Resale Price Maintenance: Minimizing Antitrust Risks

Structuring Pricing Agreements Amid Differing State, Federal and International Treatment of RPM

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


Conducted on Wednesday, February 8, 2017
Recorded event now available


This CLE webinar will update counsel to businesses involved in assessing the validity of arrangements designed to influence resale prices on the differing treatment of RPM in state, federal and international jurisdictions. The panel will provide best practices for proceeding with such arrangements.

Description

A nearly 100-year precedent that RPM agreements are per se illegal was upended with the Supreme Court’s adoption of a rule of reason standard in Leegin v. PSKS. Nonetheless, some states still treat such agreements as per se illegal under state antitrust statutes, creating new compliance challenges for businesses. For that reason, there are few cases analyzing such agreements under the rule of reason, and there is limited guidance from the federal enforcement agencies.

Some states, however, have been aggressive in pursuing RPM arrangements. For example, in 2016, the Maryland AG alleged that Johnson & Johnson Vision Care Inc. violated the state antitrust law by entering into an agreement with a retailer regarding sale prices. Other states have not specifically addressed the issue. Practices designed to influence resale prices are also under scrutiny in Europe.

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 influence resale prices and determine whether those arrangements comply with antitrust law or might spawn investigations or private lawsuits.

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

Outline

  1. Treatment of RPM agreements
    1. Federal treatment
    2. States
    3. International
  2. Triggers that raise antitrust concerns
  3. Best practices for RPM agreements 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 resale price maintenance 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?

Faculty

Michael A. Lindsay, Partner
Dorsey & Whitney, Minneapolis

Mr. Lindsay practices in the area of general civil litigation, with a strong emphasis on antitrust (litigation and counseling), trademark and unfair competition, commercial litigation. He regularly counsels clients on antitrust issues, particularly in matters involving distribution or pricing issues (including Robinson-Patman questions), and mergers and acquisitions.

William L. Monts, III, Partner
Hogan Lovells, Washington, D.C.

Whether they be class actions, government suits, or individual claims, Mr. Monts has handled virtually every kind of antitrust dispute — price fixing, market allocation, boycott, tying, price discrimination, and monopolization — for major international companies and domestic clients and associations in industries as diverse as automobiles, energy, healthcare, software, insurance, and the professions.


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Baker & McKenzie

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Antitrust Law Advisory Board

Clifford H. Aronson

Partner

Skadden Arps Slate Meagher & Flom

Tyler A. Baker

Partner

Fenwick & West

W. Joseph Bruckner

Partner

Lockridge Grindal Nauen

Gregory J. Casas

Shareholder

Greenberg Traurig

David B. Goroff

Partner

Foley & Lardner

Allen P. Grunes

Partner

GeyerGorey

Robert N. Kaplan

Partner

Kaplan Fox & Kilsheimer

Christopher J. Kelly

Partner

Mayer Brown

James J. Long

Shareholder

Briggs and Morgan

Milton Marquis

Partner

Dickstein Shapiro

Janet L. McDavid

Partner

Hogan Lovells

Kevin D. McDonald

Partner

Jones Day

Daniel F. McInnis

Partner

Akin Gump Strauss Hauer & Feld

Saul P. Morgenstern

Partner

Kaye Scholer

John Thomas Rosch

Of Counsel

Latham & Watkins

Douglas Rosenthal

Partner

Constantine | Cannon

M. Sean Royall

Partner

Gibson Dunn & Crutcher

Joseph J. Tabacco, Jr.

Partner

Berman DeValerio

Douglas M. Tween

Partner

Linklaters

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