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Monday, May 4, 2009

FTC Announces Agendas for Resale Price Maintenance Workshops in May

Posted by D. Daniel Sokol

According to an FTC announcement, the agenda has been set for the next round of RPM workshops:

Panels will focus on the history of the practice, empirical evidence on the effects of RPM, and how it should be analyzed under the antitrust laws. The agendas, which are posted on the Commission’s Web site at, outline the schedule for the two events, which will be held at FTC Headquarters in Washington, DC, on May 20 and 21, 2009.

RPM typically involves an agreement between a manufacturer and retailer setting the prices at which the retailer will resell the manufacturer’s goods to consumers. If the agreement requires the retailer to sell the goods only at or above prices established by the manufacturer, it is called minimum RPM. On the other hand, if the agreement requires the retailer to sell the products only at or below the price established by the manufacturer, it is said to be maximum RPM.

Last October, the Commission announced it would hold a series of public workshops in early 2009 to examine, for the purposes of enforcing Section 1 of the Sherman Act and Section 5 of the FTC Act, how to best distinguish between uses of RPM that benefit consumers and those that do not.

The May workshops will be comprised of three panels, two on May 20, and one on May 21. The first panel will be moderated by Pauline Ippolito, Acting Director of the FTC’s Bureau of Economics, and will examine empirical evidence on the effects of RPM. Specifically, it will review existing empirical studies of RPM, or studies of other vertical restraints that might inform the thinking on RPM. The panel also will explore potential future research in light of possible testable hypotheses underlying the competitive effects of RPM.

The second panel, to be moderated by Laurel Price, Attorney Advisor to FTC Commissioner Pamela Jones Harbour, will examine the legal and business history of the use of RPM in the United States. It will explore how RPM has been treated in this country historically, as well as the legal and business management doctrines related to RPM.

The third panel, also to be moderated by Price, will examine “rule of reason analyses” after the Supreme Court’s landmark Leegin decision, and will assess guidance provided by the Leegin Court regarding the analysis of RPM.

The workshop agendas are available here (May 20) and here (May 21).

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