Recent Legal Developments in Antitrust Law: What Are the Implications for Small Businesses?
美国最高法院近年对转售价格维持（RPM）做出两项关键判决，使制造商更容易控制零售价格，大零售商可限制供应商向折扣竞争对手供货，这可能导致小折扣零售商面临价格竞争或破产风险。
In the past four years the U.S. Supreme Court has issued two critical decisions regarding the practice of vertical price fixing, more commonly called resale price maintenance (RPM). Simply stated, these two cases, Monsanto Co. v. Spray-Rite Service Corp.' and Business Electronic Corp. v. Sharp Electronics Corp., have now made it easier for manufacturers legally to control the prices charged by their retailers and for large, powerful retailers to restrain their vendors from supplying their discount competitors. The impact of these decisions on some small businesses, particularly discount retailers, could come down to two choices: either conform to their competition's prices or possibly go out of business. Indeed, a recent news article by Jack Anderson and Joseph Spear reported that several small discount retail businesses have blamed their bankruptcies on these new legal developments. Others have maintained that they have or may soon have their supplies cut off if they do not buckle under the pressures created by their suppliers, generally precipitated by from retail competitors threatened by discount pricing practices. The purpose of this note is twofold: First, briefly to examine the foregoing cases; second, to discuss how these cases may affect small businesses. Resale Price Maintenance A Matter of Standards Vertical relationships or dealings between independent business entities are the norm in the U.S. economy. This is due to economic realities which dictate that it is more economical to do business in this fashion than to own every vertical link.' Due to the need of the parties involved to control and protect their interests legally, contracts are typically negotiated. In the past, there have been instances when these contracts have been deemed to be in restraint of trade and therefore in violation of antitrust law. Resale price maintenance is one such antitrust violation under the Sherman Antitrust Act. Resale price maintenance exists when a seller, generally the manufacturer, tries to set a minimum or maximum resale price on its goods or services. The buyer, who may be a distributor, must then often be persuaded into pressuring the retailer to follow suit. Starting in 1911 with the precedent-setting case of Dr. Miles Medical Co. u. John D. Park & Sons Co., the Supreme Court has consistently ruled that RPM is a per se violation. What this has meant is once RPM is proved to exist, no defenses are permitted since it is thought to be inherently pernicious, with no redeeming competitive qualities. An analysis of the following two cases, however, will show that the Supreme Court has set off in a new direction in regard to RPM. One case eases off in the use of the per se standard, and the other places a greater burden of proof on the plaintiff in an RPM case. Both decisions may profoundly affect small business. Monsanto v. Spray-Rite Service Corp.: An Added Burden of Proof InMonsanto v. Spray-Rite Service Corp., the Supreme Court placed upon the plaintiff a much greater burden of proof than was formerly required in prosecuting an RPM violation. In effect, the Court has ruled that a purported victim of RPM must now produce, something more than evidence of complaints by its competitors made to their common supplier in order to prove that the company was a victim of vertical pricefixing conspiracy. According to the Court, the more stringent burden of proof was necessary since are a normal and legitimate form of communication between suppliers and their customers. Furthermore, the amount of proof necessary must be sufficient to exclude the possibility that the supplier and the plaintiffs competitors were acting independently. This rule confirmed the long-standing precedent enunciated in United States v. Colgate & Co. which recognizes the supplier's right to deal independently or not to deal with a buyer. …