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Articles

Is the Robinson-Patman Act Alive and Kicking?

The Legal Intelligencer

  • Published On: May 29, 2024

For the last 20 years, government enforcement of the Robinson-Patman Act (RPA), the Depression-era statute that bars price discrimination, has been virtually nonexistent. In 1977, the U.S. Department of Justice announced that it would no longer enforce the RPA, and the Federal Trade Commission (FTC) has not brought an RPA case since 2000. Although private plaintiffs do bring occasional RPA claims, they are rare, disfavored by most courts, and often dismissed. Many economists roundly criticize the RPA as anticompetitive and in 2007, an Antitrust Modernization Commission recommended that Congress repeal the statute altogether because it “appears antithetical to core antitrust principles” and “punishes the very price discounting and innovation in distribution methods that the antitrust laws otherwise encourage.”

Given the above, businesses may not have focused on RPA compliance as a critical component of your antitrust compliance program, but should perhaps rethink that approach, in light of recent developments that suggest the RPA is still alive and may soon be kicking.

Renewed Interest in the RPA

FTC Chair Lina Khan and Commissioner Alvaro M. Bedoya are eager to revive government enforcement of the RPA. Here is what we know:

In recent months, it has been publicly reported that the FTC is investigating the pricing practices of two large soda manufacturers and (separately) a wine and liquor distributor – and considering bringing RPA actions. On March 27, Khan disclosed that the commission is preparing to bring RPA enforcement actions in “short order.” The next day, on March 28, a group of federal legislators expressed their support for renewed RPA enforcement in an open letter to the FTC. And on April 11, Bedoya emphatically stressed the importance of the RPA in protecting rural small businesses in a session of the American Bar Association’s antitrust spring meeting in Washington, D.C. Increased FTC enforcement of the RPA appears imminent.

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