When Can You Set and Enforce Minimum Prices?

September 6, 2007

In a recent Business Law Segment of Smart Pros – Knowledge for Professionals, Wiggin and Dana partner, Bob Langer, was the guest antitrust expert on a program entitled "When Can You Set and Enforce Minimum Prices?"  The host begins the program as follows: "In an opinion [Leegin Creative Leather Products, Inc. v. PSKS, Inc.] released on the last day of the courts term, the Supreme Court held that it was not automatically unlawful for manufacturers and distributors to agree on minimum retail prices. The court struck down the 96 year old rule that resale price maintenance agreements were an automatic or a per se violation of the Sherman Antitrust Act. In its place the court instructed judges considering such agreements for possible antitrust violations to apply a case by case approach, known as the rule of reason, to assess their impact on competition."
Bob Langer, along with his partners, Aaron Bayer and Suzanne Wachsstock, in collaboration with the firm of Bryan Cave, filed a friend of the court (amicus) brief in Leegin on behalf of PING, Inc.  The PING brief was noted by Chief Justice Roberts and the Deputy Solicitor General of the United States during oral argument and is referenced favorably by Associate Justice Kennedy, author of the court's majority opinion.  Leegin is widely acknowledged to be the most significant antitrust decision issued by the United States Supreme Court in the past thirty years.