On April 27, 2009, a district judge ruled in favor of a Robinson-Patman Act plaintiff and granted injunctive relief.  Feesers, Inc. v. Michael Foods, Inc., 2009 WL 1138126 (M.D. Penn. Apr. 27, 2009).  On remand after the Third Circuit (498 F.3d 206 (3d Cir. 2007)) reversed summary judgment in favor of the defendants Michael Foods (the seller) and Sodexho (the favored purchaser), the district court held after trial that plaintiff demonstrated competitive injury because it competed with Sodexho for the same institutional customers and that Sodexho received prices that were “massive[ly]” lower than plaintiffs.  The court rejected defendants’ meeting competition defense because Sodexho never provide Michael Foods with competing offers nor did Michael Foods investigate the same.  The court also held Sodexho liable for knowingly inducing price discrimination.  This case should remind practitioners that the Robinson-Patman Act is alive and well.  Clients should exercise caution before offering discounts to competing customers and carefully document the basis for their meeting competition defense.

Resale price maintenance liability remains alive even after Leegin Creative Leather Products v. PSKS, 127 S.Ct. 2705 (2007) (holding that rpm agreements are now subject to the rule of reason). On June 17, 2008, the Third Circuit held that a Mack truck franchisee raised a triable issue of fact under the rule of reason concerning an alleged resale price maintenance scheme. Toledo Mack Sales & Serv. v. Mack Trucks, No. 07-1811, 2008 WL 2420729 (3d Cir. June 17, 2008). In particular, the Court held that the plaintiff came forward with sufficient evidence to show that the existence of an agreement between the manufacturer and dealers to stop discounting and the agreement may have caused prices to increase violating the rule of reason. Relying on Monsanto v. Spray-Rite Serv., 465 U.S. 752 (1984), the dealers’ frequent input and complaints about discounting were sufficient to raise a triable question over the existence of an agreement. With respect to the showing under the rule of reason, the dealer established that the manufacturer had sufficient power in the engine placed in front of the cab and the low cab over engine truck markets to control prices in those markets. Accordingly, its efforts to reduce intrabrand competition could have affected interbrand competition and caused prices to increase in the relevant markets. The Third Circuit rejected the R-P- Act claim holding that the statute does not apply to custom made goods of the type that were at issue in this case. The Third Circuit also rejected the statute of limitations defense holding that the plaintiff could rely on evidence of overt acts that took place before the limitations period to prove the existence of the conspiracy during the limitations period. Counsel must be careful in advising their clients about resale price maintenance. In addition to liability that can arise as demonstrated by this decision, state attorneys general remain active in this area. See March 14 and May 23, 2008 Posts.

In United Magazine Co., Inc. v. Curtis Circulation Co., 06-3212 (2d Cir., Mar. 25, 2008), the Court affirmed summary judgment dismissing plaintiffs’ Robinson-Patman Act claims against certain defendants. This decision is significant in that it shows the difficulty for Robinson-Patman Act plaintiffs to meet the injury-to-competition requirement under Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164, 180 (2006). In United Magazine, plaintiffs came forward with proof that defendants sold magazines to one customer on better terms than to plaintiffs. The Second Circuit held that even accepting plaintiffs’ proof as true, plaintiffs’ proof of injury was insufficient for two independent reasons. Plaintiffs failed to show that they competed head-to-head for any bids with the favored customer. Second, plaintiffs failed to show that “‘any price discrimination between’ [them] and the favored customer] was ‘of such magnitude as to affect substantially competition between’ the two competitors.” Id. at 6 (quoting Volvo Trucks, 546 U.S. at 180). The Second Circuit’s decision is attached. United Magazine v. Curtis Circulation