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Thread: Consent Decree to be Sunsetted

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    Consent Decree to be Sunsetted

    My opinions follow

    Quoting and read the bold print in particular: “Today, we are taking a first step toward freeing American businesses, taxpayers, and consumers from the burden of judgments that no longer protect competition,” DOJ antitrust division Assistant Attorney General Makan Delrahim said in an April 25, 2018, statement. “We will pursue the termination of outdated judgments around the country that presently do little more than clog court dockets, create unnecessary uncertainty for businesses or, in some cases, may actually elicit anticompetitive market conditions.”

    The CD never had any applicability for collision repairers, as it was intended to prevent anticompetitive behavior by insurers that presumably, negatively affected consumers. Antitrust laws are not in place to protect another business like collision repairers.

    Obviously, insurers continued their practices until they absolutely control the collision industry in terms of work performance, price and market allocation. Repairer support entities have been infiltrated by insurer interests directly and indirectly, rendering progress by these trade organizations ineffective despite some good intentions, intentions that fade quickly in the onslaught by insurers and their interests. Consolidation, rather than bring some market power to repairers, solidified insurer control over the entire industry as it relates to market share and revenue, continuing a massive transfer of wealth.

    All obvious of course, but what is not obvious to most is how to address the controls exercised by the insurers, assuming sufficient resources are brought to bear (doubtful).

    Again, the only thing important and the most obvious proveable control has been missed but must be addressed for change, assuming it is not too late, and that is how price for service is performed. Nothing else matters.

    Watching this closely for over 20 years,I expect folks will be talking about the same twenty years from now.

    Happy Trails.
    Roy Smalley,
    Texas

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    The irony is that the Consent Decree is as relevant today, if not more so, than it was when it was created.

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    I sent this letter. I high lighted the relevant sentences.

    Sirs,
    It is my opinion that the 1963 Consent Decree should not be eliminated, but rather enforced to the nature of the law.
    The insurance companies have ignored the consent decree so much that even Ma. law has been manipulated to state that estimators must use such an manuals and not vary from the times stated.
    Code of Ma. Regulations Title 212 CMR 2.04 (1)( E)
    …”No appraiser must modify any published manual (i.e.Motors, Mitchell or any automated appraisal system)…
    Such Manuals are constantly viewed and approved by insurance companies before printing.
    Such practices are forbidden indicated by the high lighting below.

    IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
    CIVIL ACTION No. 63 Civ. 3106 ENTERED: November 27,1963 UNITED STATES OF AMERICA, Plaintiff v. ASSOCIATION OF CASUALTY AND SURETY COMPANIES, AMERICAN MUTUAL INSURANCE ALLIANCE and the NATIONAL ASSOCIATION OF MUTUAL CASUALTY COMPANIES, Defendants
    FINAL JUDGMENT
    IV
    (A) Each defendant is enjoined from placing into effect any plan, program or practice which has the purpose or effect of: (1) sponsoring, endorsing or otherwise recommending any appraiser of damage to automobile vehicles: (2) directing, advising or otherwise suggesting that any person or firm do business or refuse to do business with (a) any appraiser of damage to automobile vehicles with respect to the appraisal of such damage, or (b) any independent or dealer franchised automotive repair shop with respect to the repair of damage to automobile vehicles; (3) exercising any control over the activities of any appraiser of damage to automotive vehicles; (4) allocating or dividing customers, territories, markets or business among any appraisers of damage to automotive vehicles; or (5) fixing, establishing, maintaining or otherwise controlling the prices to be paid for the appraisal of damage to automotive vehicles, or to be charged by independent or dealer franchised automotive repair shops for the repair of damage to automotive vehicles or for replacement parts or labor in connection therewith, whether by coercion, boycott or intimidation or by the use of flat rate or parts manuals or otherwise.
    (B) Nothing in Subsection (A) above shall be deemed to prohibit the furnishing to any person or firm of any information indicating corrupt, fraudulent or unlawful practices on the part of any appraiser of damage to automotive vehicles or any independent or dealer franchised automotive repair shop, so long as the furnishing of such information is not part of a plan, program or practice enjoined in paragraphs (1) through (5) of Subsection (A) above. Each defendant shall include in any report of such information an affirmative statement that such report is not a recommendation and that the person or firm to whom such report is furnished should independently determine whether to do business with any appraiser or automotive repair shop to which the report relates.
    Sincerely, Roger Walling, Owner of A Truck Collision Service Inc. Chicopee Ma.

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    Ho Hum. Look forward to how this will be explained, definitively, to regulators, politicians by another politician that claimed he was in combat as a Marine but never served on active duty. There are many ways insurers can tie this up forever because it lacks specificity. And collision repairers think by attacking everything is the way to go.

    Just get to the core of the matter. Price setting in interstate commerce.....you didn't redline that part slightly amended: (5) fixing, establishing, maintaining or otherwise controlling the prices ……………. to be charged by independent or dealer franchised automotive repair shops for the repair of damage to automotive vehicles.


    That is all that matters. Yet even you missed it Roger.....and that is the fundamental problem with all complaints about insurers by collision repairers.
    Roy Smalley,
    Texas

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    Bill. Yes it is relevant to those it was directed. Insurers. Continuing my opinions.......

    But this industry, well into the finality of being an integral part of the business of insurance, won't bring enough clarity or pressure even if it were NOT sunsetted.

    This industry's actions relative to insurers have always been misdirected, convoluted making much ado about tangential issues, wasting opportunity. I remember how much heat was made about insurers spreading misinformation about shops that was used in lawsuits as one example of many issues that could not be proven.

    This effort supporting the CD rather than making a single issue of price control over an external business proves my point. Price control is the one issue that can be proven.

    How to address the several key issues of the CD that do directly affect repairers certainly leads to the confusion. Do the combination of controls over repairers reach the level of criminality? And if so, how does the repair industry present their allegations to the DOJ, which begs the question, does the repair industry understand the effects of a common set of practices and are they really important? Yes they are to the overall set of practices but is it necessary, assuming proof can be defined, to prove every single practice's effect upon collision repair? I think not. This is the make or break distinction. Price control is always based on a set of supporting practices, but the ultimate and most important is price control. Show how price is directly controlled and leave the rest to the federal agency most liable to take it on.

    To me, rather than involve politicians, a united group of associations, businesses working from a common purpose would be more likely to succeed. My experience with politics is that interest is momentary; they never will understand so unable to explain the specific issue.

    https://www.ftc.gov/tips-advice/comp...s/price-fixing

    The FTC is a bipartisan federal agency with a unique dual mission to protect consumers and promote competition. For one hundred years, our collegial and consensus-driven agency has championed the interests of American consumers. As we begin our second century, the FTC is dedicated to advancing consumer interests while encouraging innovation and competition in our dynamic economy.

    The FTC develops policy and research tools through hearings, workshops, and conferences. We collaborate with law enforcement partners across the country and around the world to advance our crucial consumer protection and competition missions. And beyond our borders, we cooperate with international agencies and organizations to protect consumers in the global marketplace.

    Protecting Consumers

    The FTC protects consumers by stopping unfair, deceptive or fraudulent practices in the marketplace. We conduct investigations, sue companies and people that violate the law, develop rules to ensure a vibrant marketplace, and educate consumers and businesses about their rights and responsibilities. We collect complaints about hundreds of issues from data security and deceptive advertising to identity theft and Do Not Call violations, and make them available to law enforcement agencies worldwide for follow-up. Our experienced and motivated staff uses 21st century tools to anticipate – and respond to – changes in the marketplace.
    Promoting Competition

    Competition in America is about price, selection, and service. It benefits consumers by keeping prices low and the quality and choice of goods and services high. By enforcing antitrust laws, the FTC helps ensure that our markets are open and free. The FTC will challenge anticompetitive mergers and business practices that could harm consumers by resulting in higher prices, lower quality, fewer choices, or reduced rates of innovation. We monitor business practices, review potential mergers, and challenge them when appropriate to ensure that the market works according to consumer preferences, not illegal practices.



    United States Department of Justice
    justice.gov
    The United States Department of Justice, also known as the Justice Department, is a federal executive department of the U.S. government, responsible for the enforcement of the law and administration of justice in the United States, equivalent to the justice or interior ministries of other countries. The department was formed in 1870 during the Ulysses S. Grant administration.



    In essence, proving criminality is not a reasonable expectation.
    Last edited by Roy Smalley; 08-31-2019 at 12:33 PM.
    Roy Smalley,
    Texas

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    As cynical as it is to say, right and wrong, legal and illegal have little relevance in this conversation, at least in the eyes as the political and judicial system in this country. They respond to two things, power and money, two assets the insurance industry possesses in copious amounts and the collision repair industry does not. When John Eaves and I were knocking on doors in the halls of Congress, one unspoken question pervaded the meetings with every senator and congressman, "What's in it for me?". I am confident that face to face meetings have occurred between members of the power structure in D.C. and representatives of the insurance industry, meetings where the benefits of accommodating the insurance industry's best interests may be unspoken but clearly understood. The double talk we are all too familiar with is new to D.C.'s power brokers and gives them all the justification they need to be complicit. Can't you imagine the statement being used,"The Consent Decree is no longer relevant as we now comply with all industry standards." How is someone outside the industry supposed to understand that it is the insurance industry that establishes industry standards, not the industry itself? It would be political suicide for a politician to oppose the insurance industry and the question, "What's in it for me?" continues to rule the day and as long as politicians and the Justice Department continue to look the other way, plausible deniability provides the all the cover they need.
    Last edited by Bill; 09-05-2019 at 12:04 PM.

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    Industry standers, Quality standards and Price standards are all set by the individual shops. They become standards when they are grouped together by someone.

    How can a person expect the labor standard to be $100 when he is charging $50?

    How can a person expect quality standers to be high when he is using substandard parts?

    Setting standards are up to the shop, not by a law, or a offered payment by a third party.

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    I once made the observation to an adjuster that by simply saying "We don't pay for that., "It's included"" or "No one else charges for that" and do it in every shop they visit, even if other shops DO can and do validate the need for an operation, with an expectation that they be paid, it is the insurance company that has established the standard. Shops are guilty of giving up and just stop pushing the issue, so in one respect, Roger, they are at least partially responsible due to their acquiescence.

    When I sat on the task force conducted by Mississippi's A.G. to define what constitutes a proper repair, I asked one of the insurance representatives if they placed value on and sent their appraisers and adjusters to I-Car training. More than one took the bait and proudly announced the great extent of I-Car training their employees receive. I asked the question to set the stage for my next questions regarding their adamant denial of the necessity to adhere to manufacturer's repair protocol, which we were arguing was imperative to be followed if a proper repair was to be accomplished. The next thing I did was ask an I-Car trainer how they develop their training program. The answer was in part, "When manufacturer repair procedure is made available, we defer to that in every instance." I then asked the insurance representatives that were so proud of their I-Car training, "Since you go to the trouble and expense of obtaining I-Car training for your employees, which we have just heard confirmed is consistent with OEM procedure, why are all of you here objecting to adhering to the very training you have just stated you find so valuable and why do your employees ignore that training when settling claims in the field?" One dummy said, "We defer to industry standards that are established by shops". "So you are saying that you ignore what you know is required to effect a proper repair in deference to shops who may be too timid, lazy or ignorant to perform a proper repair. In your mind, does that absolve you of the responsibility to pay a shop accordingly that does know what is required but, instead only allow a consensus of timid, lazy, or ignorant shops to determine industry standards? At one time in history, a consensus of learned scholars clung to the idea that the Earth was flat. How did that turn out?"

    The AG was quite amused and pleased at the exchange. The law in Mississippi now defines a proper repair as one that is performed in accordance with OEM directives. The responsibility to perform a proper repair is on the shop and the responsibility to pay accordingly is on the insurance company, as it should be. As could be predicted, intimidation and steering against shops that try to follow the law continue and only a handful of shops actually use the law to their benefit and that of their customers.

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    Well Bill, the reason only "a handful of shops actually use the law" you might say is due to ignorance but you and I both know the reason they don't is they can't exist without using estimating platforms REQUIRED by insurers in order for them to 'recognize, accept' an estimate or invoice.....regardless of whether it is presented by the repairer OR the insured. Estimating platforms that set price parameters across the entire United States.

    This "handful of shops" again prove my point. Control price by controlling time, operational content, parts, parts prices (that don't include profit OR overhead) you control everything....PRICE is the ONLY thing that matters to insurers. Remove the ability to control price is the ONLY solution.
    Roy Smalley,
    Texas

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    I remember when a shop owner in my state was being deposed and asked to bring in pay stubs and time cards of some of his employees. The lawyer started comparing the number of production hours billed, using the data reference manual, to the actual number of hours worked. He was trying to create the appearance of fraud committed by the owner but the owner knew what was coming. After a lengthy debate, a debate that the shop owner was winning, the shop owner said to the representative of the insurance company,"Obviously, you take exception to the way shops have been forced to bill for their services, as has been dictated by your industry and I agree with you. Just say the word and I can bill your company for actual hours worked but that will include the time committed by EVERY employee that is involved in the repair, including the estimator, the receptionist, the body man, his helper, the painter, his helper, the detail man, the bookkeeper and myself. Just say the word and I will bill your company that way immediately." For some reason, the offer was declined and the subject dropped.

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