Robinson-Patman Act Remedies for Price Discrimination

Last Revision: 8/3/01 19:00

Robinson-Patman Act Remedies for Price Discrimination

First it should be pointed out that the Robinson-Patman Act is not limited to just price discrimination. It covers discrimination in the area of advertising and other promotional programs, as well as in the area of providing of services to customers whic h are not provided to competing customers.

The remedies for unlawful price and/or service discrimination are as follows:

• Recovery of plaintiff's actual damages for the 4-year period prior to the filing of the action, plus the period of the lawsuit up to the date of trial, and usually for a period such as 2-3 years or more beyond the date of the trial (known as future da mages, which is a touchy subject to defendants and their counsel).
• Trebling of the amount proven as actual damages; thus actual damages of $1,000,000 when trebled becomes $3,000,000; the trebling is automatic and is not in the discretion of the judge in any way; but there is generally no interest at all on any part o f the actual damages or the trebled damages, with an exception to be discussed;
• an award of reasonable legal fees as part of the plaintiff's right to recovery, which is an amount which must be proven to and awarded by the court after the plaintiff has won its case (assuming it wins), and is based upon the number of hours put in b y plaintiff's counsel (usually including recovery for paralegal time as a recoverable disbursement), multiplied by the hourly rate of the attorney who provided such hours to the case. If the plaintiff's attorneys put in 10,000 hours, at an average (reaso nable) hourly rate of $300 per hour, then the plaintiff would be entitled to an award for legal fees of $3,000,000), even though the actual damages might be only $700,000.
• The plaintiff is probably entitled to an injunction prohibiting the defendant from any further violations of the Robinson-Patman Act, at least of the type which plaintiff proved to exist;
• The plaintiff might be able to obtain a judgment ordering the defendant to divest itself of acquisitions, if the plaintiff alleged and proved that the defendant acquired or was on the verge of acquiring a monopoly in the industry, so that the order to divest would be to undo this monopoly or tendency or attempt to monopolize.
• If the defendant during the litigation caused unnecessary delay through some hardball litigation tactics, such as refusing to produce documents which were needed by the plaintiff and failing to disclose that the defendant even had such requested docum ents, the court can award interest to the plaintiff in addition to the trebling of actual damages; there would be an issue of whether actual or treble damages should be subject to the interest award, as well as for what period of time the interest award w ould apply, such as for the whole period in litigation or just the period of time affected by the bad activities of the defendant and/or its counsel.
• The plaintiff is entitled to recover certain of its costs in the litigation, including the filing fee ($105 for the filing of the complaint), the costs of depositions taken for the parts actually used at trial, expert witness fees (possibly), witness fees paid to witnesses who are subpoenaed and their travel expenses; and various other statutory costs; generally, these costs do not amount to much.
• There is, of course, any state claims alleged in the complaint for which the plaintiff might be able to recover,including such claims as interference with advantageous business relations; unfair competition; inducing breach of contract; unjust enrichm ent; breach of an implied contract; state antitrust claims; and various other claims which might possibly apply, depending on the facts of the case.

  Thus, the remedies available to the RPA plaintiff are quite substantial, which make it worthwhile for a disfavored retailer or wholesaler to commence an antitrust suit against the manufacturer or superstores which give or induce unlawful discounts, fees a nd allowances.

  The Congressional purpose in providing treble damages is to encourage small businesses which are being hurt by unlawful price and service discrimination to file antitrust suits to force the defendant to comply with the law, and the plaintiff is considered a private attorney general in so doing.

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  Copyright © 1997, 2001 by Carl E. Person