Class Actions Are Generally Not Permitted Under the Robinson-Patman Act - List of Decisions

First Posted: October 26, 1999; Last Update: October 26, 1999

There is a long line of decisions in the federal courts denying class-action treatment to Robinson-Patman Act claims. See discussion in Related Article about 1 Store, 1 Suit, No RPA Class Actions.

There is always some room for carving out a single issue or two relating to the overall RPA claims of a group which might be litigated as a class action, which could be treated as a class action. But the trial for and award of money would have to be in separate actions, making the class action treatment a waste of effort, expense and time, even if allowed. For example, the manufacturer's relationship to its majority-owned wholesalers might be relevant to all (1,000) RPA suits, and this issue could be resolved as a class, but the rest of the claims (including the proof of differing prices, rebates, effect on competition for the individual plaintiff, amount of loss suffered by the plaintiff) have to go forward in individual cases.

The list of cases holding or stating that class action treatment for RPA cases should be denied follows:

• National Association of College Bookstores, Inc. v. Cambridge University Press, 990 F. Supp. 245, 1997 U.S. Dist. LEXIS 18298; 1997-2 Trade Cas. (CCH) Para. 71,991 (S.D.N.Y. 1997) ("established rule that class certification of Robinson-Patman Act claims is inappropriate due to the degree of individuated proof required") [990 F. Supp. 249]

• American Booksellers Assn., Inc. v. Houghton Mifflin Co., 1995 U.S. Dist. LEXIS 2522; 1995-1 Trade Cas. (CCH) Para. 70,931 (S.D.N.Y. 1995) ("because scrutiny of Robinson-Patman violations requires highly individualized proof, joint action is not allowable. In support of this contention, defendants cite a number of cases holding that Robinson-Patman claims are not suited to class actions [citing O'Connell and Boro Hall cases]... (courts generally deny class certification in Robinson-Patman cases because competitive injury is highly individualistic).") [*12]

• O'Connell v. Citrus Bowl, Inc., 99 F.R.D. 117; 1983 U.S. Dist. LEXIS 13949; 1983-2 Trade Cas. (CCH) Para. 65,703 (E.D.N.Y. 1983) ("As the case law demonstrates, private antitrust actions under the Robinson-Patman Act are generally if not always manifeestly 'ill-suited to class action treatment.' [citing Kelly and Uniroyal decisions] ... class actions under section 4 of the Clayton Act premised upon violations of the Robinson-Patman Act generally present complicated, strictly individuallized factual issues. Windham v. American Brands, Inc., supra, 565 F.2d at 68 n. 20 (compiling cases)." [99 F.R.D. 122]

• Abernathy v. Bausch & Lomb Inc., 97 F.R.D. 470; 1983 U.S. Dist. LEXIS 18575; 36 Fed. R. Serv. 2d (Callaghan) 158; 1983-2 Trade Cas. (CCH) Para. 65,572 (N.D. Tex., Dallas Div. 1983)("... liability will be highly individualistic. For this reason the courts have generally denied class action motions in Robinson-Patman cases.' ... Because of the difficulties described, this Court concludes that plaintiffs' section 2(c) claim is also ill-suited for class action status. ... In sum, this Court concludes that, under the circumstances described above, a class action cannot here by maintained for these Robinson-Patman claims. The consistence with which other courts have dealt with this issue in the past, at least in the context of section 2(a) claims, gives this Court assurance of the appropriateness of its having ruled solely on the basis of the pleadings....") [97 F.R.D. 475]

• Mekani v. Miller Brewing Co., 93 F.R.D. 506; 1982 U.S. Dist. LEXIS 10571 (E.D. Mich. 1982), 33 Fed. R. Serv. 2d (Callaghan) 1713; 1982-1 Trade Cas. (CCH) Para. 64,563 ("In Boro Hall v. Metropolitan Tobacco Co., 74 F.R.D. 142 (E.D.N.Y. 1977), the Court denied a motion for class certification in a Robinson-Patman price discrimination claim stating: 'In a class action ... each class member must prove that the defendant's discriminatory pricing injured him. ... Each class member's proof as to competitive injury and thus as to liability will be highly individualistic. For this reason the courts have generally denied class action motions in Robinson-Patman Act cases. ... In the instant case, each of the plaintiff retailers sells a variety of beer products at a wide range of prices in different geographical areas.") [93 F.R.D. 511]

• Mead v. United States Fid. & Guar. Co., 1978 U.S. Dist. LEXIS 20044; 25 Fed. R. Serv. 2d (Callaghan) 743 (D. Minn., 1978) ("Cessna argues that the claims of price discrimination in the Robinson-Patman Act case are individualized as to each dealer and cannot be the subject of class action treatment. Obviously, if the court were to entertain these issues it would be plunging headlong into the merits of the case. Each of these issues can be raised and fullyl ventilated on appeal following a final judgment. Consideration at this time would serve no justifiable [purpose]". [*9] SUPPORT FOR THE OPPOSING POINT THAT A VERY LIMITED NUMBER OF CLASS ACTIONS HAVE BEEN PERMITTED UNDER THE RPA FOR ONE REASON OR ANOTHER.

• Boro Hall - Oxford Tobacco v. Metropolitan Tobacco Co., 74 F.R.D. 142; 1977 U.S. Dist. LEXIS 16643; 24 Fed. R. Serv. 2d (Callahgan) 561; 1977-1 Trade Cas. (CCH) Para. 61,405 (E.D.N.Y. 1977) ("... territories and who received different price advantages which varied over the course of the class period. Each class member's proof as to competitive injury and thus as to liability will be highly individualistic. For this reason the courts have generally denied class action motions in Robinson-Patman Act cases. [cited Bel Air Markets.] The difficulty in proving individual competitive injury is why the courts in Robinson-Patman Act cases have generally denied class action motions. [citing Chicken Delight]. ... In fact the only case that the plaintiffs cite where a class action was granted in a Robinson-Patman case is Gold Strike Stamp Co. v. Christensen, 436 F.2d 791 (10th Cir. 1970). ... In our case the focus is an injury to competition as there is no allegation that Metropolitan is trying to create a monopoly in cigar wholesaling. This is what distinguishes our case and the other cases cited above from Gold Strike Stamp..." [74 F.R.D. 145-146]

• Kelly v. GMC, 425 F. Supp. 13; 1976 U.S. Dist. LEXIS 11574; 1977-1 Trade Cas. (CCH) Para. 61,287 (E. D. Pa. 1976) ("... membership in the class will be impossible to determine until after a trial on the merits as to each of the 300,000 proposed class members, and in our view the utility of the class action device would be defeated. ...prices than new car dealers must pay for the same parts. Putting aside the substantial problems that this theory poses on the merits, n6, we believe that a Section 2(a) price discrimination claims under the Robinson-Patman Act are manifestly ill-suited to class action treatment.") [425 F. Supp. 19]

• Chmieleski, 71 F.R.D. 118; 1976 U.S. Dist. LEXIS 15576; 22 Fed. R. Serv. 2d (Callaghan) 66; 1976-2 Trade Cas. (CCH) Para. 61,220 (W.D. Mo., West. Div. 1976) ("Because the essential jurisdictional and substantive elements of a claim of secondary level [i.e., competing resellers'] price discrimination in violation of Section 2(a) of the Robinson-Patman Act inherentlyl involves individual issues of fact which constitute a major portion of plaintiffs' required proof, those claims are rarely suitable for class action certification under Rule 23(b)(3). See Bel Air Markets v. Foremost Dairies, 55 F.R.D. 538 (N.D.Cal. 1972).") [71 F.R.D. 171]

• National Auto Brokers Corp. v. GMC, 376 F. Supp. 620; 1974 U.S. Dist. LEXIS 9120; 1974-1 Trade Cas. (CCH) Para. 75,022; 1974 Trade Cas. (CCH) Para. 75,022 (S.D.N.Y. 1974) ("Plaintiffs have moved for class action treatment [as to Robinson-Patman Act claims]. In an unreported bench decision of November 7, 1973, I denied this motion as to one of the classes sought to be represented. In the present opinion I am denying plaintiffs' motion as to the other class.") [376 F. Supp. 623]

• Gulf Wandes Corp. v. GE, 62 F.R.D. 377; 1974 U.S. Dist. LEXIS 12301; 18 Fed. R,. Serv. 2d (Callaghan) 1203; 1974 Trade Cas. (CCH) Para. 75,032; 1974-1 Trade Cas. (CCH) Para. 75,032 (E.D. La. 1974) ("On the basis of the facts presented by the defendant, I also hold that a class action is not superior to other available methods of adjudicating this controversy. If this case proceeded as a class action, this Court would be requir3d to examine proof of competitive conditions in every major market in this country. It would be necessary to examine: the number of competitors in each market; the prices offered each customer of independent distributors and each OEM account in each locality in order to determine applicable differentials; whether OEM accounts and customers of independent distributors were in active competition; the adverse impact of each differential in each market; the extent of public injury in each locality; whether defendant's competitors offered alternative prices to distributors' customers in each area; and many other economic considerations. The facts on which such determinations should be based are not available in New Orleans and can most conceniently be collected in individual market areas. Therefore, the class action should be Dismissed." - cited Chicken Delight and Bel Air Markets decisions.) [62 F.R.D. 380]

• Albertson's, Inc. v. Amalgamated Sugar Co., 62 F.R.D. 43; 1973 U.S. Dist. LEXIS 11992; 18 Fed. R. Serv. 2d (Callaghan) 1208; 1974 Trade Cas. (CCH) Para. 74,875 (D. Utah 1973). ("Bel Air Markets v. Foremost Dairies, Inc., 55 F.R.D. 538 (N.D. Cal. 1972). Since the trial as to liability would become a series of individual trials, the purpose of Rule 23 would be thwarted and class action would be denied as to the Robinson-Patman Act involving secondary line [competing resellers'] claims. ... By the Robinson-Patman count, base point pricing itself is under attack and, if the plaintiffs are successful, we would have to permanently enjoin the use of a basing point system. Again, because of the conflicting interest among the class members involved in such a ruling, those seeking to represent the class cannot do so adequately. The class action must be denied on the Robinson-Patman claims.") [62 F.R.D. 55]

• Bill Minnielli Cement Contr., Inc. v. Richter Concrete Corp., 62 F.R.D. 381; 1973 U.S. Dist. LEXIS 12922; 1973-1 Trade Cas. (CCH) Para. 74,591; 1973 Trade Cas. (CCH) Para. 74,591 (S.D. Ohio, West. Div. 1973) ("Nothing would be gained by our delaying decision with respect to whether or not the Robinson-Patman Act claim should proceed as a class action. We think it should not. Not only do the earlier-mentioned conflicts exist, but also there is no reason to believe that if the favored parties are removed from the remaining members would be so numerous as to make joinder impracticable [citing William Goldman Theatres, Inc.]". [62 F.R.D. 391]

• Bel Air Mkts. v. Foremost Dairies, Inc., 55 F.R.D. 538; 1972 U.S. Dist. LEXIS 13339; 16 Fed. R. Serv. 2d (Callaghan) 855 (N.D. Cal. 1972) ("The defendants, opposing maintenance of this case as a class action, contend that ... common questions do not predominate over individual questions.... * * * Gold Strike Stamp, however, really demonstrates the impropriety of allowing class action status in the case at bar.") [55 F.R.D. 540-541]

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Copyright © 1999 by Carl E. Person