BLOGS: Antitrust and Distribution Law Blog

Subscribe to the Antitrust and Distribution Law Blog by Email! (click)

Powered by Blogger
Add to Technorati Favorites

Wednesday, February 27, 2013, 4:44 PM

Response to the WSJ's Editorial Questioning My Ability To Purchase And Consume Beer

Authored by: Jason Hicks
"Do antitrust lawyers drink beer, or for that matter grocery shop?"  So began a recent editorial in the Wall Street Journal.  The point of the editorial was that the DOJ should not stop Budweiser's maker, Anheuser-Busch, from purchasing Grupo Model, the manufacturer of Corona.  The editorial also wonders why antitrust lawyers bother doing the math necessary to measure industry concentration when they could instead just look at all of the different brands of beer for sale at the grocery store (never mind that many of the brands may be owned or distributed by the same company).  I readily admit that the Herfindahl-Hirschman Index seems overly complicated and has a funny sounding name.  But it seems a better measure than simply eye-balling the grocery store aisle.  Lastly, to answer the Wall Street Journal's initial question, yes there are antitrust lawyers who drink beer and shop at the grocery store.  If they happen to shop at the Whole Foods in Charlottesville, Virginia, then they can do both at the same time.  Now that's innovation! 

State Law Resale Price Maintenance: We're not in Kansas anymore

Authored by: Jason Hicks
I recently participated in a roundtable discussion on state law resale price maintenance actions presented by the ABA Section of Antitrust Law. 

The discussion focused on the Kansas Supreme Court's decision in O'Brien v. Leegin, in which the court determined that vertical price fixing was still per se illegal under Kansas antitrust laws despite the fact that such conduct is analyzed under the rule of reasons under federal antitrust law.  One of the participants suggested that the if the logic of the Kansas Supreme Court's decision was extended, then all types of vertical restraints (i.e. geographic restrictions, non-compete agreements) which are typically analyzed under a reasonableness standard, may be subject to attack under the per se rule.  Other participants dismissed such concerns, but noted that state antitrust law can be (and often is) more restrictive than federal antitrust law.

A Deputy Attorney General for the State of California described several post-Leegin developments in state prosecutions of RPM and MAP agrements, including New York's action against Tempur-Pedic.  The takeaway from that discussion seemed to be that, regardless of the outcome of those cases (which were resolved in favor of the manufacturer), state enforcers may still consider certain RPM and MAP agreements as per se antitrust violations.  Additionally, state enforcers may take an especially narrow view of the Colgate doctrine, which allows a business to unilaterally announce the terms and conditions upon which it will do business with its retailers/resellers.

At the conclusion of the program, one participant suggested that attorneys practicing in this area should give advice to their clients as if Leegin were never decided.  In other words, sometimes state law trumps federal law.  That is exactly what we have been saying on this blog ever since the Leegin decision was announced.
back to top