According to the
FindLaw website--
Quote:
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Consignment sales. For many years it was accepted antitrust doctrine that, in consignments to a true agent (as opposed to a merely formal arrangement), a seller was free to set the price at which "its" products were sold, even though the agent was otherwise an independent business. The Supreme Court has raised serious questions with respect to the continuing validity of this rule. Vertical price fixing under the guise of a consignment appears to be dangerous whenever the seller is in a position, by using economic leverage, to "coerce" the consignees into compliance. The prudent course is to utilize consignment selling only if there is a good nonprice reason for doing so and, whenever such a method is followed, to treat the consignee as a true agent -- the seller should pay taxes and insurance, maintain inventory control, and give approval on significant decisions.
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So, I think the bottom line is that none of us will know how the courts will rule until the courts rule. Although, it is interesting to speculate.
The Supreme Court has also ruled on the consignment question in
Simpson vs. Union Oil Company, where they basically called Union Oil's use of consignment a scam used merely to provide "cover [for] a vast gasoline distribution system, fixing prices through many retail outlets." They also found that retailers had been coerced into participating in the consignment plan. No doubt the plaintiffs will be making the exact same argument.
Lastly, there is a really good
article written by the NY Times discussing the Leegin Creative Leather Products, which is the case that reversed about 100 years of legal precedent concerning the setting of a minimum sales price. As a side note, it was a 5-4 decision with the conservative judges ruling that sometimes setting a minimum selling price is legal, while all of the liberal judges disagreed.