Earlier this month, the Kansas Supreme Court ruled that the reasonableness of a vertical price fixing agreement is not to be considered when determining whether such an agreement violates the Kansas Restraint of Trade Act (KRTA). Kansas Supreme Court precedent that called for a “reasonableness rubric”—a determination of whether a restraint was reasonable in view of all of the facts and circumstances—was overruled. In addition, the court decided that the “rule of reason” of federal antitrust jurisprudence did not apply. It refused to read unwritten elements, such as a reasonableness requirement, into the otherwise clear legislative language of the Kansas antitrust law.

The action [...]

The State of New York was not entitled to an order enjoining mattress manufacturer Tempur-Pedic International, Inc. from restricting discounting by its authorized retailers, a New York state court has ruled. The New York Attorney General alleged that Tempur-Pedic violated New York General Business Law Sec. 369-a, which renders minimum resale price agreements unenforceable. These alleged violations, according to the state, constituted repeated and persistent illegal and fraudulent conduct in violation of New York Executive Law Sec. 63(12), which permits the state attorney general to seek an order enjoining such acts.

The state’s investigation into Tempur-Pedic’s retail pricing policies began [...]

Attendees at this fall’s American Bar Association Forum on Franchising meeting should be forgiven if they left San Diego a bit confused about antitrust trends in the practice area. That’s because two major sessions presented different views on the future of antitrust issues in franchise and distribution law.

An antitrust workshop (“Antitrust Issues: Back in Vogue”) pointed to the leniency of antitrust enforcement of vertical agreements during the last 30 years, but predicted a change due to the pro-enforcement stance of the Obama administration. “In many ways, the pendulum has now begun to swing in the other direction.”

A contrary view was expressed during the Annual Franchise a [...]

A decision from a divided U.S. Court of Appeals in Atlanta earlier this month continues the debate over the appropriate pleading standard for antitrust plaintiffs under Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544.

The appellate court held that consumers failed to support their resale price fixing and horizontal price fixing claims against the manufacturer of visco-elastic Tempur-Pedic foam mattresses. The majority affirmed judgment for the defendants, dismissing the plaintiffs’ complaint with prejudice (2008-1 Trade Cases ¶76,005).

According to a dissent, “While Twombly was a sea change in the standards governing pleading in federal court, the majority goes too far when it interpre [...]