INTERNATIONAL: RESALE PRICE MAINTENANCE - UNITED STATES - U.S SUPREME COURT - FEDERAL STATE - LEEGIN DECISION – ILLEGAL AGREEMENTS - ANTITRUST RISK

Resale price maintenance in the United States : Recent developments in state enforcement

This article evaluates resale price maintenance (“RPM”) in the United States, and in particular recent efforts by state attorneys general in California and New York to prosecute firms for implementing RPM agreements. These recent cases show that even four years after the U.S. Supreme Court’s controversial decision in Leegin, which held that RPM agreements are not illegal per se, a divergence persists between federal and state law on RPM. As a result, RPM agreements remain fraught with antitrust risk in the United States.

I. Introduction Four years have passed since the United States Supreme Court delivered its highly contentious decision in Leegin Creative Leather Prods., Inc. v. PSKS, Inc. [1]. In Leegin, the Supreme Court overruled a nearly century-old precedent – the Dr. Miles case – holding that minimum resale price maintenance (“RPM”) agreements are per se illegal under the U.S. Sherman Antitrust Act [2]. The Court found that such agreements, for which there are often persuasive procompetitive justifications, should instead be analyzed using the more lenient “rule of reason” under which the fact finder “weighs all the circumstances” in determining whether an agreement is anticompetitive. Leegin was expected by many to usher in a new era in which manufacturers freely dictated resale prices to retailers

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  • Australian Rugby Union Ltd. (Sydney)

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Patrick Eyers, Resale price maintenance in the United States : Recent developments in state enforcement, December 2011, Concurrences N° 4-2011, Art. N° 39448, www.concurrences.com

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