RPM is one of the hottest areas of competition law in the world. In our last issue we looked at a Chinese landmark case and started our global review, moving on to SE Asia, Australia, South Africa, and Brazil. In this issue, we’re checking in on Europe, where the EU seems to be mostly deferring to the Nation States (who largely prefer a per se approach); the United States, which is still looking at a state- and academic-rebellion against Leegin‘s installation of the rule of reason; and Canada, which has seemingly (and wisely?) decided to make the whole question a non-priority.
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Global RPM: Part II
RPM in the European Union: Any Developments Since Leegin?
EU national competition authorities and courts are likely to find an infringement of competition law and to impose fines even when the parties to the agreement have market shares as low as 1 percent. Filippo Amato (Jones Day)
Resale Price Maintenance and Most-Favored Nation Clauses: The Future Does Not Look Bright
The EC may not be saying much about RPMs and MFNs, but NCAs are quite vocal about the anticompetitive effects of such restraints on vertical relationships. Laura Atlee & Yves Botteman (Steptoe & Johnson LLP)
RPM Under EU Competition Law: Some Considerations From a Business and Economic Perspective
The current rules on vertical restraints indicate that the time may be ripe for bringing a successful defense of RPM under Article 101(3) TFEU. Andrs Font-Galarza & Pablo Figueroa (Gibson, Dunn) & Frank Maier-Rigaud (NERA)
Resale Price Maintenance The Blurred Lines
This creates the risk that undertakings will not engage in pro-competitive RPM and will, instead, implement other vertical restraints that have a lower likelihood of providing welfare benefits to consumers. Christian Riis-Madsen & –zlem Fidanboylu (O’Melveny & Myers)
Resale Price Maintenance in France
They can rely on two co-existing sets of rules prohibiting minimum RPM: those applicable to unfair commercial practices and those based on competition law. Charles Saumon (Hogan Lovells)
A Look Back at the Attempts to Repeal Leegin
These developments have presented companies selling products nationwide with a difficult choice: adopt different distribution practices for the country’s largest state or let that state drive their entire distribution strategy. Leiv Blad & Maggie Sheer (Bingham McCutchen)
Why the New Evidence on Minimum Resale Price Maintenance Does Not Justify a Per Se or Quick Look Approach
Both theory and empirical evidence (including evidence of retailing trends) suggest that instances of minimum RPM are more likely to be pro- than anticompetitive. Thomas Lambert & Michael Sykuta (Univ. of Missouri)
Resale Price Maintenance in Canada: Where Do We Stand After the Visa/Mastercard Case?
If that truly turns out to be the case, the result would be consistent with the recent trend in Canadian competition law to downplay enforcement of pricing conduct outside of horizontal price-fixing. Mark Katz & Erika Douglas (Davies Ward Phillips & Vineberg)
