The Robinson-Patman Act came out of the Great Depression.  It aimed to stop big department stores from using their buying power to crush mom and pop stores with lower retail prices.  But its language applied broadly, barring any substantial discrimination in price.  

Courts have tried to manage the reach of RPA by expansively applying statutory defenses, creating new ones, imposing caveats, and even "elevat[ing] form over substance."  Toledo Mack Sales & Service, Inc. v. Mack Trucks, Inc., 530 F.3d 204, 228 n.17 (3d Cir. 2008).  Carrying on the tradition, the Third Circuit yesterday again showed how little effect the RPA has.

The facts of the case at first look bad.  A food distributor, Feesers, had to pay a manufacturer, Michaels, almost 60 percent more for egg and tomato products than Michaels billed Sodexo, the biggest food services management company in the world, for the same stuff.

But Feesers and Sodexo didn't compete in the sense RPA demands.  While Feesers' customers would buy directly from it, Sodexo's made purchases from its distributors, not Sodexo.  And Sodexo didn't distribute anything; it just managed the food services shebang.

So in what way did Feesers and Sodexo compete?  By vying to persuade customers either to "self operate", in which case they'd buy from distributors like Feesers, or to let Sodexo manage their cafeterias, break rooms, and other food services facilities, in which case they'd purchase from Sodexo's distributors. 

That sort of competition, the Third Circuit held, doesn't put the plaintiff and defendant in a fight for the same purchases from the supplier.  By the time the purchases happen, Feesers or Sodexo has already won the business.  Feesers thus couldn't satisfy "the competing purchaser requirement" of the RPA.  Feesers, Inc. v. Michael Foods, Inc., No. 09-2548, slip op. at 23 (3d Cir. Jan. 7, 2010).