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Leegin’s 10-Year Checkup: US Influence On RPM Overseas

Geoffrey D. Oliver et al., Law360, June 27, 2017

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Outside the United States, competition law practitioners in the European Union, Japan, China and Australia continue to debate the appropriate analysis to be applied to vertical restraints. Vertical restraints analysis in each of these jurisdictions has been influenced by U.S. developments, and each jurisdiction applies an analysis to vertical restraints that involves similarities to a rule of reason. But with respect to vertical price restraints, while these jurisdictions have held out the possibility of somewhat greater flexibility, none has gone so far as to adopt the Leegin result. Rather, each continues to apply a presumption of illegality to resale price agreements, although subject to rebuttal in the EU, Japan and China, and the option of applying for an exemption before entering into such an agreement in Australia.

Understanding the interplay of these legal standards is critical for companies that operate on a global basis. This article summarizes briefly the individual approaches to vertical price agreements in each of these jurisdictions and offers suggestions for ensuring that a resale price maintenance policy complies with applicable competition law.

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