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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: Wed, 17 May 2006 01:19:18 +0200

Alexander Terekhov wrote:
> Alexander Terekhov wrote:
> [...]
> > III. Analysis
> >
> > Wallace alleges that the Defendants’ “predatory price-fixing scheme
>                                         ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> > prevents [him] from marketing his own computer operating system as a
> > competitor.” His complaint fails because it fails to allege
> > anticompetitive effects in an identifiable market. Car Carriers, Inc.
> > v. Ford Motor Company, 745 F.2d 1101 (7th Cir. 1984) (affirming dismissal
> > based on failure to allege an anticompetitive effect).
> >
> > Antitrust laws are for “the protection of competition, not competitors.”
> > Brunswick Corp. v. Pueblo Bowl-o-Mat, Inc., 429 U.S. 477, 488 (1977). In
> > this case, the GPL benefits consumers by allowing for the distribution of
> > software at no cost, other than the cost of the media on which the
> > software is distributed. (Ex. A at ¶ 1). “When the plaintiff is a poor
> > champion of consumers, a court must be especially careful not to grant
> > relief that may undercut the proper functions of antitrust.” Ball Mem’l
> > Hosp., Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1334 (7th Cir.
> > 1986). Because he has not identified an anticompetitive effect, Wallace
> > has failed to allege a cognizable antitrust injury.
> "Although a vertical, maximum-price-fixing agreement is unlawful under 1
> of the Sherman Act, it does not cause a competitor antitrust injury unless
> it results in predatory pricing. 8 Antitrust injury does not arise for
> purposes of 4 of the Clayton Act, see n. 1, supra, until a private party
> is adversely affected by an anticompetitive aspect of the defendant's
> conduct, see Brunswick, 429 U.S., at 487 ; in the context of pricing
> practices, only predatory pricing has the requisite anticompetitive
> effect. 9 See Areeda & Turner, Predatory Pricing and Related [495 U.S.
> 328, 340] Practices Under Section 2 of the Sherman Act, 88 Harv. L. Rev.
> 697, 697-699 (1975); McGee, Predatory Pricing Revisited, 23 J. Law & Econ.
> 289, 292-294 (1980). Low prices benefit consumers regardless of how those
> prices are set, and so long as they are above predatory levels, they do not
> threaten competition."
> Go figure.

"it is not the status as a consumer or competitor that confers antitrust
standing, but the relationship between the defendant's alleged
unlawful conduct and the resulting harm to the plaintiff. See
Amaral, 102 F.3d at 1508 ("Losses a competitor suffers as a
result of predatory pricing is a form of antitrust injury because
`predatory pricing has the requisite anticompetitive effect'
against competitors.") (quoting ARCO,
495 U.S. at 339

[10] Having analyzed all the prerequisites of antitrust
injury, we conclude that American's showing is sufficient to
establish that the alleged injury it suffered was an antitrust
injury for purposes of antitrust standing."

I just can't see how Wallace could possibly lose on appeal.


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