Robinson-Patman Act recent cases and FTC enforcement point in the same direction from opposite sides: federal courts keep raising the bar for private plaintiffs, while the Federal Trade Commission, after nearly three decades of silence, filed its first Robinson-Patman case in December 2024. Sellers who offer different prices to competing buyers now face renewed regulatory attention against a case-law backdrop that still demands rigorous proof of competitive harm.
The FTC’s Return to Robinson-Patman Enforcement
In December 2024, the Commission voted 3-2 to sue Southern Glazer’s Wine and Spirits, the largest U.S. wine and spirits distributor, alleging violations of Section 2(a). The complaint alleges that Southern Glazer’s denied independent retailers access to discounts and rebates it made available to large national chains, so smaller retailers paid more for the same products than the competitors they were trying to sell against.1Federal Trade Commission. FTC Sues Southern Glazer’s for Illegal Price Discrimination
The theory is a textbook secondary-line case: harm to the disfavored customers of the discriminating seller, not to the seller’s own rivals. The FTC took care to say what the case is not. The complaint does not treat volume discounts as unlawful in themselves; discounts tied to genuine cost efficiencies remain legal. What the agency targeted was differential pricing that, in its view, could not be justified under the statutory defenses for cost savings, meeting competition, or changing conditions.1Federal Trade Commission. FTC Sues Southern Glazer’s for Illegal Price Discrimination
Southern Glazer’s may not be an isolated action. Reporting cited by the Congressional Research Service indicates the FTC has been investigating major beverage companies for similar conduct.2Congress.gov. FTC Revives Enforcement of the Robinson-Patman Act Whether this reflects a durable shift or a moment tied to particular FTC leadership is unsettled. Either way, businesses whose pricing structures produce meaningful gaps between competing customers have a live reason to revisit their records.
How Courts Have Narrowed Primary-Line Claims
Primary-line injury involves harm to the seller’s own competitors, usually through predatory pricing meant to drive a rival out of a market. The controlling case is Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. (1993), which set a two-part test: the plaintiff must prove the defendant’s prices fell below an appropriate measure of its costs, and must prove the defendant had a reasonable prospect of recouping those losses once competition was eliminated.3Justia Law. Brooke Group Ltd. v. Brown and Williamson Tobacco Corp.
The recoupment requirement is what makes these claims so hard to win. Aggressive price cutting is not itself a violation; the plaintiff has to show the defendant could later raise prices high enough and long enough to make the whole exercise profitable. The Court framed the rule around a principle it has returned to often: antitrust law protects competition, not individual competitors.3Justia Law. Brooke Group Ltd. v. Brown and Williamson Tobacco Corp.
How Courts Have Narrowed Secondary-Line Claims
Most private Robinson-Patman litigation is secondary-line, and the doctrinal starting point remains FTC v. Morton Salt Co. (1948). Under Morton Salt, a plaintiff can make out a prima facie case of competitive injury by showing a substantial price difference sustained over a significant period between competing purchasers. The Court called it “self-evident” that selling to some customers substantially cheaper than to their competitors creates a reasonable possibility of competitive harm.4Justia Law. FTC v. Morton Salt Co.
The Morton Salt inference is rebuttable. A seller can break the causal chain by showing the disfavored buyer’s struggles had nothing to do with the price gap. But the plaintiff’s initial burden is low enough that secondary-line claims survive early dismissal far more readily than primary-line ones.
The Volvo Trucks Limitation
The Supreme Court cut into that advantage in Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. (2006). Reeder-Simco, a truck dealer, argued that Volvo offered better prices to other dealers. The Court held that a plaintiff cannot establish competitive injury without showing that the favored and disfavored dealers actually competed for the same customers. Operating in the same geographic area is not enough; the buyers must have pursued the same specific sales opportunities.5Justia Law. Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc.
Volvo Trucks matters most in industries where products are customized or sold through competitive bidding. In those settings, a plaintiff needs to identify specific transactions where a rival got a better price and won the business as a result. The Court also reaffirmed that interbrand competition remains antitrust law’s primary concern and declined to stretch the Act beyond the competitive dynamics it was written to address.5Justia Law. Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc.
What Counts as a Promotional Service
Sections 2(d) and 2(e) require sellers who offer promotional payments, advertising allowances, or merchandising services to make them available on proportionally equal terms to all competing customers. The Seventh Circuit read those provisions narrowly in Woodman’s Food Market, Inc. v. Clorox Co. (2016), holding that restricting larger package sizes to wholesale clubs was not a discriminatory “service or facility” under Section 2(e). Package size is a product attribute, not a promotional activity, so any complaint about it belongs under the price discrimination analysis of Section 2(a) rather than the promotional provisions.6Justia Law. Woodman’s Food Mkt, Inc. v. Clorox Co., No. 15-3001
Seller Defenses Still Doing the Work
Even when a plaintiff proves a price differential that threatens competition, the seller can escape liability through the statutory defenses. The seller bears the burden on each of them.7Office of the Law Revision Counsel. 15 USC 13 Discrimination in Price, Services, or Facilities
Meeting Competition
The most heavily litigated defense allows a seller to justify a lower price offered in good faith to meet, but not beat, an equally low price from a competitor. The seller does not need the competitor’s actual invoice, but does need enough reliable information to form a genuine belief that the competing offer exists. Courts ask whether the seller acted as a reasonable, prudent businessperson in verifying the competitive threat.7Office of the Law Revision Counsel. 15 USC 13 Discrimination in Price, Services, or Facilities
The defense typically fails when the lower price is part of a systematic pricing scheme rather than a response to a specific competitive offer. A seller that routinely gives volume discounts to its largest customers cannot retroactively characterize each discount as “meeting competition” without evidence tying each price cut to an identifiable rival offer.
Cost Justification
Section 2(a) permits price differences that reflect actual savings in the cost of manufacturing, selling, or delivering goods to different buyers. Shipping a truckload to one warehouse can genuinely cost less per unit than making dozens of small deliveries to independent stores, and that difference can justify a lower price. The FTC has said volume discounts are legal when a seller can demonstrate real cost efficiencies from selling in larger quantities.1Federal Trade Commission. FTC Sues Southern Glazer’s for Illegal Price Discrimination
Proving it is another matter. The seller must produce detailed cost accounting that traces the savings to the specific transactions in question. Broad corporate cost allocations rarely satisfy courts, which is why cost justification, while central in theory, is often thin in practice.
Changing Market Conditions
The Act also permits price changes made in response to shifting conditions affecting the goods themselves. The statute lists perishable goods nearing spoilage, seasonal products becoming obsolete, court-ordered distress sales, and good-faith sales made in connection with discontinuing a product line.7Office of the Law Revision Counsel. 15 USC 13 Discrimination in Price, Services, or Facilities A supplier clearing expiring inventory at a deep discount is not engaging in unlawful discrimination even if only some buyers get the lower price.
What This Means for Sellers Using Differential Pricing
The current picture is asymmetrical. Courts have made private cases harder to bring, particularly under Volvo Trucks, which forces secondary-line plaintiffs to identify head-to-head competition for specific sales. At the same time, the FTC has signaled it will pursue cases the private bar might not, using the classic Morton Salt secondary-line theory against distributors whose price structures leave smaller buyers systematically disadvantaged.
Sellers who rely on tiered pricing, rebate programs, or promotional allowances have practical work to do. Cost-justification files should tie specific savings to specific transactions rather than lean on corporate averages. Meeting-competition decisions should be documented at the time they are made, with contemporaneous notes on what the seller knew about the rival offer. Promotional programs under Sections 2(d) and 2(e) should be structured so that comparable terms are actually available to competing customers, not just nominally offered. Southern Glazer’s is one case, but it is the first in a generation, and the compliance question is no longer purely academic.