Neil Schur of Anderson Kill. Courtesy photo
For the last 20 years, government enforcement of the Robinson-Patman Act (RPA), the Depression-era statute that bars price discrimination, has been virtually non-existent. 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.
