Shoppers who never pay full price for name-brand goods may have to reconsider as a result of a Supreme Court ruling yesterday overturning a decades-old antitrust standard that made it difficult to enforce manufacturer suggested retail prices.
In a 5-4 decision that brought warnings from the dissenting side that consumers could face higher prices, the high court said allowing manufacturers to prevent retailers from discounting their goods is not always anti-competitive. In fact, it might even increase competition since strong pricing could lure additional manufacturers into the market.
Consumers may get better service if retailers are forced to compete on issues other than price, the court said. Besides, discounters too often freeload on the full-price retailers who build a product's reputation, according to the opinion led by Justice Anthony M. Kennedy.
It may take a while for shoppers at the mall -- especially those at outlet malls -- to fully sort out the impact of the decision.
For shoppers who are entirely focused on low prices, it might not be such a great thing, said Jeremy Feinstein, a trial lawyer with Pittsburgh firm Reed Smith whose focus includes antitrust cases.
After his first reading of the court's opinion, Mr. Feinstein was inclined to think the ruling's main impact may be to allow manufacturers to understand better what they can do to protect their products reputations while making them more comfortable spreading a hot item around to more retailers.
The Supreme Court case involved the maker of Brighton shoes, handbags and accessories who was tussling with a small Texas retailer near Dallas. Manufacturer Leegin Creative Leather Products Inc. had chosen not to sell to big stores such as Macy's, Bloomingdale's and Kaufmann's in favor of specialty stores that it felt offered better service.
Leegin discovered in late 2002 that the Dallas store, Kay's Kloset, was selling its goods below the suggested prices. The manufacturer stopped supplying the store and the store's owners sued.
The retailer argued that minimum price fixing agreements have been illegal since the early 1900s when the courts were trying to promote competition and protect consumers. A lower court agreed and Leegin appealed.
Eventually, the question of whether a manufacturer's insistence that retailers stick with its suggested prices should always be seen as an antitrust violation came before the high court. Leegin argued that each case should be considered on its own merits and that sometimes there is a consumer benefit to restricting prices.
Off-price chain Burlington Coat Factory sided with the retailer as did the Consumer Federation of America, which argued there might never have been a Sears & Roebuck, a Walgreens or a Wal-Mart had anti-price-fixing rules not been in place. Entrepreneurs competing on price helped fuel options such as department stores, mail-order businesses and online retail, according to the organization.
The majority opinion yesterday said that while a manufacturer's use of price restraints might eliminate competition between retailers carrying the same brand, it could encourage those retailers to invest in services or promotional efforts that help the manufacturer's position against rivals.
Mr. Feinstein offered the example of a motorcycle manufacturer who develops an incredibly fast model. That company could limit sales of that model to dealers who charge a minimum price that gives them enough profit to pay for a service bay and driver training.
In that case, he didn't see such a move reducing consumers' options. "If you want a cheap motorcycle, there's plenty of other versions."
Still, the ruling does not give manufacturers carte blanche to jack up prices, he said. The court noted there are obviously situations where businesses might try to monopolize a market or work together to keep prices high. That's still not allowed.
And the balance of power hasn't shifted entirely to the manufacturer. If Macy's is left with a pile of goods that didn't sell at full price, a vendor is unlikely to insist that those can't be sold at a discount or even to a close-out chain, said Mr. Feinstein. The ones who try that tactic likely will find that Macy's won't carry their goods at all.
If the whole thing seems confusing, it's not surprising. In the years since the original case set the anti-price-fixing standard in 1911, there have been challenges and congressional efforts to address the issue.
Justice Stephen G. Breyer acknowledged in writing the dissenting view that if there were no precedent, this would be a challenging issue to sort through. But, he said, there was no reason to overturn years of legal experience and trigger new turbulence as lower courts try to separate the good price-fixers from the bad ones. Justice Breyer was joined in his dissent by Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg.
Meanwhile, consumers accustomed to chasing the best deals may already have seen evidence of what on the surface appears to be price fixing. A product such as the Nintendo video game system Wii seems to be carried at the same $249.99 price by Target, Circuit City, Kmart and other retailers.
But more likely that's a case of the retailers not having to compete for business. "They can sell it for the manufacturer's suggested retail price, so they do," said Edward J. Fox, director of the J.C. Penney Center for Retail Excellence at Southern Methodist University in Dallas.
Over the years, the suggested retail price has served a couple of purposes for the manufacturer, he said.
For brand-name products in which the label adds cachet beyond the mere materials used to make them, the suggested retail price offered a sort of benchmark. "What is a Prada handbag worth? That's kind of a hard question," said Dr. Fox. "This helps us assign value."
The manufacturer's suggestion also put a ceiling on a product, giving customers a way to tell if they were being gouged. Of course, as eBay auctions prove, sometimes people seem willing to overpay if that is the only way to get something they covet.
