Supreme Court: Resale Price Maintenance No Longer Per Se Illegal; States: Not So Fast

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.

Will the states fall in line with the Supreme Court’s precedent?  It’s unclear.  Perhaps tellingly, two years prior to the Supreme Court’s decision, NAAG adopted a resolution that included numerous principles of state enforcement that takes a somewhat strident position of the states’ independence from federal antitrust enforcement.  The principles proclaim that “the federal antitrust laws were enacted by Congress with the intent that those laws complement rather than supplant state antitrust laws.”

The following states signed on to the amici brief in Leegin: New York, Alaska, Arkansas, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Vermont, Washington, West Virginia, and Wyoming.