Tuesday, November 25, 2014

Retailer Challenges Clorox’s “Club Pack” Policy as Robinson-Patman Violation

             Woodman’s Food Market, Inc. recently filed a lawsuit against The Clorox Company, alleging that Clorox’s policy of no longer selling “large pack” – a.k.a. “club pack” – products outside of the club channel violates the Robinson-Patman Act. 
Alleged Facts 
Woodman’s is a large-format grocery store that competes against Sam’s Club and Costco.  Clorox’s club pack products are cheaper per unit compared to smaller pack products, and Woodman’s had been purchasing the club pack products for years.  In September 2014, Clorox informed Woodman’s that, as of October 1, 2014, it would only sell its club pack products to club stores – i.e. Costco, Sam’s Club, and B.J’s.  Woodman’s describes the competitive consequence of Clorox’s new policy as follows:
As a consequence of this new policy, two of Woodman’s primary competitors, Sam’s Club and Costco, will be able to buy and sell at retail special large packs of Clorox products that Woodman’s will no longer be able to sell giving a significant competitive advantage to these competitors of Woodman’s.  In addition, because the unit price on these large pack items is significantly lower than the unit price charged for small packs of these same products, Sam’s Club and Costco will generally be able to buy and ultimately sell these large pack items at significantly lower unit costs than will be available to Woodman’s and ultimately its retail customers.

Complaint ¶ 36.
Alleged Robinson-Patman Act Violation and Relief Sought
Woodman’s alleges that Clorox’s new policy violates three provisions of the Robinson-Patman Act, 15 U.S.C.A. §§ 13(a), (d), and (e). 
Section 13(a) of the Robinson-Patman Act prohibits selling products of “like grade and quality” at different prices, if the price differences may injure competition.  Woodman’s alleges that Clorox’s new policy violates § 13(a) because Sam’s Club and Costco will be able to purchase Clorox’s products for less per unit than Woodman’s and thus resell the products for less per unit, which will diminish Woodman’s ability to compete on price. 
Sections 13(d) and (e) of the Robinson-Patman Act prohibit a seller from granting advertising and promotional allowances or services to customers unless they are available to all competing customers on proportionally equal terms.[1]  Woodman’s alleges that Clorox’s new policy violates these sections – primarily § 13(e) – because Clorox is now making available a special pack/package size to the club channel that is not available to Woodman’s.
Woodman’s seeks declaratory and injunctive relief that would prevent Clorox from selling its “club packs” only to the club channel and prevent Clorox from providing services and prices to the club channel that are not also proportionally made to Woodman’s.  Woodman’s also filed a preliminary injunction motion at the same time as it filed its complaint, seeking an order from the Court (under §§ 13(d) and (e) of the Robinson-Patman Act) that would require Clorox to continue to sell its “club packs” to Woodman’s during the pendency of the lawsuit. On November 24, 2014, Clorox filed its response to the motion for a preliminary injunction; this response was filed under seal and therefore is not publicly available.  A decision on the preliminary injunction will likely be made in the first quarter of next year.  Among other things, the court will likely address in its decision the likelihood of success of Woodman’s argument that Clorox’s policy restricting the sale of club packs outside the club channel violates §§ 13(d) and (e) of the Robinson-Patman Act. 
Implications of the Woodman’s Suit
            Woodman’s suit raises issues of increasing importance to consumer goods manufacturers and retailers:  whether a manufacturer can lawfully treat retailers operating in different channels differently, particularly club stores.  Clorox’s club pack policy was not tied to any performance criteria that would at least arguably enable Woodman’s to make a business decision as to whether it would continue to sell club packs.  Clorox simply informed Woodman’s (allegedly) that Clorox would no longer sell club packs outside of the club channel without giving Woodman’s an option to continue to distribute the packs.  If this is true, Woodman’s suit likely has merit. 
The key to legally managing channels differently is to develop viable performance criteria associated with packages (and trade programs) that allow retailers to make business decisions as to the packs they will distribute (and the trade they will receive).  Clorox’s (alleged) failure to develop such performance criteria could be a fatal flaw in its new club pack policy.
 Industry participants interested in viable performance criteria that avoid the pitfalls associated with Clorox’s new policy should consult with legal counsel.



[1] Section 13(d) applies to payments in connection with transactions involving “commodities”; §13(e) applies to services in connection with a “commodity.”

Wednesday, September 18, 2013

Court Declares That Floorgraphics Cannot Pursue Fraud Claim Against News America

A federal court issued a declaratory judgment last week finding that Floorgraphics’ 2009 settlement with News America Marketing precludes Floorgraphics from pursuing fraud claims against News America based on alleged perjury by News America employee Gary Henderson falsely denying having a role in hacking into Floorgraphics’ computer systems.

In 1999, News America Marketing CEO Paul Carlucci allegedly threatened to “destroy” Floorgraphics’ business when it refused to be acquired by News America.  In 2003 and 2004, News America improperly accessed Floorgraphics' password-protected web site, and reportedly engaged in other anti-competitive acts that dramatically decreased Floorgraphics’ business, including making false disparaging statements about Floorgraphics, making false statements about its own performance, coercing retailers into not doing business with Floorgraphics, bundling in-store programs, and demanding a right of first refusal from retailers for future programs.  Floorgraphics filed suit against News America in 2004.  During discovery and at trial, Mr. Henderson denied any involvement in the computer hacking.  The lawsuit was settled during trial in 2009 for $29.5 million.  As part of the settlement, News America acquired assets from Floorgraphics, and the parties signed a mutual release of claims.  Floorgraphics agreed to release News America from “all claims . . . of every nature and description whatsoever, . . . whether known or unknown, concealed or not concealed.”

Not long after Floorgraphics settlement, another News America competitor, Valassis, won a $300 million judgment against News for similar anti-competitive conduct, and eventually settled that and another lawsuit against News America for $500 million.  A third competitor, Insignia, settled a lawsuit making similar allegations of anti-competitive conduct against News America for $125 million.  Some of the damaging evidence disclosed during the Valassis and Insignia lawsuits had not been disclosed to Floorgraphics, and Floorgraphics moved unsuccessfully to undo the settlement and reopen its lawsuit against News America based on the previously withheld information. 

Meanwhile, in December 2009, News America had sued Floorgraphics for breach of contract and fraud, alleging that a substantial part of the assets that were part of the settlement were invalid, unassignable, or non-existent.  In 2012, Floorgraphics sought to add counterclaims against News America for fraud and other claims based on newly discovered evidence that News America’s Gary Henderson had committed perjury when he had denied being responsible for hacking into Floorgraphics’ computers. News America responded by filing an action for declaratory judgment in federal court in New Jersey against Floorgraphics seeking a declaration that Floorgraphics is barred from pursuing its fraud claims by the 2009 Mutual Release, and seeking attorneys fees for Floorgraphics’ alleged breach of a covenant not to sue contained in the Mutual Release.

The court issued a ruling on News America’s summary judgment motion in that lawsuit on September 10.  The Court found that the release agreement could only be vacated if there were “clear and convincing proof of fraud.”  Far from meeting that high standard, the Court found that Floorgraphics “failed to present the Court with any facts tending to support its claim that Gary Henderson committed perjury.”  The Court therefore declared that it is “barred from asserting its Fraud Claims against NAM based on the alleged perjury committed by Gary Henderson.”

Floorgraphics' purported failure to present any such evidence is somewhat puzzling in light of disclosures in a New York Magazine article in 2011 that Gary Henderson had admitted to News America staffers that he had admitted to obtaining proprietary information about future Floorgraphics ads from inside Floorgraphics’ computer system, and that he had the blessing of his bosses.  While the article itself is inadmissible hearsay, presumably Floorgraphics could have procured evidence of the fraud if it had been allowed to depose the witnesses quoted in the article.

The Court rejected News America’s claim for attorneys’ fees based on Floorgraphics' alleged breach of the covenant not to sue, noting that the declaratory judgment action had been filed by News America, not Floorgraphics.

While Floorgraphics was unable to obtain any relief for Gary Henderson’s apparent perjury, News America is not entirely out of the woods, as there are two major lawsuits still pending against it: a putative class action lawsuit filed by consumer goods manufacturers for alleged overcharges they paid for advertising because of News’ anti-competitive scheme; and a shareholder lawsuit claiming that News’ improper actions cost shareholders $655 million for the Valassis, Insignia, and Floorgraphics settlements.

Monday, June 17, 2013

Canadians Indict Chocolate Companies for Price-Fixing After Lengthy Investigation

Criminal price-fixing charges were recently filed against Canadian affiliates of Nestle and Mars, a network of wholesale distributors, and three individuals, alleging that they conspired to fix chocolate prices in Canada.  In addition, Hershey Canada agreed to plead guilty to price-fixing related to conspiratorial communications with competitors in 2007.

According to recently unsealed documents, a price-fixing investigation of the chocolate companies began when Cadbury came forward as a whistleblower in July 2007 seeking to participate in an immunity program in return for its cooperation.  The chocolate companies allegedly fixed prices during meetings in coffee shops, restaurants, and at trade conventions, and through phone calls and e-mails beginning in 2002.  The conspiracy allegedly involved senior employees in both the United States and Canada.

Chocolate purchasers filed class action lawsuits in the United States against Hershey, Nestle, Mars, and Cadbury in 2008, and class certification was granted in 2012.  Those suits are ongoing.

I was asked in a recent media interview why chocolate in particular was subjected to price-fixing as opposed to some other product.  While a lot of other products are subject to price fixing agreements besides chocolate, products are more susceptible to collusion under certain economic conditions that are present in the chocolate industry.  These include an oligopolistic market, high barriers to entry, high fixed costs, a commodity product, many small customers, and inelasticity of demand (e.g., the absence of close substitutes for the product). 


As chocolate lovers (like myself) can attest, there is no close substitute for chocolate, which many people crave, and which is reported to provide certain health benefits when consumed.  In other words, one of the qualities that makes chocolate susceptible to price-fixing is that people love chocolate, and will continue to purchase chocolate even if prices are artificially inflated.

Update June 21, 2013: Hershey's received a fine of almost $4 million in connection with its guilty plea.  A trial date for Nestle and Mars is set for October 3.

Wednesday, June 12, 2013

Pension Fund Files Derivative Suit Related News America Marketing’s Anticompetitive Acts

On June 7, a pension fund filed a derivative suit against News Corp and its top executives for breach of fiduciary duty, and against the executives for waste of corporate assets and unjust enrichment.  These claims are based on News America Marketing’s illegal and anti-competitive business practices, including monopolizing the market for in-store promotion services and for FSIs.

News America has paid almost $655 million to settle lawsuits from three competitors related to its anti-competitive practices, and may be forced to pay millions more to resolve a lawsuit filed by customers such as Heinz and Dial, and by Foster Poultry Farms on behalf of a proposed class of customers.  In addition, News America was the subject of an FBI investigation related to News America’s computer hacking, and was allegedly investigated by the DOJ for possible antitrust violations.

According to the Complaint, News Corp acquired dominance in the market for advertising and promotion services geared toward CPGs “through various wrongful acts designed to impede competition, including: (i) entering into long-term exclusive contracts with retailers; (ii) paying large economically unjustifiable cash payments to retailers to derail competitor contracts; (iii) bundling and predatorily pricing its in-store advertising and promotion products and services with its FSIs; (iv) hacking into competitors’ computer files; (v) dishonestly disparaging competitors’ compliance rates and financial viability; and (vi) defacing competitors' advertisements.”

Defendants allegedly breached their fiduciary duties by “creating a culture of lawlessness within News Corp, and/or consciously failing to prevent the Company from engaging in the unlawful acts.”

As relief, the plaintiffs seek an order: requiring News to “reform and improve its corporate governance,” requiring disgorgement of benefits obtained by the defendants, and awarding fees and other appropriate relief.

Monday, April 29, 2013

Advertisers Expanding Case Against News America to Become a Class Action


An antitrust lawsuit brought by Dial Corporation and Heinz against News America Marketing is being expanded to include as Plaintiffs a proposed class of all domestic entities that purchased in-store promotions from News America.

Last December, I reported that News America Marketing had been sued for monopolization and tying by Dial Corporation.  Heinz joined the suit as a Plaintiff shortly thereafter.  Dial and Heinz alleged that News America engaged in a variety of exclusionary practices that allowed News America to create a monopoly and artificially inflate its prices.  Plaintiffs’ allegations about News America’s conduct included a number of allegations that were the subject of previous lawsuits against News America brought by its main in-store competitors -- Floorgraphics, Valassis, and Insignia -- that resulted in aggregate settlements totaling over $650 million.

For example, Plaintiffs allege that News America hacked into Floorgraphics’ password-protected computer system, made false disparaging statements about its competitors, improperly removed competitors’ ads, secured long-term deals with retailers and staggered the expiration dates to prevent any competitor from obtaining a critical mass of retailer contracts, overpaid for contracts with retailers to shut out its competitors, and unlawfully bundled in-store advertising with FSIs.  Using these exclusionary tactics, News America allegedly obtained an 84% market share of the in-store advertising market by 2009.  (Given the anti-competitive components of News America’s settlements of the competitor lawsuits, that share has presumably grown).

Last week, Plaintiffs sought permission to file a proposed Second Amended Complaint that expands the case to include class allegations (as predicted), and to add Foster Poultry Farms as a proposed class representative.  The proposed class is defined to include domestic entities that have “directly purchased in-store promotion services from News America” within the past four years.

News America is arguing that the relevant product market is not limited to third-party advertising in retail stores, but should be defined much more broadly to include other forms of advertising, including advertising placed by retailers.

News America counter-sued Dial and Heniz in January for allegedly breaching a forum selection clause in the parties’ contracts requiring that they litigate in New York, rather than in Michigan where the advertisers’ suit is pending.  News America is also seeking declaratory judgment in the New York suit that it did not engage in monopolization or tying.
 
If your rights may be affected by this case, please feel free to contact me or my firm for advice.

Thursday, December 27, 2012

Dial Corp. Sues News America Marketing for Monopolization and Tying


Last week, Dial Corporation filed suit against News America Marketing for monopolizing the market for in-store advertising and free-standing inserts (“FSIs”) and engaging in unlawful tying in violation of the antitrust laws.

In its Complaint, Dial alleges that News America violated Sherman Act § 2 by engaging in “multifaceted and pervasive exclusionary strategies . . . over twenty years . . . [that] suppressed competitive promotion of a massive number of consumer goods in forty thousand retail stores, and scores of newspapers nationwide, to acquire and maintain two unlawful monopolies and earn large monopoly profits at the expense of its purchasers.”

Dial alleges that News America “sought to build contract barriers . . . to make it difficult for [competitors] to compete,” and engaged in other exclusionary actions, including:

  • Hacking into Floographics' computers to obtain customer lists and other marketing materials to solicit its accounts and lock them into News long-term and exclusive contracts;
  • Staggering the terms of the exclusive contracts so that in any given year a News competitor would not have any substantial opportunity to expand its competitive retail distribution network;
  • Enforcing aggressively contractual shelf exclusivity by removing competitors' services and telling customers that their promotions with competitors would not appear;
  • Using large cash guarantees unjustified by potential in-store promotional revenues to derail competitor contracts with retailers, a practice expressly designed to exclude competitors from these chains;
  • Disparaging and misrepresenting competitors' in-store advertising compliance rates, which are important to consumer packaged goods companies when they select a vendor;
  • Disparaging competitors' financial capacity and ability to pay the retail chains for necessary access; and
  • Defacing competitors' in-store advertisements and then disparaging the quality ofthe defaced promotions to the retail chains.

As detailed in earlier blog posts, between 2009 and 2011 News America Marketing paid over $650 million in settlements to three competitors – $500 million to FSI competitor Valassis, $29.5 million to in-store floor and shelf advertising competitor Floorgraphics, and $125 million to in-store shelf advertising competitor Insignia Systems.  Valassis had won a $300 million jury verdict against News America, and also had a separate federal lawsuit pending at the time of its $500 million settlement.

The evidence against News America was strong.  Consistent with Dial’s allegations, the evidence (described in earlier posts on this blog) included documents and testimony showing, for example, that:

  • News America hacked into Floorgraphics password-protected computer accounts at least eleven times and viewed competitively sensitive customer information.
  • News America's CEO Paul Carlucci admitted showing a film clip to sales staff from the movie The Untouchables, and admitted to using several mafia references. A video clip was played at trial of Mr. Carlucci telling employees that News had pushed "Valassis to what we call the brink of utter desperation," and that "Mr. Murdoch was saying now you have to really go after them."
  • A News America executive admitted to bundling in-store advertising with FSIs, inflating prices to CPGs for in-store advertising if they did not also purchase FSIs from News America. A video clip was played of the sales executive describing "the game plan whereby we would use the in-store products to drive FSI volume and the FSI to drive in-store depending on which particular client." Several CPG representatives testified to being upset with the bundled pricing.
  • News America executive Marty Garofalo, in a video clip of a sales summit that was played at trial, stated that News America intentionally sought out long-term exclusive contracts with retailers: "Our strategy is to secure long-term retail deals . . . . For instance, our current deal at Kroger is for seven years. Ahold agreement currently stands at eight years and we recently signed Safeway last year to a 10-year deal." Mr. Garofalo also stated that News America intentionally erected barriers to entry by potential competitors, stating in the same video clip that “we also staggered the deals to prevent a large percentage of our network from being vulnerable at any specific point in time. . . . [T]his method . . . means a competitor who wants to develop a critical mass for their network would have to dedicate a lot of money over a considerable period of time in order to break into the in-store game in any significant way.”
  • A former News America employee, Robert Emmel, testified that News America engaged in a campaign to target retail accounts to take away from Floorgraphics, and overpaid for exclusive contracts with retailers. He also testified that they made false disparaging statements about in-store competitors Floorgraphics and Insignia.
Dial’s 32-page complaint details much of this alleged misconduct, and provides other examples.

It is surprising that the Dial lawsuit was brought only on behalf of Dial, and not as class action on behalf of all affected CPGs.  Given the high litigation costs of a monopolization lawsuit, the hundreds of potential class members, and the hundreds of millions of dollars that could be at stake for CPGs, a class action seems to be a more efficient vehicle for resolving the claims.  As it currently stands, CPGs other than Dial will not recover any of the alleged overcharges unless they file their own separate lawsuit.  On the other hand, if a class action is filed, all CPGs could be represented in a class action that would enable all affected CPGs to benefit from any recovery. 

Sunday, February 5, 2012

Discovery Sanctions Ordered Against Delta Air Lines

On Friday, the Northern District of Georgia ordered that sanctions be imposed against Delta Air Lines, Inc. (“Delta”) for its discovery misconduct, awarding Plaintiffs certain fees and expenses related to Delta’s failure to timely locate and produce documents.  The Court ordered that discovery against Delta be reopened for four months, and addressed several other miscellaneous discovery matters.

The Order and related documents follow:
 

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