[thelist] Business practices and Anti-Trust

Karl Fast karl.fast at pobox.com
Sun Mar 18 19:24:45 CST 2001

Thank you for all your research on this...

> Although I agree with zac that a case specifically testing
> mailing list discussions would be illuminating, I've now done
> enough reading to be persuaded that such discussions would
> be seen as illegal in the US (see the quote from Lewis Rose
> below).
> I think the antitrust discussion here is mostly over; if not,
> I suggest that you read the 1995 thread from the HTML Writer's
> Guild list and the 1996 discussions from the webconsultants
> list because I suspect that there's nothing really new to add.
> Both sets of discussions are quite interesting reads.
> If anyone would like my collated links and highlights on US
> antitrust law, mail me and I'll send them to you (er, Adrian,
> ignore my message to you about this).
> Paola
> -----------------------------------------------------------------
> Here is a message from 1995 from the HTML Writer's Guild mailing
> list which eventually prompted them to publish a guide to fees.
> http://www.aip.org/hypermail/guild/0267.html (follow the "Next in
> thead" links).
> It resulted in a similar thread.
> Marshall Kragen and Lewis Rose (the lawyers named on the HWG FAQ)
> were both subscribers to the list at the time and were active
> in the thread.
> http://www.aip.org/hypermail/guild/0315.html is where Kragen
> describes the case involving the brokers.
> The message by Lewis Rose is also compelling
> http://www.aip.org/hypermail/guild/0425.html - in it he says
> that a trade assoc (like the Guild) can publish a price survey
> in a structured format.
> He also wrote:
> "When does a discussion imply an agreement? When a judge says so. Sorry,
> there is no easy response to that. But the issue really is, what is the
> pro-competitive justification for such a discussion? How does it help
> competition for competitors to discuss how to price for their services and
> to discuss specific prices? Sure, it makes it easier for one or another of
> you to determine whether your price is fair, but that justification will be
> condemned. Indeed, it is fair to say that the DOJ, FTC, state
> attorneys-general will be hard-pressed to find any justification for such a
> discussion."
> -----------------------------------------------------------------
> A search on "Marshall Kragen" finds a similar discussion on
> the webconsultants mailing list in 1996.
> http://just4u.com/webconsultants/dig506.htm#webpages
> http://just4u.com/webconsultants/dig507.htm#price
> http://just4u.com/webconsultants/dig508.htm#pricing
> http://www.just4u.com/webconsultants/dig509.htm#price (broken HTML - have
> to view source...)
> Marshall Kragen wrote
> "The legal way to do this is to have a journalist independently investigate
> and post prices.  There just can't be a discussion between those who may
> otherwise be competitors. And for those who have argued and will argue
> we're not competitors the prosecution can make a prima facie case that you
> are and then shift the burden to you to prove otherwise, and then we're
> talking the big bucks in legal fees Jack mentioned."
> http://just4u.com/webconsultants/dig513.htm#price
> http://just4u.com/webconsultants/dig514.htm#price
> http://just4u.com/webconsultants/dig527.htm#gifs
> http://just4u.com/webconsultants/dig529.htm#animated (broken HTML)
> http://just4u.com/webconsultants/dig606.htm#charge
> (end - phew!)
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