The full impact of the Supreme Court’s decision in Leegin will depend on how the lower courts
apply the rule of reason and what sorts of presumptions and rules of proof they adopt. Leegin suggests
that there is not one obviously correct approach. What is clear, however, is that any rule of
reason framework should recognize that, in Justice Breyer’s words, “sometimes resale price maintenance
can prove harmful; sometimes it can bring benefits.”65 In keeping with the Court’s opinion,
lower courts should strive to develop a rule of reason framework that (1) leads to predictable
and efficient results and (2) strikes an appropriate balance between the recognized potential
harms and benefits of RPM.
Where does this leave businesses in the meantime? Manufacturers have two options. They may
continue to rely on the Colgate/Monsanto66 line of cases under which they may unilaterally
announce and enforce a retail pricing policy so long as they do not enter into an agreement with
buyers. This strategy is now less risky than it was in the past because, under Leegin, the manufacturer
is no longer subject to potential per se liability (at least under federal law for U.S. sales)
if it crosses the somewhat artificial line that courts have drawn between wholly legal unilateral
conduct and an agreement that may be actionable under Section 1.