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Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)

From: Alexander Terekhov
Subject: Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Date: Tue, 21 Mar 2006 14:34:42 +0100

"We decline the invitation. As the foregoing discussion makes plain, 
supra, at 117-118, predatory pricing is an anticompetitive practice 
forbidden by the antitrust laws. While firms may engage in the practice 
only infrequently, there is ample evidence suggesting that the practice 
does occur. 16  It would be novel indeed for a court to deny standing 
to a party seeking an injunction against threatened injury merely 
because such injuries rarely occur. 17  In any case, nothing in [479 
U.S. 104, 122]  the language or legislative history of the Clayton Act 
suggests that Congress intended this Court to ignore injuries caused by 
such anticompetitive practices as predatory pricing."; CARGILL, INC. v. 
MONFORT OF COLORADO, INC., 479 U.S. 104 (1986)

"Whether viewed as a result of a per se pooling agreement as in New
Wrinkle Inc, supra, or as a result of a vertical agreement analyzed
under a rule of reason as in State Oil Co. v. Khan, supra, predatory
pricing results in antitrust injury -- it is "inimical to the purposes
of [the antitrust] laws," see Brunswick, 429 U.S., at 488, and ”harms
both competitors and competition”, CARGILL, INC, 479 U.S., at 118.

The plaintiff has alleged future personal injury because of elimination
of market opportunity -- an injury that flows directly from the
threatened market foreclosure:
“… Said predatory price fixing scheme prevents Plaintiff Daniel Wallace
from marketing his own computer operating system as a competitor.”;
Plaintiff’s Fourth Amended Complaint

In the course of vending his competing operating system, the plaintiff
has experienced firsthand the deleterious market effect of the GPL
license when used by a cartel of competitors to distribute the Linux
operating system.

The plaintiff’s complaint has certainly met the pleading requirements
expressed in PEGRAM. ET AL., and Denny's Marina, supra, by directly or
inferentially alleging the element of “an accompanying injury”. " 

See also (this 
case is still "pending").


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