translation fees

Tue Dec 3 00:06:38 UTC 2002

>
>
>>It is surely not price fixing if a range can be suggested.  . . ..
>>
>
>As a practical matter, I don't think anyone on this list has the
>reputation and the clout to move the market . . ..
>
>Surely the FTC has bigger fish to fry? (don't quote me on that, I don't
>want John Poindexter and John Ashcroft . . ..
>
First three short comments, one for each of the three quoted paragraphs.
 Re (1), actually, yes,  price-fixing can consist as much in suggesting
a range to stay within as in  specifying an absolute floor or a ceiling.
Re (2), the issue under the law is price-fixing, not market power.  Even
two individuals with two hundred thousand bigger and better-financed
competitors are prohibited from agreeing on what minimum price, or range
of prices, the two will charge.  Re (3), the parenthetical is the
better-reasoned part.  Perhaps one would stay below someone's radar --
or maybe not.

On the more general question, can competitors who happen to be on a list
like SEELANGS talk about prices or price ranges to possible entrants
into their field without breaking price-fixing laws?  Yes, it is
theoretically *possible* -- even for competitors -- to talk about
prices, without violating the price-fixing laws.  Will all talk about
prices be safe against claims that it is price-fixing?  No.

Mere disclosure of one's recent rates to competitors or potential
competitors, without more, is not in itself illegal price-fixing.  To
talk about prices is not automatically to agree on prices.  Without some
kind of agreement, there is not a "contract, combination . . ., or
conspiracy in restraint of trade or commerce," 15 U.S.C.  1, which is
what the law prohibits.

However, it is not enough to know subjectively that one has not made an
agreement.  The "facts" one needs to be concerned about are not the
facts as one knows them in one's heart to be, but the facts as one's
worst enemy (a zealous prosecutor, say, to whom someone who harbors a
secret grudge against you forwarded an e-mail message) might paint them
to be.

Thus, careless wording, or the context, could let a fact-finder decide
that a tacit agreement existed between two competitors about the usual
price or range to ask (or maximum to pay, if they're competing potential
buyers).  That is all that is needed to make those two liable for
price-fixing.  The agreement doesn't have to be explicit; it doesn't
even have to be enforceable as a contract.

So as a practical matter, one should be not lean too heavily on the
assurance that mere discussion of rates, without more, is not in and of
itself illegal price-fixing.  The risk of "more" being found is seldom
zero.  All speech acts occur in a context, and if a fact-finder or an
over-zealous prosecutor decided the context was different from what you
thought it was, things could go bad.

That's an overview.  I've written at more length (some would say boring,
lawyerly length) about these issues elsewhere, with citations to caselaw
and statutes.  But for the time being, I hope that the above unsupported
statements suffice.  Because of the answer to quoted paragraph two at
the outset, I'm certainly not going to get into such side issues as the
existence of both possible buyers and sellers on SEELANGS or the like.
 Price-fixing by two buyers is as illegal as by two sellers; and it only
takes two whom a jury thinks are competitors to agree, even if all other
list members are non-competitors.

Because the penalties for being found guilty of price-fixing can be
severe, and because exchanges of pricing information may be seen as
evidence of agreement to act on the information, most lawyers probably
tell clients "just don't exchange price information with competitors --
just don't, period."  You won't get any different advice from me; but I
think that there's some merit in distinguishing "don't even think about
it--it'll be almost impossible for you to control your risk" from "as an
objective matter, the mere mention of prices if there's even one
competitor around is always in and of itself illegal."

Advice on generalized methods of determining price ranges for services
(or products not made by machine) is easy to find. Generally, the idea
is to begin with the idea that one's time and production capacity are
limited, and in many fields not "leveragable."

Thus, one can produce only so many words, pages, widgets or thingamabobs
in an hour or a day (or other time period). Not all hours or days are
available for production. Besides eating and sleeping time, there are
family and friends, there's need for exercise and a break, etc. Then
there's non-productive time (overhead time) doing marketing, finding
possible clients, providing quotes or dealing with billing, collection,
etc. One may be sick some times, or want to take weekends or holidays off.

A person who thought she could work 12 hours a day, being productive 10
of those, and would be sick only 2 days a year and could skip vacations,
perhaps taking off 1/2 day a week, might estimate having 3000 productive
hours available. Someone who figured on taking the equivalent of all
legal holidays an employer would provide, plus a couple of weeks or more
vacation, plus might be sick 10 days a year, and who could be productive
for six hours a day (the other two being overhead, research, etc.) might
estimate having only 1100 hours available.

Those are a couple of possible calculations on the time side -- and
easily convertible into words per hour, "standard" or "normal" pages per
hours, widgets per day, or thingamabobs per week. The conversion from
hours to words or widgets will vary from one person to another, and may
vary according to factors relating to different classifications or
quality of the words or widgets.

On the other side, how much money is desired or needed may vary a lot.
One person may think only of how much he needs to survive on a
low-calorie diet and low-cost housing for the next year. Another may
remember that some percent of all income will go to taxes, so not all
income will be prudently spendable on food or housing; and may remember
that besides taxes and living expenses immediately, there can be desires
for  savings accounts, retirement planning, college or other school for
the kids, insurance or other protection against disability, periodic
interest in replacing chairs, desks, computers, etc., etc., etc. Yet
someone else will decide that yes, someday he or she may need to think
about retirement and kids' college, but not right now, right now s|he
can live on peanuts, and in any event the value of the experience is
worth selling low. Some people want or need the latest computers and
$200+ Kinesis keyboards; others feel OK with a $10 throwaway and Xywrite
on DOS, or a typewriter.

Dividing high income by low time-equivalent in words or doohickies gives
one figure; diving low income needs by high time-equivalent production
gives another. I call them figures, because they aren't limits or
bounds: how high is high or low is low?  Moreover, nothing guarantees
any seller against occasional pressure to sell at a non-sustainable
figure, and buyers could in theory pay more or less than a theoretical
upper bound.  It could also depend on who one's most likely buyers are
and where they're located, and what the economy in their country(ies) or
industry(ies) is like.  A Hollywood studio might well pay more for a
translation of some movie script on spec, than a Kazakh engineering firm
might be able to pay for something technical.  In some sense, one's not
even determining what price one can or should ask, so much as one's
determining whether and under what conditions (tolerable over time or
not) one can (free choice of verb): [be very happy][succeed well enough
financially][afford to be][survive] in a particular business with
particular customers and competition.

Hope this helps.

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