Robinson-Patman Act Pleadings Checklist and The 10 Most Significant RPA Issues for You to Consider
Robinson-Patman Act Checklist
Practitioners should take a quick look at this checklist (which is not complete) to see if all of the listed issues have been carefully pleaded (in more extensive fashion than listed below) in their Robinson-Patman Act complaint or counterclaim:
- defendant's alleged activities injured competition generally, including plaintiff, and describe how the injuries took place; emphasize whenever possible that the amount of the discrimination exceeds the profit margin of the favored customer.
- primary-line discrimination allegations (where Small Manufacturer is suing competing Big Manufacturer for selling to Big's customers at discriminatory prices) requires an allegation that the Big Manufacturer is selling below cost. You should look carefully at caselaw to determine what type of cost is involved, such as average variable cost.
- near-contemporaneous sales were made by the defendant to competing resellers at different prices, and that at least one of the sales was in interstate commerce.
- THE LIST IS UNDER CONSTRUCTION !!!
The top-10 list below is being written to provide and insight into the types of issues which you may face in your RPA lawsuit. The issues selected are representative and certainly not the only issues which could be included in a Top 10 List.
10 Top Issues
- The U.S. Supreme Court has been rewriting the Robinson-Patman Act by requiring plaintiffs to allege and prove far more than the legislators who enacted the statute had in mind. One major issue unresolved by the Supreme Court is whether it is unlawful
for a monopolist to discriminate in price if it injures the monopolist's competitors.
- When a manufacturer pays far more in advertising and other promotional allowances more to favored retailers than to disfavored competing retailers (who may not receive any advertising or other promotional allowances at all), are such excess payments a
violation of Section 2(a) of the RPA as a discriminatory discount or rebate, so that the plaintiff does not have to prove that the advertising and other promotional programs were not made functionally or proportionally available to the disfavored retaile
- To what extent is a wholesaler allowed to recover RPA damages when the discrimination in advertising allowances and other promotional programs occurs at the retail level, involving customers of the wholesaler.
- To what extent are future damages recoverable for violations of the RPA especially if the plaintiff seeks injunctive relief to require the defendant to end the discriminatory activities upon entry of the final judgment. The plaintiff's argument, of c
ourse, is that it took perhaps 3-4 years for the plaintiff to lose its customers by reason of the defendant's discriminatory activities, and it is absurd to think that the plaintiff can get the customers back in one day, especially where the playing field
is merely even. Plaintiff lost the customers when the playing field was tilted in favor of plaintiff's competitors.
- What evidence (if any at all) is sufficient to make a showing by the defendant of a good-faith meeting competition defense, when the defendant's prices are adjusted at the same time for all customers throughout the entire geographic market, and there
is no showing that the defendant's competitors have adopted any similar discriminatory pricing scheme.
- To what extent has the defendant or the defendant's attorneys delayed the action through any kind of improper tactics. If there is any such improper activity causing a delay, the plaintiff may be entitled to interest on the actual damages and perhaps
on the trebled damages as well.
- To what extent if any can a class action be used in RPA litigation. Clearly, it cannot be used to recover damages for a class (because of the different proofs which each plaintiff would have to make), but it is possible that there could be some class
action activity (arguably), for example, to prove the fact of unlawful discrimination by the defendant. This issue seems to be open.
- To what extent should a defendant be able to designate as confidential (or for attorneys' eyes only) the documents which the defendant produces in the litigation; by designating documents as confidential (or for attorneys' eyes only), the defendant in
creases the workload for the plaintiff and its lawyer, and decreases the opportunity for the plaintiff and its lawyers to get publicity, witnesses, governmental interest, and even financing for the action. Also, a publicized case would seem to be more ab
le to obtain a trial, although there are no statistics to prove this hunch.
- To what extent is the defendant able to withhold data processing records from production (claiming that the produced hard copy is sufficient, and that the data processing records are merely duplicative). The plaintiff, of course, cannot create statis
tics from tons of paper and needs millions of bytes of electronic data instead, to prove parts of its case. Also, even when the defendant agrees to copy its data processing files, there is a major issue of how much the defendant should be able to charge.
Make sure that you obtain discovery on the actual costs of the defendant if the costs are above a nominal amount such as $500 or so. It is not infrequent that the defendant's attorneys will demand $5,000 or more when the cost may be only $100 or $200,
to deter the plaintiff from obtaining a copy.
- To what extent are the defendant and its attorneys playing hardball litigation, to make it far more difficult for the plaintiff to prevail. Everything done by the defendant should be analyzed for its possible hardball content, and measures should be
developed for offsetting any such hardball activities, including appeals from adverse orders of any Magistrate Judge; discovery to determine if the requested charges are reasonable; conferences with the Judge or Magistrate Judge if the defendant seems to
be tampering with witnesses (such as by serving subpoenas on them, and then taking their affidavits and copies of their documents in exchange for releasing them from the subpoena), and never sharing the fruits of the subpoena with the plaintiff or plainti
ff's lawyers. It is very much an open issue whether this type of conduct is permissible or whether instead it is non-permissible hardball conduct.
- (an extra issue) Whether state law provides any basis for additional claims against the defendant for price or service discrimination, such as in California.
The foregoing issues are only a few of the major issues which arise in RPA litigation.
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Copyright © 1997 by Carl E. Person