Robert M. Langer

So You Still Think You're Safe Under the Antitrust Laws? Another Word of Advice To Those Who Would Ignore The States

December 30, 2010 Published Work
Antitrust Report, Issue 4, 2010

Reproduced by Wiggin and Dana LLP with permission. Copyright 2010 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.

Eight years ago, in the fall of 2002, we authored an article in the pages of the Antitrust Report that warned of the dangers of assuming that state antitrust law would always be the same as its federal counterpart.1 That warning is even more salient today than when originally written. The United States Supreme Court's 2007 decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc.,2 holding that minimum resale price maintenance is no longer per se illegal under Section 1 of the Sherman Act and should instead be subject to the rule of reason, created a flood of debate (and, in some states, legislative action and litigation) over whether state antitrust law would follow the new federal standard. In the wake of Leegin, it is more important than ever for antitrust practitioners to stay apprised of developments in state antitrust law.

The differences between state and federal antitrust law are not, by any stretch, limited to resale price maintenance. Indeed, the 2002 Article highlighted three additional areas, including the state response to the indirect purchaser doctrine of Illinois Brick Co., v. Illinois,3 state court application of the United States Supreme Court's decision in Copperweld Corp. v. Independence Tube Corp.,4 and the applicable test for tying claims brought under state law.5 Because there are so many areas in which state and federal antitrust laws might differ both substantively and procedurally, the examples in the 2002 Article were not meant to be exhaustive, but merely illustrative.