Page:United States Statutes at Large Volume 99 Part 2.djvu/59

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PUBLIC LAW 99-000—MMMM. DD, 1985

PUBLIC LAW 99-180—DEC. 13, 1985

99 STAT. 1169

SEC. 605. None of the funds appropriated in titles II and V of this Prohibitions. Act may be used for any activity to alter the per se prohibition on Commerce and resale price maintenance in effect under Federal antitrust laws: * ® Provided, That nothing in this provision shall prohibit any employee of a department or agency for which funds are provided in titles II and V of this Act from presenting testimony on this matter before appropriate committees of the House and Senate: Provided further. That whereas on January 23, 1985, the Department of Justice published a document entitled "Vertical Restraints Guidelines", for the stated purpose of explaining Federal policy for enforcing the Sherman Act and the Cla3rton Act with respect to nonprice vertical 15 USC 1-7,12. restraints of trade; Whereas such policy guidelines extend beyond the matter of nonprice verticed restraints of trade and propose the avoidance of the per se rule of illegality applied by the Supreme Court in 1911 in Dr. Miles Medical Company against John D. Park and Sons Compgmy (220 U.S. 373) to price-related restraints of trade and subsequently applied by the Supreme Court and endorsed by the Congress on many occasions; Whereas such policy guidelines are inconsistent with established antitrust law, as reflected in Supreme Court decisions and statements of congressional intent, in maintaining that such policy guidelines do not treat vertical price fixing when, in fact, some provisions of such policy guidelines suggest that certain price fixing conspiracies are legal if such conspiracies are "limited" to restricting intrabrand competition; by blurring the distinction between price and nonprice restraints in analyzing a distribution program containing both t3rpes of restraints, thereby qualifying the accepted rule that vertical price fixing in any context is illegal per se; in stating that vertical restraints that have an impact upon prices are subject to the per se rule of illegality only if there is an "explicit agreement as to the specific prices"; in stating that restraints imposed by a manufacturer at the request of dealers are vertical in nature and therefore not subject to the per se rule of illegality; in aggregating the factors of collusion and foreclosure, thereby failing to distinguish adequately between the separate antitrust concerns associated with vertical territorial restraints and with exclusive dealing practices; in stating that less than absolute territorial restraints are "alwajrs legal"; and in arbitrarily specifying a 30 per centum minimum market share in the tying product for assessing the legality of tying arrangements; Whereas such policy guidelines state that the Department of Justice may refuse to attribute to corporations the illegal conduct of their low-level employees acting within the scope of the authority conferred upon such employees by such corporations, contrary to the common law of corporate responsibility and agency in the antitrust context; Whereas the general business community would be at risk if it accepted and relied upon such policy guidelines as an accurate statement of existing Federal antitrust laws in the area of vertical restraints of trade; Whereas such policy guidelines relate to an area in which the Department of Justice has brought no enforcement actions in more than four years and may have been published, in part, as an attempt to influence the courts of the United States to pursue a