Shedding Light on ABA's Comments on Robinson-Patman

As previously reported by Bookselling This Week, in late July, Bruce V. Spiva of the law firm Tycko, Zavareei & Spiva offered comments on behalf of the American Booksellers Association to the Antitrust Modernization Commission Robinson-Patman Act Panel, which was established by Congress to review the nation's antitrust laws. The association was allowed to offer both written comments (available at news.bookweb.org/read/3688 and as a PDF) and a five-minute oral presentation. BTW recently had the opportunity to talk to Spiva about the reasons for ABA's appearance before the commission and the key points made in his comments on behalf of independent booksellers.

BTW: What is the Antitrust Modernization Commission Robinson-Patman Act Panel? Who established it? And why was it established?

Bruce V. Spiva: The Antitrust Modernization Commission (AMC) was established by an act of Congress to review the nation's antitrust laws to determine whether any of them ought to be repealed or amended in light of changes to the economy since the laws were passed, and to write a report to Congress and the president with recommendations. There are 12 commissioners: Four were appointed by the president, four by the leadership of the House of Representatives, and four by the leadership of the Senate.

Although there are commissioners from both major political parties, most of the commissioners are generally thought to favor more limited antitrust enforcement. The commissioners do not have the authority to actually change antitrust law, but the commission must make a report to Congress and the president with recommendations. Congress and the president must then decide how or if to act upon the recommendations.

BTW: Why did ABA testify before the commission?

Spiva: One of the topics that the AMC decided to review is whether the Robinson-Patman Act should be amended or repealed. The Robinson-Patman Act is a law that prohibits price discrimination by sellers between competing retailers to whom a producer (or wholesaler) sells goods. The lawsuits that ABA brought in the 1990s against certain publishers, and later the largest chain bookstores, were brought primarily under the Robinson-Patman Act. The AMC invited ABA to submit written comments to and testify before the commission. Given the importance the act has had in ABA's efforts to attempt to level the playing field for independent booksellers, ABA determined that it should let the AMC know about the act's importance to independent booksellers and the dissemination of culture in the U.S.

BTW: Who else testified?

Spiva: J.H. Campbell, Jr., president & CEO of Associated Grocers in Baton Rouge, Louisiana, on behalf of the National Grocers Association; Herbert Hovenkamp, professor of law and history at the University of Iowa; and Harvey I. Saferstein, a member of the law firm Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo in Los Angeles.

BTW: What key points did you convey in your testimony?

Spiva: In the past 15 years, there has been a precipitous decline in the number of independent bookstores serving the public. Independent bookstores have been forced out of business by superstore chains and other large book retailers, whose rise has been fueled by illegal purchasing terms. In response, the American Booksellers Association and a number of its courageous members were forced to litigate a series of lawsuits in an attempt to level the playing field and to give independent booksellers a chance to survive and continue serving their communities. Despite the limitations of the Robinson-Patman Act, it has made a difference to independent bookstores, and, for many, the improved terms achieved through the enforcement actions have meant being able to continue in business when they otherwise could not have. Enforcement of the act has been good for consumers because it has helped preserve the diversity in the selection and promotion of books provided by independent booksellers, and enforcement has helped some bookstores in small communities with one or few bookstores continue to serve those communities. Independent booksellers have traditionally played a critical role in promoting new and untested authors, and in putting their works directly in the hands of a customer base that many of them know personally.

If the act were abolished or significantly narrowed, inevitably the large book retailers would dictate prices to publishers, and the gap in purchasing terms between large and small retailers would widen so much that a large number of the remaining independent bookstores would go out of business. The country would then lose the diversity in the selection and promotion of books provided by independent booksellers, and many communities too small to support chain superstores would lose their only bookstores. Were the retail landscape populated by only a few large retailers, it would have a disastrous effect on the dissemination of culture and ideas in America.

BTW: What happens next?

Spiva: The transcript of the July 28 hearing should be available on the AMC's website (www.amc.gov) in the next few weeks. The commission will continue to conduct hearings on other topics that it has decided to review over the next two years. It is due to issue its report no later than July 2007. After that, Congress will determine whether to act on any of the commission's recommendations. If Congress decides to act on any of the commission's recommendations, it will hold its own hearings before doing so.