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Bejček , Josef --- "The Leegin Case: A US Antitrust Chief Event versus a Storm in a European Teacup?" [2011] ELECD 746; in Drexl, Josef; Grimes, S. Warren; Jones, A. Clifford; Peritz, J.R. Rudolph; Swaine, T. Edward (eds), "More Common Ground for International Competition Law?" (Edward Elgar Publishing, 2011)

Book Title: More Common Ground for International Competition Law?

Editor(s): Drexl, Josef; Grimes, S. Warren; Jones, A. Clifford; Peritz, J.R. Rudolph; Swaine, T. Edward

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849803946

Section: Chapter 6

Section Title: The Leegin Case: A US Antitrust Chief Event versus a Storm in a European Teacup?

Author(s): Bejček , Josef

Number of pages: 11

Extract:

6. The Leegin case: A US antitrust
chief event versus a storm in a
European teacup?
Josef Bejcek

1 GENERAL REMARKS

I am afraid that all arguments have been made already. Now, it is merely
about balancing them, accepting some of them and denying others. It is,
to a great extent, a question of beliefs, trust and value-based prejudices.
The Leegin case has reopened the old and, many times and in differ-
ent variations, repeated question whether some judicial activism working
against the legislative intent has occurred or whether a final sound step
in removing a rigid per se obstacle to potentially procompetitive vertical
restraints has been made.
The key headline of this case might be: another lap in the balancing of
legal certainty, justice and the suitability of antitrust law.
The overruling of Dr. Miles1 is less dramatic than it might appear.
Leegin represents only a slight erosion of the Sherman Act's historical pro-
hibition of RPM.2 Leegin did not hold that RPM is per se legal ­ at least
not formally; however, the real social, psychological and factual impact
may yet be another story.
The undertakings may well believe that practicing RPM is not connected
with a real risk of sanction so that therefore it will always pay off. It is
interesting to note that according to some lawyers there has also been
a decrease of interest on behalf of companies in both the creation and
introduction of compliance programs in recent times.3 Therefore, there ...