In the slightly more than two years following the Supreme Court’s
decision in Leegin, the antitrust world has been attempting to discern the
parameters of the state of the law concerning resale price maintenance.
This is no small task. Many players have had a hand in informing the
debate and drawing the new boundaries that will face businesses on the
one hand, and consumers and competitors on the other. District courts
and courts of appeals have attempted to identify what plaintiffs must
prove to bring RPM claims, states attorneys general have attempted to
determine the interplay between their respective state antitrust laws and
federal law post-Leegin, and Congress is considering whether to supersede
the Leegin rule altogether. The process of establishing these boundaries is
far from complete. This article addresses where we have been, where we
are and where we might be headed in setting standards to analyze resale
II. HOW DID WE GET HERE?
A. Dr. Miles
The saga of vertical price restraints under the Sherman Act begins with
Dr. Miles. Dr. Miles Medical Company (“Dr. Miles”) manufactured
branded proprietary medicines and sold them under a series of contracts
that fixed their wholesale and retail prices. At the time of the suit, Dr. Miles
had over 400 wholesale-related and 25,000 retail-related contracts in force.
Allegedly, John D. Park & Sons Co. “by surreptitious and dishonest
methods” induced various wholesalers and retailers to violate their contracts
so that defendant could obtain and sell Dr. Miles’ medicines at “cut-rates.”