AMERICAN BAR ASSOCIATION …

                               AMERICAN BAR ASSOCIATION
                                SECTION OF ANTITRUST LAW
                            REPORT TO THE HOUSE OF DELEGATES

                                     RECOMMENDATION


1        RESOLVED, That the American Bar Association recommends that the Sherman Act, 15
2        U.S.C. § 1, and comparable state and territorial laws should not be interpreted to apply a
3        rule of per se illegality to agreements between a buyer and seller setting the price at
4        which the buyer may resell goods or services purchased from the seller.




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                                            REPORT

I.      INTRODUCTION

        This report presents the view of the American Bar Association Section of Antitrust Law
concerning the standard for determining the legality of minimum resale price maintenance under
the Sherman Act, 15 U.S.C. § 1, and comparable state and territorial antitrust laws. The United
States Supreme Court granted certiorari in Leegin Creative Leather Products v. PSKS, Inc., No.
06-480, on December 7, 2006, after earlier recalling and staying the mandate of the Court of
Appeals for the Fifth Circuit. The Fifth Circuit had applied a rule of per se illegality to the
setting of a minimum resale price, and the Supreme Court will address whether minimum resale
price maintenance should be subject to that rule.


II.     RECOMMENDATION

        The Section of Antitrust Law recommends that the American Bar Association support the
position that, under the Sherman Act and analogous State and territorial antitrust law, agreements
between a buyer and seller setting the price at which the buyer may resell a product or service
purchased from the seller should not be illegal per se.

        The Sherman Act and the many State and territorial antitrust laws that are modeled on the
Sherman Act contain language prohibiting every agreement in restraint of trade, but the Supreme
Court has interpreted this language to prohibit only unreasonable restraints and has formulated
two modes of analysis to determine whether a particular restraint should be considered
unreasonable. "[M]ost antitrust claims are analyzed under a `rule of reason,' according to which
the finder of fact . . . tak[es] into account a variety of factors, including specific information
about the relevant business, its condition before and after the restraint was imposed, and the
restraint's history, nature, and effect." State Oil Co. v. Khan, 522 U.S. 3, 10 (1997). "Some
types of restraints, however, have such predictable and pernicious anticompetitive effect, and
such limited potential for procompetitive benefit, that they are deemed unlawful per se." Id.
Today, there "is often no bright line" separating rule of reason from per se analysis; the rule of
reason encompasses a range of analysis, extending from an abbreviated "quick look" to a
"plenary market examination," and even where the rule of reason is not applied, "a `considerable
inquiry into market conditions' may be required before the application of any so-called `per se'
condemnation is justified." California Dental Ass'n v. FTC, 526 U.S. 756, 779 (1999), quoting
National Collegiate Athletic Ass'n, 468 U.S. 85, 104, n. 26 (1984).

        The rule of per se illegality against vertical price fixing (i.e., agreements between buyers
and sellers setting the resale price) was established by the Supreme Court in 1911 in Dr. Miles
Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911). That decision was based, inter
alia, on the Court's application of the common law rule against restraints on alienation and its
concern that minimum resale price maintenance could achieve the same purpose as an agreement
among the buyers themselves to fix the prices at which they would resell.




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        Subsequently, in United States v. Colgate & Co., 250 U.S. 300 (1919), the Court clarified
that the Sherman Act does not apply to sellers' unilateral refusals to deal with buyers that fail to
charge the resale prices suggested by the sellers, thereby permitting sellers to exercise substantial
influence over resale prices so long as they avoid entering into bilateral agreements to this effect.
The Colgate doctrine was unsuccessfully challenged, on the ground that it was tantamount to
minimum resale price maintenance, in Russell Stover Candies, Inc. v. FTC, 718 F.2d 256 (8th
Cir. 1983), and then was squarely reaffirmed by the Supreme Court in Monsanto Co. v. Spray-
Rite Service Co., 465 U.S. 752, 762-63 (1984).

        At one time, the rule of per se illegality applied not only to minimum resale price
maintenance, but to most vertical resale restraints between buyers and sellers, including both
price restraints and non-price restraints. See United States v. Arnold, Schwinn & Co., 388 U.S.
365, 380 (1967). Incrementally, however, the Supreme Court has abandoned this standard,
except for the per se rule against minimum resale price maintenance, in favor of the rule of
reason, under which the procompetitive effects of a restraint are weighed against the
anticompetitive effects. The Court has "ma[d]e clear that departure from the rule of reason
standard must be based upon demonstrable economic effect rather than--as in Schwinn--upon
formalistic line drawing." Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 58-59
(1977).

        The chief reason for this about-face was the recognition that vertical resale restraints
simultaneously have the potential to reduce competition between resellers of the same brand
("intrabrand competition") while stimulating competition between different brands ("interbrand
competition") by stimulating resellers of each brand to compete harder. Continental T. V., supra,
433 U.S. at 51-52. Manufacturers and other sellers impose vertical restraints "to induce retailers
to engage in promotional activities or to provide service and repair facilities necessary to the
efficient marketing of their products" which otherwise, "[b]ecause of market imperfections such
as the so-called `free rider' effect, . . . might not be provided . . . ." Id. at 55.

       Thus, the Court overruled application of the per se rule to such non-price resale restraints
as location clauses, territorial restraints and customer restraints, holding that these restraints
should be judged under the rule of reason. See Continental T. V., supra, 433 U.S. 36.

         Addressing price-related vertical restraints, the Court has held that the rule of per se
illegality does not apply to bona fide consignment sales, maximum resale price maintenance, or
agreements between a buyer and a seller for the seller to stop doing business with buyers that
resell below a particular price. Simpson v. Union Oil Co., 377 U.S. 13 (1964); State Oil Co. v.
Khan, 522 U.S. 3 (1997); Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717
(1988). At the same time, lower courts have declined to apply the per se rule to agreements
against advertising at prices that are less than an agreed level. E.g., Illinois Corporate Travel,
Inc. v. American Airlines, Inc., 806 F.2d 722, 728-29 (7th Cir. 1986), cert. denied, 495 U.S. 919
(1990); see also In re Advertising Checking Bureau, 109 F.T.C. 146 (1987).

       The Section of Antitrust law believes that the time has come to extend the rule of reason
approach of these earlier decisions to minimum resale price maintenance because the same
motives that manufacturers possess for entering into non-price vertical restraint agreements can



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also explain their motivation for wanting to enter into minimum resale price maintenance
agreements. Manufacturers view dealer margins as their cost of distribution and have no
economic incentive to overcompensate dealers--if they want to raise prices they need only raise
their own wholesale prices to the dealers without limiting the prices at which the dealers may
resell. See Continental T.V., supra, 433 U.S. at 56 n. 24. As explained further below, minimum
resale price maintenance, like other vertical resale restraints, can stimulate interbrand
competition and is not so inevitably pernicious as to warrant per se illegality.


III.     REASONS WHY THE AMERICAN BAR ASSOCIATION SHOULD SUPPORT
         APPLYING THE RULE OF REASON TO MINIMUM RESALE PRICE
         MAINTENANCE

       There are several reasons to support application of the rule of reason to minimum resale
price maintenance, including the following:

A.       The Weight of Economic Analysis Favors Application of the Rule of Reason

        The economic literature weighs heavily against condemning all minimum resale price
agreements to per se illegality. Notable examples include Robert H. Bork, The Antitrust Paradox
32 (1978), and Richard A. Posner, Antitrust Law 189 (2d ed. 2001). See generally ABA
SECTION OF ANTITRUST LAW, ANTITRUST LAW AND ECONOMICS OF PRODUCT DISTRIBUTION 37-
76 (2006) ("the bulk of the economic literature on [minimum resale price maintenance] . . .
suggests that [minimum resale price maintenance] is more likely to be used to enhance efficiency
than for anticompetitive purposes"). The seminal treatment appears in Lester G. Telser, Why
Should Manufacturers Want Fair Trade, 3 J. L. & ECON. 86 (1960), which explained why
manufacturers would adopt minimum resale price maintenance to assure the efficient distribution
and marketing of their products--by encouraging dealers to promote the product without fear of
"free riding" by rival dealers of the same brand that cut prices and spend little or nothing on
services. As this principle is described by Judge Posner, when dealers are forced to compete
without cutting prices, they "vie with one another to provide presale services" and the
manufacturer benefits. Richard A. Posner, Legal Narratology, 64 U. CHI. L. REV. 737, 738
(1997). The prevailing view among economists is that minimum resale price maintenance is
more often adopted to serve the interests of manufacturers in achieving efficiencies in
distribution than to serve the interests of dealers in assuring their margins. See Business
Electronics Corp. v. Sharp Electronics Corp., supra, at 727 n. 2 ("[r]etail market power is rare"
citing Baxter, The Viability of Vertical Restraints Doctrine, 75 Calif. L. Rev. 933, 948-49
(1987)).

B.       The "Ancient Rule Against Restraints on Alienation" Does Not Support A Per Se Rule
         Against Minimum Resale Price Maintenance

        The Supreme Court's ruling in Dr. Miles was predicated largely on "the ancient rule
against restraints on alienation," a rule that the Court cited again in its since-overturned decision
in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 380 (1967). However, there never
actually was an unqualified rule against restraints on alienation. "The plain fact is that the



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common law never proscribed all restraints on alienation, even of land, and that the `ancient rule'
which the Court invokes actually permitted such restraints under a variety of circumstances."
Milton Handler, The Twentieth Annual Antitrust Review--1967, 53 VA. L. REV. 1667, 1684
(1967). "Coke on Littleton cannot provide the answers for the problems that vex[ed] us in the
twentieth century," id. at 1685, much less the twenty-first century.

C.       Empirical Evidence Under the Fair Trade Laws and Application of the Colgate Doctrine
         Do Not Support Application of a Per Se Rule

       There have been several empirical tests of minimum resale price maintenance, none of
which proves that the practice is always destructive. Between 1937, when the Miller-Tydings
Fair Trade Act, Pub. L. No. 75-314, 50 Stat. 693, was passed, and 1975, when the Consumer
Goods Pricing Act of 1975, Pub. L. No. 94-145, 89 Stat. 801, was adopted, states were
empowered to adopt Fair Trade Laws permitting manufacturers and retailers to enter into
minimum resale price maintenance agreements. Many states enacted such laws and many
manufacturers took advantage of them, fixing the retail prices at which their products could be
resold. Empirical studies conducted at the time showed that identical products tended to cost
more in Fair Trade states than in other states, but the premise underlying these studies was that
minimum resale price maintenance agreements were usually imposed by buyers upon reluctant
sellers--a premise that, as noted above, has not won universal acceptance among economists.
See ABA ANTITRUST SECTION, MONOGRAPH NO. 2, VERTICAL RESTRICTIONS LIMITING
INTRABRAND COMPETITION 79-80 (1977). There is no indisputable evidence that such
agreements created additional market power for any individual brand or were destructive of
market-wide competition. Nevertheless, Congress chose to end the program during the decade
when Schwinn was still controlling law.

        More recently, since the 1984 Monsanto decision reaffirmed the Colgate doctrine and the
right of sellers to stop doing business with discounters, numerous sellers have relied upon this
doctrine to announce that they will not sell to discounters and to cut off dealers that resell at less
than suggested resale prices. See, e.g., Euromadas, Inc. v. Zanella, Ltd., 368 F.3d 11, 17 (1st
Cir. 2004); Audio Visual Associates, Inc. v. Sharp Electronics Corp., 210 F.3d 254, 262 (4th Cir.
2000). The result has been to curtail discounting for the products affected, and as the FTC
predicted in Russell Stover, the outcome has been very close to the effect of minimum resale
price maintenance, but again there is no evidence that the impact has been the augmentation of
market power or a diminution in interbrand competition. This has led to criticism that the per se
rule against minimum vertical price fixing has become a trap for the unwary, with sophisticated
companies accomplishing almost the same result without illegality, but only by jumping through
the hoops of the Colgate defense, a result that critics consider both inefficient and unfair.

         Finally, more recent empirical study conducted into the effects of minimum resale price
maintenance by Federal Trade Commission personnel has found no basis for concluding that
minimum resale price maintenance is always anticompetitive or for preserving the rule of per se
illegality. See Pauline M. Ippolito, Resale Price Maintenance: Empirical Evidence from
Litigation (FTC 1988); Pauline M. Ippolito, Resale Price Maintenance: Empirical Evidence
from Litigation, 34 J. L & ECON. 263 (1991). See also Thomas R. Overstreet, Jr., Resale Price
Maintenance: Economic Theories and Empirical Evidence (FTC 1983); Ronald N. Lafferty,



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Robert H. Lande and John B. Kirkwood, Impact Evaluation of Federal Trade Commission
Vertical Restraints Cases (FTC 1984); Howard P. Marvel & Stephen McCafferty, Resale Price
Maintenance and Quality Certification, 15 RAND J. ECON. 346 (1984).

D.       Outlawing Minimum Resale Price Maintenance Has Raised Barriers to Entry and
         Produced Anticompetitive Effects

         The rule of per se illegality against minimum resale price maintenance has had an impact
on retail competition today that was not addressed or necessarily foreseen when the Supreme
Court decided Dr. Miles. Currently, it is possible for large retailers that carry a wide variety of
products to sell selected products at very low prices--even at or below cost--in order to attract
customers into their stores. The retailer does not need to earn a profit on the sale of such
products because it can make up for this by selling other products to the consumers that frequent
its stores. This strategy works most effectively by discounting products that are exactly the same
at every outlet, so that consumers can easily compare prices. The problem for manufacturers of
these products, however, is that retailers specializing in such products cannot match the
unremunerative prices because they do not carry the wide variety of other products in their
stores. The natural result is the eventual disappearance of more specialized outlets, or their
refusal to support the targeted products, leaving manufacturers and consumers with fewer
options and eventually leaving the large retailers with less competition and greater market power.

       All of these reasons militate against preservation of the rule of per se illegality and in
favor of application of the rule of reason, under which minimum resale price maintenance would
only be unlawful if, on balance, its anticompetitive effects can be proven to outweigh its
procompetitive effects in a relevant market.


IV.     REASONS ADVANCED IN SUPPORT OF THE RULE OF PER SE ILLEGALITY
        AGAINST MINIMUM RESALE PRICE MAINTENANCE

       To assure that this Report reaches a sound conclusion, consideration also has been
afforded to the reasons that have been advanced for preserving the rule of per se illegality against
minimum resale price maintenance, including the following:

A.       Elevating Prices to Consumers

        A common reason advanced for the rule of per se illegality is that minimum resale price
maintenance eliminates the ability of retailers and other resellers to engage in price competition
on a local level--for example by providing fewer services or a less costly location in exchange
for lower prices--thereby resulting in elevated prices to all consumers, including those who
would prefer a less expensive distribution option. See William B. Comanor, Vertical Price-
Fixing, Vertical Market Restrictions, and the New Antirust Policy, 98 HARV. L. REV. 983, 987
(1985); Robert Pitofsky, In Defense of Discounters: The No Frills Case for a Per Se Rule
Against Vertical Price Fixing, 71 GEO. L.J. 1487, 1493 (1983). While non-price vertical resale
restraints may limit the number of resellers that are allowed to compete for any particular sale,
they do not limit the freedom of each competing reseller in a marketplace to adjust its own resale



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price to local conditions, thereby distinguishing non-price vertical resale restraints from vertical
price fixing. Also, while some services may benefit consumers as well as manufacturers, other
services provide little or no benefit to consumers even though resale price maintenance can be
expected to elevate the price that some consumers pay.

        Of course, if minimum resale price maintenance were permitted, and a manufacturer set
too high a resale price, sales of its products would suffer. Again, manufacturers have no
incentive to increase the margins that their dealers earn on each sale unless the result will be
greater sales and greater profits for the manufacturer as well. See Continental T. V., supra, at 56
n. 24. Furthermore, if minimum resale price maintenance harms competition in a relevant
market more than it strengthens competition, it would be subject to condemnation under the rule
of reason. Cf. Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 726-28
(1988) (agreements to terminate "price cutters" subject to rule of reason).

B.       Facilitating Coordination or Collusion Among Sellers

        Another longtime rationale advanced for the per se rule is that minimum resale price
maintenance can facilitate coordination or outright collusion among manufacturers and other
sellers to fix the wholesale prices at which they sell their products to dealers. Although
wholesale prices frequently are not public, making it difficult for one manufacturer to determine
the price that another manufacturer is charging to its dealers, retail prices typically are out in the
open. As a consequence, the fixing of retail prices would make it easier for a manufacturer to
determine whether another manufacturer is "cheating" on an understanding to maintain prices
above a particular level.

        For example, if gasoline refiners were permitted to enter into agreements with service
stations fixing the price at which each service station owner may resell gasoline to consumers,
the refiner could assure that the prices at the pump would be the same at all stations reselling its
brand (either with variation among states to account for differences in taxes in different states or
even without such variation by equalizing the effect of differences in state taxes). This would
enable each refiner to know the retail prices that competing refiners are setting and to coordinate
its own wholesale and retail pricing accordingly. If there were an actual agreement among the
refiners to maintain a particular resale price, it would be easy to detect deviations from that price.
Previously, it has been held that refiners may not intentionally disclose their wholesale prices to
one another, In re Petroleum Prods. Antitrust Litigation, 906 F.2d 432, 445-48 (9th Cir. 1990),
cert. denied, 500 U.S. 959 (1991), but permitting minimum resale price maintenance could be
equally effective in facilitating price uniformity.

       In Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 52 n. 18 (1977), the
Supreme Court observed: "The per se illegality of price restrictions has been established firmly
for many years and involves significantly different questions of analysis and policy [than
nonprice restrictions]. . . . [S]ome commentators have argued that the manufacturer's motivation
for imposing vertical price restrictions may be the same as for nonprice restrictions. There are,
however, significant differences that could easily justify different treatment. In his concurring
opinion in White Motor Co., [372 U.S. 253 (1963),] MR. JUSTICE BRENNAN noted that, unlike
nonprice restrictions, `[r]esale price maintenance is not designed to, but almost invariably does in



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fact, reduce price competition not only among sellers of the affected product, but quite as much
between that product and competing brands.' 372 U.S. at 268. Professor [now Judge] Posner
also recognized that `industrywide resale price maintenance might facilitate cartelizing.' Posner,
[Antitrust Policy and the Supreme Court: An Analysis of the Restricted Distribution, Horizontal
Merger and Potential Competition Decisions, 75 COLUM. L. J. 282 (1975)] at 294 (footnote
omitted)."

        But is this sufficient reason to deny every seller the ability to enter into minimum resale
price maintenance agreements with buyers, regardless of the nature of the product and the
circumstances of its distribution? Plainly, this has not been a rhetorical question, but
manufacturers engaging in horizontal collusion risk fines under the Sherman Act of $100 million
or more and individuals participating in such collusion risk fines of $1 million and ten years in
prison, which provides appreciable deterrence without applying a rule of per se illegality to every
instance of minimum resale price maintenance.

C.       Facilitating Collusion Among Buyers

         A further criticism of minimum resale price maintenance is that it can facilitate collusion
among buyers to maintain supracompetitive prices. As noted earlier, this was a consideration in
the original Dr. Miles decision. However, this not only would run counter to the interests of the
seller, but would require the complicity of resellers of other brands, if there are any. See R. J.
Reynolds Tobacco Co. v. Cigarettes Cheaper!, 2006-2 Trade Cas. (CCH) ¶ 75,393 (7th Cir.
2006) (why a seller would be drawn into a buyers' cartel "is a mystery" because it would be hurt
thereby at least as much as would consumers). In any event, this phenomenon appears to be
sufficiently rare as not to justify perpetuation of a rule of per se illegality. Business Electronics
Corp. v. Sharp Electronics Corp., supra, at 727 n. 2 ("[r]etail market power is rare"). Moreover,
if a seller is drawn into a price fixing conspiracy among buyers, this still would be subject to the
rule of per se illegality, not as a vertical conspiracy but as a horizontal one. See United States v.
General Motors Corp., 384 U.S. 127 (1966).

D.       Congress Has Not Supported Efforts to Overrule the Per Se Rule

        In 1983, the Department of Justice filed an amicus brief in the Monsanto case in favor of
overturning the per se rule of Dr. Miles and wanted to present oral argument to the same effect,
but Congress enacted legislation prohibiting the use of funds "for any activity, the purpose of
which is to overturn or alter the per se prohibition on resale price maintenance in effect under the
Federal antitrust laws." Pub. L. 98-166, 97 Stat. 1071. Congress never has endorsed
abandonment of the per se rule and, when confronted with an effort to achieve this end, chose to
block it, indicating its support for the existing rule. Nevertheless, the per se rule was the creation
of the Supreme Court and it is within the Court's discretion to allow the rule to evolve. As the
Court has recognized, the "changing content" of the term "restraint of trade" in the Sherman Act
already was "well recognized" when the Act was adopted in 1890, and [i]t would make no sense
to create out of the single term `restraint of trade' a chronologically schizoid statute, in which a
`rule of reason' evolves with new circumstances and new wisdom, but a line of per se illegality
remains forever fixed where it was." Business Electronics Corp. v. Sharp Electronics Corp.,
supra, at 731-32.



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V.       CONCLUSION

        For the reasons described above, the American Bar Association Section of Antitrust Law
respectfully requests approval of the proposed resolution.

Respectfully submitted,

Joseph Angland
Chair
Section of Antitrust Law
February 2007




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                                    GENERAL INFORMATION FORM




Submitting Entity:         Section of Antitrust Law

Submitted by:             Joseph Angland
                          Chair

1. Summary of Recommendation

         The recommendation urges the Association to adopt a policy supporting the position that,
         under the Sherman Act and analogous State and territorial antitrust law, agreements
         between a buyer and seller setting the price at which the buyer may resell a product or
         service purchased from the seller should not be illegal per se.

2. Approval by Submitting Entity

         This report with recommendation was approved by the Section Council on October 27,
         2006.

3. Has This or a Similar Recommendation Been Submitted to the House of Delegates or Board
of Governors Previously?

         No similar recommendation has been submitted to the House of Delegates or Board of
         Governors.

4. What Existing Association Policies are Relevant to This Recommendation and Would They
be Affected by its Adoption?

         No relevant policies currently exist.

5. What Urgency Exists Which Requires Action at This Meeting of the House?

         The Section of Antitrust Law seeks approval of the report and recommendation at this
         time to support the filing of an Association brief amicus curiae in the United States
         Supreme Court in support of the petitioner in the case of Leegin Creative Leather
         Products v. PSKS, Inc., No. 04-41243. A petition for a writ of certiorari was filed in that
         case on October 4, 2006. The deadline for filing such a brief will precede the next
         meeting of the House of Delegates.

6. Status of Matter

         See paragraph 5.




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7. Cost to the Association (both direct and indirect costs).

         Adoption of the recommendation would not result in additional direct or indirect costs to
         the Association.

8. Disclosure of Interest

         There are no known conflicts of interest with regard to this recommendation.

9. Referrals

         This recommendation has been submitted to the Section of Business Law and the Forum
         on Franchising.

10. Contact Person (prior to meeting)

         Joseph Angland
         Chair, Section of Antitrust Law
         Heller Ehrman LLP
         7 Times Square
         New York, NY 10036
         (212) 847-8730
         (212) 703-8986 (fax)
         joseph.angland@hellerehrman.com

11. Contact Person (who will present the report to the House)

         Richard M. Steuer
         Antitrust Section Delegate
         Mayer, Brown, Rowe & Maw LLP
         1675 Broadway
         New York, NY 10019
         (212) 506-2530
         (212) 849-5530 (fax)
         (914) 450-6071 (cell)
         rsteuer@mayerbrownrowe.com




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EXECUTIVE SUMMARY

Submitting Entity:         Section of Antitrust Law

Submitted by:             Joseph Angland
                          Chair

1. Summary of Recommendation

         The recommendation urges the Association to adopt a policy supporting the position that,
         under the Sherman Act and analogous State and territorial antitrust law, agreements
         between a buyer and seller setting the price at which the buyer may resell a product or
         service purchased from the seller should not be illegal per se.

2. Summary of Issue That the Recommendation Addresses

         A case pending in the United States Supreme Court, Leegin Creative Leather Products v.
         PSKS, Inc., No. 04-41243, involves a decision of the Court of Appeals for the Fifth
         Circuit that applied a rule of per se illegality to agreements between a buyer and seller
         setting the price at which the buyer may resell a product or service purchased from the
         seller.

3. Explanation of How the Proposed Policy Position Will Address the Issue

         In this Recommendation and Report, the Section of Antitrust Law urges the adoption of
         policy to support the filing of an ABA brief amicus curiae in opposition to application of
         the rule of per se illegality to such agreements.

4. Summary of Any Minority Views or Oppositions that Have Been Identified

         The Section of Antitrust Law is not aware of any minority views or oppositions that are
         relevant to this recommendation.




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