The Kansas legislature recently enacted a law that re-establishes that resale price maintenance (RPM) agreements are subject to a rule-of-reason analysis under Kansas antitrust law. The legislation was a direct response to a Kansas Supreme Court decision which held that contrary to a leading US Supreme Court's decision, RPM agreements are still considered per se unlawful under Kansas antitrust law.
Recent cases in Kansas and New York have illustrated the continued uncertainty of state law concerning resale price maintenance in vertical agreements. This patchwork of laws presents ongoing risks to companies with national resale networks if they choose to use these types of agreement, even though the Supreme Court found them not to be unlawful per se under federal antitrust law in 2007.
The Federal Trade Commission recently released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act. Under the act, acquisitions of assets, voting securities or interests in non-corporate entities are subject to pre-merger notification filing and waiting period requirements if the applicable jurisdictional thresholds are satisfied and no exemption applies.
The Southern District of New York recently approved a proposed final judgment in the Department of Justice's enforcement action against the KeySpan financial hedge arrangement. The department's enforcement action was an aggressive use of Section 1 of the Sherman Act to prohibit an otherwise lawful agreement because it had as its objective a predictably anti-competitive effect.