Court

Supreme Court

Date Decided

November 4, 1997

Vote and Result

9-0

Victory For

Defendant

Conduct at Issue

Vertical Maximum Price-Fixing

Industry

Petroleum

Themes and Important Topics

• Stare Decisis
• The Rule of Reason
• Per Se Rules
• Vertical Restraints
• Substance Over Form
• Purpose of the Antitrust Laws
• Section 1 of the Sherman Act
• Legality of Vertical Restraints

Statute(s) at Issue

Section 1 of the Sherman Act, 15 U.S.C. § 1.

Procedural Posture

Summary Judgment

Lower Court Opinions

Khan v. State Oil Co., 907 F. Supp. 1202 (N.D. Ill. 1995), aff'd in part, rev'd in part, 93 F.3d 1358 (7th Cir. 1996), vacated, 522 U.S. 3 (1997).

Facts

Plaintiff/Respondent Khan entered into an agreement with the Defendant/Petitioner State Oil Company.^[1]

The agreement detailed that:

1. Khan would lease a gas station and convivence store owned by State Oil.^[2]
2. Khan would obtain his supply of gas from State Oil “at a price equal to a suggested retail price set by State Oil, less a margin of 3.25 cents per gallon.”^[3]
3. Khan was free to charge customers above State Oil’s selected price, but the excess would be rebated to State Oil.^[4]
4. Customer prices less than State Oil’s suggest prices would reduce the 3.25 cents-per-gallon margin.^[5]

After about a year, Khan eventually fell behind lease payments. As a result, State Oil stated the lease agreement would be terminated and, in the meantime, the gas station would be operated by a receiver. The receiver was not bound by the pricing restrictions Khan was bound by.^[6]

Khan initiated a lawsuit asserted that State Oil’s agreements violated Section 1 of the Sherman Act.^[7]

The District Court held that the allegations were not a per se violation and, ruling on cross motions for summary judgment, that respondent/plaintiff Khan had failed to demonstrate antitrust injury or harm to competition.^[8]

In particular, the District Court took issue with the fact that Khan did not show that:

1. A difference in gasoline prices would have increased his sales.
2. State Oil had market power in the relevant market.^[9]

The Seventh Circuit reversed.^[10] The Seventh Circuit found that:

• State Oil did fix maximum gasoline prices and pegged the price to a "worthless" value for respondents.
• State Oil's pricing scheme was a per se antitrust violation under Albrecht v. Herald Co., 390 U.S. 145 (1968).
• Khan could have suffered antitrust injury from not being able to adjust gasoline prices.

The Seventh Circuit Court expressed extreme reservations about the economic soundness on the per se prohibition, but it felt bound by controlling precedent, in this case Albrecht v. Herald Co., 390 U.S. 145 (1968).^[11]

Legal Question(s)

Question 1: Are the maximum vertical price-fixing agreements a per se violation of the Sherman Act?

Question 2: Is the Plaintiff/Respondent Entitled to Recovery Damages?

Majority Opinion (Justice O'Connor)

Question 1: Are the agreements a per se violation of the Sherman Act?

Answer: No

Rationale:

First, the Supreme Court analyzed the basis of its Albrecht opinion.

The Court determined that Albrecht’s per se rule proscribing vertical maximum price-fixing was an extension of prior decisions including United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940), Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211 (1951), and United States v. Arnold, Schwinn & Co. et al., 388 U.S. 365 (1967).^[12]

Albrecht’s rule was also enacted in party by the fear that vertical maximum price fixing:

1. “{C}ould allow suppliers to discriminate against certain dealers, restrict the services that dealers could afford to offer customers, or disguise minimum price fixing schemes.”^[13]
2. Could interfere with a dealer's freedom (presumably to set the price of the goods they are given by a supplier).^[14]
3. Facilitate minimum vertical price-fixing.^[15]

The Court then reviewed its procedure for stare decisis. The Court asserted that the traditional stare decisis analysis is different from the stare decisis analysis that should be used when reviewing its prior decisions interpreting the antitrust laws. In particular, stare decisis regarding the rules of antitrust law are to adapt to changing circumstances, in part because Congress expected the federal courts to interpret the antitrust laws in light of the common law tradition.^[16]

The Court then detailed a set of factors to determine whether it should overrule a prior precedent (here its decision in Albrecht). The three considerations are:

1. To what extent the current precedent can be harmonized with recent decisions.^[17]
2. How new scholarship supports or undermines the current precedent.^[18]
3. What has been the effect of the current precedent?^[19]

The Court then proceeded to analyze to each of the considerations, which are detailed below.

1) How the current precedent can be harmonized with recent decisions.

The Court stated that recent decisions like Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982), 324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987), and Atlantic Richfield v. USA Petroleum, 495 U.S. 328 (1990) have expressed “disfavor” with Albrecht.^[20]

Albrecht’s “analytical underpinnings” were also “substantially weakened by" Continental TV, Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977).^[21]

The Court also stated that Albrecht had decreasing relevance with Sherman Act enforcement.^[22] For example, “{N}either the parties nor any of the amici curiae have called our attention to any cases in which enforcement efforts have been directed solely against the conduct encompassed by Albrecht’s per se rule.”^[23]

Note: This assertion by the Supreme Court is quite weak. The lack of briefs on a particular issues does not make the circumstance it is describing as true or false. Indeed, the surge of amicus submitted to the Supreme Court did not happen until the mid-1970s. Paul M. Collins, Jr., Friends of the Court, 38 L. & Soc'y Rev. 807, 810–11 (2004). This is also a weird statement to make because is the Court saying that the number of amicus briefs stating a specific point has real weight to its decision? If so, the Court here basically is adopting gish galloping as a valid and meaningful method of persuading it to reconsider precedent.

2) How new scholarship supports or undermines the current precedent.

According to the Court, the economics of the situation (i.e., allowing vertical maximum price-fixing) actually mitigate the harms Albrecht sought to prevent. According to Judge Richard Posner, in his Seventh Circuit decision below, “unless the supplier is a monopsonist he cannot squeeze his dealers' margins below a competitive level; the attempt to do so would just drive the dealers into the arms of a competing supplier.”^[24] In other words, according to Judge Posner, the Supreme Court agrees with the assumption that the price determined by the contract cannot actually be pushed below the competitive level, because the supplier, absent monopoly power, would just cause dealers to find another suppliers.

Note: Of course, though, this assertion/belief is based on narrowly defined, and highly sensitive assumptions based on Chicago School Economics. What makes the Court's decision ironic is that it criticizes the Albrecht decision because it asserts the decision "relied solely upon hypothetical effects of vertical maximum price fixing" as if its own decision does not do just this.^[25]

Second, the Court asserts that fixing maximum prices can help provide the market for the supplier’s product because they stop individual dealers (like plaintiff/respondent Khan), if they have monopoly power, from overcharging customers – which the Court says could happen particularly if the brand is popular.^[26]

Additionally, again citing Judge Richard Posner's decision, the Court agrees with the assumption that loose pricing restrictions on dealers could cause fewer customers to buy the product, leading to fewer sales and subsequently profits. Fixing maximum prices, thus, ensure the dealer’s products are priced in a way that can maximizing overall sales and revenue – thus benefiting consumers, the supplier, and the dealers.^[27]

Note: Again, this assertion/belief is based on narrowly defined, and highly sensitive assumptions based on Chicago School Economics.

The Court then states that while Albrecht worried that setting maximum prices might make it difficult for dealers to provide important services to customers, this circumstance would result in setting prices so low it would likely drive customers away, which would hurt not just the dealers but also the manufacturers and consumers. As a result, it's unlikely that a supplier would choose to set prices that low as a “matter of business judgment.”^[28]

3) What has been the effect of the current precedent?

The Court states that Albrecht’s concerns (including the fear that vertical maximum price fixing could lead to the fixing of minimum prices, channeling distribution through large or specially advantaged deals, or that prices may be set too low) have not actually occurred.^[29] Then the Court reasons that Albrecht’s rule could worsen the problems it proclaimed to inhibit,^[30] including increasing the market power of dominant dealers, which could harm consumers and manufacturers.^[31]

Additionally, the Court states it is unclear whether a supplier profits from knowingly limiting market access to its products by excluding potential dealers, and while vertical maximum price fixing may protect inefficient deals, that does not always harm competition or consumers.^[32] Citing only the Areeda and Hovenkamp treatise, the Supreme Court claims that because of Albrecht’s rule, firms have also been encouraged to integrate their operations forward, thus destroying independent traders the decision were supposed to protect.^[33]

Ultimately, the Court states that Albrecht’s concerns “can be appropriately recognized and punished under the rule of reason.”^[34]

Note: The Court here assumes that conduct under the rule of reason actually would be policed. However, subsequent empirical evidence shows that the conduct reviewed under the rule of reason is practically per se legal. Michael A. Carrier, The Rule of Reason: An Empirical Update for the 21st Century, 16 Geo. Mason L. Rev. 827, 828 (2009); Michael A. Carrier & Christopher L. Sagers, The Alston Case: Why the NCAA Did Not Deserve Antitrust Immunity and Did Not Succeed Under a Rule-of-Reason Analysis, 28 Geo. Mason L. Rev. 1461, 1476 & n.114 (2021).

Question 2: Is the Plaintiff/Respondent Entitled to Recovery Damages?

Answer: Indeterminable

Rationale: Because the Seventh Circuit's and the District Court's decisions were “premised on Albrecht’s per se rule…. the matter should be reviewed by the Court of Appeals in the first instance.”^[35] The judgment is vacated and remanded.

Rule(s) of Law

Albrecht v. Herald Co., 390 U.S. 145 (1968) is overruled and maximum vertical price-fixing is, rather than being classified as per se lawful, subject to being analyzed under the rule of reason.^[36]

Other Themes and Important Quotes from the Decision

Majority Opinion (O'Connor)

Purpose of the Antitrust Laws

“{T}he primary purpose of the antitrust laws is to protect interbrand competition.”^[37]

Note: The Supreme Court has defined "interbrand competition" as "the competition among the manufacturers of the same generic product."^[38]

Conduct prohibited by the antitrust laws should not harm “consumers and manufacturers.”^[39]

Themes: {{Purpose of the Antitrust Laws}}

Section 1 of the Sherman Act

“{With Section 1 of the Sherman Act,} Congress intended to outlaw only unreasonable restraints.”^[40]

Themes: {{Section 1 of the Sherman Act}}

Note: The definition of "unreasonable" should not be taken as self-evident.

Substance Over Form

Affirming its statement in Continental TV, Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977), the Court stated “‘departure from the rule-of-reason standard must be based upon demonstrable economic effect rather than—as in {United States v. Arnold, Schwinn & Co. et al., 388 U.S. 365 (1967)}—upon formalistic line drawing,’ the appropriate course would be ‘to return to the rule of reason that governed vertical restrictions prior to {United States v. Arnold, Schwinn & Co. et al., 388 U.S. 365 (1967)}.’”^[41]

Plain meaning: The rule of reason is the presumptive analysis for conduct reviewed under Section 1 of the Sherman Act and conduct for conduct to not be reviewed under the rule of reason must be justified on the kind of economic effects the Sherman Act prohibits.

Note: The Court here does not exactly say what specific kind of economic analysis is required. There is no standard form of economic analysis. And, even, to the exist there is, economic analysis is highly dependent on the selected assumptions that form the basis of the analysis and the weight of those assumptions.

Themes: {{Substance Over Form}}, {{Per Se Rules}}, {{The Rule of Reason}}

Legality of Vertical Restraints

Citing Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982), 324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987), and Continental TV, Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977), the Court stated that “Vertical restraints are generally more defensible than horizontal restraints.”^[42]

Themes: {{Legality of Vertical Restraints}}

Note: The reasoning for this assertion is explained in the decisions cited to support this statement.

Per Se Rules

“{T}here is insufficient economic justification for per se invalidation of vertical maximum price fixing.”^[43]

Note: The Court signals here they want "economic" justifications to determine whether conduct should be unlawful and the degree of unlawfulness it should have. But, similar to above, the Court does not say what specific kind of economic analysis is required. There is no consistent form of economic analysis. And, even, to the exist there is, economic analysis is highly dependent on the selected assumptions that form the basis of the analysis and the weight of those assumptions.

Among other considerations, per se rules must show “harm consumers or competition to the extent necessary to justify their per se invalidation.”^[44]

Themes: {{Per Se Rules}}

The Rule of Reason

Defining the Rule of Reason

The rule of reason requires the fact finder to “decide whether the questioned practice imposes an unreasonable restraint on competition{.}”^[45]

Note: The rule of reason is supposed to operationalize the prohibitions of Section 1 of the Sherman Act.

The determination of whether a specific method of competition is unreasonable requires the fact finder to take into account a variety of factors, including: “{1)} specific information about the relevant business, {2)} its condition before and after the restraint was imposed, and {3)} the restraint's history, nature, and effect.”^[46]

Note: "Effect" here presumably means "economic effect."

Themes: {{The Rule of Reason}}

Purpose and Effect of the Rule of Reason Analysis

The Court expressly identifies that conduct reviewed under the rule of reason does not mean the conduct is per se lawful.^[47] The Court stated that conduct reviewed under the rule of reason "can be appropriately recognized and punished"^[48] The Court also stated that, “{the} rule-of-reason analysis will effectively identify those situations in which {the challenged practice} amounts to anticompetitive conduct”^[49] and “can…appropriately recognize{} and punish{}” unlawful conduct.^[50]

Note: Clearly, the Supreme Court believes the rule of reason is not supposed to result in per se legality, even though future empirical evidence cited above in this brief shows that it has.

Themes: {{The Rule of Reason}}

Conduct to be Reviewed Under the Rule of Reason

“{M}ost antitrust claims are analyzed under a ‘rule of reason{.}’”^[51]

“{V}ertical maximum price fixing, like the majority of commercial arrangements subject to the antitrust laws, should be evaluated under the rule of reason.”^[52]

Note: Again the Court is emphasizing that the rule of reason is the default analysis.

Themes: {{The Rule of Reason}}

Stare Decisis and Consideration of Prior Precedents

Principles of Stare Decisis (Generally)

In general, “reconsideration of decisions of this Court {are approached} with the utmost caution.”^[53]

“Stare decisis reflects ‘a policy judgment that ‘in most matters it is more important that the applicable rule of law be settled than that it be settled right.’”^[54]

“Stare decisis ‘is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”^[55]

“This Court has expressed its reluctance to overrule decisions involving statutory interpretation{.}”^[56]

The Court has also “acknowledged that stare decisis concerns are at their acme in cases involving property and contract rights.”^[57]

“‘{S}tare decisis is not an inexorable command.’”^[58]

Themes: {{Stare Decisis}}

Note: The Court here is establishing the baseline rules regarding stare decisis for statutes. However, as the Court argues below, the antitrust laws, specifically the Sherman Act, (conveniently for the justices) have a different set stare decisis rules.

Principles of Stare Decisis (Antitrust)

“{O}ur reconsideration of Albrecht's continuing validity is informed by several of our decisions, as well as a considerable body of scholarship discussing the effects of vertical restraints.”^[59]

Note: Implied here is that the decisions of the Supreme Court should be harmonized to some degree – meaning that there are unifying principles that all of the holdings should be aiming toward.

Note: Exactly how many decisions are needed to bring into question a precedent and how much scholarship is required are questions left unanswered.

“{T}his Court has reconsidered its decisions construing the Sherman Act when the
theoretical underpinnings of those decisions are called into serious question.”^[60]

Note: Exactly (i.e., the precise moment) when "the theoretical underpinnings" of prior decisions is sufficiently called into question is not clear, although this opinion does provide some indicators.

“In the area of antitrust law, there is a competing interest, well represented in this Court's decisions, in recognizing and adapting to changed circumstances and the lessons of accumulated experience.”^[61]

“{T}he general presumption that legislative changes should be left to Congress has less force with respect to the Sherman Act in light of the accepted view that Congress ‘expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition.’”^[62]

Note: Notice the maneuver the Court has done. In this decision, the Court has spent considerable space explaining the importance of stare decisis, and concludes that the rules and guidance it has laid out, do not fully apply to the Sherman Act. Also here, the Court takes for granted here what the "common-law tradition" means. Subsequent research has shown that the common law tradition had a specific framing, that of the moral economy.^[63]

Themes: {{Stare Decisis}}

On the Basis of Prior Decisions

“Subsequent decisions of the Court, {including Maricopa County, 457 U.S., at 348, n. 18 (1982), and 324 Liquor Corp. v. Duffy, 479 U.S. 335, 341-342 (1987), and Atlantic Richfield Co. v. USA Petroleum Co. (ARCO), 495 U.S. 328 (1990) – where ‘some disfavor with that decision was signaled’,} however, have hinted that the analytical underpinnings of Albrecht were substantially weakened by {Continental TV, Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977)}.”^[64]

“Albrecht has little or no relevance to ongoing enforcement of the Sherman Act.”^[65] For example, “{N}either the parties nor any of the amici curiae have called our attention to any cases in which enforcement efforts have been directed solely against the conduct encompassed by Albrecht’s per se rule.”^[66]

Note: Exactly how many decisions are needed to bring into question a precedent and how much scholarship is required are questions left unanswered.

Reevaluation of a prior precedent is also reasonable when a decision’s holding (in this case Albrecht) has been “eroded by this Court's {other} precedent{s}.”^[67]

Themes: {{Stare Decisis}}

Note: The Court cites several decisions which basically say that developments/changes in the understanding and application of the law authorize the Court to change its precedents and that Congress can always act to modify its decision.

On the Basis of Scholarship

Criticism of the Prior Decision

“Albrecht has been widely criticized since its inception.”^[68] And “criticism of {Albrecht’s} premises abounds.”^[69]

Note: This statement from the Supreme Court says nothing of the quality of the criticism. The Court here basically is adopting gish galloping as a valid and meaningful method of persuading it to reconsider precedent.

“Albrecht{’s}…conceptual foundations {have been} gravely weakened {since the decision}.”^[70]

“Albrecht…relied solely upon hypothetical effects of vertical maximum price fixing.”^[71]

In general Albrecht’s rule “lacks adequate justification.”^[72]

Themes: {{Stare Decisis}}

The Scholarship That Undermines the Prior Decision

Quoting Judge Posner his Seventh Circuit Court decision, “unless the supplier is a monopsonist he cannot squeeze his dealers' margins below a competitive level; the attempt to do so would just drive the dealers into the arms of a competing supplier.”^[73]

Adopting the reasoning of Judge Posner from the Circuit Court, the Supreme Court agrees that, fixing maximum prices can help provide the market for the supplier’s product because they stop individual dealers (like plaintiff/respondent Khan), if they have monopoly power, from overcharging customers – which could happen particularly if the brand is popular.^[74]

Additionally, also adopting the reasoning of Judge Posner from the Circuit Court, the Supreme Court agrees that loose pricing restrictions on dealers could cause fewer customers to buy the product, leading to fewer sales and subsequently profits. Fixing maximum prices ensure the dealer’s products are priced in a way that can maximizing overall sales and revenue – thus benefiting consumers, the supplier, and the dealers.^[75]

While Albrecht worried that setting maximum prices might make it difficult for dealers to provide important services to customers, this circumstance would result in setting prices so low it would likely drive customers away, which would hurt not just the dealers but also the manufacturers and consumers. As a result, it's unlikely that a supplier would choose to set prices that low as a “matter of business judgment”^[76]

Plain Meaning: Rational business judgment should discourage suppliers from setting maximum prices so low that they undermine dealer services, drive away customers, and ultimately harm manufacturers and consumers.

Note: The Court's determination of what is or is not (ostensibly rational) business judgment is based on narrowly defined, and highly sensitive assumptions based on Chicago School economics.

Themes: {{Stare Decisis}}

On the Basis of the Effect of the Previous Holding

Note: This is an unstated basis for overturning prior precedent, but the Court examines the effect of Albrecht extensive. At a minimum, examining the effect of the holding should be considered a factor when overturning precedent and appears to be a separate and distinct examination from examining prior decisions and new scholarship.

“Although the rule of Albrecht has been in effect for some time, the inquiry we must undertake requires considering ‘ ‘the effect of the antitrust laws upon vertical distributional restraints in the American economy today.’’”^[77]

Note: The time between Albrecht and State Oil v. Khan was 29 years.

“Albrecht's dire predictions have not been borne out, even though manufacturers and suppliers appear to have fashioned schemes to get around the per se rule against vertical maximum price fixing.”^[78]

“Not only are the potential injuries cited in Albrecht less serious than the Court imagined, the per se rule established therein could in fact exacerbate problems related to the unrestrained exercise of market power by monopolist-dealers. Indeed, both courts and antitrust scholars have noted that Albrecht's rule may actually harm consumers and manufacturers.”^[79]

For example, “Albrecht noted that vertical maximum price fixing could effectively channel distribution through large or specially advantaged dealers. It is unclear, however, that a supplier would profit from limiting its market by excluding potential dealers. Further, although vertical maximum price fixing might limit the viability of inefficient dealers, that consequence is not necessarily harmful to competition and consumers.”^[80]

Plain Meaning: Vertical maximum price fixing might push distribution toward larger or better-positioned dealers, as noted in Albrecht, but it’s unclear that suppliers would benefit from excluding potential dealers, as doing so could limit their market position. Additionally, while such pricing could make inefficient dealers less viable, this is not necessarily injurious for competition or to consumers, as it might lead to a more efficient market.

Albrecht's decision exacerbates the harms to competition cited in this opinion because, since the Court's decision in Continental TV, Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977) which overturned the per se rule on vertical non-price restraints, the illegality of maximum vertical price-fixing under Albrecht increases “the likelihood of dealer monopoly power.”^[81]

Note: Here again, this assertion just cites Chicago School scholarship (in this instance Frank Easterbrook, Maximum Price Fixing, 48 U. Chi. L. Rev. 886 (1981)) and a previous decision.

Due to Albrecht's rule, according to the Supreme Court, firms have been encouraged to “integrate forward into distribution, thus eliminating the very independent trader for whom Albrecht professed solicitude. For example, integration in the newspaper industry since Albrecht has given rise to litigation between independent distributors and publishers.”^[82]

Themes: {{Stare Decisis}}

Considerations of Asserted Analogous Precedents

In asserting that Albrecht's per se rule should be retained, plaintiff/respondent Khan invoked the Court’s precedents regarding the baseball exemption in Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953) (per curiam) and Flood v. Kuhn, 407 U.S. 258 (1972), but the Court stated that such assertions are "misplaced.”^[83] This is because, as the Court stated in Kuhn the baseball exemption is an “aberration . . . rest{ing} on a recognition and an acceptance of baseball's unique characteristics and needs{.}"^[84]

Additionally, because the baseball exemption is so unique, the lack of a legislative responsive by Congress allows the Court to “infer little meaning” from the circumstance.^[85] And any legislative proposals that do exist “neither clearly to support nor to denounce the per se rule of Albrecht.”^[86]

Note: Here the Supreme Court is creating a quasi-exemption for how prior precedent can be used. The Supreme Court states that "unique" precedent means it is inherently less valuable as guidance.

Themes: {{Stare Decisis}}

Instructions for Lower Courts Regarding Stare Decisis

“The Court of Appeals was correct in applying that principle despite disagreement with Albrecht, for it is this Court's prerogative alone to overrule one of its precedents.”^[87]

Note: The directive requires lower courts to adhere to controlling precedent, despite the changing circumstances and understanding of the law.

Themes: {{Stare Decisis}}

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This document is not legal advice. Case briefs are merely summations of legal opinions and are not to be used as a substitute for obtaining legal counsel or reading the opinion and drawing your own conclusions as to its meaning and significance. Interpretations of legal rulings may vary significantly. If you are seeking legal advice, consult a licensed attorney.

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Footnotes