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Contract and Antitrust Remedies for Supply Chain Issues Facing Retailers and Distributors

Level: Intermediate
Runtime: 62 minutes
Recorded Date: June 27, 2022
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  • Good faith and fair dealing
  • Material breach
  • Force majeure
  • Collusion by upstream suppliers
  • Antitrust harm if the middle-man doesn't pass on price increases
  • the Robinson-Patman Act
  • Dual Distribution concerns
  • Upstream suppliers are providing no or limited supply: Analyzed from contract law perspectives.
  • Defenses such as impossibility, frustration of purpose, duress, and force majeure (was the supply constraint foreseeable/preventable).
  • Recent supply-chain challenges caused by pandemic- and weather- related events.
  • Upstream suppliers are showing favoritism towards the client's rivals : Two scenarios, both under antitrust law.
  • Your client is having trouble accessing the market: Analyzed from an antitrust perspective.
  • Well-known violations, such as exclusionary conduct.
  • Less-common violations, such as Sherman Act Section 8 ("interlocking directorates").
These discussions will provide an overview of a range of laws which protect your distributor and retailer clients. This will help you to "spot the issues" that arise when using these laws to address the challenges facing your clients.

Runtime: 1 hour, 2 minutes
Recorded: June 27, 2022

For NY - Difficulty Level: For both newly admitted & experienced attorneys


In this program, panelists will provide both legal and economic views on four scenarios commonly faced by distributor and retailer clients including franchisees and dealers.
Panelists will also cover:
  • Contract law.
  • Antitrust law.
  • Well-known violations, such as exclusionary conduct.
This program is an opportunity to hear from two lawyers who have significant experience representing distributors and retailers including franchisees and dealers.

This program was recorded on June 27th, 2022.

Provided By

American Bar Association
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Eric Forister

Managing Director
Econ One Research Inc.

Eric Forister is a Managing Director with testifying experience on market definition, market power, and damages.  His expertise includes applying advanced statistical techniques to datasets, synthesizing information from documents, and designing and evaluating surveys.  He focuses on relevant questions to tackle complex issues with an efficient and effective style of communication.

Dr. Forister has worked on both the plaintiff and defense sides of antitrust, intellectual property, consumer fraud (marketing), and breach-of-contract cases.  As a consultant, Dr. Forister has addressed issues such as lost profits, market definition, market power, market pricing (including price discrimination), competition, merger efficiencies, common impact, materiality, reliance, ascertainability, royalty rates (including FRAND), damages, sampling, survey design, and irreparable harm.

Dr. Forister has analyzed dozens of industries including pharmaceuticals, consumer packaged goods, luxury goods, food products, medical services, biotechnology, legal services, fitness, clothing, entertainment, real estate, air and ground transportation, telecommunications, television, electronics, heavy industry, advertising, restaurants, automobiles, gasoline, payment processing, and illicit markets.

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Xiaoyin Cao

Carmen D. Caruso Law Firm

Attorney Xiaoyin Cao advises franchisees, dealers, independent franchisee associations, and other business clients on contractual, regulatory, and business planning issues. In our robust franchise and dealership litigation practice, Xiao plays a vital role in developing legal strategy and arguments, working with expert witnesses, managing complex e-discovery, taking depositions, conducting mediations and settlement negotiations, and second chairing jury trials and arbitration hearings.
She is a member of the Litigation and Alternative Dispute Resolution (LADR) committee of the American Bar Association Forum on Franchising and recently addressed the International Franchise Association on COVID-19 disruptions to business.
Born and raised in China, and a native speaker in Mandarin, Xiao earned her Bachelor of Chinese Law Degree from China University of Political Science and Law, a top law school in China that provides many of the country’s judges and prosecutors. She passed the Bar examination in China before graduating from Chicago-Kent College of Law and gaining admission to the Illinois Bar.
Building on client relationships forged in contentious litigation or arbitration, Xiao serves as outside general counsel to both established and start-up companies engaged in franchising and distribution, health care, education, real estate brokerage, and intellectual property licensing. Clients recently confronted by challenging contract cases have turned to Xiao to rewrite their contracts going forward, and a healthcare franchisor asked Xiao to rewrite its Franchise Disclosure Document (FDD) and franchise agreement, restructure its Advertising Fund, and establish an Area Development program.
Increasingly, Xiao is concentrating on international business transactions, both inbound and outbound, and cross-border dispute resolution, for franchising and other companies. She is a strong asset to any U.S. company seeking to do business in China or other Asian markets. In addition, Xiao now represents a new software development company seeking to revolutionize how e-discovery is conducted by law firms of all sizes.
In all phases of her practice, Xiao earns strong praise and client loyalty by always keeping her eye on the big picture while never missing the smallest detail or nuance.

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Carmen D. Caruso

Carmen D. Caruso Law Firm

Carmen Caruso serves as lead trial counsel in high stakes, high profile cases in Illinois and across the U.S. In over 35 years of practice, Carmen has honed a tough, no nonsense approach enabling Carmen D. Caruso Law Firm to engage in legal combat against many of the world’s largest law firms for clients large and small.
Carmen is one of the best trial lawyers in the dynamic franchise and dealership field. His cases have expanded legal protections for franchisees and dealers against anticompetitive, abusive, and bad faith conduct. He is one of very few trial lawyers named to the exclusive Franchise Times Legal Eagles Hall of Fame and he is consistently named one of the “Best Lawyers in America” among many other honors. Franchisees and dealers from coast to coast call Carmen every week and he has represented clients from almost every state and many foreign countries. He is the former general counsel for the National Owners Association of McDonald’s franchisees, one of the world’s largest franchises.
Carmen thrives in challenging cases confronting serious misconduct. He was victorious in the United States Court of Appeals striking a blow against glass ceiling discrimination against women in c-suites and was part of a New York City trial team that recovered substantial money from Fox News, the late Roger Ailes and Bill O’Reilly for sexual harassment and retaliation against a female Fox News Reporter. He has fought to expand the protection of minority franchises under federal civil rights laws and to protect underserved communities from racial steering. He forced a Monsanto subsidiary to clean up its PCB contamination in the Milwaukee River in Wisconsin and forced the U.S. Customs Service to return property wrongfully seized from U.S. citizens traveling abroad. He has recovered millions of dollars for clients and won trials ranging from a recent victory for a terminated equipment dealer to the acquittal of the grandson of a Chicago alderman in a state court murder trial. He has taken on powerful interests including a former Illinois governor.
Carmen is frequently called when clients have reason to question whether other lawyers have been unethical or incompetent. He represents aggrieved clients or defends other lawyers in legal malpractice cases, fee disputes, sanctions litigation, and in proceedings before the Illinois Attorney Regulation and Disciplinary Commission (ARDC), and he has handled many similar cases in medical fields.
Prior to creating his own firm, Carmen was privileged to be a partner in two of Chicago’s premier firms and he continues to work with leading lawyers in Chicago and across the country.
Carmen holds a Juris Doctor degree from the Loyola University of Chicago School of Law, and a Bachelor of Arts degree in psychology from Marquette University. He also successfully completed the Master Advocates program at the National Institute for Trial Advocacy (NITA). Carmen is a member of the American Association for Justice, the American Bar Association, Federal Bar Association, and the Illinois State Bar Association. He is admitted to practice in the United States Supreme Court, the United States Court of Military Appeals and many other courts.

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