While hardly ever enforced in modern times by government enforcement agencies, and rarely the subject of antitrust treble damage actions, Sections 2(d) and (e) of the Robinson Patman Act (15 U.S.C. §§ 13(d) and (e)) have had a colorful heritage. In response to the Supreme Court’s decision in FTC v. Fred Meyer, Inc., 390 U.S. 341 (1968), the Federal Trade Commission issued its Guides for Advertising Allowances and Other Merchandising Payments and Services, codified at 16 CFR, Part 240 (1969). The “Fred Meyer Guides”, as they are generally referred to, were revised in 1990, and most recently in November 2014. In the wake of efforts through the years to better equate the aims and goals of Robinson-Patman enforcement with those of the other antitrust laws, there has been a vigorous debate over modifications. These included proffered amendments suggested by the American Bar Association Section of Antitrust Law, the Antitrust Law Institute, and others.
Modernization and harmonization was arguably called for in the wake of the Supreme Court’s decision in Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006). Volvo concerned a manufacturer’s uneven provision of price supports to dealers endeavoring to meet competition from dealers of other brands. The Supreme Court held that absent a showing of actual competition with a favored Volvo dealer, the plaintiff could not establish competitive injury. The Court made clear that the purpose of all of the antitrust laws, including the Robinson-Patman Act, is to protect interbrand competition, and not individual dealers claiming intrabrand discrimination.
While changes were made in the 2014 Fred Meyer Guides, nothing has changed as to the application of Sections 2(d) and (e). Commentators urged the Federal Trade Commission to make clear that pursuant to Volvo, Sections 2(d) and 2(e) would only apply where there was evidence of “injury to competition”, as opposed to injury to a competitor. This would have equated the anticompetitive effects analysis of these Sections to the basic price discrimination Section (2)(a). The Federal Trade Commission declined to adopt these recommendations. While it recognized that proof of competitive effects would be sound enforcement policy, it simply revised the Guides to state its own intent to enforce the Act only in cases of likely harm to the competitive process. Where enforcement is pursuant to a private treble damage action, a treble damage plaintiff...
