Resale Price Maintenance and the Emerging Leegin Backlash

Avoiding Anti-Competitive Conduct in an Uncertain Legal Environment

Maryland Antitrust Division Deputy Chief joins panel to discuss state's new antitrust law, effective Oct. 1, which prohibits RPM programs

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

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Conducted on Wednesday, October 14, 2009

Recorded event now available

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Course Materials

This seminar will review federal, state and international antitrust laws, regulations and court decisions on resale price maintenance (RPM) since the Leegin decision. The panel will provide their perspectives on the rule of reason analysis and how to use pricing agreements in the current legal environment.

Description

Leegin v. PSKS supplanted a nearly 100-year-old precedent by adopting a more lenient rule of reason standard for analyzing RPM agreements under federal antitrust law. However, the ruling created further confusion by failing to articulate criteria to judge the reasonableness of RPMs.

In response, Maryland amended its antitrust law, effective Oct. 1, 2009, to make minimum RPM agreements per se unlawful. Attorneys general from 35 other states agree and have petitioned Congress to make RPM a per se violation of the Sherman Act.

Companies now face a potential mishmash of conflicting treatment of RPM agreements. Counsel to manufacturers and others in the distribution chain must carefully analyze any RPM to determine whether it will pass muster under applicable laws and the new test.

Listen as our authoritative panel of antitrust attorneys discusses the current federal, state and international antitrust laws, regulations and court decisions on RPM since the Leegin decision. The panel will examine the rule of reason analysis and outline steps for pricing agreements in the current environment.

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Outline

  1. Current state of the law
    1. Leegin
    2. Court/agency treatment
    3. International issues (RPM remains per se illegal in many other countries)
  2. Reaction to Leegin
    1. State antitrust laws
    2. Agency response
    3. Legislative response
  3. Best practices for RPM going forward
    1. Colgate policies
    2. Nationwide RPM—adoption of nationwide plan carries substantial risk
    3. Maximizing competitiveness of distribution channels
    4. Proving minimum RPM agreements are anti-competitive
    5. Dual distribution
    6. Franchising
    7. International distribution issues

Benefits

The panel will review these and other key questions:

  • How is the rule of reason analysis of RPM working since the Leegin decision? What is the potential impact of the FTC's current RPM workshops?
  • What are the unique RPM issues for companies that conduct business internationally?
  • How are courts and antitrust authorities currently responding to RPM challenges?
  • How can businesses and their counsel best cope with the conflicting treatment of RPMs?

Faculty

Alan M. Barr
Alan M. Barr
Deputy Chief of the Antitrust Division
Office of the Attorney General, State of Maryland

He has been an Assistant Attorney General in the Maryland Antitrust Division for nearly 30 years. He has served in...  |  Read More

Lynda K. Marshall
Lynda K. Marshall
Partner
Hogan & Hartson

She focuses on antitrust and trade regulation issues, counseling clients on matters including distribution issues,...  |  Read More

Robert A. Lipstein
Robert A. Lipstein
Partner
Crowell & Moring

He counsels on antitrust and trade regulation issues, with particular expertise on mergers and acquisitions, including...  |  Read More

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