Quote:
Originally Posted by Kali Yuga
I slightly disagree with LakeLoon in that I'm fairly sure Leegin is relevant. It allows manufacturers to set price controls at retail, as long as it meets certain criteria.
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Boy, try to say complex things in a few words, and you get into trouble! I was making a different point, kind of a technical one. I don't think we're in disagreement.
Under the antitrust laws that deal with "combination, contract, or conspiracy"--i.e., agreement--you cannot violate the law unless you establish that an agreement exists between 2+ entities. It is a threshold question. No agreement, no Sherman Act Section 1 violation (or its analogs under state law).
Where you are talking about the relationship between a principal and agent, arguably there are not two entities, economically speaking. Just like you cannot have an antitrust conspiracy between the president and the vice-president of the same company. Just like a parent corporation is not "price-fixing" when it agrees on pricing with a wholly-owned subsidiary.
Leegin does not address this question of "what constitutes an agreement?" One could easily have raised the argument before
Leegin, and
Leegin did not make the argument any more or less valid.
However, if you assume that the "agency" argument is rejected, and the principal and agent are deemed to be two separate actors capable of entering into an anticompetitive agreement,
then Leegin becomes relevant. I think this is your point, and if so I agree.
Addendum: if you are really interested in this question, the Supreme Court's recent decision in
American Needle deals with exactly this type of issue (although a different fact pattern). See in particular footnote 5, talking specifically (albeit in dictum) about agency.