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Originally Posted by Elfwreck
There's a difference between "minimum prices are sometimes legal" and "it's okay for competitors to get together and agree to all raise their minimum prices at the same time."
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Sure there's a difference. The point is that the defense can argue that the exception created by
Leegin be extended from one supplier acting alone to a group of suppliers. Will that work? Maybe.
Defense counsel, however, can make that argument and they would be crazy not to. After all, its a very corporate friendly court. You have to be realistic about these things, and there aren't nine consumer advocates sitting up there. From the holding:
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A single manufacturer’s use of vertical price restraints tends to eliminate intrabrand price competition; this in turn encourages retailers to invest in services or promotional efforts that aid the manufacturer’s position as against rival manufacturers. Resale price maintenance may also give consumers more options to choose among low-price, low-service brands; high-price, high-service brands; and brands falling in between. Absent vertical price restraints, retail services that enhance interbrand competition might be underprovided because discounting retailers can free ride on retailers who furnish services and then capture some of the demand those services generate. Retail price maintenance can also increase interbrand competition by facilitating market entry for new firms and brands and by encouraging retailer services that would not be provided even absent free riding. Pp. 9–12.
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DEfense counsel arguments track the holding almost word for word. Just substitute "independent booksellers" for "high-price, high-service brands" and "online retailers"for "discounting retailers" .
Are non -collusion defense arguments inappropriate or hopeless? I think not.