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    December 10, 2008  
FTC; eBay;
AOL; Duane Morris


We don’t think about the Supreme Court while holiday shopping, but maybe we should. In last year’s Leegin decision, the Court held that it’s no longer a per se violation of the Sherman Act for manufacturers to set minimum retail prices for goods. Some discount retailers are up in arms, and last week the American Antitrust Institute convened a high-profile panel at the National Press Club (fittingly, above a Filene’s Basement) highlighting their opposition to the practice.


With AAI President Bert Foer (right), Seth Bloom, GC of the Senate Judiciary Committee’s Antitrust Subcommittee, weighed in against “vertical price fixing,” noting that when allowed for a period in the 20th Century under state “fair trade laws,” consumer prices were 18-24% higher than in states without such laws. Seth works under Sen. Herb Kohl (D-WI) -- yep, as in the Kohl department store chain --  and early next Congress he’s introducing a bill to amend Sherman Act § 1 to make vertical price fixing illegal. Endorsed by 34 state AGs, it needs new sponsors after Senators Clinton and Biden found other employment.


Federal Trade Commish Pamela Jones Harbour smiled for our camera after registering dissatisfaction with the Leegin result. While manufacturer price rules that, say, keep those Nine West shoes out of your budget can still in theory be found invalid under a “rule of reason” analysis, Commissioner Harbour noted her fear that proof problems would mean Leegin gives manufacturers carte blanche to set prices. She favors a rule of presumptive illegality (rebuttable with evidence of no harm to consumers), and is setting up workshops at the FTC with members of the industry to gather facts about pricing experiences and “fill the evidentiary void.”


eBay deputy GC Tod Cohen noted the transparent Internet makes it easy for manufacturers to enforce price floors, even against mom and pop retailers. Tod brought some Silicon Valley sizzle—he was mobbed by an NPR crew afterward and appeared on FOX News, but he took time out for Bisnow to tell us that eBay’s other government affairs priority is “distance sales taxes.” Under a 1992 Supreme Court ruling, states can’t require retailers to collect taxes in states where they don’t have a physical presence, though Congress has authority to grant states that authority. We’re going to order those Santa Clause salt-and-pepper shakers now just to be safe.

Clothes for a Cause

We’re tempted to say you shouldn’t judge this crew by their clothes—but actually, you should. These board members of Gifts for the Homeless were hard at work running the 20th annual clothing drive on Friday: Joe Edmondson of Foley & Lardner, Carol Weiser of Sutherland (GFTH President), Walt Lohmann of Kirkland & Ellis (who rocked out at the group’s summer Battle of the Law Firm Bands), and James Villa, Asst. GC for litigation and antitrust at AOL. The group took in donations from 80 firms, in-house departments, and government agencies (24-foot vans were dispatched for pick-ups at the biggest firms) and distributes clothes to 75 shelters and other groups.


Foley & Lardner had just dropped off a literal truckload of clothes when we stopped by. The donations were stacked in his huge pile, ready for an army of 300-400 volunteers to sort them by gender, type, and age group over the weekend. This pic was taken moments after James and Isobel Insua-Garcia of international trade firm Sandler Travis & Rosenberg heaved a bag of clothes from your correspondent onto the pile (destined no doubt for the “way out of style” category). James tells us the group has zero overhead—even the costs for their website (www.gfth.org) are paid for out of the directors’ own pockets. This year’s take, an impressive 4,500 bags of clothes, set a new high.

Behind the Headlines

We’re peeling back the curtain here to show you the good people who put us on the trail of hot legal stories: members of the Law Firm Media Professionals, a group started by Duane Morris’s media guru Joshua Peck, center, down from Philly last week for the group’s soiree at Il Mulino. (We put it last on a long night of events, confident our media friends would still be partying.) Food and drink came courtesy of sponsor Hellerman Baretz, represented by founder John Hellerman, right. Duane Morris brass arrived in the form of DC managing partner Doug Woloshin (apparently a sucker for good Italian), joined by media types Kim Bell of McKenna Long and Beth Huffman of Dechert.

John Ford, Bisnow’s Legal Editor, encourages you all to become law firm media amateurs and send him your best stories ideas. Send to john@bisnow.com.

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Casa Noble
Andrews Kurth
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