To bookend my recent discussion of the New York appellate division’s decision in Tempur-Pedic, I’ll mention here the Kansas Supreme Court’s decision in O’Brien v. Leegin Creative Leather Products, Inc., No. 101,000 (May 4, 2012). There, the court held that vertical RPM is subject to challenge under Kansas state law, and that the Rule of Reason does not apply. The relevant Kansas statutes forbid all vertical price-fixing by two or more persons or between persons.
Thus, despite the U.S. Supreme Court’s decision in Leegin Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), that RPM is subject to the Rule of Reason under federal law, per se challenges remain viable under some states’ laws. Manufacturers and suppliers should take note.