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Franchisor Price Fixing: What Does Leegin Really Mean for Franchising?
By now, everyone seriously involved in the practice of franchise law is aware of Leegin Creative Leather Products, Inc. v. PSKS, Inc., 2007 WL 1835892 (S. Ct. June 28, 2007). The Supreme Court in Leegin held that vertical resale price maintenance is no longer unlawful in and of itself. Although hailing the decision as overruling a nearly 100-year prohibition on minimum price fixing, the pundits writing in the wake of Leegin have nevertheless hedged their bets on just how revolutionary the decision is. Their constant mantra is this: Leegin does not open the door to unrestrained resale price maintenance, but rather changes the rules under which courts will evaluate sales agreements setting minimum prices. No longer will courts treat them as unlawful per se; they will now evaluate their legality under something called 'the rule of reason.' If a court (or jury) concludes that an agreement establishing a minimum price is an 'unreasonable restraint of trade,' then the supplier has violated the antitrust laws. If the threat of treble damages from such a finding isn't sobering enough, writers warn us that courts may interpret state 'baby Sherman Acts' as still making resale price maintenance unlawful per se, regardless of what the U.S. Supreme Court says.
These warnings are sage advice coming from authors trying to generalize on the broad application of Leegin to a wide variety of suppliers and purchasers of products. After all, the Supreme Court itself warns that 'if the rule of reason were to apply to vertical price restraints, courts would have to be diligent in eliminating their anticompetitive uses from the market.' The problem with carrying this warning to the extreme is that it defeats one of the Supreme Court's very purposes in abandoning the per se rule, namely, to create a degree of certainty for sellers of products rather than serve 'the interests of lawyers … by creating legal distinctions that operate as traps for the unwary ' '
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.