Simonsen Sussman LLP Submits Amicus on Behalf of National Grocers Association and Institute for Local Self-Reliance in Robinson-Patman Act Appeal
October 27, 2025 - Simonsen Sussman LLP has submitted a brief of amici curiae on behalf of the National Grocers Association (NGA) and the Institute for Local Self-Reliance (ILSR) in a Ninth Circuit appeal that will clarify important issues around the elements of a Robinson-Patman Act (RPA) section 2(d) cause of action; private plaintiff standing and antitrust injury necessary to warrant injunctive relief under the Clayton Act; the difference between the threatened-injury requirement of Clayton Act section 16 (governing injunctive relief) and the actual-injury requirement of section 4 (governing damages); and the standards for entitlement to injunctive relief under the California Unfair Competition Law.
Despite finding that the plaintiff wholesalers had proven that the supplier of 5-hour Energy paid promotional allowances to Costco that the supplier did not make available to the plaintiffs on proportionally equal terms—i.e., despite finding that the plaintiffs had shown all three elements of an RPA section 2(d) claim—the district court denied the plaintiffs their requested injunctive relief under the Clayton Act and California Unfair Competition Law (UCL).
As NGA and ILSR explain in the amicus brief, if the district court’s decision is allowed to stand, it will have severe and far-reaching implications for small businesses across the country. While dominant corporations have succeeded over the last 50 years in eroding small businesses’ ability to recover damages under the RPA in certain respects, until now the ability of independent business owners to obtain injunctive relief, based on a modest showing of threatened harm, has remained steadfast. The district court’s judgment, if allowed to stand, would upend this relative certainty and erect new substantial barriers to this most important of remedies for RPA violations—the injunction requiring the defendant to stop discriminating and to treat competing retailers of all sizes fairly.
Only by safeguarding the conditions under which small and independent businesses compete against behemoths like Costco do we have any hope of halting and reversing our country’s decades-long trend of corporate consolidation and the disappearance of small, independent retailers who serve as vital arteries of sustenance for local communities across the country. When our nation’s price discrimination laws are eroded by the courts, large retailers feel emboldened to use their buying power to demand special treatment, knowing they likely will face no consequences. When other competing retailers observe that the law is not being upheld, they conclude that they must merge with other retailers in order to achieve the same size and scale and, in turn, the same unfair advantages. The district court’s judgment seriously jeopardizes RPA enforcement and must be reversed lest another notch on the belt of corporate consolidation be forged. The preservation of robust competition from independent retailers intended by Congress with the passage of the RPA nearly 100 years ago is vital to ensuring that the substantial innovation, low prices, and contributions to the local communities they offer are available to consumers.
See the full brief here.