Years after the franchise agreement was signed franchisor designated and began to require franchisees to purchase windows from a designated supplier. The designed window supplier charged franchisee higher window prices than other window buyers. Franchisee discovered that franchisor derived a large part of the revenues from designated suppliers including the designated window supplier.
Franchisee filed a complaint in court against the franchisor and the designated window supplier alleging a violation of the Robinson-Patman Act; violations of the Sherman Antitrust Act; and violations of the Racketeer Influenced and Corrupt Organization Act [RICO]. The case is Bendfeldt v. Window World, Inc.
The Robinson-Patman Act provides in pertinent part:
It shall be unlawful for any person engaged in commerce…to discriminate between different purchasers of commodities of like grade and quality…where the effect of such discrimination may be substantially to lessen competition or tend to create monopoly in any line of commerce or to injure, destroy, or prevent discrimination with any person who either grants or knowingly receives the benefit of such discrimination or with customers of each of them…
The franchisee could prove that it was paying high prices than other window buyers in the Midwest and Nationally. But, the franchisee did not produce evidence showing that franchisee lost sales to any local competitor which purchased the windows at lower prices.
A Sherman Act prohibits A tying arrangement that
is ‘defined as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product.’ Tying suppresses competition in two ways: ‘First, the buyer is prevented from seeking alternative sources of supply for the tied product; second, competing suppliers of the tied product are foreclosed from that part of the market which is subject to the tying arrangement.’” It's My Party, Inc. v. Live Nation, Inc., 811 F.3d 676, 684 (4th Cir. 2016) (internal citations omitted). The Amended Complaint alleges that WW's “‘license’ for use of its trademarks, trade dress and business methods was the ‘tying’ product and that [AMI's] windows and associated materials served as the ‘tied’ product.” (Am. Compl. ¶119.) No. 5:17CV39-GCM Business Franchise Guide - Explanations, Laws, cases, rulings, new developments ¶16,048 http://www.wkcheetah.com/#/read/2f4740607cda1000940090b11c18cbab01a!csh-da-filter!WKUS-TAL-DOCS-PHC-%7B4A1F7BEF-FFD4-4348-9D22-81311C5BA95F%7D--WKUS_TAL_11587%23wkusd11363f92971876f09323a8ab40c1a1f?searchItemId=&da=WKUS_TAL_11587
The franchisee could not show that the franchisor and the designated supplier had market control [dominance] .
“When pled as RICO predicate acts, mail and wire fraud require a showing of: (1) a plan or scheme to defraud, (2) intent to defraud, (3) reasonable foreseeability that the mail or wires will be used, and (4) actual use of the mail or wires to further the scheme.” Wisdom v. First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 406 (8th Cir. 1999). “[T]he term ‘scheme to defraud’ connotes some degree of planning by the perpetrator, [and] it is essential that the evidence show the defendant entertained an intent to defraud.” Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 991 (8th Cir.1989) (alterations in original) (quoting United States v. McNeive, 536 F.2d 1245, 1247 (8th Cir.1976)). No. 5:17CV39-GCM Business Franchise Guide - Explanations, Laws, cases, rulings, new developments ¶16,048 http://www.wkcheetah.com/#/read/2f4740607cda1000940090b11c18cbab01a!csh-da-filter!WKUS-TAL-DOCS-PHC-%7B4A1F7BEF-FFD4-4348-9D22-81311C5BA95F%7D--WKUS_TAL_11587%23wkusd11363f92971876f09323a8ab40c1a1f?searchItemId=&da=WKUS_TAL_11587
There was no fraud. The franchisor did not deceive the franchisee. The franchisee knew that the franchisor could designate suppliers. And, the franchisee know it would have to buy from the suppliers that franchisor designated.
The Bendfeldts [Franchisee] knew from the moment they signed their agreements that WW [Franchisor] could change the number and identity of approved window suppliers. They admit that they agreed to buy windows only from WW-approved suppliers: In other words, Plaintiffs [Franchisee] were on notice that WW [Franchisor] could designate one approved window supplier if it wished to do so. No. 5:17CV39-GCM Business Franchise Guide – Explanations, Laws, cases, rulings, new developments ¶16,048 http://www.wkcheetah.com/#/read/2f4740607cda1000940090b11c18cbab01a!csh-da-filter!WKUS-TAL-DOCS-PHC-%7B4A1F7BEF-FFD4-4348-9D22-81311C5BA95F%7D–WKUS_TAL_11587%23wkusd11363f92971876f09323a8ab40c1a1f?searchItemId=&da=WKUS_TAL_11587
In short, all of the franchisee’s claims regarding designated suppliers failed. It is not unlawful for franchisors to designate new or different supplier after signing the franchise agreement. And, it is, not unlawful for the franchisor to derive revenues from designator supplier sales to franchisees.
It may make a franchisee or all franchisee mad. It may increase franchisees’ operating cost. But, these things alone are not sufficient to be unlawful. More is required to show required for wrongdoing.