The Resale Price Maintenance (and Minimum Advertised Price) Conundrum Post-Leegin: State and Federal Law at a Crossroads

Mark McCareins, General Counsel, Metals Service Center Institute, USA

As one of the counsel for Respondent in the Supreme Court’s Monsanto Company v. Spray-Rite Service Corporation decision, it has been difficult since 2007 to acknowledge that vertical minimum resale price maintenance (’RPM”) is now to be adjudged under the rule of reason, at least, in the federal courts. While the Supreme Court in Leegin Creative Leather Prods. v. PSKS, Inc. radically altered the Sherman Act Section 1 landscape on RPM by abandoning the per se test used in Monsanto, the reasoning of the Court in Leegin was that this relaxed rule would allow manufacturers more leeway with respect to dealing with free riders and promoting goodwill and brand integrity. But since the Leegin decision was issued in 2007, there has not been empirical evidence presented as to whether these purported procompetitive benefits have actually transpired. As we now exist in a data driven world, there has been ample time to collect this empirical information to determine if the Leegin decision has actually spawned the type of economic state that the Court envisioned in its reasoning for abandoning the per se treatment of RPM. Many of the States, meanwhile, have taken matters into their own hands, with or without any empirical data to support their views, to legislatively and prosecutorialy recast such claims as being subject to per se treatment in their respective jurisdictions.

R. Mark McCareins practiced antitrust, trade regulation and unfair competition law for the firm of Winston and Strawn LLP for over thirty years where he appeared as trial counsel in matters in nearly forty (40) federal courts. In addition, he has authored nearly twenty books or articles on antitrust related topics. While he is the immediate past chair of the Chicago Bar Association antitrust committee, Mark has served in leadership positions in several bar associations including the Illinois State Bar Association and the Antitrust Section of the American Bar Association. Mark also has taught antitrust and business law at Northwestern University’s Kellogg Graduate School of Management for over twenty-five years; he currently he is a Clinical Professor of Strategy at Kellogg.

The Metals Service Center Institute ( www.msci.org) is the premier metals trade association in North America with over 300 members. MSCI is a leader in executive education and data compilation for the metals industry.