IV. Conclusion

The Supreme Court in Leegin Creative Leather Products, Inc v. PSKS, Inc. announced a notable shift in the law of minimum resale price maintenance by implementing a rule of reason standard. In contrast to the former per serule, the rule of reason stands to allow many minimum resale price maintenance policies to survive legal scrutiny. Retailers that compete for sales based on price, including many online retailers, risk being disadvantaged if their suppliers choose to enact pricing policies. Procompetitive effects identified as permissible, such as preventing free riding on services of a competitor, squarely target a number of online businesses.

While legal barriers to minimum resale price maintenance have been largely removed, practical and economic barriers still remain. Both the history of resale price maintenance and the modern focus on efficiency in supply tend to suggest minimum resale price maintenance will remain a niche business tool without widespread use in the marketplace. Some online merchants will experience difficulty, but many will be able to continue offering bargains and convenience to shoppers around the world. Fears that the Leegin decision signals the death of online discounting are premature.