With the progress on economics, we could find a lot of judgments, or even the law itself, were based on some erroneous and misguided legal and economic concepts, such as predatory pricing, competition, market definition, cost concept, etc.
Take “Lor’s, Inc. v. Broadway-Hale Stores, Inc. 359 U.S. 207, 79 S. Ct. 705, 3 L.Ed.2d 741 (1959)” as an example.
In this case, the plaintiff, which was an independent electronic products retail store, claimed that manufacturers and distributors of many well-know brands as GE, RCA, Emerson, etc. refused to sell or sold their products at so-called “discriminatory price.” The reason was the manufacturers or distributors of these well-known brands sold their products to the chained stores in lower prices than to them.
The Supreme Court held this common commercial behavior as a violation of Sherman Act. Obviously, the court just showed their lack of cost concept.
All the meaningful costs shall be “opportunity costs.” Thus the costs between selling products to chained stores and to an independent retail store are tremendously different. The factors, like predictable constant purchase, reliable payments, and the vast amount of quantity, make the manufacturers or distributors less cost to sell their products to chained stores. There are some costs existing in setting up and maintaining a transaction channel between two parties. Sometimes the costs are absorbed by the seller, sometimes are paid by the buyers. However, it does exist. There is no such thing as a free lunch.
Since the difference of cost structures, discriminatory pricing would be very popular in most businesses.
Formosa Plastic Corporation, a Taiwan company and the largest manufacturer of PVC resins in the world, made their revenue more than 5 billion US dolor last year. They require a substantial deposit and highest purchasing quota to any new customer. The amount of PVC that is exceeded the quota won’t be sold even the buyer is voluntary to pay more.
I also had a similar experience. The company, which I worked for, refused to sell products to a new customer who wanted to buy more than ten machines at one time in the first several deals unless they were willing to pay cash before we deliver.
Because there are some uncertain risks that cost us too much to do business with an unfamiliar new customer. We didn’t know whether the credit of the new customer was good. We didn’t know what the real purpose they had. To sell our products or to try reverse-engineering? That’s a question to us. I believe the situation would be similar to Formosa Plastic Corporation and other companies around the world.
It is the concern of cost, not of “anti-competition," causes a businessman much prefer to sell his goods to a customer he knows in lower prices or larger volumes, especially in B2B relationships.
This common commercial phenomenon can be explained perfectly by the correct cost concept. Unfortunately, the court in Lor’s case was unable to distinguish the costs on economics form the costs on accounting. No wonder the court came out a decision that sounded so surreal to normal businessmen.
The judges, scholars, and people who believe in the function of antitrust laws are just unable to see the real world clearer.