Assessing Robinson-Patman Exposure in a Pricing Program: A Practical Guide

Document type: Guide Practice area: Commercial — Antitrust Jurisdiction: United States (federal, with state notes) Last reviewed: 5 September 2026

Stage 0 — Decide whether the assessment is needed

Five conditions must coincide for meaningful exposure:

The company sells tangible goods. Services, software licences, and intangibles are outside the Act.
It sells the same goods to multiple buyers who resell them. Selling to end users creates no secondary line exposure.
Those buyers compete with each other for the same end customers, in the same geography.
Net prices differ substantially and persistently among them.
The customer base spans a range of size and bargaining power.

The five-minute screen. Take the five largest customers and five representative small ones. Compute net price per unit for a common product. Ask whether any of them compete. If the differentials are large and they compete, do the full assessment.

Set up privilege before starting. The assessment will produce documents describing price differentials without justifications. Conduct it at counsel's direction, for the purpose of legal advice, with counsel receiving and analyzing the data, and label the work product accordingly. A pricing study conducted by the finance team and circulated internally is discoverable and is the best exhibit a plaintiff could hope for.

Stage 1 — Map net prices

The output: a single table showing, for each customer and each significant product, the net price per unit actually paid over a defined period — typically the trailing twelve months.

Build it from transaction data, not from the price list. Net price means list price less:

Volume and tier discounts
Cash and payment discounts
Rebates, whether paid or accrued
Off-invoice allowances
Promotional and advertising allowances
Freight allowances, or the value of freight paid by the seller
Slotting, listing, and placement payments
Free goods and samples supplied for resale
Returns allowances above the standard
Any credit granted outside the standard terms
The value of services furnished — demonstrators, merchandising labour, fixtures

The recurring discovery. Most companies find that their net price ranking differs from their list price ranking, because allowances and services were negotiated separately by different people. A customer nominally in the middle tier may in fact be paying the lowest net price of anyone.

Practical notes:

Use a common unit across customers; a differential expressed per case and per pallet is not comparable.
Account for product mix; a customer buying a different assortment is not necessarily receiving a different price.
Handle timing: rebates paid annually should be accrued to the period earned.
Include the promotional allowances, even though they are analyzed under different provisions, because the total net picture is what a plaintiff will present.

Stage 2 — Identify competing customers

This is the Volvo question and it determines where exposure exists.

For each pair of customers with a material price differential, ask:

Do they resell the product, or consume it?
Do they sell to the same end customers, or to the same customer population?
Do they operate in overlapping geographies?
Do they compete at the same level of distribution, or does one perform functions the other does not?
Is there evidence they compete — customer overlap, bidding against each other, sales force accounts of competitive losses?

Build a competition matrix. Rows and columns of customers, marked where actual competition exists. Most companies discover that a substantial fraction of their large differentials are between non-competing customers, which reduces the assessment to a manageable set.

Where to be careful:

E-commerce collapses geography. Two retailers three hundred miles apart may not have competed a decade ago and may compete now.
A distributor that also retails competes with its own retail customers.
Indirect purchasers buying through a distributor may be brought in where the seller controls the terms of their purchase.

Stage 3 — Test every differential against a justification

For each price differential between competing customers, identify the basis. A differential with no identified basis is exposure.

Basis	What it requires	Realistic?
Cost justification	A study tying the differential to documented cost savings in manufacture, sale, or delivery	Rarely, unless built in advance
Meeting competition	Contemporaneous evidence of a competitor's equally low price and good faith reliance	Usually the answer, if documented
Functional discount	Calibrated reimbursement for functions actually performed	Yes, if audited
Changing conditions	Deterioration, obsolescence, seasonality, distress	Narrow
Availability	The discount was genuinely attainable and the plaintiff did not take it	Only if genuinely attainable
None	—	Exposure

Record the answer for each pair, with the supporting evidence identified by document. The output is a schedule that becomes both the remediation plan and, later, the defense file.

Stage 4 — Remediate, in this order

First: promotional allowances and services

Do these first, because sections 2(d) and 2(e) are close to strict liability: no competitive injury requirement, and no cost justification defense.

The audit:

List every allowance, payment, and service furnished in connection with resale
For each, identify who received it, on what terms, and in what proportion to purchases
Identify every competing customer that did not receive it
Identify whether the program was functionally available to smaller customers
Determine whether notification was given to competing customers, including indirect purchasers

The redesign:

A written plan stating the program, the terms, and the basis of proportionality — usually purchases in dollars or units over a period
Alternatives of comparable value suited to different customer types: if the program requires a full-page advertisement, offer an in-store display option, a smaller-format option, a website or social listing, and a shared circular through distributors
Affirmative notification to every competing customer by a method that can be evidenced, and through distributors to indirect purchasers
Proof of performance required before payment
Records of notification, participation, and payment
Annual audit

Second: functional discounts

The audit:

What functions does each class actually perform — warehousing, delivery, credit, inventory, promotion, technical support?
Is the discount calibrated to the value or cost of those functions, and is the calibration documented?
Do customers in each class actually perform the functions?
Does any customer operate at two levels, buying at the distributor price and selling at retail?

The fix for the two-level customer — the Hasbrouck problem — is either to require purchase at the retail-appropriate price for volume sold at retail, with reporting and audit, or to restructure so that the distributor discount applies only to volume resold to third parties.

Third: the price tiers

This is the hardest and takes the longest, because the justification must be built rather than found.

Cost justification requires a study, and the study must be built before the next pricing cycle using data the accounting system produces.
Meeting competition requires documentation practice going forward; it cannot be reconstructed.
Availability requires tiers that are genuinely attainable, evidenced by customers of different types having reached them.

Where no justification is available, the choices are to narrow the differential, to change the structure so the affected customers are not competitors, or to accept and price the risk. All three are legitimate business decisions; the failure is not making one.

Stage 5 — Build a cost justification study that holds

Most cost justification defenses fail. The ones that succeed share features.

Build it before setting prices. A study prepared to justify prices already in place is the weakest posture, and it invites the argument that the classifications were chosen to fit the prices.

Use the accounting system's actual data. Allocations invented for the study are attacked as arbitrary. The study should trace to cost centers and activity measures the company already maintains.

Identify real cost differences. The categories that generally support a differential:

Order size and mode. Full truckload direct shipment versus less-than-truckload through a distribution center — a documented difference in freight, handling, and warehousing per unit.
Order frequency and processing. A customer placing four annual orders versus one placing weekly orders.
Delivery. Direct-to-store versus consolidated to a distribution center.
Inventory model. Vendor-managed versus customer-managed.
Credit. Documented differences in days sales outstanding and bad debt experience.
Selling and service. Documented differences in sales calls, technical support, and merchandising labour.

Group customers homogeneously. A classification must reflect actual cost characteristics. A grouping that mixes customers with different cost profiles fails, and courts have been demanding about this.

Justify the actual differentials. The study must show that the cost savings are at least as large as the price differences. A study demonstrating $2.10 of savings does not justify a $3.70 differential.

Refresh it. A study prepared four years ago against a distribution network that has since changed is not evidence of current costs.

And be honest about the outcome. If the study shows the differentials exceed the savings, the answer is to change the prices, not to shelve the study. A study that was commissioned, produced an inconvenient answer, and was ignored is far worse than no study at all.

Stage 6 — Institute meeting competition documentation

This is the highest-value, lowest-cost item in the entire program.

The form. One page, completed by the sales representative at the time, before or immediately after the price is offered:

Customer
Product and quantity
Competitor believed to be offering a lower price
The competing price, and the source of that information
Why reliance on that information was reasonable — the customer's statement, a quotation seen, market intelligence, prior dealings
Any verification attempted
The price offered in response, and confirmation that it meets rather than beats the competing price
Duration and scope of the price
Approval

The rules to train:

Document contemporaneously. A form completed after a complaint arrives is worth little.
Meet, do not beat.
Do not extend the price to a customer facing no competitive offer. A defense established for one customer does not travel.
Do not fabricate. A representative who invents a competitive threat to justify a discount has created criminal exposure for the company's records and destroyed the defense.
Escalate systematic responses. Falls City permits a pricing system responding to competitive conditions in an area, but that requires a documented, considered decision rather than a series of ad hoc concessions.

Storage. Centrally, retrievable by customer and date, retained per the record retention policy — which should be long enough to cover the limitations period.

Stage 7 — Train the sales force

Most of the damaging evidence in Robinson-Patman cases comes from sales representatives' emails. Training is the highest-return remediation after the promotional program redesign.

What to teach:

Why the company prices differently, in terms that are accurate: cost differences, competitive responses, functions performed.
What not to say or write. "The chains just buy more" is not a justification and reads as an admission. Neither is "we have to keep them happy" or "corporate said to match."
How to complete the meeting competition form, and that it must be done at the time.
What to do when a customer complains about another customer's price: escalate, do not improvise, and do not discuss another customer's pricing.
Never to disclose one customer's price to another.
That allowances and services are part of price and must be recorded.

On the buyer side, if the company also purchases: train procurement on section 2(f). A buyer may say a bid is not low enough without disclosing the competing price; it may not misrepresent a competing bid to induce a lower price. That distinction is the whole rule and it is created in conversations, not contracts.

Stage 8 — State law and other overlays

State price discrimination statutes exist in a number of states and some are broader than the federal Act — reaching services, applying different injury standards, or omitting the cost justification or meeting competition defenses. A national program compliant federally may not be compliant everywhere. Identify the states where the company has concentrated sales and competing customers, and check.

Unfair practices and below-cost sales acts in some states prohibit sales below cost plus a markup, particularly for specific products, with their own remedies.

Franchise and dealer statutes may impose good faith and non-discrimination obligations in specified industries.

Sherman Act Section 1 on any agreements about resale prices, territories, or customers — and the Colgate doctrine's requirements if the company wants to influence resale prices unilaterally.

Design the program once against all of them. A change made to solve a Robinson-Patman problem frequently creates a Section 1 problem.

Defending a claim

Where a claim has been brought rather than anticipated, the sequence differs and the early decisions matter.

First, test the elements. Plaintiffs frequently fail on one of them, and the defense is cheaper if it can be won there.

Are they commodities? Services, licences, and intangibles are outside the Act. A claim about a bundled product with a significant service component invites the argument that the Act does not reach it.
Like grade and quality? Physical differences that are more than trivial and affect marketability defeat the element. Note that brand differences do not.
Two contemporaneous sales? A comparison between a sale in March and one in November may be a price change rather than a discrimination.
In interstate commerce? The Act's jurisdictional element is stricter than the Sherman Act's and requires the sales themselves to be in commerce.
Do the buyers actually compete? Volvo is the strongest available defense in many cases, and it is the first thing to test. Bidding markets, project-based sales, assigned territories, and non-overlapping customer bases all support it.
Is the differential substantial and sustained? A brief or trivial difference does not support the Morton Salt inference.

Second, assemble the defenses. Meeting competition documentation, cost data, functional discount records. Whatever exists now is what will exist at trial; contemporaneous records cannot be created later.

Third, attack damages. J. Truett Payne holds that the differential is not automatic damages and the plaintiff must prove actual injury attributable to the discrimination. Many plaintiffs cannot. A plaintiff whose sales grew, whose margins held, or whose losses are attributable to other causes has a liability case and no damages case. Expect this to be where the case is actually resolved.

Fourth, consider the counterclaim risk. Where the plaintiff is a customer, the relationship is over and the defendant should assess whether it has claims — unpaid receivables, breach of a distribution agreement, misuse of confidential pricing information.

Fifth, manage the discovery. The plaintiff will seek the full pricing history, the sales force's communications, and any internal analysis. This is why the assessment described in this guide should be conducted under privilege, and why sales force training is worth more than any drafting.

A note on settlement. Robinson-Patman cases settle at a discount to the theoretical treble exposure because of the damages problem, and frequently on terms that include prospective pricing changes. A defendant that has already fixed its program is in a much better settlement position, because it can offer prospective relief that costs nothing and demonstrates good faith.

A worked assessment: Halloway Supply

The company. Halloway Supply distributes janitorial and sanitation products to about 900 accounts: 6 national accounts, 40 regional chains, and the balance independents.

Stage 0. Tangible goods; customers resell; many compete. Assessment warranted. Conducted under counsel's direction, with the finance team providing data to counsel rather than circulating analyses internally.

Stage 1 — the net price map. The finding that surprises management: two mid-size regional accounts pay a lower net price than three of the six national accounts, because they receive an off-invoice rebate negotiated three years ago by a regional manager, plus merchandising labour Halloway provides at no charge. Neither appeared in the pricing system.

Stage 2 — the competition matrix. Of 190 pairs with differentials above 8%, only 34 pairs involve customers that actually compete for the same end customers in overlapping geographies. The assessment reduces from unmanageable to specific.

Stage 3 — testing the 34.

9 pairs are justified by documented functional differences: the favored customer takes full truckload delivery to a distribution center; the disfavored customer takes direct-to-site delivery on small orders. Halloway has freight and handling data supporting a differential larger than the one it charges. Defensible, and worth formalizing into a study.
11 pairs arose from competitive responses. Halloway has no contemporaneous documentation for any of them. The sales representatives remember the competitive situations; memory is not the defense.
6 pairs involve the merchandising labour, which is a service furnished in connection with resale and is analyzed under section 2(e) — no injury requirement, no cost justification. Halloway provides it to some customers and not to competing ones, with no plan and no notification. This is the clearest exposure in the assessment.
5 pairs involve the undocumented off-invoice rebate. No basis identified.
3 pairs are between a distributor customer that also operates retail branches and independents it supplies. The Hasbrouck problem.

Stage 4 — remediation, in order.

Promotional and services first. The merchandising labour becomes a documented program: a stated allowance in labour hours per $100,000 of purchases, available to all competing customers, with alternatives — a merchandising kit and a reimbursement option — for customers too small to use on-site labour efficiently. Notification to every competing customer, including independents buying through Halloway's own distributor customers.

Functional discounts second. The distributor customer with retail branches is required to report retail-branch volume monthly and is invoiced at the retail-appropriate price for it, with audit rights.

Price tiers third. The off-invoice rebate is unwound over two quarters. A cost justification study is commissioned for the next pricing cycle, based on Halloway's existing activity-based costing data, grouping customers by delivery mode and order profile rather than by size.

Stage 5–7. The meeting competition form is instituted, with training. Sales representatives are trained on what to write and what not to. Procurement is trained on section 2(f).

The result. Halloway does not eliminate its price differentials — most are commercially necessary and several are now defensible. What it eliminates is the category of differential with no identified basis, which is where the exposure was, and it does so in a way that leaves a file demonstrating the analysis.

The cost. About six weeks of counsel and finance time, a cost study, and a redesigned promotional program. The alternative was treble damages exposure across several hundred independent accounts, with the company's own sales emails as the plaintiff's principal evidence.

Designing a compliant pricing structure from scratch

Where a company is building or rebuilding its pricing, it is far easier to design compliance in than to remediate it later.

Principle 1 — Price by cost driver, not by customer size. A tier structure defined by "national accounts," "regional accounts," and "independents" is defined by bargaining power, which is precisely what the Act was enacted to address. A structure defined by order size, delivery mode, order frequency, inventory model, and payment terms is defined by cost drivers, which is what cost justification requires.

The practical difference. Under a cost-driver structure, a small customer that orders full truckloads to a single location on annual terms qualifies for the same price as a large one. That is uncomfortable commercially and it is the point: a tier that no small customer could ever reach is not a tier, it is a customer-specific price.

Principle 2 — Make every tier genuinely attainable, and prove it. Maintain evidence that customers of different types and sizes have reached each tier. A tier occupied by one customer is exposure.

Principle 3 — Separate functional discounts from volume discounts. A distributor discount should be a separate, documented reimbursement for defined functions, calibrated to their cost or value, and applied only to volume on which those functions are performed. Do not blend a functional discount into a volume tier, because the blended number cannot be justified on either theory.

Principle 4 — Design promotional programs for the smallest customer first. Build the program so that a single-location retailer can participate meaningfully, then add options for larger customers. The reverse — designing for the chains and adding an accommodation later — produces programs that are not functionally available.

Principle 5 — Make allowances proportional and formulaic. An allowance expressed as a percentage of purchases, available to all competing customers, on a written plan, is administrable and defensible. An allowance negotiated account by account is not.

Principle 6 — Centralize pricing authority, with documented exceptions. Every deviation from the published structure requires an approval and a stated basis on the standard form. The exceptions are where the exposure is, and centralizing them means someone sees them.

Principle 7 — Publish the structure. A pricing structure customers can see, with attainable tiers and defined criteria, is far easier to defend than an opaque one — and it removes the sales force's ability to create differentials the company does not know about.

Principle 8 — Build the cost study contemporaneously with the structure. Not afterwards.

The commercial objection, answered. Sales leadership will say that this structure prevents them from meeting the market on individual accounts. It does not: meeting competition remains available, on documentation, and the whole point of the standard form is to make that route easy to use. What the structure prevents is an undocumented differential granted because a customer asked and was large — which is the differential with no defense.

The buyer's side

Companies that purchase, particularly large retailers, distributors, and buying groups, have their own program to run under section 2(f).

The standard. A buyer is liable only if it knowingly induces or receives a discrimination prohibited by the Act — which, under Automatic Canteen, requires knowledge that the price was not justified by a defense available to the seller. Hard bargaining is lawful.

What creates exposure:

Misrepresenting a competing bid. Telling a seller that a competitor offered $14.20 when it did not is the paradigm violation, and it destroys the seller's meeting competition defense at the same time.
Demanding a price the buyer knows exceeds any available cost saving, where the buyer has visibility into the seller's costs.
Demanding allowances disproportionate to purchases, where the buyer knows competing customers receive less.
Structuring a rebate as brokerage through a buyer-affiliated entity — section 2(c), with no injury requirement and no defenses.
Demanding that a seller withhold a program from a competitor.

What does not:

Telling a seller its bid is not low enough, without disclosing the competing price. This is expressly permitted after Great A&P.
Negotiating aggressively on volume.
Consolidating purchases to reach a tier.
Asking what programs are available and requesting participation.

The program:

Train procurement on the distinction, with concrete language: what may be said, what may not.
Prohibit statements about competing bids other than accurate ones, and prohibit disclosing a competitor's specific terms.
Require documentation of the basis on which any unusual concession was requested.
Review buying group and cooperative arrangements against section 2(c): what services does the group perform, for whom, and is the fee commensurate?
Screen allowance arrangements for proportionality, since a buyer receiving disproportionate allowances is receiving something competing customers do not.
Escalate any situation where a seller says it cannot offer a price because of Robinson-Patman. That statement is information: the seller believes the price would be discriminatory, and a buyer that presses anyway has knowledge.

A note on the last point. A seller's invocation of the Act is sometimes a negotiating position and sometimes accurate. A buyer that receives it should not simply push harder; it should ask what the seller's basis is, because the answer determines whether the buyer would be knowingly inducing a violation.

Running the assessment: practical logistics

Who does what.

Counsel directs the assessment, receives the data, performs the analysis, and produces the conclusions. This is what preserves privilege.
Finance extracts transaction-level pricing data and builds the net price map to counsel's specification.
Sales provides the competition matrix input — who competes with whom — and is the source of the competitive-response history.
Operations provides the cost data underpinning any functional or cost justification analysis.
Marketing provides the promotional program inventory.

What to ask for, precisely. Vague data requests produce months of delay. Ask for: a transaction extract by customer, product, date, quantity, invoice price, and every deduction, for the trailing twelve months; the allowance and rebate ledger; the promotional program materials; the freight allocation; and the customer master with ship-to locations.

Timeline. For a mid-sized company: two weeks to extract and clean the data; one week to build the net price map; two weeks for the competition matrix, which requires sales input and is the slowest step; two weeks for the justification analysis; then remediation, which runs from six weeks for a promotional program redesign to a full pricing cycle for tier restructuring.

Cost. Modest relative to exposure. The expensive item is the cost justification study, if one is commissioned, and that is a finance and consulting cost rather than a legal one.

Documenting the output. Two documents:

A privileged assessment memorandum from counsel, setting out the analysis, the exposure, and the recommendations.
A non-privileged remediation plan describing the changes to be made — the redesigned promotional program, the revised tier structure, the documentation form, the training — which can be circulated operationally.

Keep them separate. The remediation plan will be implemented by people who do not need the analysis, and circulating the analysis defeats the privilege.

A caution about the outcome. An assessment that identifies exposure and produces no change is worse than no assessment, because it establishes knowledge. Commission the assessment only if the company is prepared to act on it — and if there is doubt, that doubt should be resolved before the work begins, not after.

Ongoing program

The assessment is a project; compliance is a practice. What should run permanently:

Monthly. Exception reporting: every price granted outside the published structure, with the approver and the stated basis. Someone reviews this.

Quarterly. New customers classified into the structure with a documented basis. Meeting competition forms reviewed for completeness and for patterns — a representative filing many forms invoking the same competitor deserves a conversation. Promotional program participation reviewed against proportionality.

Semi-annually. Functional discount audit: do the customers in each class still perform the functions, and has any customer begun operating at a second level?

Annually. The net price map rebuilt and compared to the prior year. The competition matrix updated for new customers, closures, acquisitions, and geographic changes — e-commerce expansion is the change most likely to create new competing pairs. The cost justification study refreshed if the distribution network has changed. Sales and procurement training refreshed. State law review for concentrated markets.

On any of these events, immediately:

A new channel — direct sales, e-commerce, a new distributor tier
An acquisition that brings in customers who compete with existing ones
A customer beginning to operate at a second level of distribution
A new promotional program, before it launches
A customer complaint about another customer's pricing, which should be escalated to counsel rather than answered by the sales force
A competitor's Robinson-Patman case in the same industry

The single most valuable ongoing item is the exception report. Almost every unjustified differential begins as a one-off concession granted by someone with authority to grant it and no obligation to explain it. A report that surfaces those concessions monthly, with a required basis, prevents the accumulation that the assessment later has to unwind.

Quick reference

Screen first. Tangible goods, resold by buyers who compete with each other, at substantially different net prices, across a range of customer size. If any of those is absent, the exposure is limited.

Set up privilege before starting. Counsel directs; finance provides data to counsel; conclusions stay in a privileged memorandum separate from the operational remediation plan.

Map net prices, not list prices. Include every rebate, allowance, freight benefit, free good, and service furnished. Most companies find their net price ranking differs from their list price ranking.

Build the competition matrix. Volvo means only competing buyers matter, and this step usually reduces the problem to a manageable set.

Test every differential against a basis: cost justification, meeting competition, functional discount, changing conditions, or genuine availability. A differential with no basis is exposure.

Remediate in order. Promotional allowances and services first — near strict liability, no cost justification defense, and an affirmative notification duty reaching indirect purchasers. Then functional discounts, especially any customer operating at two levels. Then the price tiers.

Build the cost study before the pricing cycle, from the accounting system's own data, with homogeneous customer groupings, justifying the actual differentials.

Institute the meeting competition form. One page, contemporaneous, recording the competitor, the price, the source, why reliance was reasonable, and confirmation that the response meets rather than beats. This is the highest-value, lowest-cost item in the program.

Train the sales force. Their emails are the plaintiff's evidence.

Design new structures by cost driver, not by customer size, with attainable tiers, separated functional discounts, promotional programs built for the smallest customer first, centralized authority, and documented exceptions.

Then run the exception report monthly, because that is where the next problem begins.

What the sales force should actually be told

The training matters more than the drafting, and it works better when it is specific rather than doctrinal. A workable script:

"Here is why our prices differ, and here is how to say it."

If the difference is cost-based: "Our pricing reflects how you order and how we deliver. Full truckloads to one location cost us less to serve than weekly small orders across six sites, and that difference is what the tier structure captures. If you change how you order, you change your tier — and I can show you what it would take."

If the difference is a competitive response: Say nothing about it to another customer. Internally, complete the form.

If the difference is a functional discount: "Our distributors warehouse, break bulk, extend credit, and deliver. The discount reimburses those functions. If you took on those functions, you would qualify."

"Here is what never to say or write."

"They just buy more." Volume alone is not a defense, and this sentence has appeared in more Robinson-Patman complaints than any other.
"Corporate told us to match." Without the form, this is an unsupported admission.
"We have to keep them happy." An admission that the differential reflects bargaining power.
Anything about another customer's price, to any customer.
Any speculation, in writing, about whether the pricing is lawful. That email will be read aloud.

"Here is what to do when a customer complains about another customer's price."

Do not confirm or deny anything about the other customer. Do not improvise a justification. Say that the company prices according to a published structure, offer to review the customer's tier and what would change it, and escalate to your manager and to legal the same day. A customer complaint is frequently the first step in a claim, and it is also the last easy opportunity to fix a problem.

"And here is the form."

Show them. Walk through a completed example. Make it available on the device they carry. A form that takes four minutes and lives where the representative already works gets completed; one that requires logging into a system does not.

Common objections from the business, and how to answer them

"Everyone in our industry prices this way." Possibly true, and irrelevant. Industry practice is not a defense, and in an industry where everyone prices this way, the first plaintiff's lawyer to notice has a portfolio of cases rather than one.

"Nobody enforces this statute." That was defensible advice for a long period. It is not now: enforcement interest has returned and private litigation never stopped in industries with concentrated buyers and observable pricing. And the exposure is treble.

"Our large customers will not accept the same price as small ones." They are not being asked to. They are being asked to qualify for a lower price on grounds that can be stated — order size, delivery mode, functions performed — which most large customers can do easily. The structure changes the justification, not usually the outcome.

"This will slow down our ability to respond to competition." It will not, if the meeting competition form is easy to use. That is the whole design objective of the form: to make the defensible route the fast route.

"The cost study will show our differentials are too big." Then the differentials are too big, and knowing it is better than not. A company that commissions a study, receives an inconvenient answer, and ignores it is in a far worse position than one that never studied — which is why the decision to commission the study should be made by someone prepared to act on it.

"Our small customers do not complain." Not yet. And the Morton Salt inference means a plaintiff need not prove much beyond a substantial, sustained differential between competitors — so the case does not require a customer with a compelling story, only one with a lawyer and an invoice.

"Can we just not write anything down?" No, and it is the worst available answer. The meeting competition defense requires contemporaneous evidence, and a company with no records has no defense — while the price differentials themselves are fully documented in its own invoices, which the plaintiff will obtain. Silence does not protect the pricing; it only removes the justification.