- 53 -
stop such activities, as petitioner concluded that W&H was acting
within its rights under the Contract.
Under the Contract, it would have been improper for W&H to
impose a markup on charges made by suppliers. Thus, if W&H
secured a desired mailing list for petitioner as lessee, and the
lessor charged $55 per thousand, then it would have been improper
for W&H to pass a cost of $60 per thousand on to petitioner. W&H
and petitioner operated in accordance with the Contract.
However, when W&H “paid for” the desired mailing list by
exchanging one of petitioner’s mailing lists for it, so that the
lessor imposed no monetary rental fee, then, as petitioner’s
staff understood the Contract, it was appropriate for W&H to pass
on to petitioner a rental fee in the amount that the lessor would
have charged for the desired mailing list if the lessor had not
instead received petitioner’s mailing list in exchange. In
exchange situations, then, W&H received as its own revenue the
“as if” rental that the lessor had not in fact charged, as well
as W&H’s regular fees under the Contract.
The bar against petitioner’s exchanging its own names
extended past the term of the Contract. Because petitioner could
not exchange its own names, petitioner had to pay the greater
costs associated with renting names from others.
E. Sweepstakes Mailings
The first sweepstakes contest mailing that W&H conducted was
done under the Contract. W&H then used sweepstakes contest
Page: Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 NextLast modified: May 25, 2011