2(f) --Creates liability for the knowing recipient of a discriminatory price.

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1 ROBINSON-PATMAN ACT I. INTRODUCTION The Robinson-Patman Act was enacted in 1936 to solidify and enhance the Clayton Act's attack on discriminatory pricing. The Act was designed to address specific types of harmful pricing behavior, in particular the favoring of then newly developing chain stores over long established, independent, but smaller retailers. The Act itself has been criticized as being convoluted and unnecessarily complex, as well as out of step with the rest of the antitrust laws. Although cases under the Act are now infrequently brought by the Federal Trade Commission and the Department of Justice, there has been a significant amount of private litigation in recent years. It has, however, become increasingly difficult for plaintiffs to win Robinson-Patman Act cases. This has been due primarily to the difficulties a plaintiff faces in proving antitrust injury. II. OVERVIEW OF THE ACT A. Codification The Robinson-Patman Act is codified at 15 U.S.C. 13, 13a, 13b, and 21a (1997). An amendment was added in 1938 at 15 U.S.C. 13c (1997). The Act itself has three main sections, starting with section 2 (there is no section 1 of the Act). The Act is usually referred to according to its internal sections 2, 3 and 4, and not its United States Code sections. B. Section 2 2(a) --Prohibits price discrimination; sets forth the defenses of cost justification and changing conditions. 2(b) --Sets forth the third defense against price discrimination meeting competition. 2(c) --Outlaws both the payment and receipt of brokerage fees, except for services actually rendered. 2(d) --Prohibits discriminatory payments for services or facilities provided by the customer on behalf of the seller. 2(e) --Prohibits discriminatory provision of services or facilities by the seller to the customer. 2(f) --Creates liability for the knowing recipient of a discriminatory price. See 15 U.S.C. 13 (1997).

2 C. Section 3 Section 3 (15 U.S.C. 13a (1997)) creates criminal liability for three areas of discriminatory pricing covered generally by section 2. These areas are 1. Participating in a "sale of goods of like grade, quality, and quantity" while also providing the purchaser with a discount, rebate, allowance, or advertising service charge not provided to the purchaser's competitors. 2. Charging different prices in different geographic areas in the United States, with "the purpose of destroying competition, or eliminating a competitor," in the area where a lower price is charged. 3. Selling "goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor." Although this section is still part of the Act, it is hardly ever enforced. D. Exemptions Section 4 of the Act (15 U.S.C. 13b (1997)) and the 1938 amendment to the Act (15 U.S.C. 13c (1997)) create two exemptions from the preceding provisions of the Act. Under section 4, cooperative associations, and under section 13c, non-profit institutions, are exempt from the provisions of the Act. E. Enforcement Finally, another section of the Act, 15 U.S.C. 21a (1997), is an enforcement provision, assigning jurisdiction to enforce compliance under the Act generally to the Federal Trade Commission, unless involving common carriers, banks, air carriers, or common carriers engaged in wire or radio communication, in which case other agencies have jurisdiction. III. PRICE DISCRIMINATION UNDER THE ROBINSON-PATMAN ACT A. Introduction to the Prima Facie Case 1. Statutory language of Section 2(a) "It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of

3 commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.... " 15 U.S.C. 13(a) (1997). 2. Summary of the elements of a Section 2(a) violation a. two completed sales to two different purchasers; b. reasonably contemporaneous with each other; c. by the same seller; d. engaged in commerce; e. of commodities; f. of like grade and quality; g. for use, consumption or resale within the United States or any territory thereof; h. at different/discriminatory prices; i. with injurious effect on competition or on a competitor of either the seller or the purchaser. B. Elements of a Section 2(a) Violation 1. Two completed sales to two different purchasers The Act does not cover non-sale transactions, such as leases of real estate, license agreements, consignment arrangements or government permits. See, e.g., Fiore v. Kelly Run Sanitation, Inc., 609 F. Supp. 909 (W.D. Pa. 1985) (court held that issuance of permit to operate a landfill is analogous to "licensing transactions which are not sales for the purposes of the act") (see infra Section III, B, 5, a). An actual sale must also be involved; offers and refusals to deal are not covered by the Act. Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90 (3d Cir. 1988) (refusal to deal not sufficient to establish a Robinson-Patman Act claim). Black Gold, Ltd. v. Rockwool Indus., Inc., 729 F.2d 676, (10th Cir.) (refusal to deal, in this case even having terminated sales to the purchaser, not a discriminatory sale under the Robinson-Patman Act), cert. denied, 469 U.S. 854 (1984) (see infra Sections III, B, 2 and III, B, 4). Foremost Pro Color v. Eastman Kodak Co., 703 F.2d 534, 547 (9th Cir. 1983) ("mere 'offer' to sell to competing customers at

4 different prices does not satisfy this requirement of two actual, contemporaneous sales"), cert. denied, 465 U.S (1984). Fusco v. Xerox Corp., 676 F.2d 332, 337 (8th Cir. 1982) ("Mere offers to sell are not sufficient."). Moreover, even if the reason the plaintiff did not make the purchase was because of the higher price, the requirement of two sales is not met and the higher price is still only considered an offer. Maier-Schule GMC, Inc. v. General Motors Corp., 780 F. Supp. 984, (W.D.N.Y. 1991) (simply, this is not the sort of injury covered by the Robinson-Patman Act). However, at least one case has held that an agreement to purchase, on the one hand, and an actual sale, on the other, may be sufficient. En Vogue v. UK Optical Ltd., 843 F. Supp. 838 (E.D.N.Y. 1994) (agreement to purchase sufficient where it contained terms requiring plaintiff to purchase a certain amount of defendant's goods in the coming year) (see infra Section IX). Also, the "purchasers" in the comparison must be actual purchasers, and not merely an intermediary or an agent for one of the parties to the sale. Metro Communications Co. v. Ameritech Mobile Communications, Inc., 984 F.2d 739 (6th Cir. 1993) (where plaintiff is an intermediary, the transaction is not a sale) (see infra Section III, B, 5, b, (5)). Southern Business Communications Inc. v. Matsushita Elec. Corp. of America, 806 F. Supp. 950 (N.D. Ga. 1992) (no Robinson-Patman Act violation where the entity which allegedly received a more favorable price than the plaintiff (although otherwise in competition with the plaintiff) was not the actual purchaser, but merely its agent; the actual purchaser was not only not in competition with the plaintiff, it was using the product for itself and not for resale). Parent-subsidiary transfer. Several circuit court cases have held that in light, especially, of Copperweld Corp. v. Independent Tube Corp., 467 U.S. 752 (1984) (under the Sherman Act, a parent and wholly owned subsidiary are considered a single economic unit), a transfer of commodities by a parent to its wholly owned subsidiary is not a "sale" for the purposes of the Robinson-Patman Act. Russ' Kwik Car Wash v. Marathon Petroleum Co., 772 F.2d 214 (6th Cir. 1985) (rejecting the "control test" -- whether the subsidiary operated sufficiently independently from the parent to be considered

5 a separate entity -- long used by the Sixth Circuit to evaluate transfers between parents and subsidiaries in favor of the Copperweld inspired per se rule). City of Mt. Pleasant v. Associated Elec. Co-op., 838 F.2d 268 (8th Cir. 1988) (followed the Sixth Circuit in adopting the Copperweld inspired rule). Cf. Caribe BMW, Inc. v. Bayerische Motoren Werke Aktiengesellschaft, 19 F.3d 745 (1st Cir. 1994) (acknowledging the application of the Copperweld doctrine by the Sixth and Eighth Circuits to transfers between a parent and its wholly-owned subsidiary, and, applying the doctrine, holding that a parent and its wholly-owned subsidiary are one seller for Robinson-Patman Act purposes) (see infra Sections III, B, 3; III, B, 8, d; and, IX) 2. Reasonably contemporaneous Black Gold, Ltd v. Rockwool Indus., Inc., 729 F.2d 676, 683 (10th Cir.) (for sales to be reasonably contemporaneous the sales must be entered into within a relatively short time of each other and the expected deliveries must be "reasonably simultaneous"), cert. denied, 469 U.S. 854 (1984) (see supra Section III, B, 1 and infra Section III, B, 4). A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 F.2d 1396, 1407 (7th Cir. 1989) (Contracts signed six months apart not considered reasonably contemporaneous for Robinson-Patman Act purposes, even where the earlier contract lasted for a year. "No one supposes that a seller must charge the same price on contracts signed at different times, or on long-term contracts and spot sales."), cert. denied, 494 U.S (1990) (see supra Sections III, B, 6, c; III, B, 8, c; and, III, B, 9, e, (1)). Sylling v. Westinghouse Corp., 5 F.3d 540 (9th Cir. 1993) (Table, unpublished disposition, text in WESTLAW) ("the date of the contract setting the price is the controlling date for comparing sales" under the Robinson-Patman Act) (see infra Section IX). See also Capital Ford Truck Sales, Inc. v. Ford Motor Co., 819 F. Supp. 1555, (N.D. Ga. 1992) (where the prices were determined at different times, not considered to be "reasonably contemporaneous," it is irrelevant that the delivery times for the purchases were "reasonably contemporaneous;" the proper reference is to the time the contract is made and the prices are set)

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