Thursday, December 04, 2008

eBay Lobbies to Stop Price Fixing: Update!

eBay's Vice President of Government Relations Tod Cohen and a contingent of retailers, and antitrust experts are heading to Washington DC tomorrow for a press conference on RPM (retail price maintenance) which is basically about "price fixing". Manufacturers want to keep their retail pricing at levels they deem will properly value their product and are requiring retailers to sell at or above that price.

eBay of course wants the lowest prices possible on the marketplace because that drives sales, and the "lowest prices" has been their competitive advantage for many years (not so much now), so they are lobbying to repeal a law that allows manufacturers to "price fix". I won't go into all the legal details, but you can get a snapshot of it with RBH's post at eBayInk.

Normally this kind of stuff bores me, so I rarely write about it, but I was part of a conference call with eBay VP Tod Cohen yesterday and one of my consulting clients is dealing with this very issue with their vendors, so here is my 15%

It is standard in the retail industry for vendors to base their wholesale price on a % discount from the MAP or MSRP -- for purposes of this post let's say 50%. If sold at MSRP or MAP the retailer gets maximum margin, and the manufacturer maintains the proper value for that product. But we live in the real world and sales velocity doesn't happen until the retailer discounts the product. Manufacturers don't like discounting because it devalues their product over time and forces them to lower their wholesale pricing.

In my case with Glacier Bay, back in the day, I had to discount 25% off the MSRP just to get a buyer to look at my listing. Instantly, my margins were squeezed and when you added in eBay and PayPal at 15% to 17% I was left with very little margin. I basically had to make my money off the S&H fee. 

In some categories, retailers are required to sell at MAP or MSRP or they risk losing their rights to purchase that product. This is the price fixing that eBay is lobbying against.

Here's the problem:
  • Manufacturers sell at a wholesale price and they are done with the process. They have already received their price, but they want to maintain a retail value for their items so that they can maintain their wholesale pricing.
  • Retailers don't want to be told what they can sell a product for, but if their right to purchase that product depends on selling at an agreed on price they will do it in order to get the product.
  • If nobody breaks MAP then the market for those items never sees any discounting and the retailer has a level playing field with their competition, but we all know that in a competitive marketplace some will break the rules forcing others to follow suit or lose out on sales.
  • In a competitive environment retailers are always looking for an edge, so the gaming begins. Retailers don't like price fixing but they aren't going to raise a stink about it because they don't want to be cut off by their suppliers.
  • eBay wants the lowest prices possible on the marketplace because, they make their money on the sale. Of course they aren't lobbying to repeal this law out of the goodness of their heart; or to help sellers. They are doing it to help their business. In reality, they are just as bad as the manufacturers; asking sellers to offer free shipping and discount heavily to get the sale. It really isn't their concern if the seller makes any money.
  • eBay's own VeRO program is being used to target sellers who are breaking MAP and eBay continually falls back on their "service provider" mantra, saying "we are prohibited by law from interfering in the VeRO process" [my paraphrase]
I could go on and on. As a seller, I don't want to be told what I can sell an item for; I don't want to be told that I need to offer "Free Shipping"; I don't want to be told I need to discount heavily, so that eBay is a low price leader. All I want to do is sell an item for a price that, after all expenses are accounted for, I get to keep enough to pay my mortgage and feed my kids.

I appreciate that eBay spends the money to lobby for these things, but lets not lose sight of the fact they they do this for their own benefit. Sellers may benefit from their efforts but that is really just a side benefit.

One last thing. If given the option of selling at MAP or selling at a huge discount, most sellers would choose to sell at MAP: If I sell 10 items with a gross profit of $20 each, I make $200, if I discount my price so that I am making only $5 gross profit, I now need to sell 4 times as many items to make that same total Gross Profit. The only reason sellers applaud eBay's efforts on this issue is because of the risk they may be cut off by suppliers if they do try and gain a competitive advantage.

Okay, this time I mean it; one last thing: I don't like "price fixing", because it doesn't allow markets to work, so I am all for eBay's efforts. Sellers need a "big fish" to do that work for them because they don't have the resources to do it themselves, though an organization like PeSA should be lobbying for the seller's benefit.

I just wanted to point out the irony in eBay lobbying to restrict manufacturers rights to set their own rules while they regulate their own marketplace with Best Match. The sellers are all I care about and they are getting hit from both ends. If eBay is successful all they will do is increase the weight of low prices in Best Match -- either way sellers are screwed.

Update: Here is an interesting article on the subject and you can follow RBH's coverage of the press conference here.

Further Update: Probably should have added this link in the first place but if you are interested in the Price Fixing subject here is the case that was brought before the Supreme Court called the Leegin Decision

Just my 15%


Anonymous said...

don't all businesses do things for their own benefit? That is understood isn't it?

Randy Smythe said...

Anonymous, that is certainly true but lets not couch this as lobbying for sellers. If it didn't benefit eBay, Inc. it wouldn't be happening.

Randy Smythe said...

One additional observation: eBay should be protecting sellers from VeRO abuses like targeting sellers who break MAP. They say their hands are tied and it's mostly because they don't want to invest in tools or the manpower to do that. It cost less money to lobby the government to change the rules.

Bob said...


Yes, ebay is a business and they are in the business of making money for themselves. It's capitalism and we all know that to succeed, you have to be a shark. Ebay is certainly a very big shark.

However, as sellers, we have to navigate ourselves through ebay double-standards and double-speak.

Ebay will constantly couch its actions in "creating a better buyer experience" but sellers who understand basic math and human behavior know better.

It's sort of like Tom Sawyer convincing suckers to paint the fence for him. Ebay (Tom Sawyer) is constantly masterful at convincing suckers (sellers) that "painting the fence" (pick whatever rogue policies and fee structures) is a good deal for sellers...

I've always thought Ebay behaves very much like the credit card companies and we all know how much we can trust them...

permacrisis said...

Read this and my Mum's words rang thru my skull:

"Oh Ho!
Shoe's on the other foot!"

Ebay, fighting a sweeping change that could hurt its chances at ever making a single sale. In light of DSR's that's pure poetic.

And Bob's right. Notice how this 'fight for justice' is on behalf of the big retailers- not the casual kitcnen-table sellers, who are exempt anyway.

Ebay moved out of a very Buffet-like, protected market space w/ little growth but lots of steady income, and instead ran out into heavy traffic chasing an illusory ball. They are gonna get creamed.

Hey, do one on the dollar promo sabotage, and ebay's apparent inaction/inability to stop it.

Any chance of a Gupta vs Nash comparison piece?

Ebay is like a conveyor belt these days. You don't have to dig, they just bring this stuff to you!

Stefan said...

The way I see it, when a company has their own rule or requirement for what one of their customers can sell their product for, it's not price fixing. It's just a rule. They should have the freedom to have such a rule if they desire.

This should be the company's decision and right. They should have the right to stop selling to any seller, and for any reason for that matter. That is the markets working properly.

eBay and the Government should butt out.

Randy Smythe said...


You are sounding more and more like a conservative.

Everybody else, keep the comments coming. So far the comments have been fantastic.

Bob, you are right on with the Tom Sawyer comment. I love it! Can I use that in a future post if I give your credit?

PermaCrisis, email me what you are looking for in a Gupta vs Nash comparison.

Thanks All

Randy Smythe said...

I just read my last comment and realized it sounded like I didn't want any more of Stefan's comment.

He know that was just an unfortunate wording. I really enjoy his comments. :)

ms.pat said...

Lobbying for sellers? They didn't choke when they said it??? What a crude joke they are...

C.P. said...

I do not think that the VERO program should be used by manufacturers to uphold their price rules. I do not mind the rules myself as they can help keep new sellers who do not understand how to account for costs associated with selling from selling quality brands at minimal mark up ( some new sellers take awhile to realize that they are actually losing money)which devalues the brand for other sellers who have investments in inventory of that brand. I do think the manufacturers should just stop selling to those people rather than using the VERO program to police it.

Anonymous said...

Hey Randy I thought Amazon paid all your bills!!!I have been working local craft fairs and doing a booming business. Three more this week... Thursday, Friday, and Saturday. Coupled with online sales, this venue puts money straight into my pocket!

With reference to this article, here's a great commentary on what is going on in comparison to the two giants of Amazon and eBay: Reply |Report abuse

Randy Smythe said...


Amazon has been very, very good to me. Just like eBay was until mid 2004.

Fortunately I learned a few lessons from my eBay experience, though most of my eggs are in the Amazon basket right now I am branching off into other markets as soon as I can manage inventory through FBA. Maybe mid 2009

Kids Coats said...

I love it. Here is how act 2 "Diamond Seller Reality" must be playing out.

eBay: So, Diamond, how's this new eBay thing working for ya.

Diamond: It's a lot of work and we barely sell anything. In fact we only have a 1% conversion rate.

eBay: Oh? Well other sellers do okay.

Diamond: Well we studied the situation and it seems like we're competing against some sellers with very little overhead.

eBay: Ah! Just make it on volume.

Diamond: (Siliently to himself - this eBay guy is f*&king stupid, yeah loose money on every sale and make it on volume) Ahhhhhh. Well you see I can't do that because the manufacturers set the MAP and I need to follow the rules or else I won't be able to place purchase orders.

eBay: That's riduclous. Smaller sellers sell below MAP all the time on eBay. Just go ahead and do it.

Diamond: (Silently to himself - This simple eBay idiot hasn't a clue, I like MAP, I make money with MAP and don't want any changes) I'm sorry eBay, rules are rules and I'm going to follow them.

eBay: Well we'll go to Washington and get the rules changed for ya. How's that?

Diamond (Silently to himself - I need to get the heck out of dodge. This eBay clown is going to screw up how I make money.) Ah yea, good luck.

Curtain closes. Act 3 to be played in the 2Q 2009!

Randy Smythe said...

Kids, that could almost be a Broadway play :)

Yeah, eBay still doesn't get it. Who will replace the Diamonds when they are gone.

Anonymous said...


This would apply only to new items, right? If you sell used, do manufacturers of the products even care?

Randy Smythe said...


Yeah, manufacturers do care about the sale of used items and if allowed to they would control the sale of those items also.

The secondary market is what made eBay and that is certainly worth protecting.

Stefan said...


Yeah call it what you want but that's the way I feel.

Next thing you know I'll be joining the NRA and eating moose burgers! :)

Bob said...

From "TOM SAWYER" by Mark Twain:

"Tom gave up the brush with reluctance in his face, but alacrity in his heart. And while the late steamer Big Missouri worked and sweated in the sun, the retired artist sat on a barrel in the shade close by, dangled his legs munched his apple, and planned the slaughter of more innocents. There was no lack of material; boys happened along every little while; they came to jeer, but remained to whitewash.

He had had a nice, good, idle time all the while - plenty of company-
and the fence had three coats of whitewash on it! If he hadn’t run out of whitewash, he would have bankrupted every boy in the village."

Randy, feel free to take my Tom Sawyer/eBay analogy and run with it, I humbly give it over to you.
Maybe you could write your own next chapter in which the suckers realize far too late that they are addicted to the ebay crack! They want to stop "painting the fence" but can't figure out how!

Mark Twain was a genius!


nadine said...

Randy, did you notice the quiet announcement that for certain categories, like Antiques, 70% of the first page of search would be reserved for Auctions ordered by time ending soonest? It's beginning to dawn on the eBay lunkheads that they risk screwing up what they had in the pursuit of the Diamond sellers. Perhaps in the future it will even dawn on the lunkheads that arrangements whereby eBay makes money but sellers don't are not attractive to sellers.

Randy Smythe said...

Thanks Bob! Nothing planned now but maybe soon.


I don't think the lunkheads will ever learn that.

Henrietta said...

The important thing to remember about a VERO takedown is that it doesn't matter if it is a used item or new. If the eBay VERO holder reports it, it will be pulled, no questions asked, probably no human eyeball will verify it, it is gone.

There is in fact substantial proof that there are registered VERO who do not have any legal claim to ownership, because eBay does not verify their claims.

Randy Smythe said...


Maybe we should lobby eBay to repeal the Vero program.

Anonymous said...

This latest move by eBay is the biggest hoot outside of an Owl Documentary that I've heard this week, eBay is for retailers/ eBay is against retailers make up your mind... tho I must say in a way eBays schizophrenic duplicity is strangely comforting... theres something to be said for consistency

LarryP said...

Sorry, but while part of me dislikes price fixing, a bigger part of me dislikes bullies.

If you eliminate MAP, and I'm a Diamond Seller, I'm going to make an investment and sell at slightly below cost for a period of time, and drive most, if not all the small sellers out of business. Then I'll have fewer, if any competitors, and I'll be able to raise my prices to achieve a reasonable markup, but have a greater percentage of GMV.

That's (IMHO) what will happen with no MAP. DISCLAIMER: I don't sell products with MAPs, so I'm not impacted one way or the other. I'm just looking out for my fellow small seller.

Anonymous said...

Minimum advertised price actually BOOSTS the amount of gray market merchandise on the secondary market, since less of it sells the first time out.

This is nothing new, the key word is 'Advertised'. Get rid of the labels/ tags and you can do whatever you want.

For years we've all seen those newspaper circulars. The black-and-white flyers for those "Railroad" job lot stores. They show cut tags, magic-marker blotting out (most of) the logo, at ungodly cheap railroad salvage prices. Often cheaper than counterfeit.

Ebay just brought it out into the light. Me, I'm an irregulars hound. I even wear 'Bloopers' brand underwear.

In a country of frantic overproduction, irregulars / 2nds / unsold inventory are a fact of life and MAP just means more gets left on shelves. Which means fuller pallets next "season" :)

Closeouts are not a terribly profitable niche but if you sell enough of them you can make it work- even without tags

The pirate infested cesspool known as the Eye doesn't have these problems... no one cares what goes on there its just SALES sales Sales ;)

Randy Smythe said...


Thanks for the comment: MAP (minimum advertised price)

So would you say that MAP is actually good for small sellers and Classic eBay and not so good for Diamond sellers and the "New" eBay?

That's what I believe, just looking for some discussion on the topic.

Anonymous said...

Well think about it- ebays connotations being what they are, and listing being free- a raft of unsold, out of season stuff is going up on there either way.

Way #1 it gets shrinkwrapped onto pallets and trucked out the backdoor of Wally World, then onto The Closeout News where little guys try their luck selling it at fleas and on ebay.

Way #2, Wally World keeps it in their Arizona Super Duper Product Detention Center/Warehouse (I made that up) then lists it free on ebay to lap up every last penny themselves and keep every hundredth of a percent from ever escaping out into the natural, organic economy. It all stays within the Wally World GNP.

In way #1, MAP matters and in way#2, not so much. But theres a 3rd issue.

Randy as a DVD guy you have NO idea how much new product gets ground up and burned each year while still in the shrink wrap.

MAP is one defense against the deluge of diverted product that was contracted to be destroyed but is reappearing on the street. The guy running the shredder or driving the compactor truck has to eat and eventually they all cave to the temptation of selling gray market. What can you do... weigh the before and after pile?

Barcodes couldn't solve it. RFID / Sensormatic / Chips couldn't solve it. Hologram stickers couldn't solve it. MAP is sure as hell not going to solve it.

The 'problem' will NEVER be solved and it will always be a problem. Much like ebay uses actual fraud to justify shutting out the little guy, MAP uses a real problem as a ruse to achieve an altogether different end- shutting out the little guy without even 'touching' the flow of diverted goods.

Anonymous said...

really simple really if storage cost x volume of goods = same or less than selloff then ebay it

if not then dump it on wholesale market

they will prob just make hundreds of ebay userids - pose as 'independents'

get exemption

new term: MAP avoidance


Randy Smythe said...


Thanks for the comments. I agree the problem will never be solved and that eBay needs to protect sellers from abuse of the VeRO program (not something you mentioned, but...)

I also am very aware of the destroying of new sealed product. Disney does this on a fairy regular basis to keep the price of their franchise titles high. Enterprising businesses somehow get access to this product and Amazon, eBay and others move it by discounting substantially.

MAP serves a an artificial price protector and allows the gray market to exist because of those smaller sellers who can source the product. If MAP is repealed then everyone will become a discounter and only the deepest pockets will survive.

Jerry said...

A mfg should be able to decide where they want their products sold. The retail world consists of big brands and big stores. "Wal Mart" is a brand, "The Gap" is a brand.
How does a small brand create a brand to compete against these goliaths?
They need a different strategy. (Plan B).
Think of someone out of town wanting to buy you a present. They pay $100..
You don't like it and bring it to a local small store - dealer.
They're charging $90 and if they'll help you at all - they'll give you $90.00.
You feel slighted; you feel cheated. The brand will loose out because you feel cheated.

If they local store charges $110 and they'll exchange you product but will only give you $100.
You feel slighted; you feel cheated. The brand will loose out because you feel cheated.

Next time you'll tell the person that buys you a present to buy at a national chain (Goliath) so you'll feel good in exchanging the product.

So a mfg wanting to build a brand needs to have dealers who treat the consumer fairly.
If they don't they'll never build a brand.

Ask me.
I am the one who took the case to the Supreme Court.

We never changed any "Price fixing rule" we only asked the courts to make the law the "rule of reason" not "persay illegal"

Randy Smythe said...


Could you email me please, I would really like to discuss this with you. my email is rksmythe at yahoo


Anonymous said...

Just a small aside: there is a HUGE amount of "gray market" trade going on at Amazon, as well. Huge, huge, huge.

In my product catagory alone, I've identified several sellers who are doing an amazing volume of "import" business, the likes of which they would never get away with at ebay.

Why? The high maintanence customer at ebay is very different than the Amazon customer. No buyer at Amazon seems to have made a sport of reporting them...

The Amazon demagraphic understands that a brand new, sealed, flawless item at half-price of going retail is a fantastic deal. The ebay buyer is an entirely different shopper. More so, nowadays, than even 2 years ago.

In the end, both, ebay and Amazon make a fortune of the grey market sales. I've always believed they are both very happy to reap the fortune they do from such sales, for as they go unreported....we're talking billions here!

Also, don't forget that ebay has an adults only catagory as well. No doubt they make a fortune from that dodgy copyright market as well, though, they sure don't talk about it much in public. I would love to see the figures and know how much they really make from it-has to be huge revenue for ebay...

chelle said...

First this is not about MAP - it is about Retail Price Maintenance RPM, which is different. MAP contracts involve a cooperative agreement that provides credits to retailers for the expense of advertising and to incent the retailer to keep their price at a minimum. However, the retailer can choose to offer the merchandise below the price, but in doing so forfeit the credit. RPM is a coercive tactic by manufactures and/or their large retail customers to force the retailer to set prices otherwise lose the opportunity to carry the brand. MAP was decided in 1987 to be judged by the rule of reason.

The case (Mr. Leegin;s) that overturned RPM as being per se illegal was in 2007 and wasn't about a minimum advertised price where there is likely a range were the pricing must fall within. Mr. Leegin was participating in price fixing by not allowing a retailer to price its brand below what he - in his retail side of the business - priced the products. Clearly this is a conflict of interest and has nothing to do with the manufacturer aspect of the business, but rather is his effort to guarantee that his retail business would achieve the bulk of business while maintaining the price that could only be achieved if his retail business did not have competition.

The retailer relevant to Mr. Leegin's case was the lone retailer of the brand for quite sometime in the area its business resided. As a way to encourage repeat business the retailer provided repeat customers discounts on the products and to entice customers the retailer provided discounts for customers who used the nearby airport to again encourage additional business. Now as the only source of the brand in the area at the time the retailer could very easily have followed the price restrictions commanded by Mr. Leegin, but as resellers ourselves we are very aware of the necessity of acquiring the customer and retaining the customer. To fail to do so would result in a no business. So rather than insist the customers pay what was clearly over-inflated pricing (meaning they had room to allow discounts in their profit margin) they leveraged the pricing to encourage business.

Well, Mr. Leegin's retail business moved into the area and of course had a couple of issues with its competition - 1) the retailer provided discount incentives for segments of customers, and 2) (most importantly) the competing retailer had an established presence. So Mr. Leegin's task if he were to effectively compete with the well established retailer would force him to have to market heavily and he himself discount what had to be grossly over-inflated prices.

Of course it is much easier to remove the presence of competition than to actually compete. So he whipped out his as a manufacturer coercive contract tool and refused to sale to his retail competition.

Lets be clear RPM erodes the first sales doctrine, which protects the owner of a legitimate good (meaning not counterfeit) from selling its own property as long as they do not replicate the good (counterfeit). In essance RPM can potentially eliminate your ability to sell your own clothing you no longer wear. If eBay sellers believe they are immune to RPM they need to study up on exactly what RPM is and its effects on their First Sales Doctrine rights.

Also, the eBay seller RPM proponents would be wise to ask yourself how successful you would be selling on eBay or your own website if you could not participate in discounts. In other words if a seller on eBay was forced to sale at the same price Macy's lists their merchandise - where will people shop? That's right they will not have any incentive to shop from a seller on eBay, because of the lack of reliability of the products condition or the general distrust the sellers have acquired by eBay's trashing our reputations.

So don't kid yourselves with the vision of dollar signs in your eyes at the idea of not having to compete with sellers with cut throat pricing. You can't compete with Macy's selling at the same price.

Randy Smythe said...


Thank you for that last comment. MAP is certainly going to be part of any legislation to deal with RPM.

I don't have a problem with MAP but I do have a problem with RPM. Map is just easier for the layman to digest.

I realize they are two different issues but which is easier for the layman to grasp? Minimum Advertised Price or Retail Price Maintenance.

In each case the manufacturer is requiring something of the retailer. Don't kid yourself that they are not using MAP as a tool for RPM, but to be fair they are two separate issues.

I am of the belief that we should stop the abuses, but leave protection for manufacturers and their brands.

I was a mfg. in a past life so I certainly have a different perspective than a strict retail only experience.

There is no simple solution, but the pendulum should not swing so far back as to remove all protections from the manufacturer.

chelle said...

The manufacturer has the right to select who they do business with, but they previously did not have the right to sell and then control the retailer who purchased.

It is really that simple - if a manufacturer wants to regulate its products it needs to be prepared to take the loss in business by either producing less or holding inventory longer. However, people such as Mr. Leegin don't want to bear these costs to "preserve" (yeah right!) their brand they want to coerce retailers into less than advantages contracts that benefit those such as Mr. Leegin.

So, here Mr. Leegin benefited from a clear set of judges who lack the ability to grasp the concept - ignored the precedence of why RPM was illegal - and made a serious error that if allowed to stand will result in mass monopolies and the prices we will pay will be enormous. Right now there are a small percent of manufacturers and worse at the request of their large customers participating in RPM thanks to Mr. Leegin. However, the increase in this behavior has been rising fast and the danger to consumer welfare is increasing with every passing day. Our economy certainly can't afford to pay insane prices, because a manufacturer is greedily controlling its customers that purchased the products from them forcing high prices.

I don't buy the BS of protecting brand credibility ...... that fact is the manufacture wants to limit its cost while at the same time demanding unnecessarily inflated prices. So to any manufacture past or present if you want to control the price of your product retail it yourself - bear the burden of the cost of production and inventory yourself, but do not sell to retailers and demand they do business that benefits the manufacturer at the expense of both the retailer and the consumer.

Also, I would like to make it clear that once the manufacturer sells to the retailer the retailer should be protected by the first sales doctrine, but as you can see in the situation with Mr. Leegin that right is removed.

As far as MAP vs RPM I don't believe many "layman" understand MAP anymore than they understand RPM. Reality is if they did they would recognize the difference in the case with Mr. Leegin & RPM and MAP- they clearly do not. So I believe (even if they do know about MAP) that putting the facts out so people can be informed before they make a judgment on what is and isn't good for them.

Again, MAP was decided to be judged under the Rule of Reason as opposed to a Per Se trial in 1987. Mr. Leegin and any other manufacturer who again is willing to bear the cost of creating incentives for retailers to maintain certain prices could have for 20 years now, but why should they if they can coerce them into pricing their way.

Also, Mr. Leegin was found to have been violating Anti-trust law in two courts and after he lost he then went to the supreme court to specifically overturn the laws making price fixing (RPM) per se illegal to be ruled under the rule of reason. His purpose was to gain permission to break the law. The rule of reason defense is easier to fight under than per se. In other words his intent was to open the door for manufacturers to abuse the public with minimal if any scrutiny.

Randy Smythe said...


I can tell we are not going to fully agree on this one.

So rather than continue to debate in a forum not ideal for this much back and forth I'll end my portion of the debate.

I like your passion though. Keep fighting.

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