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

[Alexander Terekhov]

David Kastrup wrote:
> 
> Alexander Terekhov <terekhov@web.de> writes:
> 
> > Let's try once again, dak.
> >
> > The judge admits that Wallace alleges predatory pricing and yet
> > dismisses "based on failure to allege an anticompetitive effect".
> >
> > Now, under 12(b)(6) standard, "the court accepts the allegations
> > in the complaint as true, and it draws all reasonable inferences
> > in favor of the plaintiff."
> 
> But there is no substance to be found to support an allegation. 

"When considering a motion to dismiss pursuant to Federal Rule of Civil 
Procedure 12(b)(6), the court examines the sufficiency of the complaint, 
not the merits of the lawsuit. Fed. R. Civ. P. 12(b)(6); United States v. 
Clark County, Ind., 113 F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court 
will dismiss a complaint for failure to state a claim only if it 
“‘appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’” Hamlin v. 
Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996) (quoting Conley v. Gibson, 
355 U.S. 41, 45-46 (1957)). In making its determination, the court 
accepts the allegations in the complaint as true, and it draws all 
reasonable inferences in favor of the plaintiff. Mallett v. Wisconsin 
Div. of Vocational Rehabilitation, 130 F.3d 1245, 1248 (7th Cir. 1997); 
Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996)." 
 
>                                                                 For
> example, I can allege a person to be a rapist, but if there is no
> purported victim, I can't make a case from that.

Alleged victim is Wallace. To quote Judge Tinder,

"The allegation in the Fourth Amended Complaint that the GPL is 
foreclosing Mr.Wallace from entering into the market for operating 
systems also is not a cognizable antitrust injury. The court 
understands Mr. Wallace’s argument that the GPL may be preventing 
him from marketing his own operating system, and, for the purposes 
of the instant motion, accepts that allegation as true. However, 
while this may be significant enough from Mr. Wallace’s perspective, 
a plaintiff must prove not only an injury to him or herself, but 
to the market as well, Martin v. Am. Kennel Club, Inc., 697 F. 
Supp. 997, 1003 (N.D. Ill. 1988), which Mr. Wallace has failed to 
do. As the court stated in its November 28, 2005 Entry, reduced 
opportunity as a competitor does not necessarily equate to an 
antitrust injury as recognized by the courts. Brunswick, 429 U.S. 
at 488. Indeed, injury in fact is “a different beast” than antitrust 
injury."

So there's injury and it flows from the alleged predatory pricing
(the allegation which Judge Tinder simply ignores in his analysis).

That makes it antitrust injury because "predatory pricing has the 
requisite anticompetitive effect" (ARCO).

> 
> Just waving some term around does not mean that there is a legal base
> for waving the term around.
> 
> > Inference of requisite anticompetitive effect from the allegations
> > in the complaint is no rocket science -- "predatory pricing has the
> > requisite anticompetitive effect" (ARCO).
> >
> > Where am I wrong, dak?
> 
> Where is the anticompetitive effect?

In alleged predatory pricing.

regards,
alexander.