STATEMENT OF COMMISSIONERS ORSON SWINDLE AND THOMAS B. LEARY
In the Matter of
We have voted to accept the consent agreement for public comment because we have reason to believe that the conduct engaged in by Nine West falls outside the limited zone of protection afforded by the Colgate doctrine,(1) and thus is per se illegal under current law. We do not mean to indicate agreement, however, with the artificial analysis mandated by the Colgate doctrine or with the overbroad per se condemnation of minimum resale price maintenance ("RPM"), which the Colgate doctrine mitigates to some degree.
We do not know what conclusion we might have reached had Nine West's behavior been analyzed under the rule of reason, because that question did not arise. Nevertheless, one can easily posit instances of minimum RPM that involve a mixture of procompetitive and anticompetitive effects, like any other vertical restraint, and undercut the continuing validity of the per se rule against the practice. Several years ago, the Supreme Court took the beneficial step of reexamining and overruling the doctrine that condemned maximum RPM as per se illegal.(2) When an appropriate case arises, we believe that the Court should continue this healthy trend by reassessing the even hoarier per se treatment of minimum RPM.(3)
1. United States v. Colgate & Co., 250 U.S. 300 (1919).
2. State Oil Co. v. Khan, 522 U.S. 3 (1997), overruling Albrecht v. Herald Co., 390 U.S. 145 (1968).
3. Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911).