What standard of liability should apply to horizontal contracts has been an issue at the Federal Trade Commission for some two decades.
(45) On the other hand, if Massachusetts Board is not necessary, as it was not in Three Tenors, potential mischief is created by having two parallel formulas applicable to the same sorts of horizontal contracts.
To contrast that approach to Topco, a horizontal contract, combination or conspiracy would by itself no longer be sufficient for liability; it is merely a necessary condition.
(22) Commissioner Calvani's opinion in Massachusetts Board discussed the Supreme Court's recent horizontal contract cases and interpreted them along the lines just noted.
The detailed reasons for believing that the lessons learned from analyzing vertical contracts might apply to horizontal contracts
will be discussed below, by first comparing RPM to horizontal price fixing, and then comparing exclusive territory arrangements to horizontal market allocations.