The Robinson-Patman “In Commerce” Requirement

Despite its unambiguous text, courts have mostly failed to interpret the Robinson-Patman Act’s “in commerce” requirement—one of three subelements comprising the Act’s interstate commerce element—to mean what it says, that is that a plaintiff only needs to show that any of the defendant’s discriminatory sales were in interstate commerce. While the plain language of the “in commerce” subelement requires nothing more, the legal tests applied by most courts go far beyond this “any” requirement. In fact, courts have held that the “in commerce” subelement requires proof beyond a de minimis number of interstate discriminatory sales. These courts’ solution to what they likely see as a problem of overbroad liability under the Act actually creates more complexity than it eliminates and is unmoored from the statutory text. This article examines a number of these courts’ interpretations of the “in commerce” subelement, along with influential scholarship. Then it offers an alternative, practical test—staying faithful to the statutory text—for determining whether a plaintiff has satisfied the Robinson-Patman Act’s interstate commerce element. “Any” should mean any. Thus, this Article describes a holistic analytical approach for courts and parties to follow so that “any” indeed means any as to satisfying the interstate commerce element while also avoiding imposing liability where it would be inconsistent with the Act to do so. This article also asserts that another historical interpretive practice regarding this element of the Robinson-Patman Act should be discarded: in light of modern Supreme Court jurisprudence regarding the subject-matter jurisdiction versus ingredient-of-claim-for-relief dichotomy, particularly Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), the interstate commerce element should not be treated as “jurisdictional.” Instead, this element should be considered simply as a prima facie element of a Robinson-Patman Act plaintiff’s claim.