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Unpublished Paper
Are We Exclusive? Does It Matter?: An Antitrust-Inspired Framework for Understanding Anti-Exclusive Dealing Statutes and the Meaning of Coercion
ExpressO (2007)
  • Christopher E. Ware
  • Alison A. Hill
Abstract

We both practice in the area of Product Distribution and Franchise law, where we first encountered client concerns regarding the anti-exclusive dealing statutes described in our Article. These laws prevent manufacturers from "coercing" their dealers into not selling products from a competing manufacturer. However, the laws are problematic because they never define what it means for a manufacturer to "coerce" a dealer into an exclusive deal.

Our subsequent research demonstrated four key factors which make our Article timely for publication:

(1) The number of states passing anti-exclusive dealing statutes is continually increasing. Between 2000 and 2007, ten states enacted anti-exclusive dealing statutes. New York and Oklahoma have pending bills on anti-exclusive dealing. Currently, nearly one-half of the country (twenty-three states) has these laws in force.

(2) Courts are unsure how to interpret anti-exclusive dealing statutes, leading to conflicting and, as we demonstrate, incorrect and incomplete holdings. The Sixth and Eighth Circuits have now both ruled on anti-exclusive dealing laws, but their holdings do little to shed light on the laws' statutory intent.

(3) The statutes' increase in popularity, coupled with court confusion, prompted us to propose an antitrust-inspired framework for courts interpreting the meaning of "coercion." Our framework has the added bonus of giving manufacturers greater security when negotiating exclusive deals.

(4) Finally, our extensive research showed that the anti-exclusive dealing statutes explored in our Article have escaped scholarly comment to date, making our Article both novel and useful to the legal discourse.

Keywords
  • coercion,
  • exclusivity,
  • exclusive dealing,
  • Minnesota Supply,
  • NACCO Materials
Disciplines
Publication Date
December 4, 2007
Citation Information
Christopher E. Ware and Alison A. Hill. "Are We Exclusive? Does It Matter?: An Antitrust-Inspired Framework for Understanding Anti-Exclusive Dealing Statutes and the Meaning of Coercion" ExpressO (2007)
Available at: http://works.bepress.com/alison_hill/1/