Price fixing
Price fixing is an agreement between business competitors selling the same
product or service regarding its
pricing. In general, it is an agreement intended to ultimately push the price of a product as high as possible, leading to windfall
profits for all the sellers. Price-fixing can also involve any agreement to fix, peg, discount or stabilize prices. The principal feature is any agreement on price, whether express or implied. For the buyer, meanwhile, the practice results in a phenomenon similar to
price gouging.
Methods of price fixing can include selling at a common target price; setting a common "minimum" price; buying the product from a supplier at a specified "maximum" price; adhering to a
price book or
list price; engagement in cooperative price
advertising; standardizing
financial credit terms offered to purchasers; using uniform
trade-in allowances; limiting
discounts; discontinuing a free service or fixing the price of one component of an overall service; adhering uniformly to previously-announced prices and terms of sale; establishing uniform costs and
markups; imposing mandatory
surcharges; purposefully reducing output or sales; or purposefully sharing or "pooling" markets, territories, or customers.
Generally, price fixing is
illegal, but it may nevertheless be tolerated or even sanctioned by some governments at various times, particularly among those whose countries are
developing economies. See also the article
Collusion.
In the
United States, price fixing can be prosecuted as a criminal
felony offence under section 1 of the Sherman Act. In
Canada, it is an indictable criminal offence under section 45 of the Competition Act.
Bid rigging is considered a form of price fixing and is illegal in both the United States (s.1 Sherman Act) and Canada (s.47 Competition Act). In the United States, agreements to fix, raise, lower, stabilize, or otherwise set a price are illegal per se.
[Antitrust Law Developments (2002); United States v. Socony-Vacuum Oil Co., 310 US 150 (1940) [1]] It does not matter if the price agreed upon is reasonable or for a good or altruistic cause; or if the agreement is explicit and formal or unspoken and tacit. In the United States, price-fixing also includes agreements to hold prices the same, discount prices (even if based on financial need or income), set credit terms, agree on a price schedule or scale, adopt a common formula to figure prices, banning price advertising, or agreeing to adhere to prices that one announces.
[The Antitrust Laws A Primer (1993); Art Publishers Association, Bulletin: Be Careful About Antitrust Law (Feb. 2000). [2]] Although price fixing usually means sellers agreeing on price, it can also include agreements among buyers to fix the price at which they will buy products.
Under American law, exchanging prices among competitors can also violate the antitrust laws. This includes exchanging prices with either the intent to fix prices or if the exchange affects the prices individual competitors set. Proof that competitors have shared prices can be used as part of the evidence of an illegal price fixing agreement.
[Antitrust Law Developments (2002); Art Publishers Association, Bulletin: Be Careful About Antitrust Law (Feb. 2000). [3] ] Experts generally advise that competitors avoid even the appearance of agreeing on price.
[ Art Publishers Association, Bulletin: Be Careful About Antitrust Law (Feb. 2000). [4]] Under U.S. law, price fixing is only illegal if it is intentional and comes about via communication or agreement between firms or individuals. It is not illegal for a firm to copy the price movements of a
de facto market leader called
price leadership, which has been seen to be the case in markets for
breakfast cereals and
cigarettes. But informal agreements or unspoken agreements to fix price also can violate the antitrust laws. The price-fixing laws apply to industries and professionals, for-profit concerns and non-profits and charities.
[The Antitrust Laws A Primer (1993); Antitrust Outline Northwestern University [5] ] The
United States Department of Justice Antitrust Division and United States Federal Trade Commission responsible for upholding United States price fixing laws; see also
Sherman Antitrust Act. The Department of Justice handles both criminal and civil cases. As of 2004 under US law corporations may be fined up to $100 million for criminal price fixing; individuals can be charged and sentenced to prison sentences of up to 10 years for price-fixing violations. The Federal Trade Commission can prosecute firms for price fixing as a civil matter. Many State Attorneys General also bring antitrust cases and have antitrust offices, such as Virginia, New York, and California. Private individuals or organizations can bring their own lawsuits for triple damages for antitrust violations and also recover attorneys fees.
[ Antitrust Enforcement [6]; National Association of Attorneys General Antitrust Project [7]; Art Publishers Association, Bulletin: Be Careful About Antitrust Law (Feb. 2000). [8]].
In countries other than the United States, Canada and within The European Union, price-fixing is not usually illegal and is often practiced. When the agreement to control price is sanctioned by a multilateral
treaty or is entered by sovereign nations as opposed to individual firms, the
cartel may be protected from lawsuits and criminal
antitrust prosecution. This explains, for example, why
OPEC, the global
oil cartel, has not been prosecuted or successfully sued under U.S.
antitrust law. International airline tickets have their prices fixed by agreement with the
IATA, a practice for which there is a specific exemption in
antitrust law.
In October 2005, the
Korean company
Samsung pleaded guilty to conspiring with other companies, including
Infineon and
Hynix Semiconductor, to fix the price of dynamic random access memory (DRAM) chips. Samsung was the third company to be charged in connection with the international cartel and was slapped with a $300M fine, the second largest antitrust penalty in US history. In October 2004, four executives from Infineon, a German chip maker, received reduced sentences of 4 to 6 months in federal prison and $250,000 in fines after agreeing to aid the DoJ with their ongoing investigation of the conspiracy.
In 2006, the
Government of France fined 13 perfume brands and three vendors for price collusion between 1997 and 2000. The brands include
L'Oreal (4.1m euro),
Pacific Creation Perfumes (90,000 euro),
Chanel,
LVMH's
Sephora (9.4mill euro) and
Hutchison Whampoa's
Marionnaud (12.8mil euro).[
9] International price fixing by private entities can be prosecuted under the antitrust laws of many countries. Examples of prosecuted international cartels are those that controlled the prices and output of
lysine,
citric acid, graphite electrodes, and bulk
vitamins. [
10]
*
Collusion*
antitrust*
cartel*
monopoly*
oligopoly*
Variable pricing*
Net Book Agreement*
Vendor lock-in*
Sherman Antitrust Act*
US Department of Justice*
Trade Practices Act 1974 (Australia)*
List of Corporate Executives Charged with Crimes*
DRAM Price Fixing*
SONY Accused of Price Fixing in the UK - Nov. 15, 2005*
Antitrust Enforcement*
Art Publishers Association, Bulletin: Be Careful About Antitrust Law (Feb. 2000) *
US Department of Justice Website, Samsung Pleads Guilty to Price Fixing - Oct. 5, 2005*
US Department of Justice Website, Infineon Pleads Guilty to Price Fixing - Oct. 2004*
Antitrust settlement in Nevada price-fixing case*
In Defense of Price Fixing by Sean Gabb*
LVMH, L'Oreal, PPR fined for perfume price collusion; LVMH plans appeal Forbes
