Abstract

In this article, two enforcement officials at the Federal Trade Commission reexamine resale price maintenance in light of the Supreme Court's recent decision in Monsanto Co. v. Spray-Rite Service Corp. Commissioner Calvani and Mr. Berg consider both antitrust law and economic policy in their review of the history of resale price maintenance; they point out the chronic inconsistencies to which this antitrust regime has been subject, and identify these same inconsistencies at work in Monsanto. The authors set forth three theses with respect to Monsanto: first, that the Court intimated a willingness to reconsider at some future time the per se standard of illegality for resale price maintenance; second, that the Court recognized the continuing vitality of the Colgate doctrine, which had been seriously questioned in recent years; and, third, that the Monsanto Court unsuccessfully attempted to delineate a workable evidentiary standard applicable to communications between sellers and resellers when it is alleged that such communications constitute an illegal contract, combination, or conspiracy under section one of the Sherman Act. The authors suggest that, taken together, these elements in Monsanto display a doctrine at war with itself. The authors conclude by examining the possible implications of the Monsanto decision for the future direction of the law of resale price maintenance.

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