It will surprise most of the ABA to learn that they are not in the pocket of big business. There has been some progress in recent decades, but the ABA was the creation of business lawyers, and has always put the good of the corporate community ahead of mere people.

The sophistry you recite about vertical price-fixing is exactly what the Court attempted to do to hide the facts. But it fails on two grounds:

First, anyway it is considered, it was judicial activism – right wing judges saying that they didn’t like the law and changing it, rather than leaving it for the congress to change, if the voters demanded a change;

Second, the Avis rent-a-car decision disclosed that there is nothing vertical about the decision. Avis agents wanted to compete against Budget agents. But the parent company wouldn’t let them. That’s two competing entities (yes, both are owned by the same parent corporation) like Fox and Warner Bros. But their owner wouldn’t let them compete, because, as the Court said, price-fixing was OK.

Those small Avis franchisees wanted to make a fair return, but the parent company denied them the opportunity. That’s not supporting small business.

That’s not handbags. And NO! No worker benefits from being forced to pay a higher price in the open market simply because a company wants to increase its earnings and uses price-fixing to do it.

No amount of corporate sophistry will change that truth.

Tom

There has been a distinction between “per se” violations (typically horizontal price fixing or territory restrictions)that are egregiously harmful and are banned, and other forms of behavior or agreements that might be harmful that are subject to a review based on the “rule of reason”.

“In recent years, the Supreme Court has consistently moved into a direction of economic rationality. In my view, if the Supreme Court continues with that trend, then the per se rule should not apply,” said Joseph Angland, chair of the American Bar Associations’s section of anti-trust law, who filed the amicus brief on behalf of 24 economists. “The per se rule is not rooted in coherent economic analysis.”

In filing the brief, the group urged the Supreme Court to replace the blanket prohibition under the per se rule with a more “intelligent” approach by rule of reason.

Angland added that a resale price maintenance can, in fact, enhance competition in instances where new products are introduced to the market that require the retailer’s sales efforts to help consumers understand the virtue of the product.”
http://otd.oyez.org/cases/2006/leegin-creative-leather-products-inc-v-psks-inc-dba-kays-kloset-06282007

Doesn’t support of small businesses attempting to achieve a satisfactory economic return allow them to continue to employ workers? Don’t those workers benefit from having a paying job? Was the product at hand a life-sustaining drug or medical aid? No, it was a purse. Are the “poor” somehow worse off because they were unable to buy the purse at an elevated price?

The Rule of Reason provides that behavior still can be banned by the courts if economic harm is proven. In this case no substantive harm to consumers was shown.