Is it Possible to Win a Robinson Patman Act Case Now?

By: Steven Cernak (The Antitrust Attorney)

For years, some of us have argued that Robinson-Patman, the federal price-discrimination antitrust law, is “forgotten but not gone.” Although the FTC hasn’t enforced it in decades, a few private lawsuits are filed annually, and careful potential defendants still follow Robinson-Patman compliance programs. Recent statements suggesting a potential FTC revival have reminded practitioners that Robinson-Patman is still active. A recent lower court judgment by a determined group of plaintiffs and their lawyer further proves that the law is far from obsolete.

A Clear-Eyed Look at Robinson-Patman Robinson-Patman generally prohibits sellers from offering lower prices or greater promotional allowances to one purchaser over another competing purchaser. As we explain in other posts, various elements and defenses make it challenging for plaintiffs to win. Court interpretations over the past few decades have increased this difficulty. However, a recent case demonstrates that success at the trial court level is possible.

In L.A. International Corp. v. Prestige Consumer Healthcare, Inc., defendants, who manufacture and distribute Clear Eyes eye drops, were accused of selling Clear Eyes at lower prices and with greater promotional allowances to Costco Business Centers (which resell to retailers) than to plaintiffs, several distributors who also resell these products to retailers like local convenience stores. Interestingly, some of these plaintiffs and their counsel have been involved in a long-running series of Robinson-Patman cases, alleging that the manufacturer of 5-Hour Energy also discriminated in favor of Costco…

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