Trade Practices and Antitrust Regulation

ORS 646.040
Price discrimination prohibited

  • price differentials


(1)

It is unlawful for any person engaged in commerce or food commerce, or both, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities, or services or output of a service trade, of like grade and quality or to discriminate in price between different sections, communities or cities or portions thereof or between different locations in sections, communities, cities or portions thereof in this state, where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.

(2)

Subsection (1) of this section does not prevent:

(a)

Differentials which make only due allowance for differences in the cost of manufacture, sale or delivery, resulting from the differing methods or quantities in which the commodities are sold or delivered to purchasers.

(b)

Persons engaged in selling goods, wares or merchandise, or service or output of a service trade, in commerce from selecting their own customers in bona fide transactions and not in restraint of trade.

(c)

Price changes from time to time where in response to changing conditions affecting the market for or marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.

Notes of Decisions

In action between competitors in ready-mix concrete industry, evidence was insufficient to establish substantial impairment of competition as required by this section. Redmond Ready-Mix, Inc. v. Coats, 283 Or 101, 582 P2d 1340 (1978)

In action by auto body shop against insurance company for knowing receipt of prohibited price discriminations under this section and ORS 646.090, judgment n.o.v. was properly granted defendant for lack of evidence that price discriminations received by defendant from another body shop could have affected competition among body shops or insurance companies or tended to create monopoly in either market. Top Service Body Shop, Inc. v. Allstate Insurance Co., 283 Or 201, 582 P2d 1365 (1978)

Under this section denial of directed verdict was proper where there was evidence that defendant competed with plaintiff in plaintiff's market, even though plaintiff did not compete with defendant in defendant's market. Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., 310 Or 333, 798 P2d 656 (1990), as modified by311 Or 88, 806 P2d 123 (1991)

Trial court erred in ruling that jury could consider plaintiff's evidence relating to noncurrent inventory in awarding damages for price discrimination. Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., 310 Or 333, 798 P2d 656 (1990), as modified by311 Or 88, 806 P2d 123 (1991)

This provision prohibits only those price differentials that injure competitive process. Cain v. Chevron U.S.A., Inc., 757 F Supp 1120 (D. Or. 1991), aff'd 972 F2d 1337

§§ 646.010 to 646.180

Notes of Decisions

These sections were modeled after Robinson-Patman amendment to Clayton Act and federal cases interpreting federal statutes are persuasive in their interpretation. Redmond Ready-Mix, Inc. v. Coats, 283 Or 101, 582 P2d 1340 (1978)

Price discrimination under Oregon Anti-Price Discrimination Law may include buy-back of obsolete inventory and difference in credit terms available to competing dealers. Forster v. Kawasaki Motors Corp., 73 Or App 439, 698 P2d 1001 (1985), Sup Ct review denied

Atty. Gen. Opinions

"Kickbacks" on school photographer contracts, (1974) Vol 37, p 49

Law Review Citations

51 OLR 341-354, 408 (1972)

Chapter 646

Notes of Decisions

Subject matter regulated by this chapter is not "preempted" by Federal Robinson-Patman Act so as to render this chapter invalid. W. J. Seufert v. Nat. Restaurant Supply Co., 266 Or 92, 511 P2d 363 (1973)

Whether an injunction should issue when a court finds a violation of the Act is a matter of discretion. State ex rel Johnson v. International Harvester Co., 25 Or App 9, 548 P2d 176 (1976)

This chapter imposes no affirmative duty to inform customers of rates in absence of request, but prohibits making information about prices available to some customers and not others. Wildish Sand & Gravel v. Northwest Natural Gas Co., 103 Or App 215, 796 P2d 1237 (1990), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021