Document type: Toolkit Practice area: Commercial — Antitrust Jurisdiction: United States Last reviewed: 5 September 2026

Tool 1 — Net price worksheet

Complete per customer, per product, over the trailing twelve months. List price is not the measure; this is.

Line Component Amount per unit
1 List price
2 Less: volume / tier discount ( )
3 Less: cash or payment discount ( )
4 Less: rebates paid or accrued ( )
5 Less: off-invoice allowances ( )
6 Less: promotional and advertising allowances ( )
7 Less: freight allowance, or value of freight paid by seller ( )
8 Less: slotting, listing, or placement payments ( )
9 Less: value of free goods and samples supplied for resale ( )
10 Less: returns allowance above standard ( )
11 Less: value of non-standard credit terms ( )
12 Less: value of services furnished (demonstrators, merchandising labour, fixtures) ( )
13 Net price per unit

Annotations.

  • Line 12 is the one companies omit, and it is frequently the largest. Services furnished in connection with resale are analyzed under section 2(e) and, for the net picture a plaintiff will present, are part of price.
  • Use a common unit. A differential expressed per case for one customer and per pallet for another is not a comparison.
  • Accrue rebates to the period earned, not to the period paid.
  • Run this from transaction data, not from the price list. The recurring discovery is that the net price ranking differs from the list price ranking.

Tool 2 — Competing customer matrix

Cust A Cust B Cust C Cust D
Cust A — Compete No Compete
Cust B — No Compete
Cust C — No
Cust D —

For each cell, record the basis:

Question A vs B A vs D B vs D
Both resell?
Same end customers or population?
Overlapping geography (including online)?
Same level of distribution?
Evidence of actual competition?
Conclusion

Annotations.

  • This is the Volvo analysis, and it usually reduces the exposure to a manageable set. Most large differentials turn out to be between customers that do not compete.
  • E-commerce collapses geography. Two retailers that did not compete five years ago may compete now, and the matrix must be updated annually for it.
  • A distributor that also operates retail locations competes with its own customers. Flag these specifically.

Tool 3 — Meeting competition form

Design constraint: it must be completable in four minutes, on a phone, in a customer's parking lot. A form that requires logging into a system does not get completed, and an incomplete form is no defense.

COMPETITIVE PRICING RESPONSE — [Company]

1. Customer: ______ Date: ______ Rep: ______ 2. Product(s) and quantity: ______ 3. Our standard price for this customer: $______

4. Competitor believed to be offering a lower price: ______ 5. The competing price: $______ 6. How I learned this (check and describe): ☐ Customer told me — who, and exactly what they said: ______ ☐ I saw a written quotation — attach or describe: ______ ☐ Market intelligence — source: ______ ☐ Prior dealings with this competitor — describe: ______ 7. Why I believe this information is reliable: ______ 8. Did I attempt to verify? ☐ Yes — how: ______ ☐ No — why not: ______

9. Price offered in response: $______ 10. Does this MEET rather than BEAT the competing price? ☐ Yes ☐ No — if No, stop and escalate 11. Duration of this price: ______ 12. Scope — this price applies to this customer only: ☐ Confirmed

13. Rep signature: ______ 14. Manager approval: ______

Annotations.

  • Item 10 is a hard stop. Beating a competitor's price forfeits the defense, and building the stop into the form prevents the most common failure.
  • Item 12 matters because a defense established for one customer does not travel to another facing no competitive offer.
  • Items 6 and 7 are the substance. "Customer said so" is acceptable if reliance was reasonable; the form makes the representative articulate why.
  • Never permit a blank item 5. A form recording a competitive response without the competing price is not evidence of meeting it.
  • Store centrally, retrievable by customer and date, retained through the limitations period.

Tool 4 — Cost justification study outline

COST JUSTIFICATION STUDY — [Company] — [Date] Prepared at the direction of counsel for the purpose of legal advice

1. Purpose and scope. Products covered; customer classes covered; period; the price differentials to be justified, stated in dollars per unit.

2. Methodology. Source systems; cost accounting basis; activity measures used; allocation principles; why each allocation reflects actual causation rather than convenience.

3. Customer classification. The classes, and the cost characteristics defining each: order size, order frequency, delivery mode, delivery destinations, inventory model, payment terms and credit experience, selling and service intensity. Evidence that each class is homogeneous in these characteristics.

4. Cost analysis by function.

Cost element Basis of measurement Class A Class B Class C Difference
Order processing Cost per order × orders per unit
Freight Actual freight per unit by mode
Warehousing and handling Cost per pick/pallet × activity
Delivery Cost per stop × stops per unit
Credit and collection DSO × cost of capital + bad debt rate
Selling Sales cost per account × units
Technical and merchandising service Hours × rate ÷ units
Total cost difference per unit

5. Comparison to price differentials. For each pair of classes: cost difference per unit versus price difference per unit. The price difference must not exceed the cost difference.

6. Limitations and assumptions.

7. Conclusion. Which differentials are justified, and by how much. Which are not.

Annotations.

  • Section 5 is the point of the exercise, and the study fails if the differentials exceed the savings. If they do, change the prices.
  • Build it before the pricing cycle. A study prepared to justify existing prices invites the argument that the classifications were reverse-engineered.
  • Use the accounting system's data. Allocations invented for the study are attacked as arbitrary.
  • Homogeneity in section 3 is where studies most often fail. A class mixing customers with different cost profiles cannot justify a single price.
  • Refresh it when the network changes.

Tool 5 — Functional discount agreement

DISTRIBUTOR FUNCTIONS AND DISCOUNT

1. Functions. Distributor shall, with respect to all Products purchased hereunder: (a) maintain warehouse capacity of not less than [] square feet and inventory of not less than [] units; (b) break bulk and repackage as required by its customers; (c) provide delivery to its customers within [] of the delivery area; (d) extend credit to its customers and bear the credit risk; (e) maintain a sales force of not fewer than [] representatives calling on customers in the Territory; (f) provide first-line technical support; and (g) maintain and report inventory and sell-through data monthly.

2. Discount. In consideration of the Functions, Distributor shall purchase at the Distributor Price set out on Schedule A, which the parties agree represents reasonable reimbursement for the Functions, calculated as set out on Schedule B.

3. Application to Resold Volume Only. The Distributor Price applies only to Products that Distributor resells to third parties in the ordinary course. Products that Distributor sells at retail through its own locations, or otherwise supplies to end users, shall be invoiced at the [Retail Price] applicable to customers performing no distribution functions.

4. Reporting. Distributor shall report monthly, by location, the volume of Products (a) resold to third parties and (b) sold at retail or supplied to end users, and shall permit [Company] to audit such reports on [30] days' notice, not more than [twice] annually.

5. Adjustment. If Distributor's reports or an audit show Products sold at retail that were invoiced at the Distributor Price, Distributor shall pay the difference within [30] days.

6. Verification of Functions. [Company] may verify performance of the Functions annually. If Distributor ceases to perform any Function, the Distributor Price ceases to apply on [60] days' notice.

Annotations.

  • Sections 3, 4, and 5 solve the Hasbrouck problem, which is the most common functional discount failure: a distributor buying at the distributor price and selling at retail in competition with the retailers it supplies.
  • Section 1's specificity matters. "Provides distribution services" is not a function; warehousing a stated quantity and delivering within a stated area is.
  • Schedule B — the calculation — is what makes the discount "reasonable reimbursement." Show the work: the cost or value of each function per unit.
  • Section 6 keeps the classification honest over time.

Tool 6 — Promotional allowance plan

[COMPANY] COOPERATIVE MARKETING PROGRAM — [Year]

1. Availability. This Program is available to all customers who purchase [Products] for resale, on proportionally equal terms.

2. Allowance. Each participating customer may earn an allowance of up to [4]% of its net purchases of Products during the Program Period.

3. Qualifying Activities. A customer may earn the allowance by performing any one or more of the following, at its election:

Option Activity Allowance
A Newspaper or magazine advertisement, quarter page or larger, featuring Products 50% of documented cost, up to the cap
B In-store display of Products in a designated location for not fewer than [14] days $[__] per display period
C Product listing and image on the customer's website, maintained for not fewer than [30] days $[__] per listing period
D Inclusion of Products in a customer circular or email, distributed to not fewer than [__] recipients 50% of documented cost, up to the cap
E Shared-cost circular distributed through the customer's distributor 50% of documented cost, up to the cap
F In-store demonstration conducted by the customer $[__] per demonstration day

4. Proof of Performance. Payment shall be made on submission of proof: a tear sheet, dated photographs, a screenshot with URL, a distribution affidavit, or a demonstration log, as applicable.

5. Claims. Within [90] days after the activity.

6. Notification. [Company] will notify all competing customers of this Program, including customers who purchase Products through distributors, by [method], and will provide the Program materials on request.

Annotations.

  • Options B, C, E, and F exist so that a single-location retailer can participate. A program offering only Option A is not functionally available to small customers, and sections 2(d) and 2(e) have no competitive injury element and no cost justification defense — the disproportionality is the violation.
  • The allowances for each option should be of comparable value relative to the effort and benefit, not merely available.
  • Section 6 discharges the Fred Meyer duty, which requires reasonable steps to notify competing customers including indirect purchasers. This obligation is the one most often missed entirely.
  • Section 4's proof requirement matters because a payment for a service not performed is simply a discount, analyzed as price.

Tool 7 — Fred Meyer notification letter

[Date] — to all customers purchasing [Products] for resale, direct and indirect

Re: [Company] Cooperative Marketing Program — [Year]

Dear Customer:

[Company] offers a Cooperative Marketing Program under which customers who purchase our Products for resale may earn an allowance of up to [4]% of net purchases by performing any of several marketing activities.

The Program is available to all customers who purchase our Products for resale, on proportionally equal terms — including customers who purchase through a distributor.

There are six ways to participate, so that customers of every size and type can take part: newspaper or magazine advertising; in-store display; a website product listing; inclusion in a circular or email; a shared-cost circular through your distributor; and in-store demonstration. Full details, allowance amounts, and the claim form are enclosed and are available at [URL] or by contacting [name, telephone, email].

If you purchase our Products through a distributor and would like to participate, please contact us directly at the number above and we will assist you.

We encourage you to take part.

Annotations.

  • Send to every competing customer, and take reasonable steps to reach indirect purchasers — through distributors' customer lists, a distributor mailing, an insert with product shipments, and a public posting.
  • Record what was sent, to whom, and when. The notification is an affirmative duty and the record is the evidence of discharge.
  • The offer of assistance to indirect purchasers matters. A program that is nominally available to a retailer who buys through a distributor, but which the retailer cannot access without the distributor's cooperation, is not functionally available.

Tool 8 — Pricing exception approval form

PRICING EXCEPTION REQUEST

Customer: ______ Requested by: ______ Date: ______ Product(s): ______ Volume: ______ Published price for this customer's class: $______ Requested price: $______ Differential: $______ (____%)

Basis for the exception (check one and complete):

☐ Meeting competition — Competitive Pricing Response form attached, completed contemporaneously ☐ Cost difference — describe the cost-driver change and attach supporting data: ______ ☐ Functional — describe the functions the customer will perform and attach the amended agreement: ______ ☐ Changing conditions — describe: ______ ☐ Other — describe: ______

Competing customers analysis: Which customers compete with this one? ______ What net price do they pay? ______ If the differential exceeds theirs, on what basis? ______

Duration of the exception: ______ Review date: ______

Approvals: Sales Manager ______ Finance ______ Legal (required if differential exceeds [__]% or if basis is "Other") ______

Annotation. This form is the single most valuable ongoing control in the program. Almost every unjustified differential begins as a one-off concession granted by someone with authority and no obligation to explain it. Requiring the competing-customer analysis at the point of decision — rather than in an audit two years later — is what prevents accumulation.

Tool 9 — Sales and procurement training scripts

For the sales force — what to say:

Cost-based differential: "Our pricing reflects how you order and how we deliver. Full truckloads to one location cost us less to serve than weekly small orders across six sites, and that is what the tier structure captures. If you change how you order, you change your tier — let me show you what it would take."

Functional discount: "Our distributors warehouse, break bulk, extend credit, and deliver. The discount reimburses those functions. If you took them on, you would qualify."

Competitive response: Say nothing to any other customer. Complete the form.

A customer complains about another's price: "I can't discuss another customer's pricing. What I can do is review your tier and show you exactly what would change it." Then escalate to your manager and to legal the same day.

What never to say or write:

"They just buy more." · "Corporate said to match." · "We have to keep them happy." · Anything about another customer's price. · Any speculation in writing about whether our pricing is lawful.

For procurement — section 2(f):

Permitted: "Your bid is not low enough." · "We need better than that to place this volume." · Consolidating purchases to reach a published tier. · Asking what programs are available and requesting participation.

Prohibited: Stating a competing price that was not offered, or misstating one that was. · Disclosing a competitor's specific terms. · Demanding a price you know exceeds any justification available to the seller. · Demanding allowances you know exceed proportionality.

If a seller says it cannot offer a price because of Robinson-Patman: do not simply press harder. Ask what its basis is, and escalate. That statement is information, and pressing past it creates knowledge.

Tool 10 — Privileged assessment memorandum structure

MEMORANDUM — PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION AND ATTORNEY WORK PRODUCT Prepared by counsel at the request of [officer] for the purpose of providing legal advice

I. Scope and method. Products, customers, and period reviewed; data sources; who provided what; the fact that the analysis was performed by counsel.

II. The legal framework. Elements; the Morton Salt inference as confined by Volvo; the defenses; sections 2(c), 2(d), 2(e), and 2(f); state statutes where relevant.

III. Net price findings. The map, with the material differentials identified.

IV. Competing customer analysis. The matrix, and the pairs where competition exists.

V. Differential-by-differential analysis. For each competing pair with a material differential: the basis identified, the supporting evidence, and counsel's assessment.

VI. Promotional allowances and services. Program inventory; proportionality analysis; functional availability; notification.

VII. Functional discounts. Functions, calibration, verification, and any two-level customers.

VIII. Brokerage. Any payments to buyer-affiliated intermediaries.

IX. Assessment of exposure. By category, with counsel's view.

X. Recommendations.

Attachment: Remediation Plan (non-privileged, for operational circulation).

Annotations.

  • The remediation plan must be a separate, non-privileged document, because it will be implemented by people who do not need the analysis. Circulating the memorandum defeats the privilege.
  • Counsel must actually direct and perform the analysis. A finance study forwarded to counsel is not privileged work product.
  • Commission this only if the company will act on it. An assessment identifying exposure that produces no change establishes knowledge without reducing risk, which is the worst of both.

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