Friday, December 5, 2008
Posted by D. Daniel Sokol
Scott Martin (Weil, Gotshal & Manges) asks Antitrust Injury in Robinson-Patman Cases: What’s Left?
ABSTRACT: Although government challenges to alleged price discrimination under the Robinson-Patman Act (“RPA”) have been all but extinct for over two decades, and the RPA itself has suffered calls for repeal from various quarters and by successive generations of antitrust lawyers, the Act has not only endured but also, from time to time, provoked interesting commentary from the Supreme Court. Perhaps most notably, the landmark Brooke Group standard that has sounded the death knell to so many predatory pricing cases over the last 15 years had the relatively humble origin of a primary-line (competition among sellers) RPA lawsuit.
The Court’s latest foray into the RPA, the 7-2 Volvo decision authored by Justice Ginsburg (with the intriguing tandem of Justices Stevens and Thomas in dissent), and particularly its reflective coda in Part IV of the opinion, is one from which RPA defendants might justifiably draw comfort when arguing that antitrust injury is absent in a price discrimination lawsuit.