A federal court granted the Institute for Local Self-Reliance’s motion to unseal previously redacted details of the Federal Trade Commission’s case against PepsiCo Inc., making public allegations that the company engaged in illegal price discrimination. The newly released version of the complaint details how PepsiCo favored Walmart over other retailers, raising prices for competing independent grocers and consumers.
According to the unsealed filing, PepsiCo offered Walmart special product promotions, discounts, promotional payments, allowances, and services that were not made available to other retailers on proportionally equal terms. The complaint alleges that PepsiCo worked to ensure Walmart maintained lower retail prices than its rivals by tracking prices across the retail economy, raising wholesale prices for non-Walmart retailers, reducing their discounts, and funding Walmart’s promotional displays and price reductions while reducing promotional support to competing retailers.
The FTC voted 3-2 to file the complaint in January, alleging violations of the Robinson-Patman Act, a law that bars price discrimination against retailers. The agency did not publicly disclose the identity of the favored retailer in the original complaint, but the unsealed filing identifies Walmart as the beneficiary of the alleged violations. Under the new leadership of FTC Chair Andrew Ferguson, the agency dismissed the case in May.
“These newly unsealed allegations highlight the importance of transparency in our judicial system, particularly in cases like this one involving historic government investigations and conduct affecting small businesses’ bottom lines and millions of consumers’ pocketbooks. It strengthens our courts’ and our agencies’ legitimacy by protecting the public’s First Amendment right to access judicial documents and assess the facts themselves,” said Katherine Van Dyck, who served as co-counsel for ILSR along with Cuneo Gilbert & LaDuca partner Amanda Lewis.
The Institute for Local Self-Reliance was represented by Amanda Lewis of Cuneo Gilbert & LaDuca LLP, and Katherine Van Dyck of KVD Strategies PLLC.