In the wake of Leegin, companies engaged in cross-border transactions face a great deal of uncertainty regarding how to take advantage of the increased freedom afforded by this new United States policy. A company either undertakes to manage different pricing policies in each jurisdiction, risks the threat of prosecution in certain jurisdictions, or follows the strictest policy in all jurisdictions–none of which are ideal options.
This Note will examine the potential complications of the fact that Leegin now sets the United States at odds with many of its major trading partners in the area of RPM, and the ramifications of that divide. Part II.A reviews the development of United States antitrust law in the area of RPM. Part II.B discusses the details of the Leegin decision, and Part II.C addresses both federal and state reaction to the outcome of the case.
Part II.D then explores international competition law and the implications of Leegin in a global sense, focusing on the interplay between United States antitrust laws and the laws of both Canada and the EU. Parts II.D.1-2 focus on the substantive antitrust law on RPM in Canada and the EU. Part II.D. discusses the mechanics of the exposure of a United States company when engaging in practices that violate foreign antitrust laws. Part II.E then surveys the general trend toward harmonization of international antitrust policy and the efforts of jurisdictions such as Canada and the EU to conform with United States practices.
Part III analyzes the challenges posed by the divergence of United States and international law, and the possibilities for resolution. Part III.A focuses specifically on the options available to companies engaged in cross-border trade and interested in taking advantage of the new federal law in the United States. Part III.B examines the likelihood for resolution and convergence of substantive law on minimum RPM. Part III.B.1 discusses the potential that the states or Congress will overturn Leegin in the United States. Part III.B.2 evaluates the possibility that either Canada or the EU will modify their laws to align with the United States. Part III.B.3 explains that, because of the focus on international convergence of competition policy, the United States domestic response to Leegin will likely play a role in determining the actions of Canada and the EU.
This Note concludes by asserting that the recent emphasis on convergence will likely motivate Canada and the EU to reconsider their RPM policies in light of the Leegin decision, though the uncertainty in the domestic application of Leegin will likely require a waiting period for both the United States and foreign jurisdictions to observe the effects of this precedent. . .