Dear Readers,
The story of antitrust is often a story of ebbs and flows. What may at one point in time be a “vogue” issue can occasionally fade from the agenda of enforcers, only to return (perhaps decades later) once an issue enters the spotlight again. This is true of the U.S. Robinson-Patman Act of 1936 (“RPA”). Originally introduced as an amendment to the Clayton Act to curb alleged price discrimination by large U.S. chain retailers at that time, it is primarily enforced by the Federal Trade Commission (“FTC”).
After an initial period of relatively active enforcement, the key provisions of the RPA fell into “desuetude,” particularly from the 1980s (albeit with a brief revival in the 1990s). This is due in large part to the difficulty in interpreting its provisions. As Justice Frankfurter once famously wrote, “precision of expression is not an outstanding characteristic of the Robinson-Patman Act.” Recently, however, the RPA is undergoing another renaissance. The latest pronouncements from FTC Commissioners suggest that its provisions may have a new-found role in regulating the modern economy. The pieces in this Chronicle analyze the RPA and its potential implications for this purpose.
To lay the table, Steven Cernak & Luis Blanquez note how Government enforcement and private litigation of the RPA has been minimal during the past decades. However, now, the FTC –– among many others –– seems to want to revive its application. The article elaborates on how the evolution of courts’ views on RPA cases, and how any attempt would need to account for decades worth of court opinions that have questioned its policy and narrowed its interpretation. In the author’s view, a new attempt to revive the RPA to its former glory will need to deal with that precedent.
Taking an almost poetic perspective, Max M. Miller & Bryce Tuttle look at the RPA through the lens of a trip to Pine Ridge, South Dakota. They argue why, in their view, enforcement of the RPA is a necessity for rural consumers. Across the rural U.S., consumers rely on small, independent retailers for their basic needs; as “big box” stores are often absent from their communities. This renders protection against price discrimination in the supply chain all the more urgent.
John B. Kirkwood, in turn, deals with perceived flaws in the Robinson-Patman Act that are well known. Allegedly, it protects competitors at the expense of consumers and rarely stops the buyer-induced discrimination it was meant to prevent. Taking a constructive approach, the article proposes reforms that would greatly reduce both problems and explains why adopting those reforms would be preferable to repealing the RPA altogether.
Taking a very contemporary perspective, Patrick A. Bradford notes how the Biden administration’s DOJ and FTC appointees have signaled an intent to renew enforcement of the RPA against unfair as opposed to inefficient practices. This note considers potential RPA enforcement action against certain e-commerce platforms of today, as well as the viability of available defenses. Similarly, David Munkittrick & Colin Kass pick up the story of the state of the RPA today, explore how the FTC might wield it going forward, and discuss whether the weight of the last 40 years of RPA jurisprudence might still keep the RPA down.
Finally, Lawrence D. Silverman develops on these topics, noting how the FTC’s proposed new policies create the possibility of a paradigm shift for both private and governmental enforcement of Robinson-Patman and price discrimination. The piece explores two related possibilities arising from the latest developments: (1) the FTC’s enforcement of price discrimination principles beyond the limitations of Robinson-Patman; and (2) the potential broader availability of Robinson-Patman and Section 5 price discrimination claims to civil litigants through state deceptive and unfair practices statutes.
As always, many thanks to our great panel of authors.
Sincerely,
CPI Team
