DOJ AND FTC CO-CHAIR NEW STRIKE FORCE TO CRACK DOWN ON “UNFAIR AND ILLEGAL” CORPORATE PRICING
April 4, 2024
To further implement President Biden’s July 2021 Executive Order on Promoting Competition in the American Economy, the Biden administration recently launched a new Strike Force on Unfair and Illegal Pricing (“Strike Force”) to crack down on perceived abuses related to corporate pricing. As the key enforcers of the Biden administration’s aggressive regulatory agenda, the U.S. Department of Justice (“DOJ”) and the FTC will jointly lead the Strike Force with a specific emphasis on reviving the largely dormant Robinson-Patman Act (“RPA”). When it was first passed in 1936, the RPA was seen as a tool for antitrust enforcers to prohibit price discrimination. In recent years, the RPA is rarely used, prompting DOJ and FTC officials to reconsider the 1936 statute’s functionality when promoting price stability in the marketplace. Importantly, antitrust regulators like FTC Chair Lina Kahn plan to utilize the RPA to help smaller retailers compete against the larger players who regularly leverage price concessions from sellers. The Strike Force will focus its attention on the health care, food and grocery, housing, and financial services sectors. While not explicitly cited in the announcement, the Strike Force’s launch comes on the heels of FTC’s recent challenge to Kroger’s acquisition of Albertsons, the largest proposed supermarket merger in U.S. history. It is unclear at this time what attention the Strike Force will pay to pricing strategies among airlines, but price discrimination arguments used in other sectors could be leveled against the aviation industry. As DOJ and FTC’s antitrust enforcements progress, companies considering new pricing strategies or consolidation plans should keep an eye on the Strike Force’s activities to mitigate potential exposure.
If you have any questions, please contact Evelyn Sahr at 202.659.6622 or esahr@eckertseamans.com; Drew Derco at 202-659-6665 or dderco@eckertseamans.com; Jay Julien at 202.659.6648 or jjulien@eckertseamans.com, or any other attorney at Eckert Seamans with whom you have been working.
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