Page 7 - Beverage Master August-September 2019
P. 7

Craft Beverage


               differed among the retailers involved so it is held
               responsible for violating the anti-price discrimina-
               tion statutes and allegedluy also the commercial
               bribery regulations.


                 A bribe to induce a company to do something in
               violation of law or anti-discrimination policies is ille-
               gal no matter what form the bribe takes or how the
               paper trail is structured. Rebates, refunds and other
               incentives to illegally induce a company to sell its
               products could be construed as a bribe if there is no
               logical and legal basis for the transfer of money. A
               bribe is a bribe no matter what form it appears.
               US antitrust laws regulate the relationship of com-
               panies involved in a supply chain at different levels.
               There cannot be an arrangement by these compa-
               nies to reduce competition. Courts will lift the veil
               behind the name of written documentation (how an
               agreement is titled), or even behind the words used
               in documents to determine whether an agreement
               to pay money is actually a bribe.

                 The courts look to substance (the real relationship
               between the parties and of their conduct) over
               form (the words in a document). This principle
               holds true in many transactions when documents
               are drafted to embody the terms of the transaction.
               During litigation, substance and conduct will usually
               trump form (a cleaverly written document disguis-
 YIKES! $2,600,000 FINE   thing else).
               ing a bribe or anti-competitive conduct as some-



 AGAINST A BEER WHOLESALER    Massachusetts’ commercial bribery regulations
               are valid, banning discounts, rebates and other
               inducements to buy alcohol from only one particu-
               lar vendor. These regulations help to prevent price
               discrimination and an even, fair, competitive play-
               ing field for all craft-brewing companies trying to
               sell product based on quality and market price as
               opposed to “buying” their way to higher sales using
               illegal practices.


                 15 U.S. Code § 13 (15 USC 13), deals with pricing
               and selection of customers in the supply of prod-
               ucts. In accordance with this Code section, It is
               unlawful for any person engaged in sales or distri-
               bution of products either directly or indirectly, to
               discriminate in price between different purchasers
               of commodities of the same type of grade and qual-
               ity of that product if the  products  are sold for use,
               consumption, or resale within the US if the effect of
               such discrimination may be substantially to lessen
               competition.

                                                                    BEVERAGE MASTER     August - September  2019   5





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