1. This case presents an important issue regarding the meaning of "competition" under the Robinson-Patman Act ("RPA"), 15 U.S.C. § 13, which this Court has held means competition "for the same customer." Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164, 178 (2006). In Volvo, this Court rejected an alternative test applied by the lower court — whether firms had "competed at the same functional level . . . and within the same geographic market." Id. at 173-74 (ellipsis in original). Yet, in this case, the Ninth Circuit revived that rejected test and took it a step further, holding that evidence supporting its "functional level" test not merely is sufficient to support a finding that firms are "competing" under Section 2(d) of the RPA, but requires such a finding. The Ninth Circuit's revival of that test conflicts with Volvo and with other circuits' decisions, which have concluded that two firms are in competition only if they are competing for the same customer. The Ninth Circuit's resurrection of the test rejected by Volvo warrants this Court's review.

2. The Ninth Circuit's ruling also raises an important issue regarding whether a private plaintiff can obtain an injunction under the RPA without establishing harm to competition. This Court's cases establish that a private plaintiff seeking an injunction under Section 2(d) of the RPA must show threatened "antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful." E.g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (emphasis added); see Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 112 (1986) ("It would be anomalous, we think, to read the Clayton Act to authorize a private plaintiff to secure an injunction against a threatened injury for which he would not be entitled to compensation if the injury actually occurred."). In its amended opinion, the Ninth Circuit carried over its erroneous understanding of "competition" under the RPA into its analysis of antitrust injury, concluding that sat

Whether the Ninth Circuit improperly interpreted the Robinson-Patman Act's definition of 'competition' and standards for antitrust injury in private injunction actions