What Companies Don't Know Can Hurt Them: Antitrust Law Developments In Vertical Restraints*

I. Background

Antitrust compliance properly focuses on agreements and communications between competitors because of the heightened risk associated with such conduct. Yet overreaching restrictions on distributors or customers can pose antitrust risk as well. This article provides a brief update on developments in the antitrust law of vertical restraints and highlights areas that continue to be complex, or areas where the law appears to be evolving. In-house counsel may wish to consider reviewing corporate compliance policies and distribution agreements to account for these changes.

In particular, few areas of antitrust law have generated as much uncertainty as the treatment of resale price maintenance. In 2007, for example, the U.S. Supreme Court reversed a century of precedent by holding that minimum resale price maintenance was not per se illegal.¹ While Leegin relaxed the antitrust standard at the federal level, no such relief has been available at the state