تغییر قانونی نگهداری قیمت فروش مجدد و مفاهیم قیمت گذاری

From 1911 until 2007, minimum resale price maintenance agreements between manufacturers and resellers were illegal under federal antitrust law. This handicapped manufacturers which sought to exert control over how their products were priced and promoted through the distribution channel. In June 2007, the United States Supreme Court—via the Leegin case—ruled that bilateral minimum resale price maintenance agreements would no longer be automatically illegal. Rather, they would be legal if their net impact is pro-competitive, and illegal only if the net impact is anti-competitive. This ruling empowers manufacturers to use resale price maintenance to create value for their customers and consumers. However, not all stakeholders—including some state legal systems—have embraced the Leegin ruling, thereby creating uncertainty regarding its final impact. Despite this uncertainty, the opportunities created by Leegin are worth exploring and acting upon. Since the Leegin ruling 3 years ago, a new landscape for resale pricing maintenance has been evolving. We discuss this landscape and the considerations for using resale price maintenance within its ambit. For many manufacturers, the chance of benefitting from Leegin outweighs any potential risks.

A firm that sells through resellers tends to lose control over how its products will be priced, promoted, and sold to the final consumer. Firms wanting to retain some control develop policies to align reseller behavior with the overall marketing strategy for a product. A firm can control reseller price either indirectly by carefully selecting the type and number of resellers that will carry the product, or directly by requiring resellers to maintain a specified resale price. The agreement between a firm and its resellers that the resellers will sell a product at an agreed-upon price is known as resale price maintenance (RPM). The agreed-upon price may be an exact price, a minimum price, or a maximum price. In the case of minimum RPM, resellers agree to sell the product at a price on or above a price floor; in the case of maximum RPM, resellers agree to sell the product at or below a price ceiling. Because RPM is a form of price fixing, it can affect competition in a market. Thus, RPM policies are subject to antitrust scrutiny in most economies. In the United States, RPM can be in violation of the Sherman Act, which regulates vertical restraints against competition. Both minimum and maximum RPM were per se illegal (i.e., not permitted under any circumstances) following the Supreme Court's ruling in Dr. Miles Medical Co. v. John D. Park & Sons Co. (1911). This implies that the Court considered RPM as almost always anti-competitive and, hence, automatically illegal under the Sherman Act. If some act is considered per se illegal, there is no defense available. The pro-competitive effect of RPM, if any, was considered so limited by the Dr. Miles Court that it made sense to ban the practice in the interest of legal administrative efficiency. Since then, however, the Court has gradually softened its stance toward RPM. In United States v. Colgate & Co. (1919), the Court provided some leeway for allowing unilateral RPM provided no specific agreement was executed, while RPM via bilateral contract remained illegal per se. Nevertheless, the antitrust perspective toward RPM remained hostile until the case of State Oil Co. v. Khan (1997), in which the Court ruled that maximum RPM is not per se illegal and should be evaluated under the ‘rule of reason.’ Contrary to per se illegality, the ‘rule of reason’ approach to evaluation of alleged antitrust violations provides that all relevant facts and circumstances peculiar to the business to which the restraint is to be applied should be considered. If the net impact on competition is negative, the practice would be deemed unlawful. This means that the illegality of maximum RPM was to be evaluated on a case-by-case basis. Minimum RPM, however, remained illegal per se. A decade later, in Leegin Creative Leather Products Inc. v. PSKS Inc. (2007), the Court ruled that bilateral minimum RPM agreements are also not per se illegal, and they too should be evaluated under the ‘rule of reason.’ The Court held that the blanket condemnation of bilateral minimum RPM agreements under the per se rule was at odds with economic theory, which since the 1960s had shown that in certain instances minimum RPM can increase consumer welfare. By lifting the per se ban, the Supreme Court has endorsed the potential pro-competitive effect of RPM. This lays the foundation for a shift in the antitrust perspective toward RPM, and thereby significantly alters the legal environment of RPM. The changed environment provides new opportunities for manufacturers to manage how their products are priced and sold through the distribution channel. While in theory Leegin gives practitioners new opportunities for resale pricing, its potential impact on RPM practice is not well defined. This is because Leegin's impact on RPM practice is shaped by the lower federal trial and appeals courts, state legal systems, legislators, and enforcement agencies such as the Federal Trade Commission (FTC). Not all of these stakeholders agree that the rule of reason treatment of RPM is in the best interests of consumers. Consequently, the current legal environment of RPM is somewhat in a state of flux. Figure 1 shows the entities and factors affected by the Leegin decision, and serves as an organizing framework for the rest of this article. Consistent with Figure 1, we first describe the Leegin case. Next, we review the theoretical perspectives based on which the Supreme Court ruled that RPM can both stimulate and stifle competition, and thereby increase or decrease consumer welfare. We then describe how the different entities in the RPM environment have reacted to the Leegin decision. Finally, we discuss the implications of Leegin for RPM policies.

While there is some uncertainty in the legal environment of RPM, the environment is much more RPM-friendly than ever before. Thus, firms should not be overly cautious and wait for the environment to unfold completely. Instead, they should use the changed environment to their advantage while at the same time closely monitoring it for any significant developments. Firms can now implement unilateral or bilateral RPM policies. 5.1. Implement unilateral RPM policies The 1919 Colgate decision created an exception to Dr. Miles, allowing use of unilateral RPM by a nonmonopolistic manufacturer when no specific agreement was executed and the manufacturer unilaterally determined to refuse to deal with retailers which did not comply with an announced RPM policy, while RPM via bilateral contract was illegal per se. A key issue, then, was to ascertain if a unilateral RPM policy was really unilateral on the part of the nonmonopolistic manufacturer or, rather, a coerced agreement with a retailer. A coercive agreement would be deemed illegal. Maintaining a unilateral policy in the event of a violation of the policy, however, was problematic. The manufacturer would either have to ignore the violation or stop doing business with the reseller. For example, Leegin terminated its contracts with retailers that started discounting its products. A manufacturer could not condone the violation based on the retailer's commitment to not violate the policy in the future (Hinman and Shah, 2009 and Sheffet and Scammon, 1985). Although the Colgate case allowed use of unilateral RPM policies, many manufacturers did not utilize these policies due to fear of potential litigation if they sought to enforce the policy. Some firms that did use a unilateral RPM policy typically offered different incentives, such as buyback of unsold inventory, to motivate resellers to implement suggested retail prices. Now, with the legality of bilateral RPM agreements, the risk of litigation in unilateral RPM arrangements is minimized. Accordingly, firms that stayed away from RPM due to potential litigation concerns should consider RPM by exploring the use of a unilateral RPM policy. Not only is the risk of litigation lower, now firms may not have to offer incentives to retailers to implement the RPM policy. Given this new scenario post-Leegin, high-end appliance makers Viking and SubZero asked their distributors to experiment with unilateral minimum RPM policies (Kieffer, 2008). 5.2. Implement bilateral RPM policies Firms can now enact formal and more enforceable RPM policies by implementing bilateral RPM agreements. Indeed, many manufacturers have started embracing the new legal standard for RPM by requiring retailers to sign RPM agreements (Pereira, 2008b). Bilateral agreements provide more clearly-defined expectations for all parties. Implementation of bilateral RPM agreements, however, comes with a risk of potential rule of reason litigation. The beauty of the new RPM legal environment is that the risk of litigation is minimal for firms which adopt RPM to better serve the needs of their customers, not exploit them. This is compatible with the basic marketing principle that firms should seek to satisfy the needs of their customers better than competitors. Under certain conditions, however, there is reason to believe that RPM policies might not enhance consumer welfare; these were discussed in Leegin. If the firm has market power, if an RPM policy is widely used in the market, and if the policy is initiated at the behest of a retailer, the consumer welfare enhancing potential of the policy is suspect. Market power is measured by share of the relevant market. Market concentration whereby a few firms control a large portion of the market would also invite scrutiny. Given that RPM is frowned on if it is widely used in the market, it is advisable to be an early adopter of RPM in a given market. The extent of market coverage to be considered as a factor in the rule of reason analysis is biased in favor of firms that are first in the market to adopt RPM policies (Grimes, 2009). The Leegin decision notes that an RPM policy implemented at the behest of a ‘dominant retailer’ should be treated as suspect. By extension, an RPM policy implemented at the behest of many retailers will also be viewed with suspicion. It is common for dealers to complain to manufacturers about low margins. Manufacturers should avoid implementing an RPM policy at the behest of a dominant retailer, a group of retailers, or a retailer purporting to speak on behalf of other retailers (Hinman & Shah, 2009). In these cases, cartelization is seen as the likely motive. Accordingly, RPM policies driven by retailers are best avoided. Given that the theoretical rationale for the pro-competitive effects of RPM has extended beyond the free-rider argument, firms can use RPM agreements for a wide variety of products, and not just complex and information-intensive differentiated products such as 3D TVs and high-end audio equipment. RPM policies have been used for automotive products, baby products, bicycles, consumer electronics, furniture, health and beauty aids, imaging and pictures, kitchen and bath goods, personal computers, wireless communications, women's wear, and luxury and premium brands of products in general (Gundlach, 2009). At present, firms might not be able to adopt nationwide RPM policies due to differences in state legal environments for RPM. Manufacturers should avoid bilateral RPM agreements in states that are hostile toward RPM agreements. In these states, manufacturers can use a unilateral RPM policy. As discussed earlier, the existing hostility toward RPM agreements in some states might wane over time. Also as mentioned, it is possible that Congress might negate the Leegin ruling. If this were to happen, it would not result in any litigation risk for firms employing RPM; firms would just have to discontinue their RPM programs. It is not uncommon for firms to sell directly to final consumers, and also sell through resellers. For example, in many franchise systems, some stores are company-owned while others are franchisee-owned. In the post-Leegin environment, plaintiffs may try to argue horizontal price fixing—which is per se illegal—if they can make a case alleging that a firm, in addition to being a manufacturer, is also a retailer. The charge would be that company-owned stores and non company-owned stores have colluded to set higher prices. In the remand of the Leegin case from the Supreme Court to the Eastern District of Texas, PSKS attempted to cast the case as a horizontal price fixing case, given that Leegin was a distributor and retailer besides being a manufacturer, and sold through its company-owned outlets; the court ruled against PSKS [PSKS Inc. v. Leegin Creative Leather Products Inc. (2009)]. Courts are, however, strict in adjudicating cases involving horizontal price fixing, and managers should be cautious in implementing RPM policies in dual distribution systems. Finally, firms using an RPM policy should analyze and document the pro-competitive effect of the policy. For example, a firm employing RPM should be able to show that sales have increased from the provision of dealer services or from the successful launch of new products. An increase in the firm's wholesale margins without any pro-competitive benefits may signal exercise of market power