Antitrust lawyers well know that price discrimination claims under the Robinson-Patman Act (RPA) can be very difficult to win. For example, going as far back as 1953, the Supreme Court has held that there is no buyer liability under Section 2(f) unless the plaintiff (the disfavored buyer) can show the defendant (the favored buyer) knew both: (1) that it was receiving a lower price than its competitor; and (2) that there was “little likelihood” that the discriminatory prices it received were not justified by savings to the manufacturer and, therefore, did not qualify for the RPA defense. But, does a supplier’s dominant exclusive distributor’s knowledge and receipt of lower prices than its smaller multi-brand competitor-buyer imply that it has a duty to inquire of the supplier whether the favorable prices it received might be prohibited by the RPA? According to the Ninth Circuit’s July 19, 2013 decision in Gorlick Distribution Centers, LLC v. Car Sound Exhaust System, Inc., the answer now is “No” ...
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