Should the Per Se Rule Against Minimum Resale Price Maintenance Be Abandoned?
Leegin presents the Court with the opportunity to reconsider its long-standing per se rule against vertical minimum price-fixing. In the case, PSKS, a retailer of Brighton brand products manufactured by Leegin, claimed that Leegin violated Section 1 of the Sherman Act by entering into illegal agreements with retailers to fix the price of Brighton products. The jury found for the plaintiff, and the Fifth Circuit upheld the verdict based on the per se rule against vertical minimum price fixing. The rule of per se illegality was announced in 1911 in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911). Economists and antitrust theorists alike have argued that the per se rule of Dr. Miles is inconsistent with modern antitrust analysis. In recent years, the Court has overturned other precedents that applied the per se rule to vertical restraints. In Continental TV v. GTE Sylvania, 433 U.S. 36 (1977), the Court reversed the per se rule against vertical non-price restraints,
