More than a year into President Trump’s second term, most of the Biden administration’s aggressive antitrust agenda has been rolled back. But one major case remains: the Federal Trade Commission’s lawsuit against Southern Glazer’s Wine and Spirits. It is one of — and arguably the very last of — the leftover Neo-Brandeisian Lina Khan cases still on the FTC’s docket. Ending it would finally close the book on an era that treated low prices and business efficiency as suspect, saving taxpayers tens of millions in litigation costs.
Developments in this case’s litigation that have transpired over the last few weeks have exposed weaknesses in the FTC’s legal posture in this case, giving Chairman Andrew Ferguson both the opportunity and the justification to bring it to a close.
Which raises the question: will the reset be completed, or will this final relic linger?
Complex antitrust litigation of this scale is extraordinarily expensive. Taking this near-final Khan case through full discovery, expert analysis, and trial would likely cost tens of millions of dollars in government resources. Is this really a wise use of Americans’ taxpayer money?
Of course not.
Some conservatives and libertarians would prefer to see a more free-market-oriented less hawkish approach to antitrust policy from Ferguson. The most critical of the bunch argue he is “the same as the old boss” (Khan). However, even these critics should be willing to concede that Ferguson is a massive improvement from his predecessor, who served aboard Zohran Mamdani’s transition team.
Over the past year, Ferguson has steadily dismantled the most aggressive elements of Khan’s radical agenda.
One prominent example was the Biden FTC’s lawsuit against PepsiCo, which alleged that the company violated the Robinson-Patman Act — a New Deal-era law aimed at stopping certain forms of price discrimination.
In the case, which included zero evidence of consumer harms, Khan pretended that offering certain retailers bulk pricing discounts is tantamount to price discrimination, which it’s not. It’s just good business.
After tearing up this Khan-led case, Ferguson described it as a “nakedly political effort” filed just days before President Trump’s inauguration.
He’s right, and the law and economics behind the complaint were just as bad.
Most of us have gone to a Costco or Sam’s Club to buy essentials in bulk because they offer some of the lowest prices available.
This is how Costco keeps its prices low on just about everything: they pay less to their wholesalers to buy in bulk and then pass along the savings to consumers. Kudos to Ferguson for working to protect this pro-consumer practice.
The case against Southern Glazer’s, one of the nation’s largest wine and spirits distributors, now stands out as one of the final tests of whether that reset will be completed.
In the final weeks of the Trump administration, the FTC also sued this company under the Robinson-Patman Act.
The Act has been largely dormant for decades because courts and economists have recognized its economic flaws. In the past, it has been used to punish firms for charging different prices to different buyers, even when those differences reflect cost savings or legitimate business negotiations.
One could argue that if a law remains on the books, agencies are entitled — perhaps even obligated — to enforce it as written. Congress has not repealed Robinson-Patman, after all.
But the FTC didn’t interpret the statute correctly. It stretched it to treat routine, efficiency-driven discounting as unlawful. Ferguson said as much in his dissent when the Southern Glazier’s complaint was first authorized.
Antitrust should be about protecting consumers. There’s nothing pro-consumer about raising costs at the grocery store and on the American people’s annual tax bill without case.
Reasonable people on The Right can agree to disagree on whether Ferguson is doing a good enough job at protecting said consumers. But he has done a phenomenal job at rescinding Khan’s radical Neo-Brandeisian suits thus far.
As this final boss of a case reaches the top of the stack of papers on his desk, let’s hope he keeps it up.
The choice now rests with the Commission, but the moment to act has arrived.
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