ASCOLA Competition Law series
Edited by Josef Drexl, Warren S. Grimes, Clifford A. Jones, Rudolph J.R. Peritz and Edward T. Swaine
Chapter 6: The Leegin Case: A US Antitrust Chief Event versus a Storm in a European Teacup?
Josef Bejček GENERAL REMARKS 1 I am afraid that all arguments have been made already. Now, it is merely about balancing them, accepting some of them and denying others. It is, to a great extent, a question of beliefs, trust and value-based prejudices. The Leegin case has reopened the old and, many times and in different variations, repeated question whether some judicial activism working against the legislative intent has occurred or whether a final sound step in removing a rigid per se obstacle to potentially procompetitive vertical restraints has been made. The key headline of this case might be: another lap in the balancing of legal certainty, justice and the suitability of antitrust law. The overruling of Dr. Miles1 is less dramatic than it might appear. Leegin represents only a slight erosion of the Sherman Act’s historical prohibition of RPM.2 Leegin did not hold that RPM is per se legal – at least not formally; however, the real social, psychological and factual impact may yet be another story. The undertakings may well believe that practicing RPM is not connected with a real risk of sanction so that therefore it will always pay off. It is interesting to note that according to some lawyers there has also been a decrease of interest on behalf of companies in both the creation and introduction of compliance programs in recent times.3 Therefore, there is Dr. Miles Medical Co. v John D. Parke & Sons Co., 220 US 373 (1911). See J Mitnick, J Lavelle, W...
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