Will Congress Nix Resale Price Maintenance?

The chairmen of the House and Senate antitrust subcommittees are just saying no to the Supreme Court’s decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 887 (2007).  Leegin overturned the Supreme Court’s 1911 Dr. Miles decision holding that resale price maintenance was per se illegal.  Both bills seek to reinstitute the per se rule by statute.

On January 6, 2009, Chairman Herb Kohl (D-Wis.) of the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights introduced S. 148, the “Discount Pricing Consumer Protection Act.”  The Committee held a hearing on the bill on May 19, but it has not taken further action. 

Chairman Kohl’s introductory remarks can be found here.  The testimony from the hearing can be found here.

On July 13, Chairman Hank Johnson (D-Ga.) of the House Judiciary Committee’s Subcommittee on Courts and Competition Policy introduced H.R. 3190, the “Discount Pricing Consumer Protection Act of 2009.”  The Subcommittee passed the bill on a voice vote on July 30. 

Chairman Johnson’s introductory remarks on the bill can be found here.  The webcast of the markup can be found here.

The Federal Trade Commission has also gotten into the act with a series of workshops on resale price maintenance.  The first of these workshops was held on February 17 and 19, 2009, and the second on May 20 and 21, 2009.  The May 20-21 workshops is available via webcast.

The outlook for enactment remains unclear, but further action in the House Judiciary Committee is expected in the near future.