Commercial Bribery, Antitrust Injury and Section 2(c) of the Robinson-Patman Aniti-Discrimination Act

Keller W. Allen & Meriwether D. Williams, Commercial Bribery, Antitrust Injury and Section 2(c) of the Robinson-Patman Anti-Discrimination Act, 26 Gonz. L. Rev 167 (1990).

Commercial bribery is a common occurrence in today’s competitive markets. Few practitioners are aware that commercial bribery has antitrust implications. For example, assume your clients are shareholders who just discovered that the recently retired president of their corporation, now living in Argentina, accepted previously undisclosed payments from a supplier. The secret payments were made as an incentive for the corporation to buy goods from that supplier. The shareholders want to know if any recourse exists. The secret payments may be described in antitrust terms as commercial bribery. But has an antitrust injury occurred so that the payments create an antitrust claim against the corporation’s supplier? This article examines conflicting case law which interprets section 2(c)’f the Robinson-Patman Act (the Act) as it applies to commercial bribery. The  urpose of the Act is to prevent discrimination in price and other discriminatory practices which affect free and open competition in the marketplace This article directs itself to unwitting buyers who seek damages under Section 2(c) after discovering that they paid higher prices for goods because their agents, employees, or brokers accepted payments from the seller. The issue raised by the buyer’s claim is whether paying a higher price for goodsdue to illegal payments constitutes an “antitrust injury” under the Supreme Court’s holding in J. Truett Payne Co. v. Chrysler Motors Corp.

This issue is significant because a plaintiff who fails to demonstrate an antitrust injury may lack standing to assert an antitrust claim under the private action requirements of section 4 of the Clayton Act. The concept of ”antitrust injury” and its proper application to commercial bribery cases under section 2(c) is unsettled under existing case law. . .

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