for needed programming to enable email ViolationGrams to be sent conveniently by website users, we are providing forms of letter which can be printed out and mailed to the top officials of the companies. As to companies not yet posted, you can use download one of the forms below, and then make the appropriate corrections. For notice to manufacturers, use the Goodyear form. For notice to superstores or warehouses, use the Wal-Mart form.

    The available forms are:

    RETURN TO: Index and Quick Links to Website Material

    I invite you to look at these related websites:

    Your Help Is Needed

    Your help is needed to put the superstores on notice that they are obtaining rebates and other benefits not made available to you. This notice will be helpful for you and others to prove that the superstores knew they were obtaining a lower per-unit price and continued to do so after receiving the notice.

    RETURN TO: Index and Quick Links to Website Material

    Carl E. Person, Editor, LawMall, carlpers@lawmall.com
    For the c.v. (resume) of Attorney Carl E. Person, click on Carl Person C.V.

    Copyright 2002-2003 by Carl E. Person