Robinson-Patman Act

Chapter 5
Robinson-Patman Act
A. Seller LiabilitySection 2(a)
1. Instruction 1: General Definition of Price Discrimination
Plaintiff claims that defendant engaged in price discrimination in
violation of Section 2(a) of the Robinson-Patman Act. Under certain
circumstances, the Robinson-Patman Act prohibits a seller1 from selling2
goods of like grade and quality to different purchasers3 at different prices.
However, the Act does not prohibit all price differences.
[Alternative for primary line case]: In this case, plaintiff alleges that it
competes with defendant for sales of the product to customers located in
[describe area]. Plaintiff claims that defendant sold the product to
[customer A] at prices that were lower than it charged other customers in
[describe area].
[Alternative for secondary line case]: In this case, plaintiff claims that
defendant sold the product to [customer A] at prices that were lower than
those paid by plaintiff.
[Alternative for tertiary line case]: In this case, plaintiff claims that
defendant sold the product to [customer A] at prices that were lower than
those defendant charged plaintiff’s supplier, [customer B].
1. Where plaintiff contends that two separate entities constitute the “same
seller” for § 2(a) purposes, a separate instruction on this issue may be appropriate.
See part C.4 (Single Seller) of this chapter.
2. An essentialbut rarely contestedelement of any § 2(a) case is that
defendant must have made two or more actual sales to two or more different
purchasers. Bruce’s Juices, Inc. v. Am. Can Co., 330 U.S. 743, 755 (1947);
Capital Ford Truck Sales v. Ford Motor Co., 819 F. Supp.1555, 1574 (N.D. Ga.
Robinson Patman Act 239
3. There are not two sales if defendant made a sale at one price and merely
offered to sell to a second potential purchaser at a higher price. Crossroads
Cogeneration Corp. v. Orange & Rockland Utils., 159 F.3d 129, 142 (3d Cir.
1998); Fusco v. Xerox Corp., 676 F.2d 332, 337 (8th Cir. 1982). In a competitive
bidding situation, multiple offers to different bidders will not constitute separate
sales because only one bid will be selected, and therefore there will only be one
sale. Toledo Mack Sales & Serv., Inc. v. Mack Trucks, 530 F.3d 204, 228 (3d Cir.
2008). A refusal to sell to the second potential purchaser also is not a sale. B-S
Steel of Kansas, Inc. v. Texas Indus., 439 F.3d 653, 669 (10th Cir. 2006); Black
Gold, Ltd. v. Rockwool Indus., 729 F.2d 676, 682-83 (10th Cir. 1984); L&L Oil
Co. v. Murphy Oil Corp., 674 F.2d 1113, 1120 (5th Cir. 1982); Mullis v. Arco
Petroleum Corp., 502 F.2d 290, 294 (7th Cir. 1974). If, on the other hand, there is
a legally enforceable contract for sale (i.e., for a specified quantity at a specified
price), it is not necessary that the products actually have been delivered. See, e.g.,
En Vogue v. UK Optical, 843 F. Supp. 838, 846 (E.D.N.Y. 1994); J.W. Burress,
Inc. v. JLG Indus., 491 F. Supp. 15, 18 (W.D. Va. 1980); Aluminum Co. of
America v. Tandet, 235 F. Supp. 111, 114 (D. Conn. 1964). The comparison is
between actual sales, not price systems. Rutledge v. Electric Hose & Rubber Co.,
327 F. Supp. 1267, 1275 (C.D. Cal. 1971), aff’d, 511 F.2d 668 (9th Cir. 1975).
If the transactions being compared are not true sales transactions, then § 2(a)
will not apply. See, e.g., E&L Consulting, v. Doman Indus., 472 F.3d 23, 32 (2d
Cir. 2006) (consignment sales); Seaboard Supply Co. v. Congoleum Corp., 770
F.2d 367, 373 (3d Cir. 1985) (commissioned sales agent); Airweld, Inc. v. Airco,
Inc., 742 F.2d 1184, 1192 (9th Cir. 1984) (exchange of tangible products between
manufacturers); Export Liquor Sales, v. Ammex Warehouse Co., 426 F.2d 251,
252 (6th Cir. 1970) (lease of real property).
Transactions involving a single entity or enterprise are not considered
qualifying sales to purchasers and cannot be the basis of a Robinson-Patman
claim. See, e.g., City of Mt. Pleasant, Iowa v. Associated Elec. Coop. 838 F.2d
268, 278-79 (8th Cir. 1988) (sales between electricity utility company and retail-
distribution cooperatives); Security Tire & Rubber Co. v. Gates Rubber Co., 598
F.2d 962, 967 (5th Cir. 1979) (transfers between parent and wholly owned
subsidiary); Mumford v. GNC Franchising LLC, 437 F. Supp. 2d 344, 360-61
(W.D. Pa. 2006) (sales to company-owned stores).
240 Model Jury Instructions in Civil Antitrust Cases
2. Instruction 2: Elements
Plaintiff’s claim of price discrimination is based on comparing
defendant’s sales to plaintiff [or customer A in the case of primary line
injury] with defendant’s sales to other purchasers. To prevail on its
Robinson-Patman Act claim, plaintiff must prove, with respect to a set of
compared sales, each of the following elements by a preponderance of the
(1) at least one of the sales being compared was made across a state
(2) each sale was for use or resale in the United States;3
(3) the products sold were physical items;4
(4) the sales being compared were made by defendant at about the
same time;5
(5) the products involved in the sales being compared were of like
grade and quality;6
(6) defendant charged discriminatorythat is, differentprices to
different purchasers;7
(7) there is a reasonable possibility that the discriminatory pricing
may harm co mpetition;8 and
(8) plaintiff was injured in its business or property because of the
discriminatory pricing.9
If you find that the evidence is insufficient to prove any one or more
of these elements, then you must find for defendant and against plaintiff
on plaintiff’s Robinson-Patman Act claim.
Injury and Causation, Chapter VI.A.1
Business or Property, Chapter VI.A.2
1. In most Robinson-Patman cases, there will be no dispute concerning
many of the elements. T he court should omit the undisputed elements and modify
the listing to reflect the actual elements in dispute.
2. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 (1974); Godfrey v.
Pulitzer Publ. Co., 276 F.3d 405, 409 n.9 (6th Cir. 2002); Black Gold, Ltd. v.
Rockwool Indus., 729 F.2d 676, 683 (10th Cir. 1984); see also Moore v. Mead’s

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