Waiting for the Other Shoe to Drop: Will State Courts Follow Leeginl

TL;DRAbstract

This past June, in a sharply divided five-to-four opin? ion, the U.S. Supreme Court decided the landmark case Leegin Creative Leather Products, Inc. v. PSKS, Inc.1 and held that, henceforth, minimum resale price maintenance would be examined under the more lenient rule of rea? son rather than remaining a per se violation of Section 1 of the Sher? man Act.2 In doing so, the Court overruled a ninety-six year-old precedent, Dr. Miles Medical Co. v. John D. Park & Sons Co.3 Simply defined, resale price maintenance (RPM), which is also known as vertical price-fixing, involves a supplier or franchisor's attempt to control the price at which its distributors, dealers, or franchisees resell the goods sup? plied to them. Under the rule of per se illegality, a defendant was not permitted to offer a defense or jus? tification for the practice. The per se rule was particularly bur? densome to franchisors attempting to create national account pricing programs, whereby the franchisor would negotiate

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