Unique Robinson-Patman Suit Based on Different Package Sizes Allowed to
Two recent decisions by the U.S. District Court for the Western District of
Wisconsin reached back decades for precedent to allow a novel price
discrimination suit under the Robinson-Patman Act to proceed. Woodman’s Food
Market, Inc., an employee-owned chain of 15 grocery stores in Wisconsin and
Illinois, sued household products manufacturer Clorox, alleging that Clorox
discriminated against Woodman’s by discontinuing its sale of “large pack” sizes
of certain products to Woodman’s while continuing to sell those sizes to
warehouse club retailers. Woodman’s complaint sought declaratory judgment and injunctive
Clorox moved to dismiss. The court denied that motion earlier this year, relying on a pair of
administrative decisions by the Federal Trade Commission (FTC) from 1956 and
1940, as well as the FTC’s Guides for Advertising Allowances and Other Merchandising
Payments and Services (commonly known as the “Fred Meyer Guides”), for
the proposition that special product packaging or package sizes fall within the
scope of Sections 2(d) and (e) of the Robinson-Patman Act.
Clorox subsequently attempted to moot Woodman’s complaint by unilaterally
ending all business dealings with Woodman’s, and again moved to dismiss
the case, claiming that Woodman’s now lacks standing to bring the claim. In denying that motion, the court turned to the U.S. Supreme
Court’s seminal decision in FTC v. Fred Meyer, Inc., 390 U.S. 341 (1968),
concluding that Woodman’s potentially still could have standing as a “customer”
and “purchaser” under the Robinson-Patman Act by purchasing Clorox’s products
indirectly through wholesalers. The parties currently are briefing a motion by
Clorox for interlocutory appeal of the court’s decisions to the U.S. Court of
Appeals for the Seventh Circuit.
DOJ and FTC Tout Recent International Competition Network Guidance on
In parallel May 1 press releases, the U.S. Department of Justice Antitrust Division (DOJ) and FTC announced that the International Competition Network, an
organization bringing together competition regulators and enforcers from 119
jurisdictions around the world, has adopted guidance on the investigative process in competition cases.
The guidance is intended to promote fairness, effectiveness and predictability
across jurisdictions in the use of investigative tools, the transparency of each
jurisdiction’s policies and standards, the transparency and engagement of
competition agencies during investigations, and the protection of confidential
and privileged information disclosed in the course of investigations.
DOJ Auto Parts Investigation Nears 100 Charged Individuals and
On May 21, the DOJ announced criminal antitrust charges filed in the U.S.
District Court for the Eastern District of Michigan against one current and one
former executive of a Japanese manufacturer of spark plugs, standard oxygen
sensors and air fuel ratio sensors. These charges follow a guilty plea by the
manufacturer itself to related charges late last year, pursuant to which the manufacturer paid a
$52.1 million criminal fine. According to the press release, the DOJ so far has
charged 55 individuals in the ongoing investigation, and has secured guilty
pleas or agreements to plead guilty from 35 corporations. Criminal fines from
the investigation now total more than $2.5 billion.
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