Government enforcement and private litigation of the Robinson-Patman has been minimal during the past decades. However now the FTC –– among many others –– seems to want to revive its application. In this article we illustrate the evolution of courts’ views on Robinson-Patman cases, and how any attempt would need to account for decades worth of court opinions that have questioned its policy and narrowed its interpretation. Courts have interpreted all antitrust laws, including Robison-Patman, as focused on protecting competition and consumers. As a result, courts have ridiculed Robinson-Patman’s policy and narrowed its interpretation for years. Any attempt to revive Robinson-Patman to its former glory will need to deal with that precedent.
By Steven Cernak & Luis Blanquez
The Robinson-Patman (“RP”) Act’s price and promotional discrimination prohibitions are still on the books, but government enforcement and private litigation has been minimal for decades. Yet, some commentators — even some FTC Commissioners — would like to revive RP. Any such attempt must account for decades worth of court opinions that have questioned its policy and narrowed its interpretation.
Below, we illustrate this evolution of courts’ views on RP through quotes from both old and recent opinions. Because a generation (or more) of antitrust lawyers have grown up professionally thinking they would never need to understand the elements of and policy behind RP, we...