Resale Price Maintenance and the Law

Auteur

Dr. Christy L. Kollmar, Esq. has been a licensed practicing attorney in the United States since 2007 and is a member of the District of Columbia, Wyoming, Montana and Washington bars, including five federal court jurisdictions. After obtaining her Baccalaureate of Arts (BA) from University of Montana, a Juris Doctorate (JD) from Nova Southeastern University, a Master of Business Administration (MBA) from College of William & Mary, and a Master of Global Management (MGM) from Thunderbird School of Global Management, she relocated to Europe and attained a Master of Laws (LL.M.) from Riga Graduate School of Law and a Doctor of Philosophy in Law (Ph.D.) from University of Copenhagen.

Prior to her continued legal education, she served as a prosecuting attorney focused on drug and familial abuse crimes, followed by managing her own US federal and state-level criminal defense practice (Kollmar Law Office, PLLC.) focused on felony criminal litigation. Alongside of maintaining her criminal practice, Dr. Kollmar currently serves as a postdoctoral researcher at University of Copenhagen, Centre for Advanced Studies in Biomedical Innovation Law with a particular focus on comparative antitrust law and economics, where her academic portfolio comprises diverse supervision and lecturing in EU Law, Comparative Contracts, EU Competition Law and Economics, and Legal Research Methods.

Texte du rabat

The question of how to properly enforce against RPM has been a contentious debate for decades on both sides of the Atlantic.

Contenu

Contents

Preface

List of Abbreviations

List of Annexes and Tables

Chapter 1 Introduction

Abstract

1. Topic Introduction

   1. Background on Assessment and Application: Legal Issues and Development

   2. Background on Enforcement Best Practices: Investigative Techniques and Enforcement Protocol

2. Research Objectives and Main Research Questions

3. Structure and Scope of Book

4. Conclusory Remarks

PART I US HISTORICAL ORIGINS AND ECONOMIC FOUNDATIONS

Chapter 2 The Legal and Political Origins of RPM United States

Abstract

1. United States: Historical Origins & Legal Structure of RPM

   1. The Introduction of the Sherman Act and its Common Law Roots: 1889-1910

   2. Dr. Miles Era- the Right of Alienation and its Per Se Impact: 1911-1930

   3. Fair Trade Era- Carving out Exceptions to the Sherman Act: 1930-1975

   4. Post Fair Trade Era- Non-Price vs. Price Transition Towards Rule of Reason: 1975 2007

   5. Leegin Era- Maximum vs. Minimum RPM Transition Towards Rule of Reason: 2007 Present

2. Chapter Conclusion: US Historical Origins and Legal Structure

Chapter 3 The Economics of Vertical Agreements Background

Abstract

1. Chapter Introduction

   1. General Economic Background of Vertical Restraints

   2. General Economic Background of RPM

2. Background on Economic Theories of RPM

   1. Link Between Schools of Thought and Economic Models

   2. General Structure of Models: Vertical and Horizontal Elements of RPM

   3. Digital Single Market, the E-Commerce Sector Inquiry and the Internet

   4. Goals of the EC: Digital Single Market and E-Commerce Sector Inquiry

   5. Models of Change: How the Internet Changed Market Dynamics

3. Conclusion: RPM Economic Background and E- Commerce

Chapter 4 The Economics of Vertical Agreements Models

Abstract

1. Anti-Competitive vs. Pro-competitive Economic Models of RPM

   1. Anti-Competitive RPM Theories

   2. Facilitating Collusion Upstream or Downstream

   3. Increase in Prices, Lifecycles and Product Favouritism

   4. Foreclosure and Restriction of Entry Both Upstream and Downstream

   5. Foreclosure as a Commitment Device in Protection of Monopoly Rents

   6. Dampen or Soften Competition Both Upstream and Downstream

   7. Pro-Competitive RPM Theories

   8. Special Services and Free-riding

   9. Quality Certification and Signalling

   10. Image Theory: The Allure of Paying More

   11. Demand Uncertainty and Inventories

   12. Outlets and Distribution Density

   13. Moral Hazard and Double Moral Hazard

   14. Production of a Good when Manufacturers' Risks are Low

   15. Contract Enforcement Mechanism and Quality Control

   16. Loss Leader Selling

   17. Less Efficient Dealer and/or Distributional Efficiency

   18. Price Discrimination

   19. Spatial Price Discrimination

   20. Where imposing an RPM floor leads to a decrease in collusive behaviour

   21. RPM with Optimal Delegation

   22. New Market Entry or Product Launch

   23. Pro-competitive models which rely on the purely vertical aspect of RPM

2. Conclusion: No Consensus among Economists on Impact of RPM

PART II EU HISTORICAL ORIGINS AND LEGAL STRUCTURE

Chapter 5 The Legal and Political Origins of RPM European Union

Abstract

1. European Union: Historical Origins & Legal Structure of RPM

   1. Historical Background of EU Vertical Enforcement

   2. Current Legal Structure of EU Vertical Enforcement

   3. Block Exemptions and their role in vertical restraint enforcement

   4. Article 101(3): a closer examination of the individual assessment and its role in vertical restraint enforcement

2. Chapter Conclusion: EU Historical Origins and Legal Structure

Chapter 6 The Legal Concepts of By-Object, By-Effect and Appreciability

Abstract

1. Introduction to the Distinction between By-Object and By-Effect

   1. A Background on By-Object Restrictions: The Finer Details

   2. Categorisation and Analysis of By-Object Restrictions: A Deeper Dive

   3. By-Object Categorisation: Overview of Differences between the EC and Case Law Approaches

   4. By-Object Categorisation: Approaches to Appreciability

2. By-Effect Comparison: A Concise Overview of the Main Differences

3. Return to the RPM Legal Structure in light of the By-Object/By-Effect Dichotomy: Overview of the Current Approach to RPM Enforcement

   1. Article 101(3): a closer examination of the individual assessment and its role in RPM enforcement

4. Chapter Conclusion

PART III PROPOSALS, IMPLICATIONS AND SOLUTIONS

Chapter 7 Proposals and Solutions

Abstract

1. Chapter Introduction

2. Time for a Change? Transatlantic Synchrony towards Revealing a Malfunctioning Regime

   1. RPM Legal Regime: Current Challenges undermining its Efficacy

3. Horizontal Non-consensus: Should NCAs have their own agenda?

4. A New Way Forward: Developing a More Viable Approach to RPM Enforcement

   1. Proposed RPM Solutions

   2. Solution 1: Escaping automatic Article 101(3) TFEU applicability: developing a mechanism where RPM can be found inappreciable, and therefore, not in violation of Article 101(1) TFEU

   3. Solution 2: Eliminate RPM's hardcore designation by shifting its inclusion in the VBER from Article 4 to Article 5

   4. Solution 3: Elimination of RPM's hardcore designation through its application to Article 2 of the VBER (original and modified case scenarios)

   5. Solution 4: Application of the De Minimus Doctrine to RPM

   6. Solution 5: Recommendations for Improvement of Status Quo

5. Chapter Conclusion

Chapter 8 Conclusion

Abstract

1. Conclusion: Most Serious Considerations to Enhance the Efficacy of the Current RPM Regime

   1. Overview of Solutions: The Best Way Forward

2. Final Remarks

Annex 1 RPM US Origins

Annex 2. RPM Economic Models

Annex 3. RPM Model Timeline

Index