Resumed FTC Enforcement Against Price Discrimination and Ramifications of a Conscious Uncoupling of Price Discrimination From Robinson-Patman

On September 22, 2022, the Federal Trade Commission (“FTC”) announced that it would resume enforcement of the Robinson-Patman Act after a multi-decade period of enforcement inactivity. On November 10, 2022, the FTC followed up with a subsequent announcement, stating that it would restore “rigorous enforcement” of Section 5 of the FTC Act, indicating that price discrimination will be enforced under Section 5 even if the underlying conduct may not constitute a technical violation of Robinson-Patman. In this article, Lawrence Silverman discusses two related possibilities arising from these developments, and the possibility of a paradigm shift for both private and governmental enforcement of Robinson-Patman and price discrimination.

This article appeared in the Winter 2023 volume of the Antitrust Chronicle, published by Competition Policy International.