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Resale Price Maintenance and Minimum Advertised Pricing: Structuring to Minimize Antitrust Scrutiny

State, Federal, and International Treatment of RPM Agreements and MAP Policies

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Thursday, September 10, 2020

Recorded event now available

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This CLE course will examine the antitrust issues that can arise with arrangements designed to influence resale prices or establish minimum advertised pricing (MAP), and the differing treatment of those arrangements in state, federal, and international jurisdictions. The panel will provide best practices for proceeding with such arrangements.

Description

A dozen years ago, the Supreme Court upended a nearly 100-year precedent that resale price maintenance (RPM) agreements were per se illegal when it adopted the rule of reason standard in Leegin v. PSKS. Nonetheless, some states still treat RPMs as per se illegal under state antitrust statutes, creating compliance challenges for businesses. There is limited guidance from courts or the antitrust enforcement agencies.

Unlike an RPM agreement, a minimum advertised pricing (MAP) policy applies only to a retailer's advertised price, not its actual selling price. But depending on how a manufacturer structures and implements them, MAP policies can raise state or federal antitrust concerns. MAP policies also raise practical issues, such as where advertising ends and actual selling price begins.

With the uncertainty of differing state, federal, and international law, counsel to manufacturers and others in the distribution chain must carefully analyze the market and the potential impact of any arrangements designed to promote minimum resale prices or minimum advertised prices. Counsel must determine whether those arrangements comply with antitrust law (or might lead to investigations or private lawsuits).

Listen as our experienced panel of antitrust attorneys examines how different jurisdictions--federal, state, and international--are treating RPM agreements and MAP policies. The panel will offer steps for moving forward with pricing and advertising programs while overcoming the differing treatment among these jurisdictions.

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Outline

  1. Treatment of RPM agreements
    1. Federal treatment
    2. States
    3. International
  2. Treatment of MAP programs
  3. Triggers that raise antitrust concerns
  4. Best practices for RPM and MAP programs going forward

Benefits

The panel will review these and other key issues:

  • How are federal courts and state antitrust authorities currently enforcing the law concerning RPM agreements, and how is that law applied to arrangements designed to influence resale prices even if there is no explicit agreement on such prices?
  • What do recent state actions signal for future state enforcement?
  • How can businesses and their counsel best cope with the conflicting treatment of RPM under differing legal regimes?
  • How do MAP policies differ from RPM agreements, and what are some pitfalls to avoid in implementing MAP policies?

Faculty

Lindsay. Michael
Michael A. Lindsay
Partner
Dorsey & Whitney

Mr. Lindsay practices in the area of general civil litigation, with a strong emphasis on antitrust (litigation and...  |  Read More

Monts, William
William L. Monts, III
Partner
Hogan Lovells US

Mr. Monts focuses his practice on antitrust and competition litigation, abuse of dominance and restrictive practices,...  |  Read More

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