The Death of Dr. Miles?
By Jason Hicks
An article on Law.com by Tony Mauro suggests that the Supreme Court may soon grant cert in a case challenging "one of the biggest and hoariest precedents in antitrust law, known to law students everywhere as the Dr. Miles rule." The Dr. Miles rule is that minimum verticle price fixing (otherwise known as resale price maintenance) is per se illegal under the Sherman Act. According to the article, a recent order by the Supreme Court staying a judgment of the 5th Circuit in Leegin Creative Leather Products v. PSKS suggests that the Court may soon reevaluate whether resale price maintenance should be judged under the per se rule or the rule of reason.
The Antitrust Review reports the same story and explains that the rule in Dr. Miles has spawned a number of comical circumvention devices including the Colgate policy, which was described as follows:
"I suggest that you sell for at least $10 and I will terminate you immediately if you don’t, but, please, don’t say yes, don’t nod, don’t respond at all to what I just said so that we won’t have to call this an agreement, okay? Oh no! I shouldn’t have asked!"
The Antitrust Review reports the same story and explains that the rule in Dr. Miles has spawned a number of comical circumvention devices including the Colgate policy, which was described as follows:
"I suggest that you sell for at least $10 and I will terminate you immediately if you don’t, but, please, don’t say yes, don’t nod, don’t respond at all to what I just said so that we won’t have to call this an agreement, okay? Oh no! I shouldn’t have asked!"
