Tomorrow I will be presenting my paper, A Decision-Theoretic Rule of Reason for Minimum Resale Price Maintenance, at the Next Generation of Antitrust Scholarship Conference at NYU Law School. (Kudos to Danny Sokol for co-organizing what promises to be a terrific event!) My paper criticizes four proposed approaches to evaluating RPM post-Leegin, and it sets forth an alternative approach that embodies the sort of error cost analysis Geoff and Josh have embraced in connection with monopolization doctrine. The paper largely builds on my recent William & Mary Law Review article on RPM, expanding the analysis to address recent developments in the caselaw and antitrust scholarship (e.g., I address the pending Babies-R-Us case).
In preparing for the conference, I checked Westlaw to see who (if anyone!) had cited my William & Mary article, and lo and behold, I came across a piece on post-Leegin RPM analysis by Christine Varney herself. Well guess what? It’s really quite good. We here at TOTM have occasionally been critical of Ms. Varney’s interventionist stances on antitrust (most recently here), but we must give credit where credit is due. And Ms. Varney’s article, A Post-Leegin Approach to Resale Price Maintenance Using a Structured Rule of Reason, is creditworthy.
As I do in both my William & Mary article and the paper I’m presenting tomorrow, Ms. Varney argues that plaintiffs challenging instances of RPM should bear the burden of proving that the preconditions for at least one of the theories of RPM-induced anticompetitive harm are satisfied. That may sound like a no-brainer, but it’s signficantly more stringent than any of the other liability rules courts, commentators, and regulators have thus far proposed.
The American Antitrust Institute and the attorneys general of 27 states, for example, would presume the illegality of any instance of RPM that raises consumer prices. That’s ridiculous, of course, for even RPM’s procompetitive potential stems from the fact that it generates output-enhancing services by raising prices and thereby enhancing retailer margins (and retailers’ incentives to promote the brand at issue).
The Babies-R-Us court, following the proposal of economists F.M. Scherer and William Comanor, deems any retailer-initiated RPM to be illegal. That’s troubling because, as I explained in this post, retailers have an incentive (and are particularly well-poised) to seek RPM for procompetitive purposes like avoiding free-riding. Retailer initiation is entirely consistent with procompetitive motivation (and effect), but it’s enough to render RPM per se illegal under the Babies-R-Us approach.
The Areeda treatise would deem illegal any RPM imposed on a homogeneous product that is not sold with services susceptible to free-riding. That’s too restrictive because, as I explain here (and as Josh has explained in a number of articles and posts), RPM has procompetitive uses besides the avoidance of free-riding. Most notably, it can act as an efficient mechanism for inducing dealers to promote a particular brand of even a homogeneous product. Thus, it may be output-enhancing even when applied to products that aren’t sold along with “free-rideable” point of sale services.
Finally, the FTC has taken the position (in deciding Nine West’s motion petition to modify an injunction) that RPM should be presumptively illegal unless the defendant makes a number of difficult showings. That’s inappropriate because theory and evidence suggest that most instances of RPM are procompetitive, and the RPM challenger therefore ought to bear the initial burden of proof.
Compared to these four proposed approaches, Ms. Varney’s proposed approach is a breath of fresh air. It correctly recognizes that anticompetitive uses of RPM are difficult to accomplish, and it properly places the initial burden on an RPM challenger to show that the preconditions for anticompetitive harm exist. (The defendant would then have a rebuttal opportunity, which is proper.) The showings necessary to state a prima facie case of illegality are quite difficult, but that’s entirely appropriate, given that most instances of RPM are procompetitive.
Ms. Varney’s article appears in the Fall 2009 issue of the ABA’s Antitrust Magazine and is available on Westlaw.