Other People’s Prices

Is an agreement between a manufacturer and a retailer limiting the minimum price at which the retailer may resell a competing manufacturer’s product unlawful? Not necessarily.

In a hotly-disputed 5-4 decision that was not issued until nearly two years after the oral argument, the Supreme Court of Texas reversed an intermediate appellate court and threw out a jury verdict against The Coca-Cola Company and some of its bottlers in a case alleging that the bottlers had fixed the retail prices of competing brands in violation of Texas antitrust law (which follows federal law). Coca-Cola Co. v. Harmar Bottling Co., 2006-2 Trade Cas. (CCH) ¶ 75,464 (Tex., Oct. 20, 2006).

The Coca-Cola bottlers had entered into promotional agree ments with retailers which, among other things, required the retailers to price the bottlers’ products by a specified amount below competing products during the promotions (which lasted from 42 weeks up to a full 52 weeks a year). As a result, when the wholesale