Jarad S. Daniels
84 Geo. Wash. L. Rev. 182
Nearly eight years have passed since the Supreme Court overturned the rule of per se illegality for minimum resale price maintenance (“RPM”) agreements in Leegin Creative Leather Products, Inc. v. PSKS, Inc., opting instead to analyze RPM agreements under a rule of reason test, but the federal government has been largely silent on how minimum RPM should be analyzed going forward. The Court in Leegin called for the lower courts and the federal agencies to develop the rule of reason analysis and provide guidance for manufacturers, distributors, and plaintiffs, but the relative silence of the Federal Trade Commission and the Department of Justice has left numerous questions regarding the appropriate analysis of RPM agreements unanswered. Clear policy guidelines for RPM agreements could settle the ambiguity left in the wake of the Leegin decision and ultimately benefit business and consumers.
This Note examines the limited agency actions in the wake of Leegin and suggests that the FTC should provide specific guidelines to manufacturers and retailers regarding how minimum RPM agreements will be litigated under the rule of reason analysis adopted in Leegin, and proposes examples of potential guidelines.
