RPAMall (tm) - Price Discrimination Litigation under the Robinson-Patman Act (RPA) - Summary of Various 1997-Present Court Decisions


Last Update: 10/24/98

Not every complaint or counterclaim alleging a Robinson-Patman Act violation is available through legal databases used by attorneys. A near-complete compilation of all such filings probably could be created and maintained, at great expense of time, by frequent use of the federal court's PACER system (see paragraph below). Only a portion of the filed cases result in court decisions, and only a portion of the court decisions are published in the legal databases. A brief description of various Robinson-Patman Act decisions which have been published by any United States Federal Court during 1997-present follows:

The Federal PACER System involves approximately 150 Federal Courts, and permits registered users to access docket sheets in each participating Federal Court. You can obtain further information about PACER including the names of all participating federal courts and their telephone numbers by clicking on Official Pacer Information

You might want to use the PACER System to follow a specific federal action (Robinson-Patman Act case or any other type) as it works its way through the federal district court.

  1. 1/30/98 Precision Printing Company, Inc. v. Unisource Worldwide, Inc., 1998 U.S. Dist. Lexis 1571 (W.D. Pa. 1998), granted summary judgment dismissing Robinson-Patman Act claim on grounds that the discounts granted to plaintiff's forms-printing competitors were "functionally available" to plaintiff, and that plaintiff was turned down by defendant's Rollsource (lower-priced paper supplying) division for credit reasons. Also, court discussed the "in commerce" requirement, holding that defendant's purchases from out-of-state supplier became "intrastate" transactions when the purchases were not earmarked for specific customers of the defendant within the plaintiff's state. [PRO DEFENDANT DECISION - Court applied "functional availability" judicially-created doctrine to price differentials rather than to the proper area of promotional programs]

  2. 1/30/98 Liberty Lincoln-Mercury v. Ford Motor Company, 1998 U.S. App. Lexis 1013, 1998-1 Trade Cas. (CCH) P72,043 (3rd Cir. 1998), upholding district court's dismissal of RPA claim that Ford's charges to plaintiff intending to equalize payments made by Ford to plaintiff under New Jersey's franchisee protection act were not in violation of the RPA. Based its decision on the 2nd Circuit FLM Collision Parts case which seems to permit price discrimination by car manufacturers as to the sale of parts to various types of competing purchasers. The 3rd Circuit Court of Appeals held that such Ford charges against Liberty were in violation of the NJ statute. [PRO DEFENDANT DECISION]

  3. 1/30/98 J & M Turner, Inc. v. Applied Bolting Technology Products, Inc., 1998 U.S. Dist. Lexis 1158 (E.D. Pa. 1998) - Robinson-Patman Act count withdrawn by plaintiff after all evidence was presented. [NOT AN RPA DECISION]

  4. 12/30/97 World Wide Communications, Inc. v. Marc Rozar, 1997 U.S. Dist. Lexis 20596 (S.D.N.Y. 1997), in which Magistrate Judge Naomi Buchwald dismissed an RPA claim holding that long-distance telephone communications services were not "commodities" under the RPA but instead were intangible services not covered by the RPA. [A NEUTRAL DECISION]

  5. 12/2/97 Ernest Paper Products, Inc. v. Mobil Chemical Company, Inc., 1997 U.S. Dist. Lexis 21781 (C. D. Cal. 1997). The plaintiff admitted his claim for price discrimination was not a meritorious RPA claim and the court, based on such admission, denied use of the plaintiff's discriminatory pricing allegations to support the plaintiff's claim for intentional interference with his business relationships. [NOT AN RPA DECISION]

  6. 12/2/97 Sea-Roy Corp. v. Parts R Parts, Inc., 1997 U.S. Dist. Lexis 21809 (M.D. N.C., Uurh. Div. 1997), in which the plaintiff stipulated that it cannot show injury to competition and the court granted summary judgment against the plaintiff. [A NEUTRAL RPA DECISION - but it is possible the relevant facts were not completely set forth in the stipulation; "injury to competition" should be dealt with from the outset of any RPA case to avoid this result.]

  7. 11/18/97 National Association of College Bookstores, Inc. v. Cambridge University Press, 1997 U.S. Dist. Lexis 18298, 1997-2 Trade Cas. (CCH) P71,991 (S.D.N.Y. 1997) - Judge Shira A. Scheindlin held that the plaintiff trade association had standing to assert claim for injunctive relief for its members; plaintiff made showing of possibility of competitive injury by showing that defendants made sales to competing purchasers at different (i.e., discriminatory) prices; defendants' motion for reargument, reconsideration and certification was denied by Judge Scheindlin, at U.S. Dist. Lexis 20418, 1998-1 Trade Cas. (CCH) P72.034 (S.D.N.Y. 1997), holding that plaintiff association does not need to show member-by-member competition with the favored competitors. [PRO RPA DECISION]

  8. 11/14/97 Grand Rapids Plastics, Inc. v. Craig M. Lakian, 1997 U.S. Dist. Lexis 20371 (E.D. Mich., S Div. 1997), the court held that kickback payments were a violation of the RPA but that these payments were not continuing violations, and that the last loss of an order set the date for application of the 4-year statute of limitations applicable to antitrust actions. [PRO DEFENDANT DECISION - many judges might have decided for the plaintiff on the same facts]

  9. 10/29/97 Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1997 U.S. App. Lexis 29863 (9th Cir. 1997) referred to the U.S. Supreme Court's Brooke decision, but was not an RPA decision. [NOT AN RPA DECISION]

  10. 9/19/97 Geneva Steel v. Ranger Steel, 980 F. Supp. 1209, 1997 U.S. Dist. Lexis 14892 (D. UT. 1997), denying defendant's motion to dismiss plaintiff's claim under the 1916 Antidumping Act, 15 U.S.C. Section 72 that defendant illegally dumped foreign steel in the U.S. at prices substantially less than the actual market value or wholesale price of such steel products in the countries of production, all with the specific intent to injure the U. S. steel industry. [PRO PLAINTIFF DECISION]

  11. 9/19/97 Federal Ins. Co. v. Stroh Brewing Co., 127 F.3d 563, 1997 U.S. App. Lexis 25291 (7th Cir. 1997), reversing the lower court's grant of summary judgment. The beer company had settled a prior RPA action against it for $850,000 and claimed coverage under its insurance policy with defendant covering "discrimination" actions. The Circuit Court of Appeals held that price discrimination was covered by the policy under the principles of construction of contracts. The beer company defendant had offered a staggered price discount (ranging from 10% to 50%) based on the volume of beer purchased. [NOT AN RPA DECISION]

  12. 9/12/97 Carl A. Walker v. Wallace Auto Sales, Inc., 1997 U.S. Dist. Lexis 14508 (N.D. Ill., E. Div. 1997), referred to the Arcadia Motors case which concerned an RPA claim, but holding that such case was irrelevant to the plaintiff's claims not involving the RPA. Instead, plaintiff's claims involved the failure to disclose financing costs in plaintiff's lease or time-purchase of an automobile [NOT AN RPA DECISION]

  13. [117K] Full Text 8/15/97 In re Brand Name Prescription Drugs Antitrust Litigation, 1997 U.S. App. Lexis 22267, 1997-2 Trade Cas. (CCH) Para. 71,904 (7th Cir. 1997), the 7th Circuit Court of Appeals (Chief Judge Richard Posner) described a pharmaceutical industry distribution alleged price-fixing scheme in which the manufacturers sold their drugs to wholesalers at two different prices, depending on the type of retailer to whom the wholesaler resold the drugs. The lower price was intended for large purchasers, and the higher price was for smaller customers of the wholesaler. The wholesaler could only receive the lower price (through a refund by the manufacturer) by proving that he sold the drugs to a qualified (high-volume) purchaser (such as a hospital or HMO). The manufacturers' scheme was designed to prevent favored purchasers from buying more than they needed and reselling the excess to the disfavored customers in competition with the wholesalers. Judge Posner stated that the appeal did not involve any of the Robinson-Patman Act claims which had been made in the district court below. The issues before him included the alleged conspiracy under the Sherman Act to maintain discriminatory prices, and after substantial analysis of complicated issues, Judge Posner reversed all four final decisions, in which amounted to a favorable decision for the class-action plaintiffs involved. Although the cases (combined before one judge under a ruling of the Multi-District Panel) involved major price-discrimination allegations, the decision itself only referred once to the Robinson-Patman Act. It seems that some or all of the Robinson-Patman Act are still pending in the district court below. Stay tuned! [NOT AN RPA DECISION] 6/30/97 Court Decision - FTC Obtains Preliminary Injunction Prohibiting Staples Acquisition of Office Depot, Inc. - FTC Act and Clayton Act - refers to "Category Killer" Superstores. The decision refers to the Robinson-Patman Act but was decided under the Federal Trade Commission Act and the Clayton Act. [NOT AN RPA DECISION, BUT VERY IMPORTANT NEVERTHELESS]

  14. 11/20/97 In re Brand Name Prescription Drugs Antitrust Litigation, 1997 U.S. Dist. Lexis 18987 (N.D. Ill., E. Div. 1997), upon remand the district court noted that members of the class had opted out of the class to pursue their RPA claims. [NOT AN RPA DECISION]

  15. 9/3/97 Hansel 'N Gretel Brand, Inc. v. Savitsky, 1997 U.S. Dist. Lexis 13324 (S.D.N.Y. 1997), a case involving alleged kickbacks or commercial bribery, resulting in the plaintiff paying more than its competitors, Judge Charles S. Haight held that the pleading stated a cause of action under Section 2(c) of the Robinson-Patman Act, the section prohibiting dummy brokerage payments as a way to change the price paid by the purchaser. [PRO PLAINTIFF DECISION]

  16. 8/8/97 Chroma Lighting v. GTE Prods. Corp., 111 F.3d 653, 1997 U.S. App. Lexis 6642, 1997-1 Trade Cas. (CCH) Para. 71,769 (9th Cir. 1997) the 9th Circuit, in a decision written by Circuit Judge William A. Norris, held that under the Robinson-Patman Act the disfavored purchaser's showing of injury to itself and a long-standing practice of price discrimination by the manufacturer was sufficient, and that the manufacturer could not rebut by a showing that there was no injury to competition generally. The 9th Circuit upheld a $3,000,000 plus RPA verdict in favor of the antitrust plaintiff. The 9th Circuit went along with the 3rd Circuit's (leading) decision to such effect, and did not follow the contrary reasoning in a decision by the D.C. Circuit Court of Appeals. This split of authority is important and should be considered when deciding where to start a Robinson-Patman Act case. Also, the 9th Circuit declined to apply the Supreme Court's Brooke decision to secondary-line price discrimination cases, holding that the Robinson-Patman Act was intended to protect individual competitors. For more information about the Brooke decision, see the discussion below about Anti-Monopoly v. Hasbro. PRO PLAINTIFF DECISION]

  17. 3/11/97 American Professional Testing Serv. v. Harcourt Brace Jovanovich Legal & Professional Publs., Inc., 108 F.3d 1147, 1997 U.S. App. Lexis 4296, 1997-1 Trade Cas. (CCH) Para 71,741 (9th Cir. 1997), in a decision written by Circuit Judge Diarmuid F. O'Scannlain referred to the existence of Robinson-Patman Act claims in the complaint, but that they were not tried (meaning, apparently, that they were dismissed or withdrawn in the court below for some unexplained reason). The decision held, in effect, that a monopolist's use of disparaging flyers alone is insufficient on which to base a Section 2 monopolizing claim. The plaintiff failed to overcome a presumption of a de minimis effect of the monopolist's flyers upon the plaintiff or competition. [NOT AN RPA DECISION]

  18. 9/10/97 George Haug Co. v. Rolls Royce Motorcars, Inc., 1997 U.S. Dist. Lexis 13650 (S.D.N.Y. 1997), a decision by Judge Loretta Preska, held against a terminated parts distributor (a used Rolls Royce car dealer and repair company) holding that its complaint (as to the Robinson-Patman Act claims) was insufficient to plead injury to competition generally when it merely alleged, in a single conclusory allegation: "the discrimination in price and services made plaintiff unable to compete in that it allowed Carriage House to offer customers items and benefits which plaintiff could not afford." Judge Preska also dismissed alleged service discrimination violations because as a used-car dealer the plaintiff was in a different distribution function than a new-car dealer, and that the manufacturer could discriminate in parts prices between otherwise competing new-car and used-car dealers. [PRO DEFENDANT DECISION]

    This lower-court RPA/auto-parts decision in George Haug Co. v. Rolls Royce Motorcars, Inc. was reversed in an important decision by the U.S. Court of Appeals for the Second Circuit, George Haug Co., Inc. v. Rolls Royce Motor Cars Inc., 148 f.3d 136, 1998 U.S. App. LEXIS 13467; 1998-1 Trade Cas. (cch) Para. 72,191. The Court's decision stated in one very material part: "It is hornbook law as cited hereinafter that anticompetitive injury need not be alleged to sustain a claim for violation of the Robinson-Patman Act; a price differential, direct or indirect, between secondary-line competitors is enough. The Act requires that each purchaser be given an 'equal opportunity' by the sellers to receive the benefit of higher or lower prices.". 148 F.3d 139. The Court went on to say: ": In order to establish secondary-line price discrimination n2 under section 2(a), a plaintiff has the burden of establishing four facts: (1) that seller's sales were made in interstate commerce; (2) that the seller discriminated in price as between the two purchaers; (3) that the product or commodity sold to the competing purchasers was of the same grade and quality; and (4) that the price discrimination had a prohibited effect on competition. See Texaco, Inc. v. Hasbrouck, 496 U.S. 543, 556, 110 L. Ed. 2d 492, 110 S. Ct. 2535 (1990). A private plaintiff who has proved a violation of section 2(a) must, in order to recover damages under Section 4 of the Clayton Act, demonstrate that it suffered actual injury to its business or property as a result of the price discrimination. J. Truett Payne, Co. v. Chrysler Motors Corp., 451 U.S. 557, 562, 68 L. Ed. 2d 442, 101 S. Ct. 1923 (1981). Moreover, section 2(a) affords defendants two defenses based on certain cost justifications andor changing conditions, respectively. See 15 U.S.C. Section 13(a).". 148 F.3d 141. [PRO PLAINTIFF DECISION] The Court's decision is a must read for anyone interested in the Robinson-Patman Act (35K file, no graphics) The Haug v. Rolls Royce Second Circuit 1998 Decision.

  19. 7/24/97 Hoover Color Corp. v. Bayer Corp., 1997 U.S. Dist. Lexis 12676 (W.D. Va. 1997, a decision by Judge Jackson L. Kiser that price discrimination under an existing written contract for a lengthy period of time (about 10 years) was not the basis for a cause of action under the Robinson-Patman Act. The statute of limitations for RPA claims is four years, and the fact that the discrimination was "continuing" did not permit extending the statute. The full claim for the violation had occurred when the earlier sales had been made (before the 4-year period), and such claims expired four years after the discriminatory sales were made. The plaintiff's claims for the 4-year period preceding filing of the suit, and for the period after the filing of the suit, were not at issue in the decision. [NEUTRAL, NON-CONTROVERSIAL DECISION]

  20. 7/10/97 Sawhney v. Mobil Oil Corp., 1997 U.S. Dist. Lexis 9972 (D. NJ 1997), a decision in which Judge Joseph E. Irenas held that the plaintiff gas retailer had no cause of action for price discrimination under the Robinson-Patman Act even though it was paying higher prices buying from a Mobil distributor (wholesaler) than it would have been paying if buying directly from Mobil, which it was no longer permitted to do. The decisive factor was that the wholesaler and plaintiff were at different functional levels of distribution, and Mobil was permitted to charge different prices. [Editor's Note: The result could have been different if the court had explored the admitted "affiliate" relationship between Mobil and its newly-created wholesaler, with Mobil having continuing obligations under an assignment of Mobil's franchisor interests; also, the parties and court failed to explore the issue of whether the difference in Mobil's price to the wholesaler and to the direct-buying retailers was unwarranted.] [PRO DEFENDANT DECISION, PROBABLY - it is often difficult to tell because of the practical inability to look at the record in the case.]

  21. 6/30/97 Crossroads Cogeneration Corp. v. Orange & Rockland Utilities, 969 F. Supp. 907, 1997 U.S. Dist. Lexis 9390 (D. NJ), in which Judge John W. Bissell dismissed the Robinson-Patman price discrimination claim against an electric utility stating that (i) the plaintiff did not allege the required two completed sales at discriminatory prices; and (ii) the plaintiff did not allege facts showing injury to competition generally, as distinguished from the allegations that the plaintiff was injured. [PRO DEFENDANT DECISION, PROBABLY - it is often difficult to tell because of the practical inability to look at the record in the case.]

  22. 5/22/97, Parker Ice Cream Co. v. Conopco, Inc., 1997 U.S. Dist. Lexis 8570 (E.D.N.C., W. Div. 1997), in a decision by Judge W. Earl Britt, held that a company retained to assist a manufacturer (Good Humor Ice Cream) in selling its product at discriminatory prices was not liable for the price discrimination under Section 2(a); and under Section 13(a) of the RPA was not liable for assisting in the alleged illegality because the section was not alleged in the complaint, and the section is for criminal purposes only and does not give rise to any civil liability. [NEUTRAL, NON-CONTROVERSIAL DECISION]

  23. 5/20/97, The Iams Co. v. Falduti d/b/a Countryside Feed and Supply, 1997 U.S. Dist. Lexis 10049, 1997-2 Trade Cas. (CCH) Para. 71,870 (E.D. Mo. 1997), in which Judge Catherine D. Perry dismissed the defendant's antitrust claims. See the decision (42K file, no graphics) The Iams Co. RPA Case Lost by the Small Business Counterclaimant. Defendant Falduti's antitrust counterclaims under the Sherman Act and the Robinson-Patman Act were dismissed by grant of summary judgment (meaning, without any trial), because the complaining purchaser bought from an intermediate distributor and not directly from the manufacturer, unlike the superstore retailers who bought their pet food directly from the manufacturer. The decision is worthwhile reading because it shows some of the numerous hurdles imposed by the courts upon antitrust plaintiffs, hurdles which usually are too much to overcome. The plaintiff to often, it seems, gets tripped up by one or more of the "100 Hurdles".[Editor's Note: The result could have been different, possibly, if there was a control relationship between manufacturer and wholesaler and/or if the difference in price was not justified by the function for which the discount was given.] [PRO DEFENDANT DECISION, PROBABLY - it is often difficult to tell because of the practical inability to look at the record in the case.]

  24. 5/19/97, In re American Honda Motor Co. v. American Honda Motor Co., 965 F. Supp. 716, 1997 U.S. Dist. Lexis 7015 (D. MD. 1997), in which Judge J. Frederick Motz referred to an earlier decision of his in the case in which he had held that only a party to a sales transaction had a claim under the Robinson-Patman Act. This earlier decision is In re American Honda Motor Co., 958 F. Supp. 1045, 1997 U.S. Dist. Lexis 3538 (D. MD. 1997) [APPARENTLY, A NEUTRAL, NON-CONTROVERSIAL DECISION]

  25. 4/16/97, Local Acceptance Co. v. John Doe, 962 F. Supp. 1495, 1997 U.S. Dist. Lexis 5538 (S.D. FL. 1997), in which Judge James Lawrence King "sua sponte" (meaning, on his own motion) and without any served defendant, dismissed the amended complaint as an improper effort to try to obtain massive discovery. The auto loan company had alleged violations of Sections 13-13b and 21a of the Robinson-Patman Act with apparent lack of knowledge of the pleading requirements. [PROBABLY, A NEUTRAL, NON-CONTROVERSIAL DECISION]

  26. 3/31/97, Anti-Monopoly, Inc. v. Hasbro, Inc., 958 F. Supp. 895, 1997 U.S. Dist. Lexis 3775, 1997-1 Trade Cas. (CCH) Para. 71,849, aff'd (on Judge McKenna's decision below) 130 F.3d 1101 1997 U.S. App. Lexis 33867, 1997-2 Trade Cas. (CCH) P71,989 (2nd Cir. 1997 - 12/2/97), with pet. for cert. to be filed to U.S. Supreme Court by 4/1/98. District Court Judge Lawrence M. McKenna held (i) under the RPA Anti-Monopoly had to show more than discriminatory pricing by Hasbro; Anti-Monopoly had to show below cost pricing by Hasbro, even though Hasbro has a monopoly in the relevant market, citing the infamous Brooke case of the Supreme Court; and (ii) that even though there was sufficient evidence of monopoly power by Hasbro in the relevant market of family board games alleged by the plaintiff, the plaintiff had not made a showing, in opposition to defendant's summary judgment motion, that Hasbro committed any predatory acts. Plaintiff vigorously asserts the contrary on appeal. Most of the evidence was designated as "Confidential" and/or "For Attorneys Only" thereby precluding publication of a description of the evidence herein. A copy of the complaint can be found in Chuck Mueller's Antitrust Law and Economics Review Website, Antitrust Law & Economics Review, and while there make sure you see Mueller's Dirty Dozen U.S. Supreme Court cases which have caused the near death of antitrust law in this country, at Anti-Monopoly Game/Litigation Website. [PRO DEFENDANT DECISION - I know, I am Anti-Monopoly's attorney]

  27. 3/13/97, Hewlett-Packard Co. v. Arch Associates Corp., 172 F.R.D. 151, 1997 U.S. Dists. Lexis 2957 (E.D.Pa. 1997), in a decision by Judge J. Curtis Joyner, denied a defendant's motion for leave to file a Robinson-Patman Act price discrimination claim because his request was delayed by more than a year. [APPARENTLY, A NEUTRAL, NON-CONTROVERSIAL DECISION]

  28. 3/5/97, Rebel Oil Co. v. Atlantic Richfield Co., 957 F. Supp. 1184, 1997 U.S. Dist. Lexis 2749 (D. NV 1997), in which Judge Phillip M. Pro held in a primary-line price discrimination case (i.e., one manufacturer suing another for alleged violation of Section 2(a) price-discrimination provisions of the Robinson-Patman Act), the plaintiff failed to prove below-cost pricing by the defendant manufacturer, and failed to show that the defendant would have had a reasonable prospect to recoup its losses, near-insurmountable requirements set forth by the Supreme Court in its infamous decision in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993). [PRO DEFENDANT DECISION, either mandated by the Brooke case, or possibly one in some judges could have found reasons to avoid following the infamous Brooke decision. Only a look at the underlying motion papers would tell.]

  29. 1/27/97, Yeager's Fuel, Inc. v. Pennsylvania Power & Light Co., 953 F. Supp. 617, 1997 U.S. Dist. Lexis 1134, 1997-1 Trade Cas. (CCH) Para. 71,739 (E.D. Pa. 1997), in a decision by Judge John R. Padova, dismissed a Section 2(c) brokerage commission claim under the RPA holding that there was no control over the person receiving the payment by the manufacturer or purchaser, so that there was no transfer of the payment from the manufacturer to the purchaser or vice versa. [APPARENTLY, A NEUTRAL, NON-CONTROVERSIAL DECISION]

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Carl E. Person, Publisher/Editor, RPAMall and LawMall, carlpers@lawmall.com

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