Michael A. Lindsay
Partner
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State Resale Price Maintenance Laws After Leegin

This article was originally published in the October 2009 issue of The Antitrust Source, a publication of the American Bar Association.

SUMMARY. Two years ago the U.S. Supreme Court overruled the longstanding per se rule against minimum resale price maintenance (RPM) agreements. Since then, news media have reported a resurgence of RPM policies with headlines like “Price-Fixing Makes Comeback After Supreme Court Ruling” and “The Legacy of Leegin: Price-Fixing, the Comeback Kid of Antitrust Law.” Meanwhile, the Federal Trade Commission has conducted several sessions of a workshop on RPM under the Sherman Act and the Federal Trade Commission Act, and Congress held hearings on legislation seeking to repeal the Leegin decision. And just last month, Assistant Attorney General Christine Varney proposed a structure for using rule of reason analysis in RPM cases. In short, the future of Leegin and federal enforcement remains in flux.

Whatever is happening at the federal level, however, Leegin did not directly address the status of minimum RPM agreements under state law, and on remand the state law claims were abandoned. Practitioners still need to consider whether there are state law prohibitions on RPM agreements. Two years ago, Antitrust magazine published Michael Lindsay’s article describing state laws, and The Antitrust Source published his chart collecting relevant authorities for each of the 50 states. Those materials have proved to be a valuable resource for practitioners. The Antitrust Source invited Michael Lindsay to describe key developments since the chart’s publication and to update the chart to include those developments.

Read full article with citations.

View accompanying chart.