The Supreme Court’s 2007 decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, overruled the per se rule applying to resale price maintenance and replaced it with a rule of reason analysis.  Nevertheless, 13 states still forbid resale price maintenance, and the adherence of another eight states to federal precedent remains an open question. Moreover, 37 states filed an amici curiae brief with the Supreme Court to implore the court not to overturn the per se rule.  Also, the Vertical Restraints Guidelines issued by the National Association of Attorneys General (“NAAG”) have not been revised in response to the Leegin decision and continue to describe resale price maintenance as per se illegal. click here for more »

Five years ago this month, a new federal law aimed at encouraging standard-setting activities took effect – the Standards Development Organization Advancement Act (SDOAA) of 2004.  Why did Congress pass it?  And five years later, how has it fared?

In many industries, non-profit “standards development organizations” (SDOs) collaborate with businesses to develop industry-wide standards – from common light bulb sizes to uniform tests of concrete strength.  This work is generally procompetitive, as it tends to foster innovation and lower prices.  But because the work involves collaboration between competitors, it can raise antitrust issues and invite lawsuits. click here for more »

Since the Supreme Court’s 1977 decision in Illinois Brick Co. v. Illinois, 431 U.S. 720, plaintiffs have not been able to recover damages suffered by indirect purchasers from anticompetitive conduct stemming from §1 of the Sherman Act.  While this bar has existed for more than 30 years, plaintiffs are not without recourse. click here for more »

Many of us think the U.S. health care sector will withstand today’s economy because it supplies important consumer products and services.  Politicians and economists expect pharmaceutical companies to employ scientists, develop medically necessary products, and lead our nation to economic health.  But we must also safeguard companies’ incentive to innovate.  Otherwise we risk losing potentially large sources of employment that will keep our nation competitive in the global economy. click here for more »

The Supreme Court’s decision in Pacific Bell Telephone Co. v. linkLine Communications, Inc., 129 S.Ct. 1109 (2009), suggests that the Court will apply predatory pricing analysis to all antitrust claims with an aspect of low pricing.

So it follows that bundled-discounting claims would likely receive the same treatment from the Court that price squeeze claims did.  A bundled discount is where a firm grants a discount on one product if customers also purchase a different, second product.  For example, the hot dog stand outside your office building gives you a discount on your hot dog if you also buy a soft drink.  And, of course, much bigger firms are using this approach too — it’s everywhere. click here for more »