Washington Law Review


The market power of retailers, resellers, and dealers has increased substantially in recent years as the result of innovations in distribution such as the superstores, mass merchandisers, and warehouse clubs. Consequently, the balance of power in many industries has begun to shift from the supplier to the resale level. Although courts have well-developed means of analyzing the competitive conduct of suppliers and consumers, they have been unable to decide how to treat resellers' competitive conduct. This Article proposes the adoption of a traditional antitrust approach, the "ancillary restraints analysis," to the conduct of resellers. Under this approach, courts would recognize that a reseller is engaged in a partnership with its suppliers to deliver goods and services in the most efficient manner possible. Courts should preclude restrictions that are unrelated to efficiency-enhancing objectives or are broader than required to accomplish these objectives. Such an approach will encourage resellers to act more efficiently, and will deter them from taking actions that limit the range of products and services available to consumers.

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