Back to the Future: FTC Eyes Revival Of Price Discrimination Enforcement Under Robinson-Patman Act

By: John Eichlin (Linking Competition)

US antitrust authorities are looking to the past to set their course for the future. The latest antitrust tool to be called back into service by the Federal Trade Commission is the Robinson-Patman Act, which targets price discrimination in the sale of goods for retail markets. Recently appointed FTC Commissioner Alvaro Bedoya hinted at this possibility in a September speech that criticized the emphasis that courts and enforcers place on efficiency over fairness in antitrust jurisprudence.

Revival of the RPA reflects the current administration’s increasing focus on protecting small businesses in retail marketplaces characterized by powerful buyers and sellers, particularly with the increasing shift to online retail platforms. Renewed enforcement of the RPA would also be a striking about-face for the agencies, who have abandoned RPA enforcement for decades and actively intervened in private cases to support a narrow application. The FTC’s renewed interest can also have a follow-on impact on private enforcement efforts.

While the exact form of any enforcement remains to be seen, companies should dust off their compliance policies to make sure they are up to date on potential exposure. Here’s what you need to know…

CONTINUE READING…