# Leegin v. PSKS (2007) **Argued:** March 26, 2007 · **Decided:** June 28, 2007 · **5–4, Justice Anthony Kennedy** · 551 U.S. 877 The last per se rule against a vertical restraint, overruled — closing a doctrinal project that began thirty years earlier in [[Continental TV v. GTE Sylvania]]. Leegin made Brighton-brand leather accessories and refused to sell to retailers who discounted below its suggested prices. Kay's Kloset, a small Texas store that discounted, was cut off and sued. Under *Dr. Miles Medical Co. v. John D. Park & Sons* (1911), minimum resale price maintenance had been per se illegal for 96 years. Kennedy, joined by Roberts, Scalia, Thomas and Alito, moved it to the [[Rule of Reason]]: > "Vertical price restraints are to be judged according to the rule of reason." The justification is the same free-riding argument as *Sylvania*: a discounter takes sales from the retailer who provided the showroom, the demonstration, and the sales staff, so a manufacturer may rationally set a price floor to buy dealer services rather than to suppress competition. ## The dissent Justice Breyer, with Stevens, Souter and Ginsburg, argued from stare decisis and from arithmetic: > "We write, not on a blank slate, but on a slate that begins with Dr. Miles and goes on to list a century's worth of similar cases." His empirical point was that resale price maintenance "will likely raise the price of goods at retail," costing consumers in the range of hundreds of dollars per family per year if it spread even modestly. ## The congressional history the majority passed over Congress had spent forty years legislating **for** resale price maintenance, not against it. The [[Miller-Tydings Act]] (1937) and the McGuire Act (1952) created federal exemptions precisely so state "fair trade" laws could enforce minimum retail prices, and Congress repealed those exemptions in 1975 in order to restore the *Dr. Miles* rule. *Leegin* undid by construction what Congress had done by statute thirty-two years earlier. ## What happened after Federal per se liability for minimum RPM is gone. Enforcement migrated to the states — California and Maryland restored per se treatment legislatively, and state attorneys general have carried most of the subsequent cases. That state-federal divergence, small in 2007, is now a defining feature of American antitrust: see the 2026 [[Live Nation Antitrust Case]], where DOJ settled mid-trial and more than thirty states went to verdict and won. See [[US Antitrust and Monopoly Timeline]].