Leegin Creative Leather Products, Inc. v. PSKS, Inc. — 551 U.S. 877 (2007) · Supreme Court of the United States · 2007

Role: rule-announced; posture: civil treble-damages suit by terminated discounting retailer against manufacturer; jury verdict for plaintiff under per se rule (expert on procompetitive effects excluded), affirmed by CA5; certiorari on whether to overrule Dr. Miles; result: remanded; claim:

Uncertainty

opinion: the IR text is capped at 60000 chars. The majority is complete (no majority footnotes inside the cap); the dissent (Breyer, with Stevens, Souter, Ginsburg) is cut off in its Part I, before its stare decisis argument.

Element agreement: decider: the agreement was a contested JURY finding below (Colgate unilateral-policy defense rejected) that nobody reviewed; it could be `decider jury` + `review none` with [proved] (a finding-below, not an instance). Kept as this Court's own [conceded] ruling because the held quote is the Court noting the non-dispute on appeal.

Element agreement: basis: [conceded] reflects only this opinion's posture; and the judgment resting on the verdict is reversed, so whether the finding survives the remand is not said.

Element restraint.per-se: polarity: the three [supports] facts (refusal to sell to discounters, the 20 percent markdown, the cut-off) support "per se treatment applies" only under the overruled Dr. Miles rule; under this opinion they are just the conduct to be judged on remand and could all be [neutral].

Element restraint.per-se: decider: the courts below DID hold the restraint per se unlawful (jury verdict under a per se instruction, affirmed by CA5) and this Court reversed; that could be a second block `satisfied [law]` + `decider court-below` + `review reversed` owning these facts. Not added: v1 had no such block and it would introduce a holding.

Element restraint.per-se: cites: the mode selection is cited here (the block whose held line makes it) rather than on restraint.rule-of-reason; the selection is for the CATEGORY "vertical price restraints", which `cites mode` cannot name.

Element x-horizontal-cartel-via-dual-distribution: role: `background` + `scope procedural` is a workaround: the theory was forfeited (not raised below), but a not-reached block may carry no [waived] basis, and under a rule-announced case role a block with quotes needs a `rule` line or another role.

Misfit

The opinion CHANGES THE LAW (overrules Dr. Miles, 220 U.S. 373 (1911)) rather than applying it. `cites mode restraint = rule-of-reason` now records WHICH mode was selected, but not that a prior rule was overruled, for which category of restraint (vertical minimum RPM only; horizontal price fixing stays per se), or as of when; older instances decided under Dr. Miles (e.g. Ford v. Webster's citing it) still cannot be marked superseded — `review superseded` is for findings inside this record.

"Element not touched in a rule-announcing opinion" has no role value: the forfeited dual-distribution theory carries `role background` only to pass the rule-announced check (see its `?`).

Result is a reversal of a plaintiff's jury verdict with remand; neither claimant-lost nor remanded conveys "claimant's judgment vacated, claim survives under a harder standard". The verdict itself (agreement, injury, $1.2 million trebled) is not recorded as `decider jury` findings: no quote for injury, and for agreement see the `?`.

Stare decisis analysis (Part IV) and the statutory-history argument (Consumer Goods Pricing Act) have no home in an element/fact notation.

The dissent is now a declared opinion (`dis`), truncated by the 60000-char cap, but no block is `by dis`: no dissent quote was captured and the quote set is frozen. It would be a `cites mode restraint = per-se` block.

interpretation

As a consequence, the per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue,

Leegin Creative Leather Products, Inc. v. PSKS, Inc. — 551 U.S. 877 (2007) · Supreme Court of the United States · 2007 (15usc1: author: Fable · not independently reviewed)

As a consequence, the per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue,

Reserved for horizontal price fixing (Socony-Vacuum), bid rigging, horizontal market/customer allocation (Palmer v. BRG; Cooperative Theatres), certain horizontal group boycotts denying access to an essential facility/market (Northwest Wholesale Stationers; Tunica Web), and tying where the seller has appreciable economic power in the tying product market (Jefferson Parish). Vertical minimum and maximum resale price maintenance are no longer per se unlawful (Leegin, 551 U.S. 877 (2007); State Oil v. Khan, 522 U.S. 3 (1997)).

interpretation

Vertical agreements establishing minimum resale prices can have either procompetitive or anticompetitive effects, depending upon the circumstances in which they are formed.

Leegin Creative Leather Products, Inc. v. PSKS, Inc. — 551 U.S. 877 (2007) · Supreme Court of the United States · 2007 (15usc1: author: Fable · not independently reviewed)

Vertical agreements establishing minimum resale prices can have either procompetitive or anticompetitive effects, depending upon the circumstances in which they are formed.

Reserved for horizontal price fixing (Socony-Vacuum), bid rigging, horizontal market/customer allocation (Palmer v. BRG; Cooperative Theatres), certain horizontal group boycotts denying access to an essential facility/market (Northwest Wholesale Stationers; Tunica Web), and tying where the seller has appreciable economic power in the tying product market (Jefferson Parish). Vertical minimum and maximum resale price maintenance are no longer per se unlawful (Leegin, 551 U.S. 877 (2007); State Oil v. Khan, 522 U.S. 3 (1997)).

interpretation

Resale price maintenance should be subject to more careful scrutiny, by contrast, if many competing manufacturers adopt the practice.

Leegin Creative Leather Products, Inc. v. PSKS, Inc. — 551 U.S. 877 (2007) · Supreme Court of the United States · 2007 (15usc1: author: Fable · not independently reviewed)

Resale price maintenance should be subject to more careful scrutiny, by contrast, if many competing manufacturers adopt the practice.

Default standard under § 1 (Ohio v. American Express Co., 585 U.S. 529 (2018); Leegin): three-step burden-shifting framework: (1) plaintiff proves substantial anticompetitive effect in a defined relevant product and geographic market (directly via reduced output/supercompetitive prices, or indirectly via market power + anticompetitive structure); (2) defendant proffers nonpretextual procompetitive justifications; (3) plaintiff shows the efficiencies could be reasonably achieved through less anticompetitive means.

interpretation

If there is evidence retailers were the impetus for a vertical price restraint, there is a greater likelihood that the restraint facilitates a retailer cartel or supports a dominant, inefficient retailer.

Leegin Creative Leather Products, Inc. v. PSKS, Inc. — 551 U.S. 877 (2007) · Supreme Court of the United States · 2007 (15usc1: author: Fable · not independently reviewed)

If there is evidence retailers were the impetus for a vertical price restraint, there is a greater likelihood that the restraint facilitates a retailer cartel or supports a dominant, inefficient retailer.

Default standard under § 1 (Ohio v. American Express Co., 585 U.S. 529 (2018); Leegin): three-step burden-shifting framework: (1) plaintiff proves substantial anticompetitive effect in a defined relevant product and geographic market (directly via reduced output/supercompetitive prices, or indirectly via market power + anticompetitive structure); (2) defendant proffers nonpretextual procompetitive justifications; (3) plaintiff shows the efficiencies could be reasonably achieved through less anticompetitive means.

interpretation

As a final matter, that a dominant manufacturer or retailer can abuse resale price maintenance for anticompetitive purposes may not be a serious concern unless the relevant entity has market power.

Leegin Creative Leather Products, Inc. v. PSKS, Inc. — 551 U.S. 877 (2007) · Supreme Court of the United States · 2007 (15usc1: author: Fable · not independently reviewed)

As a final matter, that a dominant manufacturer or retailer can abuse resale price maintenance for anticompetitive purposes may not be a serious concern unless the relevant entity has market power.

Under the Rule of Reason (absent direct proof of actual detrimental effects on price or output under FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986)), plaintiff must define a relevant product and geographic market and prove defendants possess market power within it.

interpretation

If there is evidence retailers were the impetus for a vertical price restraint, there is a greater likelihood that the restraint facilitates a retailer cartel or supports a dominant, inefficient retailer.

Leegin Creative Leather Products, Inc. v. PSKS, Inc. — 551 U.S. 877 (2007) · Supreme Court of the United States · 2007 (15usc1: author: Fable · not independently reviewed)

If there is evidence retailers were the impetus for a vertical price restraint, there is a greater likelihood that the restraint facilitates a retailer cartel or supports a dominant, inefficient retailer.

Even after Leegin placed vertical resale price maintenance under the Rule of Reason, a horizontal cartel among competing retailers or manufacturers Policed via vertical agreements remains per se unlawful.

interpretation

As a consequence, the per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue,

Leegin Creative Leather Products, Inc. v. PSKS, Inc. — 551 U.S. 877 (2007) · Supreme Court of the United States · 2007 (15usc1: author: Fable · not independently reviewed)

As a consequence, the per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue,

A plaintiff who disclaims every other mode loses on the merits when its mode is rejected (Texaco v. Dagher); otherwise rejection of per se treatment only moves the case to another mode.

interpretation

is now overruled. Vertical price restraints are to be judged according to the rule of reason.

Leegin Creative Leather Products, Inc. v. PSKS, Inc. — 551 U.S. 877 (2007) · Supreme Court of the United States · 2007 (15usc1: author: Fable · not independently reviewed)

is now overruled. Vertical price restraints are to be judged according to the rule of reason.

A plaintiff who disclaims every other mode loses on the merits when its mode is rejected (Texaco v. Dagher); otherwise rejection of per se treatment only moves the case to another mode.