莫卡特斯中心-罗宾逊-帕特曼法案：与竞争和经济福利相悖的法规（英）-2023-WN6.pdf

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1、POLICY BRIEFThe Robinson-Patman Act:A Statute at Odds with Competition and Economic WelfareAlden Abbott and Satya MararJune 2023The Robinson-Patman Act of 1936(RPA),a 1937 amendment to the Clayton Antitrust Act,is an antiprice discrimination statute,administered primarily by the Federal Trade Commis

2、sion(FTC),which may provide injunctive relief through administrative proceedings.1 The RPA bans certain discriminatory discounts on price as well as the provision of or reimbursement for cer-tain promotional services.Its original intended targets were large retail chains that leveraged their large s

3、ize and dominant market position to secure favorable exchange terms from suppliers relative to their smaller competitors.Although courts have recently shown greater reluctance to enforce the RPA based on injury to competitors rather than competition,2 even its modern pro-ponents in the antitrust enf

4、orcement establishment affirm its purpose as keeping“open the door of opportunity for the small-business man.”3 After initial decades of heavy enforcement by the FTC,the statute largely became inactive in the 1980s.Since 1992,the FTC has issued just one RPA complaint.4 Recently,however,the Biden adm

5、inistration FTC,under new chair Lina Khan,has signaled renewed enthusiasm about enforcing the RPAs mandates.5 Khans FTC has the support of the Biden administration,which produced an executive order in July 2021 citing the RPA as a solution for improving“farmers and smaller food processors access to

6、retail markets.”6The historic decline in RPA enforcement has largely been driven by changes in economic learning and antitrust precedent since the statutes enactment.From the 1970s onward,American courts adjudicating Clayton Act disputes have applied the“consumer welfare standard”as the antitrust be

7、nchmark for assessing business practices.7 More specifically,courts have struck down conduct as anticompetitive based on its harmful effect on consumers,as attested through higher prices,reduced innovation,and lower quality in products and services.This situation has led to jurists,8 scholars,9 and

8、antitrust enforcement agenciesfor example,the Department of Justice10alike 3434 Washington Blvd.,4th Floor,Arlington,VA,22201 703-993-4930 www.mercatus.orgThe views presented in this document do not represent official positions of the Mercatus Center or George Mason University.2MERCATUS CENTER AT GE

9、ORGE MASON UNIVERSITYcriticizing the RPA for its focus on shielding competitors from their potentially more efficient and effective rivals rather than on promoting competition to protect consumers.Put simply,larger buyers typically undercut smaller rivals by increasing services,lowering prices,or ma

10、king their products more attractivethus benefiting consumers.11Critics of RPA enforcement note that it risks harming consumers by deterring potentially procom-petitive conduct.For instance,a retail chain that is prevented from securing a lower price(relative to its rivals)from a willing supplier by

11、negotiating discounts likely will need to raise prices for its retail products.Calls to repeal the RPA have thus been made as recently as 2007 in a bipartisan report from the Antitrust Modernization Commission.12 RPA enforcement is also fraught with difficulty owing to its language,which is convolut

12、ed and difficult to interpret,with Justice Frank-furter famously writing that“precision of expression is not an outstanding characteristic of the Robinson-Patman Act.”13 A further complication is that public and private plaintiffs attempting to make a successful RPA claim must clear several complex

13、statutory hurdles,as well as rebut multiple potential defenses that defendants may assert.FTC enforcers attempting to mount any renewal in RPA enforcement will need to overcome these difficulties,as well as recent unfavor-able judicial precedents,if they are to bring successful claims.This brief cha

14、rts the legislative,judicial,and enforcement history of the RPA.It critically appraises the potential consequences for consumers and competition of stricter and more zealous RPA enforcement by todays FTC.The brief also assesses the justifications provided by proponents of renewed RPA enforcement and

15、 evaluates suggestions for alternative,pragmatic reforms to address the ability of small businesses and entrepreneurs to compete effectively.THE ROBINSON-PATMAN ACT:A BRIEF SUMMARY This section briefly discusses the conduct covered by the RPA,types of injuries,defenses,and the acts judicial history.

16、What Conduct Is Covered by the RPA?According to the FTC:A seller charging competing buyers different prices for the same“commodity”or discriminating in the provision of“allowances”compensation for advertising and other servicesmay be violating the RPA RPA claims must meet several specific legal test

17、s:1.The Act applies to commodities but not to services,and to purchases,but not to leases.3MERCATUS CENTER AT GEORGE MASON UNIVERSITY2.The goods must be of“like grade and quality.”3.There must be likely injury to competition(that is,in a private lawsuit,a private plaintiff must also show actual harm

18、 to his or her business).4.Normally,the sales must be“in”interstate commerce(that is,the sale must be across a state line).14Types of InjuryThe RPA punishes firms responsible for primary-line and secondary-line injuries.Primary-line injuries occur when a firms competitor sells its goods at a lower p

19、rice in the firms specific geo-graphic market relative to other markets.For instance,a big-box retailer selling its goods below cost in a single locality over a sustained time period inflicts a primary-line injury on its competi-tors in that market.The 1993 Brooke Group Supreme Court decision limite

20、d the scope of liability for primary-line injuries.Secondary-line injuries are those inflicted on an aggrieved firm when its supplier gives price advantages to its competitor or competitors.Thus,primary-line injuries occur at the seller level and are caused by competing sellers,and secondary-line in

21、juries occur at the buyer level.DefensesThe meeting competition defense allows sellers to provide different prices or promotional services to specific buyers if it believes in good faith that it must do so to meet a comparable offer from competing sellers.15 This defense acknowledges that competing

22、sellers do not usually know prices their rivals are offering,thereby letting them confidently make the most competitive offers without fear of legal liability.These cost savings are usually passed on to end consumers through lower prices.In 1983,the Supreme Court ruled that sellers need only meet th

23、e generally lower price structure offered by a competing seller in another geographic market rather than having to show it was“meeting competition”on a customer-by-customer basis.16 Thus,firms can charge different prices in two different geographical markets based on differing levels of competition

24、in each one.The cost justification defense allows sellers to offer different prices to buyers based on differences in costs inherent in manufacturing,selling,or delivering the goods to them.17 For instance,a sup-pliers wholesaler customers may receive a“functional discount”relative to its retail cus

25、tomers for the same good to compensate the wholesalers for promotional services they provide,which retailers do not normally provide.18 This defense was later expanded to include arrangements between suppliers and vertically integrated businesses engaged in multiple supply-chain levels.19 Cost justi

26、fication is,however,generally difficult and costly to establish because defendant sellers must demonstrate actual cost savings equal to or exceeding the differences in price faced by dif-ferent customers.204MERCATUS CENTER AT GEORGE MASON UNIVERSITYAn affirmative defense is available in cases where

27、price differences between customers are a“response to changing conditions affecting the market for or the marketability of the goods concerned.”21 This defense can be raised if the demand for the product has decreased significantly because of the perishable nature of the goods or obsolescence of sea

28、sonal goods or if the product is discontinued.22 Courts have also recognized an affirmative defense if the advantageous price was functionally or practically available to the disfavored buyer.23 Buyers from the same supplier may also be offered different prices where they are not“close competitors”o

29、r do not compete“head-to-head”for the same customer or customers.24 For instance,a wholesaler plaintiff may be offered a higher price than a large,vertically integrated chain because they are not close competi-tors.25 Liability also will not hold if sales were not diverted to the competitor that was

30、 allegedly offered the discount26 or if the loss incurred by the aggrieved purchaser was de minimisthat is,only a minuscule proportion of its customers were diverted.27 Although courts have recognized more defenses over time while broadening the scope of existing ones,the RPA still deters poten-tial

31、ly pro-competitive behavior through the threat of litigation itself.This situation reflects the risk that successful plaintiffs may obtain treble damages and their attorney fees and recover their own costs.28A Judicial History of the RPAEarly RPA jurisprudence interpreted it as protecting competitor

32、s from purported price discrimina-tion even if competition intensified and consumers benefited from the differences,such as through lower final prices in the relevant markets.Morton Salt(1948)dealt with secondary-line injuries and created a rebuttable presumption that competition is injured if it ca

33、n merely be shown that an aggrieved buyer had faced sustained higher prices from suppliers after a price discrimination or discount agreement between the defendant competitor and the same suppliers.29 Proof of diverted sales to the beneficiary competitor after such an agreement also supports this pr

34、esumption.30 However,the Supreme Court later ruled in Automatic Canteen(1953)that a defendant competitor receiving a favored price would be liable for RPA injury only if it both knew that it was receiving a better price than its rivals and also knew that the supplier seller in question had little li

35、kelihood of a successful defense,such as cost justification or meeting competition.31 This interpretation established and upheld the rule that the RPA must be reconciled with the broader purpose of the Clayton Act of promoting competition and that an agencys interpretations of its own statutes can-n

36、ot be accepted at face value unless Congress has instructed otherwise.32 The majority held that competition would be reduced if the“sturdy bargaining between buyer and seller”was inhibited as a result of buyers bearing the burden of determining whether their suppliers price is lawful every time they

37、 negotiate for a lower price.33 Information about whether RPA defenses apply is usually proprietary to the seller and may thus be unavailable to its customers.34 Information is often difficult to obtain even for sellers without investigating their own business in detail.35 5MERCATUS CENTER AT GEORGE

38、 MASON UNIVERSITYWith regard to primary-line injury cases,the 1967 Utah Pie Supreme Court decision held that a defendant competitor seller that had sold its products in the plaintiffs geographic market at a lower price than in other markets was liable for injuring the plaintiff,even though economic

39、data showed the pro-competitive result of prices faced by consumers being driven down in the long term.36 However,Utah Pie has since been essentially overruled,and primary-line injury liability now requires a showing that the price-discriminating defendant seller not only underbid its com-petitors b

40、ut also sold at below its own cost.37 This development brings the standard of proof for RPA primary-line injury claims into line with that of Sherman Act price discrimination claims,and it requires a stronger indication that competition(rather than merely competitors)has been injured.Subsequent RPA

41、case law has been characterized by the influence of the modern consumer welfare standard as the benchmark for ascertaining substantial harm to competition under the Clayton Act and by courts increasingly expanding the number and scope of available defenses for RPA injury claims.These developments ha

42、ve made RPA claims increasingly expensive and difficult for com-petition authorities and aggrieved competitors to bring and substantially lowers their prospects of success.38 Accordingly,there is an increased focus on empirical evidence and market analysis demonstrating more than injury to aggrieved

43、 competitors through their having sustained levels of higher prices(something that is no longer considered as sufficient evidence of“injury to competi-tion”in isolation).Despite these developments,however,the RPAs treatment of secondary-line injury claims,as upheld by courts,39 leaves open the possi

44、bility of liability even where consumer welfare and competition across the relevant market are enhanced.ARGUMENTS AGAINST THE RPA AND STRICTER RPA ENFORCEMENTThe RPA harms rather than protects small business.Instead of protecting small businesses from the“predatory”tactics of larger firms,targets of

45、 RPA enforcement have mainly been the very same small and medium-sized businesses.A 1990 study found that between 1961 and 1974,only 36(6.4 percent)of the 564 companies mentioned in FTC complaints concerning RPA injury had annual sales exceeding$100 million or above when the complaint was made.More

46、than 60 percent of these firms had sales below$5 million.40 Thus,renewed calls for more zealous and strict RPA enforcement likely will disproportionately harm the same small and medium-sized businesses.These firms bear disproportionately greater costs from litigation than larger onescosts that will

47、make it harder for them to expand and compete with even larger rivals while deterring them from engaging in potentially pro-competitive conduct that benefits consumers.Small businesses also suffer when their suppliers refuse outright to sell to small clients to avoid incurring liability under the RP

48、A for charging them prices that differ from the prices charged to their larger competitors.The RPA polices price difference rather than price discrimination,punishing efficient busi-ness practices as a result.Price discrimination happens when there are differences in the price6MERCATUS CENTER AT GEO

49、RGE MASON UNIVERSITYtomarginal cost ratios faced by different buyers.41 By contrast,the RPA is concerned with mere differences in prices faced by different buyerssomething that is not necessarily discriminatory.Extensive economic literature finds that price differences faced by buyers of the same pr

50、oduct are ubiquitous,occurring even in industries with many competitors and low barriers to entry to markets considered to be competitive,and that these differences give buyers incentives to com-pete with each other by adopting efficient practices,providing promotion or other services,or buying larg