A 2-1 Third Circuit panel today reversed a summary judgment in a price-discrimination case under the Robinson-Patman Act.  The majority held that the district court erred by requiring too much proof of "competitive injury".

Michaels Foods, a supplier of egg and potato products, negotiated to charge below-list prices to Sodexho, a food distributor, but charged list prices to another food distributor, Feesers.  The district court granted summary judgment because Feesers didn’t show that it lost customers due to Sodexho’s lower egg-and-potato prices.  The Third Circuit reversed:

In order to establish a prima facie violation of section 2(a), Feesers does not need to prove that Michael Foods’ price discrimination actually harmed comptition, i.e., that the discriminatory pricing caused Feesers to lose customers to Sodexho.  Rather, feesers need only prove that (a) it competed with Sodexho to sell food and (b) there was price discrimination over time by Michael Foods.  This evidence gives rise to a rebuttable inference of "competitive injury" under section 2(a). . . . The inference, if it is found to exist, would then have to be rebutted by defendants’ proof that the price differential was not the reason that Feesers lost sales or profits.

Feesers, Inc. v. Michael Foods, Inc., No. 06-2661, slip op. at 15-16 (3d Cir. Aug. 14, 2007) (emphasis in original; citations and footnote omitted).

Barry Barnett

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