Antitrust Chronicle^® – Robinson-Patman Act

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. T