Price Discounting and Antitrust Liability

Businesses involved in the purchase or sale of tangible goods — manufacturers, suppliers, wholesalers, and importers — face Robinson–Patman Act (R–P) price discrimination issues.

Companies are under intense pressure to take care of their biggest customers and to take advantage of economies of scale. This creates a strong incentive for businesses to offer their largest customer the lowest prices, which can lead to charges of price discrimination under R–P.

To stay within the boundaries of R–P and avoid related antitrust liability, companies and their counsel must have a thorough understanding of R–P requirements and prohibitions — and the potential price discrimination traps they face.

Listen as our panel of antitrust law specialists examines the elements of price discrimination and discusses practical ways for a company to offer legal pricing discounts under R–P.

The panel included:

Mark S. Ostrau, Partner, Fenwick & West, Mountain View, Calif. He co-chairs the Antitrust and Unfair Competition Group and represents clients before antitrust agencies in connection with the Hart–Scott–Rodino Act and other antitrust aspects of acquisitions.

Reginald D. Steer, Partner, Akin Gump Strauss Hauer & Feld, San Francisco. He handles cases involving claims of antitrust violations, fraudulent business practices, securities violations, and products liability, including price discrimination and price fixing matters.

Deborah Salzberger, Stikeman Elliott, Toronto, Canada. She advises clients with respect to competition and antitrust issues and regulatory filing requirements in the context of mergers and acquisitions.

The panel reviewed these and other key questions:

• What are the typical price discrimination issues that arise for buyers and sellers under the Robinson–Patman Act?
• What are the defenses available to companies when price discrimination violations are alleged by the government or by competitors?
• What are the best practices for companies to utilize legal price discounting that doesn't violate Robinson–Patman?

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