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.  click here for more »

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 »