AB-2010-55-2-08, Resale price maintenance for beginners: Beware of the pitfalls

The Supreme Court’s 2007 Leegin decision provided that minimum
resale price maintenance (RPM) agreements are to be evaluated under
the rule of reason. However, the Court’s rule of reason analytical
approach does not provide clear guidance for practitioners to advise
clients considering the adoption of such programs. The decision has
faced resistance from its inception, including proposed legislation in
Congress, which would reinstate the per se rule, and opposition from a
number of states, whose laws, case precedent, or interpretation could
support future application of the per se approach. This article points out
the obstacles confronting suppliers looking to adopt RPM programs. The
lower courts and enforcement agencies have thus far failed to devise
clear guidance for practitioners regarding the application of Leegin’s rule
of reason analysis to the implementation of RPM programs. The article
examines the obstacles and recommends alternatives to consider in
advising clients who are entertaining the adoption of RPM policies.