Thomas Cheng
University of Pennsylvania Journal of Business Law
Vol. 20, Issue 1
Spring 2018
Abstract: This Article examines the agreement requirement in resale price
maintenance (“RPM”) cases and the longstanding exception to the ban on
RPM under the Colgate doctrine. It argues for the abolition of the doctrine
for a number of reasons. First, there are no persuasive theoretical
justifications for requiring an agreement in RPM cases as the most relevant
purpose served by an agreement requirement under antitrust law does not
apply to RPM. Second, there is no logically coherent and theoretically sound
theory of agreement under the doctrine, which means that there is no
principled way to apply the agreement concept in RPM cases. Third, there
is no sound economic basis for requiring an agreement in RPM cases as none
of the main theories of harm and pro-competitive justifications of RPM is
premised on an agreement. Finally, it is argued that the Colgate doctrine has
provided a highly unsatisfactory safe harbor for businesses to implement
RPM due to costs and manpower involved in complying with the
jurisprudence under Colgate. This Article also argues that dealer termination
requires a different treatment from that accorded by Monsanto and Business
Electronics after Leegin and proposes a framework for determining the
legality of dealer termination independent of the existence of an RPM
scheme.
No comments:
Post a Comment