Revival of the RPA<\/p>\n
In December 2024, we discussed<\/a> the outgoing Biden administration\u2019s effort to resuscitate the RPA after nearly 25 years of dormancy.\u00a0 <\/p>\n The RPA generally prohibits selling goods of the same \u201cgrade and quality\u201d to different commercial buyers at disparate prices unless the difference is justified, for example, by differences in the cost of manufacture, sale, or delivery.<\/p>\n Despite the federal government\u2019s mandate to enforce this broad prohibition on business-to-business price discrimination, the last federal RPA action before 2024, against McCormick and Company, was resolved in 2000.\u00a0 <\/p>\n The FTC then appeared to abandon the statute altogether until December 2024, when it sued Southern Glazer\u2019s Wine and Spirits, LLC in what many observers saw as a last-ditch effort to revive the law before the second Trump administration took office.\u00a0 The following month, just days before President Trump\u2019s inauguration, the FTC announced a second RPA lawsuit against another company.<\/p>\n Southern Glazer\u2019s: a trailblazing case <\/p>\n When the FTC accused<\/a> Southern Glazer\u2019s of charging small, independent retailers \u201cdrastically higher prices\u201d than it charged large chains, then-Commissioner Andrew Ferguson was one of two Republican commissioners who dissented<\/a> from the 3-2 vote. He cast doubt on the FTC\u2019s legal theory and characterized the action as \u201can imprudent use of the Commission\u2019s enforcement resources even if it were likely to prevail.\u201d <\/p>\n Months later, Ferguson took the reins as FTC Chair. <\/p>\n Ferguson\u2019s ascension prompted many observers to revisit his Southern Glazer\u2019s dissent for hints about how, if at all, the new Chair would enforce the RPA.\u00a0 <\/p>\n In his dissent, Ferguson maintained that the RPA should not simply collect dust on the FTC\u2019s shelf. The executive branch, in his view, \u201cshould not categorically and publicly refuse to enforce laws that Congress has passed and the President has signed,\u201d and the separation of powers \u201cforbids the suspension of the laws merely because of a policy disagreement.\u201d\u00a0 <\/p>\n In other words, Ferguson invoked a constitutional obligation to enforce duly enacted statutes.\u00a0 <\/p>\n Yet he cautioned against bringing RPA suits \u201cmerely for the sake of reviving enforcement.\u201d This balanced view left practitioners wondering when, if ever, Ferguson would deem RPA enforcement appropriate, and the fate of the Southern Glazer\u2019s case became the subject of much speculation.\u00a0 <\/p>\n Reaching a resolution<\/p>\n