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William A Markham

William Markham’s Answers

12 total


  • Do we lose our right to sue a supplier for unfair competition and pricing if they offer us and we pay a temporary lower price?

    A supplier has put us on an allocation that we believe to be unfair and will allow their other customers to put us out of business. Also, we believe they have violated the Robinson Patman Act for many years. After telling them this, we r...

    William’s Answer

    You can seek relief against the supplier under the Robinson-Patman Act for unlawful price discrimination if you can make the following showings: The supplier has sold the same or like supplies to your company and other companies at around the same time, offering better prices to at least one of its other customers. By receiving the better prices, the favored customer(s) must be in a position to undermine competitive processes in the affected market(s) -- which is a complicated issue that requires close analysis. Moreover, the sales must have been made across state lines, or must have been made by or to a business that operates in interstate commerce.

    If your supplier offered you lower prices in exchange for settling claims that you have already made, and if you accepted the offer, then presumably you have settled your claims (the reference to Federal Rule of Evidence 408 is a reference to privileged settlement discussions). Otherwise, you have not waived any claims, but cannot refer to its offer to sell to you at lower prices in order to prove its liability for Robinson-Patman violations.

    The statute of limitations for antitrust offenses is four years. If this is a continuing wrong, your damages will be limited to what you can prove you suffered during the four-year period that preceded your filing of antitrust claims.

    Robinson-Patman claims are disfavored in the modern era. You likely must show that because of the price-discrimination the favored customer(s) can establish a dominant presence in the affected market(s) and thereby stifle innovation or even stifle price competition at a later date because the disfavored customers have been unable to complete and have been largely ruined.

    If you can buy comparable supplies from another seller at prices that match the favored prices offered by the price-discriminating supplier, that is your best remedy.

    This is a complicated topic. I cannot offer definitive guidance on the basis of such little information. I hope that this comment helps.

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  • Business question- possible conflict situation. Not sure.

    I provide a software to 20 clients who run a "candy selling business" for example. These clients use our software to manage their operations... from vendor list, to their clients information, pricing, and so on. ...

    William’s Answer

    You can start your own "candy store" or other business even if it competes directly against other businesses to whom you previously sold software.

    What you must not do is misappropriate the "trade secrets" of any of these businesses -- which you are peculiarly situated to do precisely because you presumably have access to the confidential information of these different businesses.

    A trade secret under California law is very broadly defined. You can always say that you independently acquired client lists, rarified supplier lists, price lists, or other information that arguably constitutes trade secrets, but if the surrounding circumstances indicate that you likely used your customers' protectable trade secrets in order to establish a business that competes against their own, you might well find yourself facing difficult, costly litigation and potential liability for misappropration of trade secrets and related legal wrongs, including the breach of the covenant of good faith and fair dealing under which you sold your software to these businesses.

    At the same time, no business can use makeshift allegations of trade secret misappropriation to prevent your company from competing against it. To prevail on a claim for misappropriation of trade secrets under the California Uniform Trade Secrets Act, a claimant must show that you misappropriated information that can be rightly characterized as a trade secret.

    I lack sufficient particulars to give further advice. Tred warily.

    Good luck starting your new "candy store"! Just be sure to reap what you have sown, not what other competitors have sown in private for their own private benefit.

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  • Question for a real estate lawyer

    I am a co-borrower on a property. We are in the process of refinancing. When I reviewed the loan details it revealed that the other borrower is $25,000 in debt. If this person dies can these companies put a lien on the property?

    William’s Answer

    The questions raises several distinct issues.

    First, by taking a loan that is secured by the property, you will perforce give a lien against the property to your lender. This lien is called a deed of trust, and your lender will have it recorded against your title to the property. If you stay current on the loan, the lender or its servicer will not foreclose on the lien (deed of trust), and if you repay the loan in full, or if the lender accepts a lesser payment as payment in full, it must reconvey (surrender) this lien. But if you fail to stay current on the loan, the lender will eventually initiate foreclosure proceedings against this lien. The deed of trust is the most common tryp of property lien that exists, and it is the lien on which lenders famously "foreclose" when a borrower falls into default on a loan secured by one.

    Second, if your co-borrower has poor credit, the price of your loan will be correspondingly higher (i.e., your loan will carry a higher interest rate).

    Third, before taking the loan, you and the co-borrower should have a clear, written understanding about at least the following matters: (1) Terms of Repayment: How will the two of you repay the loan, and what you will do if one or both of you cannot make a required payment? (2) Use of the Property:
    How will the property be used? (3) Use of the Loan Proceeds: How will the loan proceeds will be used?(4) Events of Default, Indemnification, and Insurance: What happens if one of you fails to make co-payments or stops making payments or commits acts or fails to commit acts that places the loan in default? Is the other entitled to reimbursement under your agreement? What happens if one of you causes harm to others at the property? Will you purchase insurance to protect both of you from these kinds of matters?; and (5) Testamentary Arrangements: Who will receive what interest in the property, and who will owe what responsibility for maintaining the property or paying the loan, if either or both of you die before the loan is repaid in full?

    Your written agreement in turn will govern how you should elect to take title (e.g., as tenants-in-common, or as joint tenants with an automatic right of survivorship to the surviving joint tenant, etc.).

    I highly recommend that you obtain advice about these matters from an attorney before applying for the loan.

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  • If MAP (Minimum Advertised Price) is included in a distribution agreement, is it illegal?

    If Minimum Advertised Price is included in a distribution agreement in order for distributors or retailers not to sell our products less than the fixed price, is it violating federal anti-trust law? How can I carefully draft MAP without violating...

    William’s Answer

    MAP pricing is a particular kind of price-fixing called "vertical price-fixing" or "resale price maintenance" that can be unlawful under federal law as well as the antitrust laws of certain states, but it is no longer a per se violation of federal law, as it formerly used to be. Your question is a significant one, and you should not attempt to resolve it merely by reviewing off-hand comments posted on this site. Even so, if you have a start-up business and do not dominate your markets, and if you do not seek by MAP pricing to thwart price-competition for the line of commerce in which you offer your products, you likely will not involve yourself in antitrust complications by setting a MAP price, but subject to a review of the state antitrust laws of the states where you plan to distribute your products, so that you can decline to enforce a MAP policy in any state where "resale price maintenance" remains a per se violation.

    Price-fixing merely means that two companies that are genuinely independent of one another have acted in concert to fix, raise, lower or otherwise manipulate the going prices for products or services that they each provide. Price-fixing constitutes a serious, per-se violation of Section 1 of the federal Sherman Act when it is "horizontal" (that is, undertaken by two firms that act at the same level of distribution and therefore are presumed to be direct competitors, such two manufacturers of the same kind of product).

    Under federal law, price-fixing is no longer per se unlawful when it is "vertical" (undertaken by two firms at different levels of a supply chain who are not in direct competition with one another, such as an agreement between a manufacturer and its distributors by which the distributors agree to charge minimum prices).

    Even so, vertical price-fixing can constitute a violation of Section 1 of the Sherman Act under the so-called rule-of-reason test, but it is hard for a plaintiff to prove the point. The practice has remained a per se violation under certain state antitrust laws, but many states have revised their law on this very point in order to follow federal precedent, and so it is an evolving area of the law.

    Unless you really lack any budget at all for antitrust counseling, you should not establish and enforce a MAP policy without first consulting an antitrust attorney, and I am not one who reflexively admonishes clients always to pay for attorneys. The practice can be illegal under antitrust law, and antitrust policies can be crippling. I hope that this answer helps.

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  • Can I sue a supplier for restraint of trade, breach of contract, unfair competitive practices, and vertical price fixing?

    I am a small E Commerce Retailer of Music Equipment, and have been terminated by one of the manufacturers who I have been an authorized dealer for - over alleged Minimum Advertised Price or "MAP" violations. Moreover, this manufacturer did not gra...

    William’s Answer

    I practice antitrust law in San Diego. The manufacturer's termination of its relationship with your firm, done to sanction your firm for having advertised prices below its MAP floor prices, constitutes "resale price maintenance." It is not a per se antitrust offense, but sometimes can constitute a rule-of-reason violation of Section 1 of the Sherman Act and a related violation of California's Cartwright Act (CA Bus. & Prof. Code Sections 16720 et seq. Your facts do not seem promising for the claim. You would likely be obliged to show that the manufacturer uses its MAPs in order to increase the price of products for which consumers lack reasonable alternatives; the manufacturer would likely argue that it uses its MAPs to enforce intrabrand disclipline and to avoid free-riding by e-retailers that do not carry the expense of displaying and promoting its products, etc. On the other hand, it is possible that the manufacturer committed a simple breach of contract by terminating your supply line in violation of the contractual provision on dealer terminations. Overall, you have not provided sufficient facts for an attorney to comment meaningfully on your matter. I have done the best I can. It might amount to some sort of arguable antitrust claim for unlawful resale price maintenance; it likely does not. It might well give rise to a claim for breach of contract, but if the contract has an attorney's fee provision, and if you lose, you will be liable to the manufacturer for its attorney's fees and other costs of suit to disprove the contract claim. For antitrust, the plaintiff recovers its fees if it prevails, but the defendant does not if it is the one that prevails, unless the plaintiff's claims were manifestly frivolous.

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  • How to split proceeds between 2 LLP's from a real estate transaction. The real estate was owned equally by both

    A piece of real estate is owned by two LLP's. jointly. 1600 acres and each LLP has an undivided 50% interest. The land is being sold and a member of "LLP A "who owns a 25% of the entire land (50% portion of LLP A's interst) doesn't want to sel...

    William’s Answer

    My first observation is that this is a significant, somewhat complicated series of transactions and rather complex set of facts. I will assume that the two LLPs owned the land as "tenants-in-common," so that if they cannot agree on how to allocate sales proceeds or whether to sell the property, a court can order a partition and sale, conduct an accounting and then pay to each LLP its interest in the property. Perhaps the two LLPs had a tenancy-in-common agreement under which they owned the property? If so, this agreement would govern the matter. Perhaps there was a settlement agreement with the dissenting partner that has established how the remainder is to be sold and allocated? At all events, all roads likely lead to the same result: Each LLP is entitled to 50% of the net proceeds from the overall sale, but LLP A's share of the proceeds must be reduced by the amount already paid to its dissenting partner. But you cannot rely on this answer because there really are too many variables that I have not examined. If you cannot resolve this matter among yourselves, you likely have recourse under the judicial partition statutes and/or the agreements between the LLPs (tenancy-in-common agreement or settlement agreement with the dissenting partner in LLP A).

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  • I am trying to file a multi-million california false claim act against a company A, but it was acquired by a bigger company X.

    Does this mean that I could not file a false claim act against the company A? Or I still could except it will be against company X. Background: Company A made multi-million overbilling against a local municipality public entity.

    William’s Answer

    • Selected as best answer

    Under California law, the surviving corporation can be obliged to assume liability for the debts of the merged corporation on several different grounds, and as a general rule a company that owes debts cannot avoid paying them by arranging to have its assets acquired or all of its shares purchased. There is however the doctrine of surivor's liability, which says that the surviving corporation has no obligation to pay the debt of the extinguished, purchased entity. It is a doctrine that is almost never enforced because there are so many exceptions to it. I have never encountered a single case in 25 years of practice where a surviving corporation was absoloved of the debt owed by the corporation that it acquired.

    As for qui tam claims, the answers given below state the matter exactly. Moreover, the private "relator" of the fraud against the government must be the original source of the disclore that the fraud occurred. I otherwise think that the answers given below are excellent.

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  • Can messages that I exchanged with another party on facebook be used in court without my permission.

    One of my Facebook friends and I exchanged messages that could not be viewed by anyone but the two of us. At some point we did not see eye to eye and the Facebook friend said he was going to use some of these messages that I thought were private...

    William’s Answer

    The first question is whether any message that you wrote on FB can constitute admissible evidence in a court proceeding. Is the message relevant to any issue that remains in dispute at at trial? If so, can your friend prove that you actually wrote it (you would have to admit the point in a discovery response, during your deposition or while on the stand). Even if it is relevant and authenticated, it remains hearsay unless you are a party to the case and it is offered against you. If it is hearsay, which exception to the hearsay rule is applicable, if any? (Yoru friend's attorney would have to figure this out). Even if it is otherwise admissible, can it be excluded on the ground of a privilege, such as your expectation of privacy? The answer to this last point is likely, "no," since you posted the message to your friend on a public website. Assuming it is relevant, a skillful attorney can overcome the hearsay rule, using it if nothing else as evidence of a prior inconsistent statement in order to impeach your testimony, and moreover if you are a party it can be used against you and is not considered hearsay. But is it relevant? Have you admitted that you were the one who posted it? Sometimes making a big fuss over evidence that will anyway be admitted serves only to call excessive attention to it. This the best I can do without more information. Best regards.

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  • Remove joint tenant from title without his consent?

    I bought a house and paid for it with my own money. I then added my son as a joint tenant. Unfortunately, we do not get along now. Is there any way I can I remove him from joint tenancy without his consent? Thank you.

    William’s Answer

    You cannot remove him from title, but you can record a quitclaim from yourself as joint tenant to yourself as tenant-in-common, and by so doing you will defeat the joint tenancy and convert it to a tenancy-in-common. This is significant. By operation of law, the surviving joint tenant becomes the sole owner of the property when the other joint tenant dies. Thus each joint tenant is said to have a "right of survivorship." If you make the above quitclaim, you will defeat the necessary "unities" that must be in place in order to establish a joint tenancy, so that if you pass away before your son, your interest in the property will belong to your estate, not to your son, and you can dispose of your estate by a will, trust or other testamentary arrangement. You might also have cause to bring an action to quiet title against your son along with a claim for reformation of title, but I would have to know much more about your case before determining whether these remedies might be available to you.

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  • Who owns the duplex after mortgage holder dies.

    This is a little morbid, but I'm curious. I have been discharged from a Chapter 7 bankruptcy. I still hold the title on the duplex and it was owner financed. The owner has no heirs and is getting on in age. I have explained to the owner that t...

    William’s Answer

    No. If the seller of the property (whom you have called the "owner") passes away and you remain in arrears under the note that you gave to the seller to purchase the property from him, the administrator or trustee of his estate will have a fiduciary obligation to bring your debt current or foreclose on the property. Your note and the deed of trust or mortgage that secure it will be placed in the seller's estate if he passes away, and the administrator or trustee of his estate will proceed accordingly. I add only the following: It is not clear from your comments what effect your bankruptcy proceeding had on your title to the property or loan agreement with the seller. If you were obliged to surrender title to the seller or are in default, either the seller or his representative (including any eventual testamentary representative) must proceed as I have set forth above.

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