Resale Price Maintenance and the Law

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.

Contents

Preface

List of Abbreviations

List of Annexes and Tables

Chapter 1 Introduction

Abstract








Topic Introduction





Background on Assessment and Application: Legal Issues and Development



Background on Enforcement Best Practices: Investigative Techniques and Enforcement Protocol




Research Objectives and Main Research Questions



Structure and Scope of Book



Conclusory Remarks



PART I – US HISTORICAL ORIGINS AND ECONOMIC FOUNDATIONS

Chapter 2 The Legal and Political Origins of RPM – United States

Abstract








United States: Historical Origins & Legal Structure of RPM





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



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



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



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



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




Chapter Conclusion: US Historical Origins and Legal Structure



Chapter 3 The Economics of Vertical Agreements – Background

Abstract








Chapter Introduction





General Economic Background of Vertical Restraints



General Economic Background of RPM




Background on Economic Theories of RPM





Link Between Schools of Thought and Economic Models



General Structure of Models: Vertical and Horizontal Elements of RPM



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





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



Models of Change: How the Internet Changed Market Dynamics






Conclusion: RPM Economic Background and E- Commerce



Chapter 4 The Economics of Vertical Agreements – Models

Abstract








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





Anti-Competitive RPM Theories





Facilitating Collusion Upstream or Downstream



Increase in Prices, Lifecycles and Product Favouritism



Foreclosure and Restriction of Entry Both Upstream and Downstream



Foreclosure as a Commitment Device in Protection of Monopoly Rents



Dampen or Soften Competition Both Upstream and Downstream




Pro-Competitive RPM Theories





Special Services and Free-riding



Quality Certification and Signalling



Image Theory: The Allure of Paying More



Demand Uncertainty and Inventories



Outlets and Distribution Density



Moral Hazard and Double Moral Hazard



Production of a Good when Manufacturers’ Risks are Low



Contract Enforcement Mechanism and Quality Control



Loss Leader Selling



Less Efficient Dealer and/or Distributional Efficiency



Price Discrimination



Spatial Price Discrimination



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



RPM with Optimal Delegation



New Market Entry or Product Launch



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






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








European Union: Historical Origins & Legal Structure of RPM





Historical Background of EU Vertical Enforcement



Current Legal Structure of EU Vertical Enforcement





Block Exemptions and their role in vertical restraint enforcement



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






Chapter Conclusion: EU Historical Origins and Legal Structure



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

Abstract








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





A Background on By-Object Restrictions: The Finer Details



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





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



By-Object Categorisation: Approaches to Appreciability






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



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





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




Chapter Conclusion



PART III – PROPOSALS, IMPLICATIONS AND SOLUTIONS

Chapter 7 Proposals and Solutions

Abstract








Chapter Introduction



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





RPM Legal Regime: Current Challenges undermining its Efficacy




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



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





Proposed RPM Solutions





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



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



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



Solution 4: Application of the De Minimus Doctrine to RPM



Solution 5: Recommendations for Improvement of Status Quo






Chapter Conclusion



Chapter 8 Conclusion

Abstract








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





Overview of Solutions: The Best Way Forward




Final Remarks



Annex 1 RPM US Origins

Annex 2. RPM Economic Models

Annex 3. RPM Model Timeline

Index