Publications

Section Newsletter Articles From James F. Herbison

Big trouble for big boxes? A pending challenge to promotional packaging based on size By James F. Herbison and Kevin Wolff April 2016 The first of two articles in this issue that discuss a case, Woodman’s Food Mkt., Inc. v. The Clorox Company, Case No. 14-CV-734-slc, 2015 WL 420296 (W.D. Wis. Feb. 2, 2015), that raised an issue of first impression in federal courts as to whether a product manufacturer’s offering of special (large pack) package sizes only to certain “club” retailers such as Costco and Sam’s Club but not to “general market” retailers constitutes a promotional service sufficient to maintain a claim for violation of the price discrimination provisions of the Robinson-Patman Act, 15 U.S.C. §§ 13(d) and 13(e). In Woodman’s, the district court held that Clorox’s offering of its large pack products only to certain retail customers was a promotional service sufficient to allow Woodman’s to state a claim under the Act. Clorox appealed and the case is awaiting decision by the Seventh Circuit Court of Appeals (Appeal No. 15-3001).
Overturning the Carriage: A proposed update to the pleading standard for price-fixing claims under the Illinois Antitrust Act By James F. Herbison March 2015 The complexities and newly developed standards of current antitrust law have rendered People v. Carriage Way West, Inc. obsolete as a mode of pleading.

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