Author: Steven Cernak
Recently, FTC Commissioner Bedoya made one of his first speeches and called for a “return to fairness” when enforcing the antitrust laws. In particular, he called for renewed enforcement of the Robinson-Patman Act. This speech is just the latest reason why businesses need to prepare for a new antitrust landscape. But Commissioner Bedoya and anyone else calling for drastic basic changes in antitrust enforcement need to be prepared to patiently work for such change with a skeptical judiciary.
In the speech, Bedoya argued that all the antitrust statutes were passed with the intention of improving the “fairness” of markets, not necessarily their “efficiency,” as the laws have come to be interpreted. Therefore, he wants the FTC to focus the interpretation of all the antitrust statutes on fairness, not efficiency, which he claims to be unambiguous: “People may not know what is efficient — but they know what’s fair.” Specifically, Bedoya called for a rejuvenated enforcement of the Robinson-Patman Act and its prohibitions on various types of discriminations, usually against smaller competitors.
On Bedoya’s Robinson-Patman point in particular, please allow me a short “I told you so.” In a prior post, I explained that Robinson-Patman was forgotten but not gone, still affecting negotiations and leading to a few private suits each year. I have insisted on teaching my Antitrust students about the basics of the law, warning them that it is still alive and was unlikely to ever be repealed. If the FTC were to begin actively enforcing the statute after a couple decades, all that knowledge will come in handy once again for many more lawyers.
More generally, it is not clear that interpretation of antitrust law would need to jettison “efficiency” or consumer welfare and move to “fairness” to reach a different result in some of the anecdotes covered in Bedoya’s speech. At least some of the matters might have come out differently with a longer-term view of competition and consumer welfare. In my view — a view that I know Comm. Bedoya does not share — such a standard would be less ambiguous than trying to figure out what “fairness” requires in any situation.
More important than my view, the FTC will need to deal with the views of the courts. Nearly all judges on the bench now have been taught that antitrust laws, including Robinson-Patman, are designed to “protect competition, not competitors” and promote consumer welfare. For instance, consider this quote from one of the few recent Supreme Court cases on Robinson-Patman (internal citations omitted):
Interbrand competition, our opinions affirm, is the “primary concern of antitrust law.” The Robinson-Patman Act signals no large departure from that main concern. . . . . [W]e would resist interpretation geared more to the protection of existing competitors than to stimulation of competition. . . . [W]e continue to construe the Act “consistently with broader policies of the antitrust laws” [so as to avoid] “a price uniformity and rigidity in open conflict with the purposes of other antitrust legislation.”
Because I expect that the views of most judges are consistent with those expressed by Justice Ginsburg in the Volvo decision, it might take some time for the FTC to effectively rejuvenate Comm. Bedoya’s view of Robinson-Patman. But businesses should expect this Commission to try.