UC Law Constitutional Quarterly


This article explores the circumstances under which inconsistent state antitrust regulation of minimum resale price maintenance (or RPM) may be unconstitutional under the dormant Commerce Clause. In particular, a handful of states purport to prohibit RPM and thus conflict with the substantive treatment of RPM under the antitrust laws of other states. This conflict among the states stems from the Supreme Court's recent decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), in which the Court overturned its near-century old prohibition under the Sherman Act, and held instead that RPM should be assessed under a rule of reason.

Most states construe their state antitrust laws in a manner consistent with the Sherman Act pursuant to harmonization statutes and thus have, or are predicted to follow Leegin. That is not the case in all jurisdictions, however. This conflict has led some manufacturers to forego legitimate RPM programs entirely despite the fact that Leegin States far outnumber Per Se States and such programs would under most circumstances be lawful in the Leegin States. As noted above, this article explores the circumstances under which such inconsistent state antitrust regulation may run afoul of the dormant Commerce Clause, and concludes that such a challenge may lie under the extraterritoriality doctrine as applied to manufacturers that distribute products through resellers in interstate markets.