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Lawyer here. Hard disagree. The software is sold for the purpose of reducing competition, and gives advice on how to best achieve that. Everyone colluding is b
by DannyBee 3y ago
Lawyer here. Hard disagree. The software is sold for the purpose of reducing competition, and gives advice on how to best achieve that. Everyone colluding is buying and using the software with a goal of not competing with each other.
That is just about a textbook case.
You can remove the software. Imagine you all pay someone to write a number on a piece of paper that gets posted on a light pole once a month. You don't get a say what the number is, but you all agree to set prices at that number 80% of the time.
This is illegal. Even if you remove the 80% and say "we recommend you use this number 80% of the time to maximize your non competition", it would be illegal
This is not a close case. Fixing the price this way is illegal.
Agreeing not to compete at all is illegal.
It does not matter if you get someone else to set the price. At the point you all agree not to compete, you've clearly violated the act.
As for whether it's per-se illegal, per-se illegal went out the window on basically all illegal acts under the sherman act over the past few decades, except a few remaining forms of price-fixing.
But you would still win the cases under the rule of reason anyway, and it would not be close there either.
People seem really hung up on whether they agreed with each other explicitly.
They don't have to. Conspiracy suffices. Tacit agreement is not illegal, but it has to be truly tacit. This is not. As I said elsewhere: it is illegal for them to conspire to not compete matter what the form of the conspiracy.
However if they just aren't competing, you can't order them to compete.
This is a clear case of the former - they are conspiring towards a common non competition goal. They knew what would happen if they conspired this way.
It's like trying to avoid a conspiracy to commit murder charge by saying you never explicitly agreed to hire a particular hitman, you instead just followed the directions some software gave you when it said "in order to maximize the possibility of your husband being dead, we recommend depositing at least five million at the following address". Good luck with your claim that you didn't agree to anything with anyone - you were just maximizing some probabilities.
Hell, i bet when they do discovery the company has not been as careful as they think, and there are chats/emails about how successfully they've been able to destroy competition or raise prices or whatever.
Because there always is.
- deleted 3y ago[deleted]
- adolph 3y agoIs the Sherman Antitrust Act the legal basis for the lawsuit against the software company? The Sherman Antitrust Act seems to deal with interstate commerce. Clearly the software is sold in many states. Some rental markets are multi-state. Some apartment management companies are multi-state. Would it apply to those rental markets and management companies that are not interstate?
- madars 3y agoI don't know about merits of this case but some of the controlling interstate commerce interpretations are quite broad: https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn Even growing your own wheat affects interstate commerce: your alternative to growing it yourself is buying it on the open market. This is an activity which, in aggregate across thousands of farmers, would affect interstate commerce.
- DannyBee 3y agoIn general, most state antitrust and unfair competition laws mirror the Sherman act. So even if you could construct a purely intrastate scenario, it would not make much difference in practice.
- MacsHeadroom 3y agoThe supreme court says raising your own cattle for your own personal consumption is interstate commerce because you are replacing a purchase of beef in an interstate market. So, you don't even have to participate in commerce for your actions to be considered "interstate commerce," much less participate in an actual interstate commerce.
- dboreham 3y agoOne of the best IAAL posts ever.
- adonovan 3y agoHeh, dannybee once called me (we work for the same employer) and said: "I see you are using a particular pointer analysis algorithm. Stop it right now, it's tainted with patents. BTW I am a lawyer. But: I'm also a pointer analysis expert, and you don't want that algorithm, it sucks, this other one is better." I'm confident the number of lawyers with pointer analysis expertise in this world can be counted on the fingers of one hand... probably even after a gruesome lawnmower accident.
- tptacek 3y agoThere's a weird thing going on with lawyers who are also compiler nerds. We have more than one of them on HN.
- sklargh 3y agoThere is always a five forces slide. Always.
- jfoutz 3y agoI really hope you're right. But I really wonder if it'd actually hold up if tested. I don't want to wildly derail the conversation, but I can't help but observe - https://www.realpage.com/news/crow-holdings-enters-strategic-partnership-realpage/ https://www.realpage.com/news/crow-holdings-enters-strategic... Maybe it'll all work out.
- zer0x4d 3y agoSlack/Teams, the downfall of major corps. I bet once they do discovery on them, they'd come across some juicy evidence.
- CableNinja 3y agoNot a lawyer, you made this pretty easy to understand, and clearcut collusion. Also, your example for the hitman would make a great half-serious murder comedy movie