October 2026 Grocery Antitrust Enforcement Update
By Chris Jones, Center Market Strategies | October 23, 2026
Public enforcement developments
At last, the FTC seems to be picking up Robinson-Patman enforcement, which prohibits discriminatory pricing between competing buyers.
On October 2, the FTC proposed a settlement in the Southern Glazer’s case filed in December of 2024. That case was the first major Robinson-Patman case filed by the agency in decades and alleged the largest wine and spirits distributor in the United States violated the Robinson-Patman Act by favoring larger chains over disadvantaged smaller retailers. The settlement results in six years of independent monitoring of Southern’s pricing practices in 26 states. The monitoring would compare covered retailers’ prices with those charged to Southern’s five largest chain customers in each state. Qualifying excess payments exceeding $5,000 per retailer over 12 months, after the order’s adjustments, would trigger its protections. Southern could cure an alleged violation by paying 1.5 times the full qualifying net price difference. Southern denies violating the law, and the proposed order still requires court approval.
Less than a week after the Southern Glazer’s settlement, the FTC announced that Gildan and S&S had removed a contract restriction preventing Gildan from offering certain favorable prices to S&S’s competitors. The investigation closed without a consent decree or court order.
These RPA enforcement actions bring good news and bad news to independent retailers and their wholesalers. The bad news is that, in our view, these remedies offer limited deterrence. Neither penalizes past conduct, and the S&S outcome lacks an enforceable order. Second, the cure payment owed to a harmed retailer during the six-year monitoring period is 1.5 times the price difference, half the multiplier of the treble damages available in private antitrust suits.
Still, enforcement spanning Republican and Democratic administrations gives businesses disadvantaged by discriminatory pricing momentum to build on, and it signals to dominant power buyers and discriminating sellers that the era of RPA non-enforcement is over. And it signals to courts and state enforcers that Robinson-Patman remains relevant and a law that must be reckoned with.
Southern’s settlement damages payment formula also offers a useful model for future remedies. The J. Truett Payne Supreme Court decision requires private plaintiffs to prove actual injury rather than automatically recovering the price difference. That often requires expensive econometric analysis of lost sales or lost profits to identify damages. Ordinarily, a business harmed by price discrimination has to spend six or seven figures on an economist, then wait out a drawn-out court fight over whether the damages model is rigorous enough. The FTC’s proposed Southern Glazer’s settlement takes a different approach where damages can be calculated on a napkin by multiplying the wholesale cost differential by the volume purchased. The remedy obviously does not change existing law, but it provides a useful foundation for stronger enforcement remedies and for a state-based legislative approach like the New York Senate-passed Consumer Grocery Pricing Fairness Act (S. 8563/A. 9212), and similar bills introduced in other state houses.¹
Private enforcement developments
Price discrimination
Private Robinson-Patman cases continue to percolate in the Ninth Circuit. The most recent example is the Clear Eyes decision, a rare jury verdict in favor of the wholesaler plaintiffs. The wholesalers supply convenience stores, grocers, and other small businesses and sued Prestige Brands, the maker of Clear Eyes eye drops. They alleged that Prestige sold to Costco and Sam’s Club on better terms - both a channel-of-trade price advantage and instant rebates at Costco’s register, which let Costco sell a 12-pack for less than the wholesalers paid at wholesale. In February, the Ninth Circuit affirmed the jury verdict and held that the rebates count when calculating Costco’s net price. It also upheld a lower bar for how much harm to competition a plaintiff must prove to succeed in a price discrimination lawsuit. Prestige Brands is preparing to seek Supreme Court review of the standard for damages.
An earlier Ninth Circuit case, the 5-Hour Energy decision goes to one of the most common justifications for discriminatory pricing known as “channels of trade.” Suppliers routinely sort their customers into channels, such as club stores, wholesalers, convenience stores, etc. and give each channel its own prices and promotional programs. There’s a misguided assumption relied upon by suppliers across many industries that it’s ok to discriminate on pricing when different buyers occupy separate channels. That was essentially the defense in this case and the Ninth Circuit rejected it on the wholesalers’ promotional-allowance claim, applying a test for competition grounded in the economic realities rather than arbitrary industry distinctions. This case will soon face a separate Ninth Circuit decision on whether a plaintiff must prove antitrust injury to obtain injunctive relief.
The most closely watched case is in the Southern District of New York. In January 2025, the FTC sued PepsiCo under the Robinson-Patman Act, alleging it gave its most important customer payments and allowances that it denied to competing retailers, while raising wholesale prices on everyone else. The FTC dropped the case, but the unsealed complaint identified the favored buyer as Walmart. Retailers and consumers have since sued Pepsi and Walmart in suits now consolidated as In re Branded Beverage Antitrust Litigation. The claims are allegations that have not been proven.
Vertical restraint cases
The Robinson-Patman Act isn’t the only way to challenge preferential treatment for powerful buyers. Courts are also considering vertical price-fixing claims targeting agreements between buyers and suppliers that keep competitors paying more for the same products. A supplier might promise a major buyer protected margins or restrictions that prevent rival retailers from discounting.
Recent decisions show both the opportunity and the challenge. In September, an appeals court revived OJ Commerce’s claim against an artificial Christmas tree supplier. OJ Commerce alleged that the supplier agreed with Amazon to set a price floor for every other online retailer, to compensate Amazon whenever its trees sold below that floor, and to bar other retailers from discounting. When OJ Commerce tried to undercut Amazon anyway, it was cut off. The district court dismissed the case. The Eleventh Circuit reversed, finding it enough that OJ Commerce alleged market-wide prices rose more than 15% after the agreements took effect, at a time when the supplier’s wholesale prices were flat and consumer prices overall were falling.
The Energizer litigation shows how these cases get tricky. Wholesale buyers, Walmart shoppers, and other consumers allege that Walmart pressured Energizer to stop online sellers like Amazon from undercutting Walmart’s battery prices. Energizer allegedly responded by monitoring rivals, raising their wholesale prices, and cutting some off entirely. The court’s order recounts internal Energizer documents describing the alleged scheme, but in September the court denied class certification. The plaintiffs’ economists had measured the overcharge against Energizer’s flashlight and headlamp prices, but the benchmark was not found to be a reliable benchmark for measuring overcharges across the class. The denial was without prejudice, and the plaintiffs are expected to try again with different evidence.
Price-fixing cases
Beef
In July, a federal court in Minnesota certified a class of businesses that bought beef directly from the four largest packers, Cargill, JBS, National Beef, and Tyson. That is a major step, coming more than six years after the first cases were filed, and allows grocers the ability to pursue claims together rather than individually. The buyers allege that the packers, which together process more than 80% of U.S. fed cattle, conspired to restrict slaughter and raise beef prices from 2015 to early 2020. Claims against Cargill and National Beef continue in the class litigation, while JBS and Tyson have settled. Tyson’s $82.5 million settlement covers boxed or case-ready beef bought directly from any of the four packers between January 1, 2015, and February 29, 2020. Eligible businesses should file a claim by November 30, the deadline under the recent court order. If the settlement is approved, class members release covered claims against Tyson whether or not they file.
Shell eggs
In June, the Justice Department and 17 state attorneys general sued and simultaneously settled with Cal-Maine Foods, Versova, and Hickman’s Egg Ranch. The complaint alleges that from June 2022 to March 2025, the three producers coordinated bids on the Egg Clearinghouse spot market to push up the daily price quotes published by Urner Barry. That benchmark sets the contract price that grocery stores and restaurants pay for billions of eggs. According to the complaint, the companies bid early, often, and at premium prices, sometimes with no intent to buy. Quotes reportedly dropped sharply once the companies learned of the government’s investigation. The settlement does not compensate the grocers and restaurants that paid inflated prices. The companies deny wrongdoing. Private suits brought by grocers like King Kullen were filed beginning in November 2025 and name additional producers and Urner Barry itself. Grocers’ private damages claims, now consolidated as In re Shell Eggs Antitrust Litigation in the Western District of Wisconsin, are still at an early stage, with no ruling yet on whether the case can proceed.
Frozen potatoes
Grocers and other buyers allege that the four companies that dominate frozen fries, hash browns, and tater tots (Lamb Weston, McCain, J.R. Simplot, and Cavendish Farms) raised prices in lockstep beginning in 2021. They allege the increases were coordinated by sharing competitively sensitive data through Circana’s PotatoTrack analytics service. The Justice Department weighed in with a statement of interest in February. In September, the court in the Northern District of Illinois largely denied the motions to dismiss, letting the federal claims proceed against all four producers and Circana while trimming some state-law claims. The case, In re Frozen Potato Products Antitrust Litigation, now moves forward. Supermarkets and foodservice businesses that bought directly from these producers since 2021 may be members of the proposed classes.
How CMS can help
These cases move fast, and the deadlines matter. Center Market Strategies works with experienced antitrust litigators, funding partners, economists, and data experts to help independent and regional grocers, wholesalers, and other Main Street businesses review their purchase records, identify claims and settlements that apply to them, and decide how to protect their rights. If your business may be affected, contact us.
About CMS
Center Market Strategies, LLC helps independent grocers, wholesalers, and other Main Street businesses compete with dominant buyers and suppliers through advocacy, coalition building, and support in antitrust matters. CMS was founded by Chris Jones, an attorney and the former chief lobbyist for the National Grocers Association. Email: info@cenmarkstrat.com
¹ Similar bills have been introduced in Maine (LD 1894), Minnesota (HF 2149/SF 2556), Rhode Island (H 7514/S 2642), Louisiana (HB 800), and New Jersey (A 5532).
Attorney advertising. General information as of October 23, 2026, not legal advice. Reading this update or contacting CMS does not create an attorney-client relationship. Do not send confidential information until representation is agreed.
