Antitrust - Resale Price Maintenance

1. Leegin Case and its implication on Resale Price Maintenance (RPM) Agreements
The legal and business history of the use and treatment of RPM in the United States changed since the U.S. Supreme Court’s decision on Leegin Creative Leather Products, Inc. v. PSKS, Inc.
After this case, a resale pricing agreement should be evaluated under the rule of reason rather than under the per se rule, which means all triggered resolutions from RPM will be tested on a balancing between Procompetitive and Anticompetitive effects in context of each case.
It will not only increase the change of an agreement being deemed lawful, but it will also raise an array of discussions around the Section 1, of the Sherman Act, and Section 5, of the Federal Trade Control Act. Perhaps the Federal Trade Commission (FTC) will increase its enforcement towards on how to best distinguish between those uses of RPM that benefit consumers and those that do not.
2. Antitrust Enforcers Focus on RPM
The Department of Justice (DOJ) may also reinvigorate its stance toward retail price maintenance and vertical price restraints when looking at results in anticompetitive consequences.
FTC and DOJ will support initiatives on new legislation that overturn Leegin. During this year, Sen. Herbert Kohl introduced S. 148, a bill to restore the rule that agreements between manufacturers and retailers, distributors, or wholesalers, who set the minimum price below which the manufacturer's product or service cannot be sold violates the Sherman Act.
Until now Congress did not pass new law overruling Leegin, nor did any Supreme State Court adopt Leegin rule.
It is true that many States still have their own Antitrust Laws, and maybe Leegin can influence them.
Otherwise, many States would not be influenced, and raise an array of discussion. Important to note the case of Bell Atlantic Corp v. Twombly, from which Courts can apply a cause of action other than horizontal antitrust conspiracy.
3. National and International application
US Companies have a national distributorship program, which has to move with precaution, since many States have independent antitrust laws and Leegin may not have influenced their Courts.
Many companies have global distributorship programs, which have to be designed to comply with territorial laws of the place where it is enforced.
A cross-border transaction usually is enforced by a Foreign Jurisdiction and is analyzed under its own law.
Asides from the new rule set by Leegin, Companies should use a mixed test to evaluate its agreements, calculate the risk and cost of its decisions, and establish a plan to mitigate the possibility of costly litigation in the future.