Resale Price Maintenance and the Emerging Leegin Backlash: Avoiding Anti-Competitive Conduct in an Uncertain Legal Environment

A live 90-minute CLE webinar/teleconference with interactive Q&A

Wednesday, October 14, 2009 (6 days)
1:00pm-2:30pm EDT, 10:00am-11:30am PDT

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.

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 issue

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?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

• Alan M. Barr, Deputy Chief of the Antitrust Division
  Office of the Attorney General, State of Maryland, Baltimore
  He has been an Assistant Attorney General in the Maryland Antitrust Division for nearly 30 years. He has served in leadership positions in a number of multistate investigations and civil prosecutions of resale price maintenance claims on behalf of the State of Maryland and its consumers. He has taught antitrust law at the University of Baltimore.
• Lynda K. Marshall, Partner
  Hogan & Hartson, Washington, D.C.
  She focuses on antitrust and trade regulation issues, counseling clients on matters including distribution issues, mergers and acquisitions, joint ventures, trade association matters, and compliance. She has coordinated worldwide regulatory approvals for multinational corporations involved in mergers and acquisitions, as well as advised clients on potential antitrust risks with such transactions.
• Robert A. Lipstein, Partner
  Crowell & Moring, Washington, D.C.
  He counsels on antitrust and trade regulation issues, with particular expertise on mergers and acquisitions, including product distribution and pre-merger integration planning procedures. He crafted distributor and dealer agreements that have become the standards in several industries, and assists clients with unilateral Minimum Advertised Price and Minimum Retail Price policies.