Courts have long applied the Robinson-Patman Act to require that a customer seeking treble damages for a supplier’s alleged price discrimination in favor of another customer allege and prove in part that it competes with that allegedly favored customer. A federal district court in Alabama recently applied that requirement to dismiss a Robinson-Patman claim by an uninsured consumer. In Herndon v. Rite Aid Corporation, Civ. Act. No. 04-0300-CG-B, U.S. Dist. Ct., S.D. Ala., 9/14/07, the plaintiff consumer contended that Rite Aid charged her more for prescription drugs than it charged insured consumers. Rite Aid moved to dismiss the plaintiff’s complaint based in part on the fact that she did not “compete” with the allegedly favored purchasers (insured consumers) and could not assert a Robinson-Patman claim. The plaintiff countered that such competition was unnecessary and that it was sufficient for her to allege that the price discrimination “tend[s] to create a monopoly in [a] line of commerce.” The court rejected that argument, asserting that competition between the plaintiff and the insured customers was an essential portion of the plaintiff’s claim.

The court also rejected the plaintiff’s claim under an Alabama statute that prohibits agreements between a plan administrator and a pharmacy under which the plan’s reimbursement rate to the pharmacy for services rendered to persons covered by the plan is less than the rates paid by consumers not covered by a third party plan for the same or similar services. The court concluded that the statute was not intended to protect consumers and does not provide a private right of action.