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Kelley Drye Files Amicus Brief Requesting the FTC’s Views on an Anti-Competitive Statute Which Harms Consumers

May 20, 2016

Kelley Drye filed, on behalf of the Outdoor Power Equipment Institute (OPEI), an amicus curiae (“friend of the court”) brief urging the U.S. Supreme Court to grant a petition of certiorari. The New Hampshire law unconstitutionally alters pre-existing contracts without justification and will entrench poor performing yard and garden equipment dealers. The law makes it virtually impossible for a yard and garden equipment manufacturer to terminate a poor performing dealer or add a new dealer in the state of NH unless that manufacturer first obtains state approval through a cumbersome, protracted, and unduly expensive process stacked against the manufacturers.

“Ultimately, the New Hampshire law needlessly meddles in the manufacturer-dealer relationship, hinders the free marketplace, and hurts consumers,” said Kris Kiser, President, and CEO of OPEI.

The OPEI amicus urges the Court to seek the views of the Federal Trade Commission (FTC) on the anti-competitive impacts of the state law. Kelley Drye senior advisor Lee Terry, former Chairman of the U.S. House of Representatives’ “Commerce” Subcommittee (which oversees the FTC) said “Congress established the FTC to protect consumers. The FTC should weigh in on important anti-competition legislation, which harms consumers due to reduced competition, fewer available products, and poor servicing of products.”

Kelley Drye Antitrust partner David H. Evans said “Strong competition among dealers contributes to optimum market penetration for manufacturers. That competition benefits consumers by ensuring that pricing and after-sale service are driven by meaningful competition among dealers.”

“OPEI’s brief should persuade the Court to grant the petition and ultimately overturn the New Hampshire law in order to encourage fair competition and protect New Hampshire consumers, added Kiser.

The Kelley Drye brief was submitted by William M. Guerry Jr., Mark R. Robeck, David H. Evans and Travis H. Cushman.

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Kelley Drye has a team of over 100 litigators working throughout the firm’s seven offices. Clients turn to Kelley Drye’s litigation team for its formidable experience across a wide universe of commercial litigation areas, and the firm is listed among 24 “Highly Recommended” firms for litigation in a survey of Fortune 500 corporate counsel conducted by BTI Consulting.

Kelley Drye attorneys regularly help companies navigate the complexity of regulatory investigations, enforcement actions, and litigation brought by the FTC and state Attorneys General to achieve the best possible outcomes for clients’ business objectives.