Antitrust Alert: Everything Must End Eventually: The Fifth Circuit Buries Leegin Epic Vertical Price Fixing Case is Over


In its second encounter with PSKS, Inc. v. Leegin Creative Leather Products, Inc., the U.S. Court of Appeals for the Fifth Circuit on August 17, 2010 affirmed the dismissal on the pleadings of the plaintiff’s antitrust claims for vertical minimum price fixing (aka resale price maintenance). This was a huge swing. In the first encounter in 2006, the Court had summarily affirmed a large jury verdict in favor of PSKS based on the same claims. However, in the interim the United States Supreme Court granted certiorari and shook the antitrust world by overturning one of its oldest antitrust decisions, Dr. Miles Medical Co. v. John D. Park & Sons Co., 31 S. Ct. 376 (1911), which had established a per se rule of illegality for vertical minimum price fixing agreements between a manufacturer and its distributors. What had been a winner under the old law was a loser under the new law.

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