⚖ Oral Arguments, with Context

Seven California wholesalers challenge the promotional advantages given to Costco Business Centers in selling five-hour Energy. Both supply the drink to smaller retailers, including convenience stores. The wholesalers sued Living Essentials and its parent, Innovation Ventures, in 2018, saying Costco received better prices and advertising support. A jury rejected their price-discrimination claim, but an earlier appeal sent their separate request for equal promotional treatment back to the trial judge. Section Two D of the Robinson-Patman Act requires promotional payments to be available on proportionally equal terms to competing customers, not necessarily in identical dollar amounts. The issue now is what threatened harm the wholesalers must prove to obtain an injunction—a court order changing future conduct. Mark Poe will argue that missing out on promotion-driven sales is enough. Daniel Ravitz will argue that they have not linked their losses to unlawful promotion rather than lawful discounts or falling demand. Antitrust injury means harm of the kind antitrust law protects against, caused by the challenged conduct.

U.S. Wholesale Outlet and Distribution, Inc., et al. v. Innovation Ventures, LLC, et al. (No. 25-3460) — U.S. Court of Appeals for the Ninth Circuit, argued October 27, 2026.