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December 16, 2010 / Law Alert

H.R. 3190: Will Resale Price Maintenance Revert Back to the Per Se Rule?

On December 8, 2010, the House Judiciary Committee reported out of committee H.R. 3190, the Discount Consumer Pricing Protection Act of 2009, and recommended that it be considered by the House as a whole.

The bill is designed to revive the per se rule first established in 1911 in Dr. Miles Medical Co. v. John D. Park & Sons, Co., 220 U.S. 272 (1911), which held that minimum resale price agreements between manufacturers and retailers, distributors or wholesalers were unlawful on their face. The per se rule was applied to resale price maintenance for almost a century before it was overturned in 2007 by the Supreme Court’s decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705 (2007), which rejected the per se approach and required that a manufacturer’s minimum resale prices be evaluated under the rule of reason.