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

From: David Kastrup
Subject: Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Date: Wed, 17 May 2006 18:59:02 +0200
User-agent: Gnus/5.11 (Gnus v5.11) Emacs/22.0.50 (gnu/linux)

Alexander Terekhov <> writes:

> David Kastrup wrote:
>> Alexander Terekhov <> 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.

Yes.  And there has been no sufficiency.  The purported facts that
Wallace put forward don't fit the complaint.  That makes the complaint
insufficient.  Once the claims would support the complaint, the merit
of the claims gets examined.  But Wallace never got there.

> 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.’”

So what did you not understand in that?

>> 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.

I did not state that the absence of an alleged victim was the
deficiency in Wallace's claim.  This was just a general example for an
unsupportable claim.

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

But there is no "predatory pricing" since IBM does not sell Linux
operating systems and does not price them.  Instead, IBM sells AIX and
other operating systems.  And RedHat can't be accused of "predatory
pricing" since they make a sustainable _business_ from selling Linux
operating system copies.  Predatory pricing means selling under cost,
and RedHat runs a profitable business.

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

Well, Wallace did not even put forward any plausible business of his
that would be suffering.  You can't sue preemptively for being damaged
in case you wanted to enter some market.

His complaint really is oozing nonsense out of every pore.

>> 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.

You are confusing purported cause and effect.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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