RE: FLASH: OT: Rates - my last post on this subject :)

[Bob Schwartz]

Chrissey,


Since I am sure you're well intended on this (after all, real price fixing is

*immoral*, if nothing else, and there is good reason that "we" try to prohibit

it)........but since, however, others may view, especially in an era where many

in the US feel there is "too much government", that innocent discussions of

industry pricing are, well, simply that, "innocent", I have asked around (out

of the "Flash" arena) and here is what I have come up with.


btw, I'm not an attorney, I have no direct experience in these matters and this

is not, therefore, any kind of legal advice......and there is no assurance that

my quick understanding is the "right" one or even the only one.


That said, I've been told that merely publicly discussing industry pricing is

not, per se, price fixing and that, in fact, posting prices can just as easily

encourage discounting as not. And, plenty of industries post their prices in

public venues (look at airlines, for one) and are not guilty of price

fixing........*unless* they commit other acts which take them into an unholy

realm.


indeed, in that business, as one example, one airline posts prices and others

raise them because they can.


As, again, I understand the law to be (I am always glad to stand corrected),

for there to be price fixing, there also have to be clear elements of intent

*along with* provable, overt acts that establish that the intent was turned

into action.


This makes sense, as if publishing or even merely publicly talking about prices

were illegal, everyone who had a "suggested retail price" would be a criminal. 

ditto for "how much does a C programmer make in idaho", kind of thing, such

information being available all over the place.


There certainly are reasonable caveats, especially for certain kinds of

*private* behavior...............in order, for example, to avoid even the

possible appearence of price fixing, some competitors avoid private discussions

of such things as even innocent conversations can be honestly misinterpreted by

others.  I have even read of meetings where executives in "rarified atmosphere"

have their lawyers present so that even innocent discussions may not be

misinterpreted............although implicit in all this, I assume, is the

presumption that price fixing can actually be accomplished by "competitors"

..............those, IOW, powerful enough to actually cause industry practices

to *be* "fixed", such as in the recent Archer Daniels Midland

case.................but again, that is just my guess.


As it concerns an industry where there are thousands of developers, fwiw, it is

hard for me as a lay person, to imagine that price fixing, as it concerns *all*

the elements I am told are necessary for price fixing to occur, could actually

be committed.......especially true, perhaps, given that rates for services will

vary geographically and given that competitors all over the world are competing

for "remote control" business with one another (i have gotten programming

quotes from people in other countries).


of course, whether or not it is actionable, it is unwise and potentially unfair

to clients for any group of developers of anything to advocate raising prices

as a group.......unless "you" are a union, in which case it is done all the

time<g>.


as to some lists or sites specifically prohibiting pricing talk, given the

sadly litigious nature of american society, I cannot say that I blame them,

although such prohibitions do not, by themselves, validate the thinking that

such discussions are, per se, illegal.


finally, since my understanding may be both wrong or, at least, an

oversimplification, and as the law is often gray in practice, nothing beats, of

course, talking with an attorney who *knows* the "business" as of yesterday, so

to speak..and anyone concerned about this ought to.


regards,


bob


At 01:49 PM 2/10/99 -0400, you wrote:

>Well it seems that no matter what I say or do, there will be those of you 

>who don't care one way or the other, and there will be those who are intent 

>upon proving me wrong without actually providing any evidence (other than 

>opinion).   So what if what you're doing might be illegal and prosecutable?  

>Do as you wish, and pay the price if you must :)

>

>I originally posted on this topic in response to someone that also posted 

>that they understood discussion of rates to be illegal.  Every source that I 

>have located confirms this, and several professional organizations that I am 

>a part of ban price discussions for this reason.  As I've stated before, I 

>am checking into this because I don't want any US Flash developers (or ANY 

>Flash developers for that matter) to get screwed over because they don't 

>understand the laws.  And yes, it is *quite* necessary to confirm or refute 

>this.  Would you continue discussing your prices with competitors if you 

>knew that the Department of Justice could sue you, jail you, and assist 

>consumers with collecting damages from you for doing so?  I sure wouldn't, 

>but then again maybe you can afford to pay those fines. 

>

>I will not post any more on this subject, since the negative responses 

>indicate that some folks out there just don't care about breaking this law.  

>I do, but then again I work at the Department of Justice, and I could easily 

>lose my job by breaking any laws.  If you would care to learn the results of 

>my research with the Antitrust Division, feel free to e-mail me directly and 

>I will forward them to you when I get them.  If I don't get the information 

>from the DOJ today via e-mail, I might just walk over to the Antitrust 

>office during lunch tomorrow.  Then again, I might just move on and forget 

>this whole thing, never discussing my rates with competitors for fear that I 

>might be breaking the law...  unless of course someone can provide me with 

>clear and concrete evidence that tells me otherwise :) 

>

>Now, I want to get back to talking about Flash! :)

>

>Chrissy Rey

>Web Developer

>United States Trustee Program

>United States Dept. of Justice

>

chrissy [dot] reyusdoj [dot] gov

>

>------------------------------------------------------------------------

>To UNSUBSCRIBE send: unsubscribe flasher in the body of an

>

email to list-managershocker [dot] com. Problems to: ownershocker [dot] com

>N.B. Email address must be the same as the one you used to subscribe.

>

For info on digest mode send: info flasher to list-managershocker [dot] com

>



------------------------------------------------------------------------

To UNSUBSCRIBE send: unsubscribe flasher in the body of an

email to

list-managershocker [dot] com

.  Problems to:

ownershocker [dot] com

N.B. Email address must be the same as the one you used to subscribe.

For info on digest mode send: info flasher to

list-managershocker [dot] com