Ruth Bader Ginsburg was a trailblazer on so many fronts. Her well-earned nickname “notorious RBG” is usually synonymous with gender equality, civil rights, and equal justice under the law. Her mark on the law is certainly indelible, and what she stood for as the second female Justice on the Court, (one who was deemed unworthy of any law firm job despite graduating first in her class from Columbia Law School) maybe even more so. But one area of the law in which her opinions in a most prolific career are rare, is that of antitrust. However, the sole antitrust opinion she did author for the majority of the Court tackled a difficult and complex issue in antitrust law: price discrimination under the Robinson-Patman Act.
In Volvo Trucks North American Inc., v. Reeder-Simco GMC, Inc., the Court reversed an Eighth Circuit ruling that a truck manufacturer had violated the Robinson-Patman Act when it gave smaller discounts on custom-made trucks to the plaintiff retailer than it had given to other retailers of custom-made trucks. Writing for the Court, Justice Ginsburg held that because the alleged price discrimination did not concern direct competition between the retailers, the plaintiff retailer had failed to show competitive injury as required by Robinson-Patman Act. The Court held that although Reeder-Simco may have competed with other Volvo dealers for the opportunity to submit a bid for a sale of trucks, the Court found that this sort of preliminary competition was not affected by the alleged price discrimination being complained of, because a dealer does not seek a price discount from Volvo until after it has been selected to submit a bid.
Justice Ginsburg noted that “Interbrand [not intrabrand] competition, is the primary concern of antitrust law… .The Robinson-Patman Act signals no large departure from that main concern. Even if the Act’s text could be construed in the manner urged by [plaintiffs], we would resist interpretation geared more to the protection of existing competitors than to the stimulation of competition.”
The reason this case remains so influential is its affirmance of the idea that antitrust law is meant to protect competition not competitors, a type of thinking that has been attacked more recently by those who are considered antitrust populists, and prefer to see more competitors in a market even if that might mean a smaller benefit to the consumer. The populist movement became a major topic of discussion when Columbia Law Professor Lina Kahn, wrote an article while attending Yale Law School, arguing that the current American antitrust law framework, which usually focuses on keeping consumer prices down, cannot account for the anticompetitive effects of large platform-based business models which have become extremely popular since the Volvo decision. In reimagining antitrust law, Kahn argues that the type of pricing seen in Volvo could be seen as predatory as it could reward certain competitors over others, thereby driving competition out of the market, even if consumers remain unharmed.
While Volvo was written nearly 15 years ago, and the way in which Americans buy and sell goods has changed in dramatic ways, it will be interesting to see how antitrust law evolves to keep up with our changing world, although one thing is certain: like so many other areas of the law, Justice Ginsburg’s jurisprudence will once again be right in the middle of that discussion and her indelible legacy will remain. Stayed tuned.
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Carl Hittinger serves as BakerHostetler’s Antitrust and Competition Practice National Team Leader.
Jeanne-Michele Mariani is an associate in BakerHostetler’s antitrust and competition practice.