Wednesday, January 10, 2007
Posted by Shubha Ghosh
In December 2006, the Supreme Court granted cert in Leegin v PSKS. The Court is asked to review the standard of review for minimum resale price maintenance. In 1997, the Court ruled in Khan that maximum resale price maintenance was subject to the rule of reason, overruling fifty year old precedent set in Albrecht. In Leegin, the Court will be addressing even more established precedent: the 1911 precedent of Dr. Miles holding that minimum resale price maintenance is per se illegal. Given the Court's ruling in Khan, now almost a decade old, the grant of cert in Leegin is not surprising. Whether the Court will overrule Dr. Miles is another matter. My sense is that Dr. Miles is superprecedent, to quote the Chief Justice, in the area of antitrust, and I do not see much academic or practitioner pressure to overturn the 1911 decision. Furthermore, the argument has been to distinguish maximum from minimum resale price maintenance with the per se rule making sense in the latter case but not in the former.
The Fifth Circuit opinion, following Dr. Miles, is linked below: