Unfair Trade – Practices – Robinson-Patman Act – Payments for Advertising Under Sections 2 (d) and 2 (e)

Plaintiffs, wholesale and retail grocers, brought a class action for treble damages and injunctive relief under sections 2(d) and 2(e) of the Robinson-Patman Act. Defendant suppliers of defendant-A & P Co. had paid for advertising in Woman’s Day, a magazine published by a wholly-owned subsidiary of A & P, without making a corresponding allowance available to plaintiffs who had no similar publication. The district court found no violation of section 2(e) since the suppliers were not contributing to the furnishing of a discriminatory service within the meaning of that section. Because the advertising was designed primarily to aid defendant-suppliers, with A & P gleaning only incidental benefits which also accrued to its competitors, there was also no granting of a payment upon proportionally unequal terms as prohibited by section 2(d). Moreover, since plaintiffs did not themselves furnish similar services, they had no standing to complain of discrimination. On appeal, held, affirmed as to the section 2(e) ruling, reversed as to the section 2(d) ruling, one judge dissenting. To avoid violation of section 2(d), defendant-suppliers needed to make payments available on proportionally equal terms to other customers competing with A & P. Plaintiffs’ failure to publish a magazine did not relieve defendants from liability. State Wholesale Grocers v. Great Atlantic & Pacific Tea Company, (7th Cir. 1958) 258 F. (2d) 831.