Restraint of Trade – The Per Se Test
Referring again to this definition of Restraint of Trade, giving consideration to current events;
We’ll take a look at the second court determined legal standard, the Per Se Test.
In Northern Pacific Railroad Co. v. United States (1958), the U.S. Supreme Court found that illegal restraints can sometimes fall outside a rule of reason analysis. In such cases carefully defined categories of restraint are illegal per se because “their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused.” Related is the Socony Vacuum Oil Company case (1940) in which the Court found that even though there were previous specific exceptions, tampering with price structure is nonetheless illegal, and stated “raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate and foreign commerce is illegal per se.”
Pernicious: Causing much harm in a subtle way.
Speaking of subtle harm, this announcement regarding eBay from AuctionBytes certainly might be of interest;
eBay Australia Files Response to PayPal-Only Policy Complaints
“eBay Australia has filed its response to submissions to the Australia Competition and Consumer Commission (ACCC) regarding its PayPal-only policy slated to go into effect next month. The company rejected claims from sellers, banks, competitors and other organizations that the policy would lessen competition in the online payments market and that the public benefits were illusory.
eBay Australia said in its filing, “No party has adequately demonstrated that the benefits submitted by eBay as resulting from the Project will not outweigh any likely detrimental effect on competition.”
The US Government should step in. eBay and PayPal should be separated. It is a monopoly. Their “New” rules will block out Checks, Money Orders, Western Union, etc. as a means for payment. This also includes drastic effects on the US Post Office that will no longer be selling Money Orders for eBay purchases or delivering paper checks and other instruments of payment to a second or third party. Banks and other means of monetary transfers will suffer from this restraint of trade.
The Government should go after this with as much vigor as the Microsoft efforts.
While I agree with what you have to say, Fred, I think you are missing the obvious one. If I do a local eBay transaction, I should be able to pay/receive cash for that transaction. All US money has the “Legal Tender” clause prominently displayed. Apparently US currency is not good enough for eBay.