The Resale Price Maintenance Struggle

Its Legislative Updating



Abstract Bills introduced in the 100th and 101st Congresses would amend the Sherman Act in regard to retail competition Their two key provisions would seek to (1) alter the standard of proof currently used for the establishment of illicit vertical price arrangements and (2) codify into law the judicially-established per se rule against resale price maintenance agreements The first provision seeks to overcome the effect of the establishment by the Supreme Court, in its Monsanto decision, of what is viewed as an illogical and impossible burden of proof on plantiffs seeking damages in resale price maintenance cases The second merely incorporates into statutory law the court's declarations in the Dr Miles case of the per se illegality of resale price maintenance agreements Arguments for and against this legislation are discussed and recent developments are examined