Archive

Posts Tagged ‘RICO’

What Does Doing Your Job Looks Like in Manufactured Housing?

May 9th, 2019 Comments off

 

WhatDoesDoingYourJobLooksLikeinManufacturedHousingDailyBusinessNewsMHProNews600

There is nothing wrong with photo opportunities and videos. MHProNews and MHLivingNews have used them too. But photo ops and videos ought to compliment a broader vision, not replace it.

 

There are thousands of videos about manufactured housing online.  There are untold numbers of still images.  But the ones that are negative often outweigh the views of those that present manufactured housing in a positive light.  That in a nutshell summarizes the plight of the industry’s image challenge.

sam-landy-ceo-umh-posted-manufactured-housing-industry-communities-retailing-postedDailyBusinessNews-MHProNews-

Sam Landy, UMH President and CEO.

Sam Landy, JD, President and CEO of UMH Properties (UMH) told MHProNews that marketing is ultimately the responsibility of each individual company.  That is an obvious truism.  It would be nice if a trade group stepped up to do or compliment that effort, but in the current state of industry affairs, that certainly isn’t occurring effectively.  Yes, MHI makes videos or posts photos on Facebook numerous times each week.  But the 7 months of declining shipment numbers tell the tale.

The report last night about Bryan, TX tells another part of the sad tale of the low state of affairs in manufactured housing.  The Arlington, VA based trade group says about itself that: “The Manufactured Housing Institute is the only national trade organization representing all segments of the factory-built housing industry.” Rephrased, they are saying that they address both production and post-production related issues. Hmmm, let’s see.

By contrast, here is what the Manufactured Housing Association for Regulatory Reform says about itself, “MHARR is a Washington, D.C.-based national trade association representing the views and interests of independent producers of federally-regulated manufactured housing.”

Recast, they are saying that they are a production-issues oriented trade group. Really?  Let’s see.

In the past few days, MHARR has tackled these two issues, published at the links below.

Assistant Secretary Brian Montgomery Removal of Obsolete and Superseded Guidance Documents Letter

New, Revised, and Proposed Energy Conservation Standards and Test Procedures for Manufactured Homes

By contrast, what has MHI published on their website?

Where is the fine Secretary Ben Carson speech delivered at their own Congress and Expo?  As the report linked below reveals, they emailed a few words from it.  But as of this morning at 9:10 AM ET, their own search tool says the same thing as the screen capture below.  That’s largely a post-production speech.  Secretary Carson’s address praises manufactured housing.  Why isn’t MHI promoting it?

Manufactured Housing’s Professional Credibility

 

An online search this morning reveals the Secretary Carson address on MHLivingNews’ site, but not on MHI’s website either.

 

BenCarsonNewOrleansProMHSpeechCongressExpoSearchDailyBusinessNewsMHProNews2019-05-08_2041

This was rechecked today at the time shown, so that’s the latest. Will MHI – out of embarrassment, the desire to do what is right, or for any reason post this pro-industry address on their own website? If so, when? If not, why not?

MHARR is stretching beyond their production issue mandate, to see how they can use targeted efforts to address post-production issues.

Bear in mind that the National Association of Manufactured Housing Community Owners (NAHMCO) broke from MHI, precisely as a vote of no-confidence in MHI addressing issues such as the Duty to Serve manufactured housing.

NealTHaneyNAMHCOWhyBreakawayfromManfuacturedHousingInstituteMHI

But in the world of manufactured home trade media, we are not aware of any that have raised such fundamental and obvious points.  Rather, they have touted MHI – as if they are doing their jobs.

That’s their right to publish what they wish – within the norms of the law and morality – which we respect their right to be wrong in the manner that they ‘inform’ their readers.

LATonyKovachHenryFordQuotesPrettyPicturesAchieveGoalsDailyBusinessNewsProNews

That’s this morning’s first look at “News through the lens of manufactured homes, and factory-built housing” © where  “We Provide, You Decide.” © ## (News, analysis, and commentary.)

 

ManufacturedHousingProNewsMHProNewsConfidentialTipsDocumentsNews

To report a news tip, click the image above or send an email to iReportMHNewsTips@mhmsm.com – To help us spot your message in our volume of email, please put the words NEWS TIP in the subject line.

NOTICE: You can get our ‘read-hot’ industry-leading emailed headline news updates, at this link here. You can join the scores who follow us on Twitter at this link. Connect on LinkedIn here.

NOTICE 2: Readers have periodically reported that they are getting a better experience when reading MHProNews on the Microsoft Edge, or Apple Safari browser than with Google’s Chrome browser. Chrome reportedly manipulates the content of a page more than the other two browsers do.

(Related Reports are further below. Third-party images and content are provided under fair use guidelines.)

1) To sign up in seconds for our MH Industry leading emailed news updates, click here.

ManufacturedHomeIndustry#1HeadlineNewsMHProNews

To see a sample of our emailed news update, click here. To sign up for the factory-built home industry’s #1 headline news, click here or the graphic above.

2) To pro-vide a News Tips and/or Commentary, click the link to the left. Please note if comments are on-or-off the record, thank you.

3) Marketing, Web, Video, Consulting, Recruiting and Training Re-sources

SoheylaKovachDailyBusinessNewsMHProNewsMHLivingNewsSubmitted by Soheyla Kovach to the Daily Business News for MHProNews.com. Soheyla is a managing member of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com.

Related Reports:

You can click on the image/text boxes to learn more about that topic.

Declining Manufactured Home Shipments More Serious Than Retailers, Communities Being Told

 

Gannett Media Exposés, MH Community Owner Moves Sparks Outrage – IEDs of Manufactured Housing

Manufactured Housing – White Hats, Black Hats, Investing, Consumers, MH Independents

 

 

 

 

 

 

 

Manipulating Manufactured Housing Pros – Caterwauling Mudslinger, Just Write a Check, Pay Cash, Use Plastic, and Shut You Up

April 25th, 2019 Comments off

 

GeorgeFAllenEducateMHCCommunityInvestorImageManufacturedHousingInstituteClaytonHomes21stMortgageBerkshireHathawayMHProNews

Jealousy. Lunacy. Hypocrisy. Once was, award-winning, former community-investor George F. Allen bemoans MHARR, begs them and NAMHCO for unity with MHI, all while assailing this platform. Will someone in his circle please show him how to use the GPS app on his phone?

 

Or is Allen still navigating by using an old app-less flip phone? Does he not see that the Manufactured Housing Association for Regulatory Reform (MHARR), the National Association of Manufactured Housing Community Owners (NAMHCO), himself, we and others have all left the Manufactured Housing Institute (MHI) for good, stated, and ongoing reasons?

Let’s unpack wanna-be “EducateMHC” magician and trickster Allen’s Good Friday assaults and caterwauling complaints about several MH industry things, as he purportedly puffs to carry MHI’s water. Yes, that’s the same MHI Allen himself quit, that he said privately and publicly betrayed had him, and that he long complained about their purported oligarchic practices. In his trying to point a finger at others, has he successfully instead pointed three fingers back at himself and his buddies affiliated with the Arlington, VA oligarchic front group?

Let’s dig into the evidence and find out.  Because after 6 months of declining new manufactured home shipments during an affordable housing crisis, manufactured housing retailers, communities, producers, lenders, and all others merit serious answers, not another artful dodge.

What is it All About?

Professionals in our industry or any other are obviously in business to make money. For the majority who want to earn an honest living, that requires information, among other factors.

So as the ancient Romans put it, “scientia potentia est” or “knowledge is potential power.”

Knowledge is only potential power because accurate information must be properly acted upon in order for it to have practical value.

But what if the information being put forth isn’t accurate?  Doesn’t that make success more difficult to obtain?  Especially for the independent business person, who may be competing against a nearby industry giant?

That’s just one reasons why critical thinking skills are necessary.  Because Allen is right about this much, there are two entirely different narratives at play in manufactured housing industry trade circles.  That begs the question, which narrative is more accurate?

As a thoughtful strategist – the Rev. Martin Luther King, Jr. put it – the purpose of education is to build character and to learn to think critically. Keep in mind what King and his colleagues accomplished.  Flash back to 1950.  Who would have thought that black Americans could have so many social, economic, and political barriers for their progress removed by the efforts of King and others working with him?

Knowledge, critical thinking – reality-based understanding – these are important for any professional, especially for those in a seemingly uphill battle.

IfMHProNewsIswritingAboutItIWantToKnowAboutItQuoteIn a normal industry, some of the types of facts and insights needed to succeed would typically come from trade associations.

Sadly, in manufactured housing – as even their exiting president Chris Stinebert obliquely suggested – the Arlington, VA based Manufactured Housing Institute (MHI) has purportedly been failing at their own mission.  Why else would Stinebert wait until his final column to list all the ways that MHI was – from his insiders vantagepoint – failing to get to the root issues? To learn more, see the linked final article by Stinebert, here or above.

So while some moan or rail that MHProNews dares to hold MHI or other ‘big boys’ to account, it must not be forgotten that others – including, but not limited to, MHI insiders – have blasted MHI before or contemporaneously with this publication.

Rephrased, there is ample evidence that Stinebert and others in and out of MHI have provided to demonstrate that the Arlington, VA based trade group was weaponized to do the bidding of their ‘big boy’ masters.  Let Allen or others in MHI try to defend against that claim as best they can.

 

White Hats, Black Hats

Those ‘big boys’ are often tied to Omaha based Berkshire Hathaway, or Knoxville metro based Clayton Homes and their lending affiliates.  To be accurate and objective, there are other companies in the mix too.  MHI can arguably be seen as a mix of black hats and black hats.  The question then is, which hat is a given firm or individual wearing?  And are white hat firms giving black hat conglomerates cover for black hat activities?

The contention that much of the industry’s ills are in many ways internal did not begin here at  MHProNews.  One might argue that we were a bit slow on the uptake.  But if so, it was to make sure that the evidence existed to back the various claims being made, often by MHI insiders.

More recently, thanks to numerous voices inside and out of the Omaha-Knoxville-Arlington axis, MHProNews and our publicly-facing sister site can and have sincerely advanced the troubling case that the industry is underperforming due to the fallout from purported: antitrust violations, ongoing efforts at market manipulation and association failures.

One need look no further than the historic shipment data to recognize that the industry is underperforming.

Even publicly traded MHI member companies are making that argument that the industry is underperforming, as the Skyline Champion (SKY) graphic below reflects. The comments were added by MHProNews, but the green line reflects that the industry has a long-term average of some 224,000 new HUD Code home shipments annually.  It has achieved 372,000 plus new manufactured housing units produced in 1998.  In the mobile home era, over 55o,000 units were produced and sold for 2 years running.  What was done before can surely be done again.

 

3ErasMobileHomesManufacturedHomesManufacturedHousingImprovementActEraSkylineChampionShipmentProductionGraphicMHProNews

In 1998, manufactured homes (MH) outsold RVs by some 3 to 2. In 2017, RVs outsold MHs by some 5 to 1. RVs recovered far more quickly from 2008. The facts raise questions. One, is the effectiveness of MHI as the post-production or ‘umbrella’ association in the country. The other question is more sobering. Has Buffett-Berkshire “Moat” strategies kept manufactured home production at historically low levels to allow a few big boy brands to consolidate others at a discounted ‘value’ by MHI insiders?

 

Another example of how MHI and their big boy brands are stirring the industry’s problems is the John Oliver’s satirical viral hit “Mobile Homes” video, accessible via the linked text-image box below.

 

 

That’s not caterwauling. That’s better known as following the facts, evidence, money trail, and logic.  That’s what researchers and reporters are supposed to do, George.

 

 

CaterwaulingDefinedManufacturedHousingMHProNews

 

These examples are the very essence of the critical thinking skills that Dr. King, Jr. and so many other thinker-doers through the ages have said is necessary for human progress.

 

CriticalThinkingDefinedManufacturedHousingMHProNews

 

George F. (F?) Allen’s ‘Defense’ of MHI and Certain State Association Executives

GeorgeAllenCommunityInvestorBlogMHMPostedMastheadBlogManufacturedHousingIndustryCommentaryNewsMHProNews-133x150a

George Allen, photo credit, MHProNews.com.

George F. (F?) Allen is up-front in each blog post for some years about why he writes. “Motto: ‘U Support US & WE Serve U!’”  Meaning, write him a check, take out your plastic, or cash and he’ll provided you with his sage views.

Of course.

Never mind that he’s now out of the land-lease business, so by his own prior definition, he no longer has “skin in the game.” Ooops.

Never mind that – per sources in his own circle – despite his new ‘EducateMHC’ moniker, his own daughter reportedly failed in the land-lease community business.  That reported failure almost took Allen himself under, per those same sources in Allen’s own orbit.  Ooops.

And never mind that Allen’s and his colleagues in SECO have an idea of education that has proven to be legally problematic, as the report and cross-linked information here outlines.  Ooops.

Keep in mind that Allen likes to entertain others, and is rather good at it. Among his delights are ‘magic tricks.’  The person who is adept at slight-of-hand actions has attempted a verbal slight-of-hand for some time, one could say.  In fact, why not point out that part of the ‘mystery shopping’ service that Allen provided for years was predicated on fooling people into thinking that he was an actual prospect.

So, what follows from Allen’s blog as his Good Friday topic is prudently considered through the lens of those assertions and related factoids. He’s been successful for years in writing and organizing events for a fee.  Done well, that’s a legitimate part of the American way.  Done badly or problematically, it is a good reason to apply “caveat emptor.”  Let the buyer beware.

 

Thanks, George 😉 Allen’s Over-the-Target Responses to Recent MHProNews Reports 

Naval and Air Force pilots have long had the expression that you don’t catch flak unless you are over the target.

Sources indicate to MHProNews that some of the same state executives that complained about leaks to this publication have at times shared information with Allen or others too. That’s obviously done when those same association executives doing the ‘leaks’ thought it useful to their interests.  Perhaps so, but it is mentioned here because Allen did in his missive quoted at length further below.

Part of the purpose of good media is to hold the powerful to account. Who says?  The Society of Professional Journalists and their code of ethics.

 

SPJSocietyProfessionalJournalistsCodeofConductMHProNews

 

It has been a while since Allen has taken public aim at this platform in an apparently failed attempt to get industry readers to boycott MHProNews.  That was allegedly done as ‘carrying water for’ association executives in the MHI orbit.  In response to the SPJ bullets 2 and 3, noted above, this fact-check and analysis are hereby offered.

Allen, himself a prior MHI critic, has apparently found a new way to profit from being a periodic voice to attempt to dissuade industry independents from following the reports and analysis on MHProNews. 

OligarchyDefinedGeorgeFAllenGFACommunityInvestorBlogCOBA7DailyBusinessNewsMHProNews600

 

Allen has not bothered to explain in depth to his readers what changed his views about MHI, on the concerns he previously noted publicly below.  Does his lack of consistency bother him?

ManufacturedHousingIndustryMonopoly-Oligarchy-GeorgeAllen-PostedDailyBusinessNews

George Allen can’t have it both ways, but that doesn’t apparently keep him from trying. He has a modest following today, which once used to be a larger following. As a former client of his told MHProNews, with George “It’s AAA, All About Allen.” If someone is doing good, and Allen’s not somehow in the mix, it is not uncommon for Allen to attempt to undermine that source, per some of his own followers.

  

Facts, documents, and accurate quotes in context are #NettlesomeThings.

New readers should bear in mind the following points.

  • Allen and Spencer Roane have been offered the opportunity to publicly dispute the evidence presented here on MHProNews and/or on MHLivingNews regarding themselves and/or the concerns associated with MHI, that he himself previously voiced routinely. They’ve repeatedly declined to engage in a public discussion or debate.  That’s in keeping with their 5th Amendment right to remain silent, which we respect.  But that leaves others free to ponder, if they had the better case, why not make it in public?
  • MHI, Clayton Homes, 21st Mortgage Corp, and/or their attorneys have been made a similar offer to publicly dispute the evidence presented here or on MHLivingNews via a moderated, on camera, and in front of a live audience of industry professionals. They’ve repeatedly declined the opportunity to do so.  Once more, that’s their right.  Perhaps they’ve duck out knowing their are federal investigations underway, and that whatever they say could be used against them in a court of law?  See the video, below the next bullet.  NOTE: views of that video have apparently more than doubled since we began sharing that mainstream media report about investigations of Clayton and their related lenders, from their own hometown news station.
  • George F. Allen, various figures associated with MHI, Jim and Kevin Clayton, Tim Williams and others may be loathe to admit it today, but they have each praised this publication for being pro-industry and for the good work being done here. Now that same analysis done here that they previously praised has turned dark in their eyes.

 

 

As believers in free enterprise and the value of honest competition, Allen – right or wrong – is serving an obliquely useful function. This publication and MHLivingNews are apparently ‘over the target,’ so we are ‘catching flak.’ This isn’t the only recent attack by opposing voices.  But the other assaults are less visible, and this one by Allen is visible.

As an observable attack, Allen is thus useful to manufactured home industry investors, advocates, and professional readers to understand the ongoing dynamic within MHVille. The visceral reaction being quoted below by Allen – in his role as a periodic tool for the Omaha-Knoxville-Arlington axis – will speak for itself.

Let’s see what Allen said, and then unpack it in a very few words.  As the reader can see from the screen capture below, provided under fair use guidelines, attacking this publication was his headline topic.  That’s a backhanded compliment. The text that follows the image shown is from his blog on that date and is unedited in any fashion.

GeorgeAllenEducateMHCBlogAnalysisFactCheckAnalysisDailyBusinessNewsMHProNews

 

 

Nobody Else Will Tell You This!

Enough of the Name Calling, Sensationalist Caterwauling, & Questionable Claims!

Since 2009, manufactured housing’s nadir (‘worst’) year ever, when only 48,789 new HUD-Code homes were shipped nationwide, we’ve collectively and simultaneously endured and experienced:

  • The loss of easy access to chattel capital for new home loans in communities
  • Two venerable trade magazines ceasing publication (i.e. Manufactured Home Merchandiser and The Journal)
  • Two new trade pubs birthed (i.e. MHInsider and Manufactured Housing Review)
  • A near continuous online diatribe (‘bitter & abusive denunciation’) of one – but not both, national advocates for manufactured housing (i.e. MHI but not MHARR), one or another state association executive (e.g. WI being latest target), and specific corporate executives (e.g. from Clayton Homes & 21st Mortgage) not aligned with a particular yellow journalist’s views of the manufactured housing industry.

ENOUGH IS ENOUGH! Together, as an industry and realty asset class, we should be; no, we must be, ‘working together’ to eclipse 100,000 new HUD-Code housing shipments during year 2019. Also to offset negative press coming from social activist quarters regarding predatory site rent practices foisted on homeowners/site lessees! But such a coming together will continue to elude us as long as an industry outlier broadcasts speculative contrarian tripe, tearing down manufactured housing and land lease community business models at will!

SOLUTION? Make it a point, henceforth, to support your state manufactured housing association as an active member, as well as one or more of three national advocacy bodies (i.e. MHI, MHARR & now, NAMHCO). Also ensure you’re on the receiving end of MHInsider magazine, Manufactured Housing Review online ezine, the Allen Letter (if a land lease community owner/operator), and the Allen CONFIDENTIAL! business newsletter – if a top housing manufacturer or portfolio executive!

Frankly, that’s ALL YOU NEED TO READ & BELIEVE, to stay cogently, accurately, and timely informed about industry and asset class matters! Resist any temptation to succumb to reading anything by anyone engaged in name calling, sensationalist caterwauling, and questionable claims! JUST DO IT – resist the temptation to muck & muddle your thinking. You’ll be glad you did!

If you need contact information relative to trade entities and publications identified in the previous paragraphs, simply let me know via gfa7156@aol.com or (317) 346-7156. And to subscribe to the Allen Letter and or the Allen Confidential business newsletter, visit www.educatemhc.com

FiskFiskingDefinitionManufacturedHssuingIndustryDailyBusinessNewsMHProNews

 

 

Fisking – Unpacking Allen’s Missive

In no particular order of importance.

  • Allen tells his readers who to read, and who not to read. That’s his first amendment protected right, up to the point that he may be part of an organized boycott effort, because a boycott can become legally questionable in antitrust and other types of legal controversies.
  • Allen fails to admit that he and his inner circle are reportedly regular readers here on MHProNews. Thank you, to all of our readers.  Pardon the hypocrisy of some who tell others not to do, what they themselves do.  The fact that he and his circle read here is implied by his attempted critique.
  • It is Allen who fits the caterwauling definition, because what he gave are emotional appeals and red herrings, not an actual effort to debunk even a single factual claim made here or on MHLivingNews. There is no effort made by Allen to point out any failure in logic, any inaccuracy, or any of the evidence we’ve presented that sparked his public moaning.

Here is a pull quote that bears a nod of interest.

Together, as an industry and realty asset class, we should be; no, we must be, ‘working together’ to eclipse 100,000 new HUD-Code housing shipments during year 2019.”   The reality is that the industry will not be ‘working together’ – because some are arguably working to purportedly eliminate their industry competition, by direct and indirect means.  Allen’s related quote is equally lacking in logic. He wants people to support “one or more of three national advocacy bodies (i.e. MHI, MHARR & now, NAMHCO).” Excuse me, sir? MHARR and NAMHCO exist because MHI – in their view – have failed the industry.  It is an either or proposition. 

NealTHaneyNAMHCOWhyBreakawayfromManfuacturedHousingInstituteMHI

Once the rules of engagement and methods used are better understood, then one can often predict what will follow. 

DannyGhorbaniFormerMHIVpQuoteFoundingMHARRPresidentQuoteDailyBusinessNewsMHProNews

 

Why Hasn’t Allen Explained to MH Community Readers How Clayton/21st Hurt Their Interests?

Note that neither Allen, nor anyone else in the orbit of industry publishing he has cited has attempted to debunk the documents, direct quotes and evidence linked from the text-image box below.

 

SmokingGunEvidenceOfAntiTrustMonopolisticCollusionMoatClaytonHomesKevinClayton21stMortgageTimWilliamsWarrenBuffettMHLivingNewsMHProNews

In a series of direct quotes in context, a document from 21st Mortgage signed by Tim Williams, and video recorded comments by Kevin Clayton, these all line up to demonstrate how independent retailers, communities, and producers – among others – where purportedly harmed by action that could be deemed an antitrust violation. Why hasn’t George F. (F?) Allen told his readers how that cost them money? Why is Allen giving perps cover?

 

What Allen fails to tell his readers is how that attack on industry independents harmed independent owners of manufactured home communities.  Yet Allen claims to be their protector.  How so? Isn’t he giving other big time cons cover?

Allen cited in this and a prior posting about the Manufactured Housing Association for Regulatory Reform (MHARR) and the National Association of Manufactured Housing Community Owners (NAMHCO).  Those associations are both breakaways from MHI. They exist because each trade group’s members believed that MHI wasn’t getting the job done properly.

Allen fails to mention that important fact. By contrast, MHProNews has not missed that obvious mark.

Calls for ‘unity’ by Allen or MHI sound good, warm and fuzzy — until they are carefully examined. Unity behind what? Unity with what goal?

If the big boys absorb the smaller firms at a discounted value due to market manipulation, that’s unity.  Is that the unity that Allen wants?  Why is Allen de facto working for the interests of the consolidators that he periodically takes pot-shots at? Isn’t it just another head-fake?

What Allen ignores in his missive – either through ignorance or perhaps from incentives offered by the ‘big boys’ – is that a key reason that the industry is underperforming is rooted in the Omaha-Knoxville-Arlington axis and their allies.  Allen makes no effort to debunk the evidence published here or on MHLivingNews for that claim.  Why would he?  The powers that be and their own attorneys won’t touch that topic in public, and perhaps with good reason. So, in goes GFAllen…

Allen ignores the fact that Clayton has been the source of embarrassment to the industry, starting not long after Warren Buffett bought them for Berkshire Hathaway.

 

 

Thus, it is unlikely that Clayton, 21st, or MHI will publicly respond to our published – documented, and evidence based – concerns.

Allen laments Frank Rolfe, predatory community operators, and the John Oliver video errantly dubbed “Mobile Homes.”  But what F (F?) Allen fails to mention is that MHI is connected to each operation in that Oliver video. Ooops.

Several Florida newspapers opted to run the same letter sent by our publisher.  The reportedly did so only after an editor checked the claims and sources, per the editor that did the fact checking. The letter was sent to only 1 publication, but at least 5 have run it.

 

 

Those claims lodged here, on our sister site MHLivingNews, and summarized in that 300 word letter published in the 5 links above all remain unchallenged.

MHARR’s new initiative, that Allen both praises and slams at the same time, exists precisely because MHARR states their belief that MHI has so dropped the ball on post-production issues that they have no other choice but to try to act where MHI is failing to do so.

 

“Lead, Follow … Or Get Out of The Way”

 

It’s America.  People are free to write a huckster and incentivized mouthpiece a check if they want to do so. They are free to read Allen or attend his meetings.  Those that go say the networking is pleasant and useful, but some lament the ‘education’ part of it.

But what SECO and the Allen Roundtable arguably prove is that professionals in manufactured housing are so desperate for answers and professional opportunities, that they will listen even to someone with his track record of recent years. In years gone by, Allen helped found the National Community Council (NCC), which is part of MHI. But more recently, Allen himself has quit MHI and the NCC.  Allen himself won’t pay to go to their fundraisers, errr, ‘meetings.’

Allen has positioned himself to fill a vacuum.  As soon as someone else steps up and offers an alternative, don’t be surprised if his meetings and ‘education’ vanish like a fleeting morning fog in sunny Florida.

Once more, our publisher invites Allen – or the Omaha-Knoxville-Arlington axis – to publicly dispute and disprove

  • in front of a live audience of industry professionals,
  • with moderator and
  • on camera any of the claims made here on pro-growth MHProNews or MHLivingNews.

You can’t solve a problem by ignoring the root causes.  That’s what Allen either doesn’t get or has arguably been incentivized to ignore and obscure.

Thus despite Allen’s caterwauling and attempted slight of hands, our published case against the Omaha-Knoxville-Arlington axis, their surrogates and allies stands.  If any of these concerns or allegations we’ve reported or that others have raised were easily disproven, why hasn’t anyone in the Omaha-Knoxville-Arlington orbit and/or their surrogates stepped up to the plate and made the public effort?

GeorgeFAllenPhotoEducateMHCMobileHomeLandLeaseCommunityAdvocateExpertLogoManufacturedHousingMHProNews

People can make mistakes, and people can be misled. But the mature person admits an error, and that is part of the Society of Professional Journalists code of ethics. Make corrections promptly and prominently. Where has Allen ever admitted an error? He was either right to condemn MHI before, or right to defend them now. He can’t have it both ways.

Conclusions? 

George F. (F?) Allen (GFA) is arguably either:

·        confused,

·        clueless,

·        corrupt,

·        or some combination of those.

As noted, Allen and his buddy Spencer Roane have been given the opportunity several times to debate the issues he laments publicly with our publisher in a moderated session, on camera, in front of a live industry professional audience. Allen and Roane both keep ducking that offer. Shall we add the word cowardly to the bulleted Cs above?

BTW, that same offer to discuss and debate the issues has been repeatedly extended to the Omaha-Knoxville-Arlington axis. Allen has apparently been carrying water for them in recent months, and perhaps this is missive by GFA their reply.  But given the history of Allen previously decrying their rigged system, as was shown above, what was the MH Axis thinking?  Can’t they come up with a better surrogate? If not, doesn’t that speak volumes too? 

 

UnderstandingWarrenBuffettCastleMoatMetaphorsQuotesDailyBusinessNewsMHProNews

Never forget that even during medieval times, castles and their moats were in fact breached. And ponder that GF Allen may just be another piranha, shark, or alligator in the Buffett moat.

 

That’s this morning’s first installment of manufactured housing Industry News, Tips, and Views Pros Can Use,” © where “We Provide, You Decide.” © ## (News, analysis, and commentary.)

 

ManufacturedHousingProNewsMHProNewsConfidentialTipsDocumentsNews

To report a news tip, click the image above or send an email to iReportMHNewsTips@mhmsm.com – To help us spot your message in our volume of email, please put the words NEWS TIP in the subject line.

NOTICE: You can get our ‘read-hot’ industry-leading emailed headline news updates, at this link here. You can join the scores who follow us on Twitter at this link. Connect on LinkedIn here.

NOTICE 2: Readers have periodically reported that they are getting a better experience when reading MHProNews on the Microsoft Edge, or Apple Safari browser than with Google’s Chrome browser. Chrome reportedly manipulates the content of a page more than the other two browsers do.

(Related Reports are further below. Third-party images and content are provided under fair use guidelines.)

1) To sign up in seconds for our MH Industry leading emailed news updates, click here.

ManufacturedHomeIndustry#1HeadlineNewsMHProNews

To see a sample of our emailed news update, click here. To sign up for the factory-built home industry’s #1 headline news, click here or the graphic above.

2) To pro-vide a News Tips and/or Commentary, click the link to the left. Please note if comments are on-or-off the record, thank you.

3) Marketing, Web, Video, Consulting, Recruiting and Training Re-sources

SoheylaKovachDailyBusinessNewsMHProNewsMHLivingNewsSubmitted by Soheyla Kovach to the Daily Business News for MHProNews.com. Soheyla is a managing member of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com.

Related Reports:

You can click on the image/text boxes to learn more about that topic.

Mobile Home Militia – “Clayton [Homes] Wants Your Cornbread Too” “Join the Revolution” – ‘You Gotta Have Swagger’

Manufactured Housing Institute Members Defending MHI, Great Debate About Manufactured Home Industry Progress, Problems, and Profits

Warren Buffett’s Moat, Understanding Manufactured Housing Requires Grasping Strategic Economic Moats

Conquest Capitalism – Thoughts of Chairman Warren Buffett – Billionaires Campaign to Control Trillion Dollar Affordable Housing Market

HUD Study, Analysis of Zoning Discrimination Against Manufactured Housing Sought

 

 

 

 

 

 

 

 

 

Wisconsin Housing Alliance – an MHI ‘Affiliate’ – Amy Bliss’ Messages Raise New Anti-Trust Issue

March 2nd, 2018 Comments off

GavelLegalWisconsinHousingAllianceAmyBlissWHAanMHIafffilateAmyBlissMessagesRaisesNewAntiTrustConcernDailyBusinessNewsMHproNews

 

From Justice.gov, is “CHAPTER 5 : ANTITRUST ISSUES IN THE TYING AND BUNDLING OF INTELLECTUAL PROPERTY RIGHTS.”

 

AmyBlissLinkedinWisconsinHousingAllianceDailyBusinessNewsMHProNewsMHI has given their members full access to the information [Ducker Worldwide ‘New Class of Homes’].  This is not government produced research and MHI would not be obligated to share this with anyone except for the members who are essentially the ones who paid for the research to be done.  If someone wants to know more, they can most certainly join and share in the expense of doing important consumer research,” said Amy Bliss, Executive Director of the WI Housing Alliance (WHA) and WI Recreational Vehicle Dealers Alliance in an email to MHProNews.

 

Bliss is one of several ‘popular’ state executive directors, who stepped up and defended the Manufactured Housing Institute (MHI) in message exchanges with MHProNews. 

MHI has referred to state association as ‘affiliates.’  So Bliss can be seen as acting as a surrogate or ‘mouthpiece’ of MHI.

The topic is the Ducker Worldwide report, and possible anti-trust issues.  MHI was supposed to make the plan public to the industry, but that presentation was cancelled at Louisville in January, as the Daily Business News previously reported.

 

MHProNews has repeatedly raised concerns about this issue, as potentially harmful to small to mid size companies, as well as to potentially millions of manufactured home owners.

Secretive “NEW” Class of Manufactured Housing Raises Serious Concerns

 

To date, MHI has not refuted – or even tried to refute – those concerns, though they’ve been given a number of opportunities to do so.

MHProNews replied in part to Bliss’ message saying “FYI, my [MHProNews publisher’s] dues money helped pay for that [Ducker] research, and they still didn’t give it to me, why?

But there are several issues that Bliss – apparently acting as an MHI surrogate – uncovered another point that points to concerns about anti-trust issues at the Arlington, VA based association.

In essence, intentionally or not, Bliss confirmed questions put to MHI leadership.  That will be part of a follow up and related report planned for Saturday, unless a hotter news item hits before.

 

 

UnitedStatesDeptOfJusticeChapter5AntiTrustIssuesTyingBundlingIntelectualPropertyRights575

 

What WHA’s Bliss Messages Point to is Known as “Tying and Bundling,” Which can be Illegal

What follows below is verbatim from the DOJ website, Chapter 5, cited above.

Bold or red text is used below by the Daily Business News to underscore potentially salient point and provide comments, with respect to what WHA – an MHI ‘affiliate’ – and thus apparent surrogate Bliss – said with respect to MHI and their Ducker ‘research.’

Note too, while MHProNews is not offering legal advice or opinions, in insuring with an attorney about this topic today, it was confirmed that this could indeed be an example of tying in a manner that is prohibited by anti-trust laws.

Here is part of the message that an attorney sent to the Daily Business News with respect to this issue, “A tie-in is used to create an illegitimate link between a popular product and an unpopular one. In this case, tying access to the new class of home to mhi membership, thereby forcing a customer of one to also “buy” the other.”

Isn’t that what Bliss – again MHI describes the WHA as an ‘affiliate,’ plausibly described what MHI is doing?

  • Namely, tying to get small to mid sized companies being a member to getting this report?
  • A report that MHI has indicated will be used to influence public policy, and potentially HUD regulators?
  • And thus it can seen as being a monopolistic influence on the proposed market?
  • And what are the implications for millions of manufactured home owners values?

The anti-trust and consumer concerns seem real.

These concerns ought to be carefully considered by any and every MHI member, but particularly those who are involved in membership (state associations), or stockholder organizations.

It is MHProNews’ understanding that liability could be created through this anti-trust clouded concept, per the legal opinion previously noted.

More specifics are found below, from the DOJ website.

AntiTrustAllegationsManufacturedHousingInstituteMHIMHIndustryDailyBusinessNewsMHProNews

DOJ and MHI Logos are the property of their respective organization, and are shown here under fair use guidelines. Collage credit, MHProNews.


  1. INTRODUCTION

“Tying and bundling [are] so ubiquitous that we forget they are there . . . . Tying and bundling [are], roughly speaking, what the modern firm does. It’s the rationale. It puts things together and offers them in packages to consumers.”(1)

A tying arrangement occurs when, through a contractual or technological requirement, a seller conditions the sale or lease of one product or service on the customer’s agreement to take a second product or service.(2) The term “tying” is most often used by economists when the proportion in which the customer purchases the two products is not fixed or specified at the time of purchase, as in a “requirements tie-in” sale.(3) A bundled sale typically refers to a sale in which the products are sold only in fixed proportions (e.g., one pair of shoes and one pair of shoe laces or a newspaper, which can be viewed as a bundle of sections, some of which may not be read at all by the customers). Bundling may also be referred to as a “package tie-in.”(4) Case law in the United States sometimes uses the terms “tying” and “bundling” interchangeably.(5)

In view of their potential efficiencies, many economists believe that, in general, tying and bundling are more likely to be procompetitive than anticompetitive.(6) Analysis of the anticompetitive effects of tying and bundling by U.S. courts, by contrast, has evolved over time. Although courts long have expressed concern that tying or bundling might enable firms to use monopoly power in one market as leverage to curb competition, and thereby acquire monopoly power, in a second market,(7) judicial concern has eased as tying and bundling have become better understood. Once thought to be worthy of per se condemnation(8) without examination of any actual competitive effects, tying currently is deemed per se illegal under U.S. Supreme Court rulings only if specific conditions are met, including proof that the defendant has market power over the tying product.(9) Further, the Supreme Court has recently recognized that competitive markets and tying arrangements are not incompatible.(10) Indeed, some lower courts have required proof of likely or actual anticompetitive effects and efficiencies in tying cases.(11)

(MHProNews Note: Isn’t this precisely what Bliss/MHI are suggesting?)

At the Hearings, one panel discussed how the Agencies and the courts could best analyze tying and bundling when two or more products are tied or bundled together and at least one of the products is protected by intellectual property rights. Panelists discussed how to reach the right answers in particular cases and how to give private parties a reasonable ability to predict how their intellectual property licensing practices will be treated under the antitrust laws.(12) As discussed below, panelists generally doubted that tying and bundling involving intellectual property are likely enough to harm consumer welfare to justify per se treatment, and therefore advocated a rule of reason approach that would require proof of likely or actual anticompetitive effects and allow consideration of the efficiencies that such arrangements may generate.(13)

  1. LEGAL ANALYSES OF TYING AND BUNDLING(14)

Ever since the late 1940s, when the Supreme Court stated in International Salt Co. v. United States that “it is unreasonable, per se, to foreclose competitors from any substantial market,(15) and in Standard Oil Co. v. United States that “[t]ying agreements serve hardly any purpose beyond the suppression of competition,”(16) U.S. courts have found tying to be per se unlawful.(17) Although the Court’s 1984 Jefferson Parish opinion confirmed the continued role of a per se analysis,(18) it emphasized that market power in the tying product was a requirement for per se illegality.(19) Later that same year, the Court explained that the application of the per se rule to tying had evolved to incorporate a market analysis:

[T]here is often no bright line separating per se from Rule of Reason analysis. Per se rules may require considerable inquiry into market conditions before the evidence justifies a presumption of anticompetitive conduct. For example, while the Court has spoken of a “per se” rule against tying arrangements, it has also recognized that tying may have procompetitive justifications that make it inappropriate to condemn without considerable market analysis.(20)

Consistent with this approach, the Supreme Court recently acknowledged that “[m]any tying arrangements . . . are fully consistent with a free, competitive market.”(21) Indeed, leading treatises have commented that the test lower courts use to determine whether to apply the per se rule to a particular alleged tie “increasingly resembles a rule of reason inquiry.”(22)Although the elements of a per se tying violation have been articulated differently, courts generally require that:

(1) two separate products or services are involved, (2) the sale or agreement to sell one is conditioned on the purchase of the other, (3) the seller has sufficient economic power in the market for the tying product to enable it to restrain trade in the market for the tied product, and (4) a not insubstantial amount of interstate commerce in the tied product is affected.(23)

(MHProNews Note: Again, isn’t this what Bliss/MHI are suggesting?)

For other per se violations, such as naked agreements to fix price, plaintiffs are not required to define the relevant product markets or show that the defendant has market power in a relevant market. In addition, some courts have shown a willingness to consider business justifications for the alleged tie,(24) and some courts have required proof that the tie has anticompetitive effects.(25)

Courts have sometimes analyzed bundling under the rubric of tying. In United States v. Loew’s, Inc.,(26) for example, the Supreme Court found that the practice of licensing feature films to television stations only in blocks (or “bundles”) containing films the stations did not want to license constituted unlawful tying in violation of section 1 of the Sherman Act.(27)Nonetheless, in explaining its tying analysis in Jefferson Parish, the Supreme Court noted the fact that “a purchaser is ‘forced’ to buy a product he would not have otherwise bought even from another seller” does not imply an “adverse impact on competition.”(28) Thus, to prevail on an unlawful tying claim, a plaintiff would have to show an exclusionary effect on other sellers as a result of plaintiff’s thwarted desire to purchase substitutes for one or more items in the bundle from other sources that harms competition.

III. TYING AND BUNDLING INVOLVING INTELLECTUAL PROPERTY

Linking intellectual property with products or other intellectual property can take many forms, such as offering licenses that cover multiple patents or copyrighted materials or tying the sale of two patented goods or one unpatented and one patented good. Such linkages carry various labels, depending on whether the linked product embodies intellectual property, whether one price or separate prices are charged, and whether the linkage is accomplished contractually or technologically. Classic “contractual” patent tying occurs when the tying product (such as a mimeograph machine) is patented, the tied product is an unpatented commodity used as an input for the tying product (such as ink or paper), and the sale of the patented product is conditioned on the purchase of the unpatented product. A “technological tie” may be defined as one in which “the tying and tied products are bundled together physically or produced in such a way that they are compatible only with each other.”(29) The government’s tying claim against Microsoft involved both the contractual and technological bundling of the Internet Explorer web browser (the tied product) with its Windows operating system (the tying product).(30)

Multiple intellectual property rights may themselves be combined into bundles or packages. Mandatory package licensing occurs when a patent owner refuses to license a particular patent unless a licensee accepts an entire package (or where the patent owner’s royalty scale has this effect).(31) It also includes “block booking” of motion pictures or television shows. Panelists explored the economic, legal, and practical issues raised by these various practices, all of which involve intellectual property tying or bundling.

  1. The Economics of Bundling Involving Intellectual Property

Economists on the panel discussed features that may distinguish intellectual property from tangible property. One such feature is that the development and exploitation of intellectual property typically involves high fixed costs but low marginal costs, but the panel discussion did not make the relevance of this distinction to the analysis of bundling clear. One panelist suggested that predicting anticompetitive effects may be more difficult in cases involving intellectual property bundling than in cases involving the bundling of tangible property.(32)Another panelist stated that it is difficult to determine whether intellectual property bundling in a particular case is driven by efficiencies and, as a result, the analysis is ultimately fact-intensive.(33)

Two economists have considered the bundling of so-called information goods, such as copyrighted music, programming, and other online content on the Internet.(34) They observe that the marginal cost of adding additional units of an information good to a bundle of other information goods typically is very low. They also observe that demand for bundles of goods across customers can be more homogeneous than the demand for the individual components. In such circumstances, it can be more profitable to offer such goods only in a bundle. In their analysis, competition between two firms that each offer sufficiently large bundles can make consumers better off,(35) and bundling by a firm facing no competition can increase total welfare but increase or decrease consumer welfare.(36)

Another distinction between intellectual and tangible property is that the validity of patents can be challenged. It is widely believed that intellectual property bundling “is apt to affect private incentives to challenge the IP”(37) –most likely decreasing incentives to challenge it. Some find it difficult to assess the likely welfare effects of this decrease, however, because the optimal level of incentive to challenge intellectual property rights is not clearly known.(38)

  1. Legal Issues Relevant to Intellectual Property Bundling

Courts have not taken a consistent analytical approach to tying and bundling cases involving intellectual property. In 1999, the U.S. Court of Appeals for the Eleventh Circuit applied the per se rule to a package license for television programming because the package at issue could not be distinguished from the block booking that the Supreme Court declared to be illegal per se in Loew’s.(39)

By contrast, the U.S. Court of Appeals for the D.C. Circuit’s 2001 decision in United States v. Microsoft rejected application of the per se rule to “platform software,”(40) thereby “carving out what might be called a ‘technology exception’ to that rule,”(41) as one submission suggested. The court reasoned that application of traditional per se analysis in the “pervasively innovative” platform software industry risks condemning ties that may be welfare-enhancing and procompetitive.(42) According to one panelist, however, “the rationale [that the court] articulated for abandoning per se condemnation applies well beyond just the software industry,” notwithstanding “the court’s protestations to the contrary.”(43) Although in Illinois Tool Works Inc. v. Independent Ink, Inc. the Supreme Court recognized that many tying arrangements, “even those involving patents and requirements ties,” can be procompetitive,(44) that case did not present a vehicle for the Court to revisit its conclusion that some tying arrangements constitute per se violations.(45)

The Agencies’ rule of reason approach to intellectual property bundling is reflected in the Antitrust Guidelines for the Licensing of Intellectual Property (“Antitrust-IP Guidelines”). The Antitrust-IP Guidelines recognize that “[c]onditioning the ability of a licensee to license one or more items of intellectual property on the licensee’s purchase of another item of intellectual property or a good or a service has been held in some cases to constitute illegal tying,”(46) but also state that “[a]lthough tying arrangements may result in anticompetitive effects, such arrangements can . . . result in significant efficiencies and procompetitive benefits.”(47) Pursuant to the Antitrust-IP Guidelines, the Agencies, as a matter of prosecutorial discretion, consider both the anticompetitive effects and the efficiencies attributable to a tie. The Agencies would be likely to challenge a tying arrangement if: “(1) the seller has market power in the tying product, [which the Agencies will not presume necessarily to be conferred by a patent, copyright, or trade secret]; (2) the arrangement has an adverse effect on competition in the relevant market for the tied product; and (3) efficiency justifications for the arrangement do not outweigh the anticompetitive effects.”(48) If a package license constitutes tying,(49) the Agencies will evaluate it pursuant to the same rule of reason principles they use to analyze other tying arrangements.

Whether the legal analysis applied to intellectual property bundling is some form of the per se rule or the more searching rule of reason, a plaintiff will have to establish that a defendant has market power in the tying product. Recognizing that “Congress, the antitrust enforcement agencies, and most economists have all reached the conclusion that a patent does not necessarily confer market power upon the patentee,” the Supreme Court has held that “in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product.”(50) Thus, market power should not be presumed merely from the existence of a patent.(51) As the Court explained:

[W]e conclude that tying arrangements involving patented products should be evaluated under the standards applied in cases like Fortner II and Jefferson Parish rather than under the per se rule applied in Morton Salt and Loew’s. While some such arrangements are still unlawful, such as those that are the product of a true monopoly or a market wide conspiracy, that conclusion must be supported by proof of power in the relevant market rather than by a mere presumption thereof.(52)

The Agencies, as a matter of sound economics, had chosen not to rely on such a presumption prior to Illinois Tool.(53) As the Antitrust-IP Guidelines explain, the Agencies “will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner. Although the intellectual property right confers the power to exclude with respect to the specific product, process, or work in question, there will often be sufficient actual or potential close substitutes . . . to prevent the exercise of market power.”(54) The Agencies therefore investigate the relevant market to determine whether the intellectual property at issue grants any market power in the economic sense. If such market power is found, the Agencies further investigate whether the business practice under scrutiny is likely to be anticompetitive on balance.

  1. Practical Issues Regarding Intellectual Property Bundling

Panelists addressed several issues that attorneys confront when counseling clients with regard to intellectual property bundling. One panelist noted that, in addition to the courts’ inconsistent treatment of cases involving intellectual property bundling, courts have also differed in ordinary tying cases as to whether: (1) a plaintiff must show harm to competition in the tied product market; and (2) a defendant’s evidence of business justification is admissible.(55) “The result of this is when the client asks you about what the rules are governing bundling of intellectual property . . . you cannot give a clear answer. [Lawyers have to give] the cautious advice . . . please, don’t do it; the risk [of litigation] is too great.(56)

(MHProNews Note: Doesn’t this goes to the heart
of issues raised by the Daily Business News for companies with stockholders,
or organization’s with members, in the linked article, below?)

Fiduciary Responsibility to Corp Shareholders-MH Anti-Trust Concerns; Plus MH Market UPdate$

 

The panel also discussed the extent to which attorneys counseling their clients will consider the likelihood that an enforcement agency or private party will challenge intellectual property bundling.(57) Due in part to the rules on antitrust injury and standing, the probability of being sued may be small, but one panelist expressed the view that, “given the state of the law today you just can’t advise a client that has an intellectual property right that it’s okay to tie . . . . It’s just too dangerous.”(58) Counseling about potential antitrust liability also occurs when a client is about to bring an infringement suit, because such a suit may trigger an antitrust counterclaim even when an antitrust suit would otherwise be unlikely. One panelist expressed the view that “it’s per se malpractice to fail to advise a client who is considering an intellectual property infringement suit that he must be prepared to litigate any manner of crazy antitrust or misuse counterclaim — or misuse defense.”(59)

Another panelist observed that firms that have been advised by counsel will often offer alternatives to a package license. He suggested that “one way to [offer] package licenses and not get immediately hauled into [f]ederal [d]istrict [c]ourt is to make sure there’s an alternative available.”(60) When another panelist questioned the wisdom of advising clients “that they are essentially home free on bundling pricing where intellectual property is involved,”(61) the other replied that, although this practice does not provide a complete safety zone, “the difficulty of proving that the pricing bundle is sufficiently coercive . . . given the expense of bringing an antitrust case . . . gives you a measure of comfort . . . .”(62)

Finally, one panelist argued that, although defendants in many cases could “devise ways of achieving the same efficiencies without tying,”(63) the per se rule creates “enormous cost in terms of firms without market power and with intellectual property rights trying to figure out the best way to exploit those rights,” such as small firms trying to enter a market in which metering through tying may work best.(64) Another panelist suggested that “product combination decisions[,] like things that can be characterized as ties[,] ought to be presumptively lawful” and that the real problem with the per se rule against tying is that it is “potentially applicable to an enormous range of harmless commercial decisions which nevertheless tend to attract involvement with law enforcement and the civil justice system.”(65)

  1. Suggested Approaches to Improving the Law on Intellectual Property Bundling

The panel explored ways to improve the law on tying in general and with regard to intellectual property bundling in particular. One panelist highlighted three approaches.(66) First, he suggested that the courts, instead of carving out exceptions to the per se rule against tying (as the D.C. Circuit did for “platform software” products in Microsoft(67)), should follow the approach taken by the U.S. Court of Appeals for the Seventh Circuit in Khan v. State Oil Co.,(68)which applied the per se rule against vertical maximum price-fixing while carefully explaining the shortcomings of the approach and inviting the Supreme Court to overturn it, as the Court ultimately did.(69) Second, testifying prior to Illinois Tool, he suggested that Congress should consider legislation mandating that there shall be no presumption of market power from the mere possession of a patent or copyright in antitrust cases.(70) Third, he suggested that the Agencies should advocate improvements in the law through amicus participation in cases involving intellectual property bundling, both in the district courts and courts of appeals, with the hope that the decisions of these courts may eventually be reviewed by the Supreme Court.(71)

Panelists acknowledged that conducting a rule of reason analysis of intellectual property bundling or other practices results in a very fact-intensive inquiry, the outcome of which will likely be difficult to predict.(72) An economist on the panel suggested that, rather than attempting to categorize the conduct (e.g., as tying or not) or looking at cost standards, a better approach would be “to ask why are you doing this; what are the efficiencies, are there other ways to achieve the efficiencies; do you expect it to block competition[?]”(73)

  1. CONCLUSION

Legal and policy analysis of intellectual property bundling has evolved over time. Older case law, with its per se rule and presumption of market power, contends with the current analysis of the Agencies and some more recent lower court decisions that embody, in essence, a rule of reason approach. Moreover, the Supreme Court recently eliminated its rule presuming market power based on intellectual property. Panelists noted that, although intellectual property bundling may have anticompetitive potential in certain circumstances, there may also be significant efficiency justifications for such bundling in some cases. Thus, as a matter of their prosecutorial discretion, the Agencies will apply the rule of reason when evaluating intellectual property tying and bundling agreements.(74) Given the ubiquitous use of these arrangements by businesses lacking in market power and the efficiencies that such arrangements can often entail, these practices usually are not anticompetitive. When the Agencies do identify anticompetitive situations, however, they will pursue them.

Footnotes:

MHProNews is providing only the following footnote, as being of particular interest to industry readers.

  1. Business practices merit treatment as per se illegal if “their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable.”N. Pac. Ry., 356 U.S. at 5.

The entire DOJ content with footnotes can be found at this link.

We Provide, You Decide.” © ## (News, analysis, and commentary.)

Related:

“F-Bombs” Fly – Cursing Manufactured Housing and Tornadoes – Engaging Public, Experts, Officials, and Media

Progressive “Nation” Reports on Monopolies Cites Buffett, Clayton, Others – MH Industry Impact?

EmailedMHProNewsHeadlineNewsDailyBusinessNewsDon’t be the last to know. Over 1,000 new subscribers in the past 2 months. Thousands More “Get It.”

Sign Up Today! Click here to sign up in 5 seconds for the manufactured home industry’s leading – and still growing – emailed headline news updates. You’ll see in the first issue or two why big, medium and ‘mom-and-pop’ professionals are reading these headline news items by the thousands. These are typically delivered twice weekly to your in box.

(Third party images, and cites are provided under fair use guidelines.)

Follow us on Twitter:
ManufacturedHomes
@mhmsmcom

 

SoheylaKovachManufacturedHomeLivingNewsManufacturedHousingIndustryDailyBusinessNewsMHProNews-Submitted by Soheyla Kovach to the Daily Business News for MHProNews.com.

Soheyla is a managing member of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com.

 

 

ConfidentialNewsTipsOKTipsIreportMHNews@MHMSM-comGraphic

To report a news tip, click the image above or send an email to iReportMHNewsTips@mhmsm.com – To help us spot your message in our volume of email, please put the words NEWS TIP in the subject line.