Originally passed in the mid-1930s to protect small grocery businesses in the face of fast-growing chain supermarkets that could negotiate steep discounts for bulk purchases, the Robinson-Patman Act prohibits price discrimination to protect against unfair competition. Over the past several decades as efficiency and consumer welfare took center stage in the antitrust academy, policy and common law, the Robinson-Patman Act has become a disfavored relic of antitrust law, with DOJ and FTC enforcement effectively ceasing more than twenty years ago. The Biden administration’s DOJ and FTC appointees have signaled an intent to brush the dust off of the Robinson-Patman Act and renew enforcement of unfair as opposed to inefficient practices. This note considers potential Robinson-Patman Act enforcement action against certain e-commerce giants of today, such as Amazon and Walmart, and analyzes the strength of a prima facie case of price discrimination, as well as the viability of available affirmative defenses.
By Patrick A. Bradford[1]
The Biden Administration’s antitrust enforcement leaders, the Federal Trade Commission’s Lina Khan, and the Antitrust Division of the Department of Justice’s Jonathan Kanter, have announced themselves as aggressive, policy-driven, outcome-determinative antitrust enforcers. This is consistent with the Biden’s administration’s preferences. But these preferences are prompted by a confluence of realities.
- First, the almost unchec
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