Dr. Miles' Orphans: Vertical Conspiracy and Consignment in the Wake of Leegin
53 Pages Posted: 21 Feb 2010
Date Written: February 20, 2010
When the Supreme Court decided Leegin Creative Leather Products, Inc. v. PSKS, Inc. in 2007 not only did it change resale price maintenance from a per se offense to a rule of reason offense, it created one-hundred years of “orphan” cases. These are the cases decided during the period when resale price maintenance was a per se offense that were initially designed to strengthen the per se rule and, more recently, to weaken it. The interpretation of these cases is critical in determining how antitrust law in practice will be reshaped by Leegin. This article reviews the possibilities and examines the post Leegin cases that suggest what may unfold over the next several years. It concludes that the influence of these orphans may actually retard the development of an economically sensible approach to resale price maintenance.
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