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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: Sat, 20 May 2006 13:41:03 +0200

David Kastrup wrote:
> Alexander Terekhov <> writes:
> > David Kastrup wrote:
> > [...]
> >> This is going to be cute.  The problem with an appeal is that Wallace
> >> does not merely have to get it right this time: he has to prove that
> >> he got it right last time around, and the court just failed to notice.
> >
> > Appellate court will review district court's grant of motion to dismiss
> > de novo, accepting all the allegations in Wallace's complaint as true
> > and drawing all reasonable inferences in favor of Wallace.
> >
> > I'm pretty sure that dismissal "based on failure to allege an
> > anticompetitive effect" will be reversed because "predatory pricing
> > has the requisite anticompetitive effect" (ARCO).
> Well, first predatory pricing _as_ _defined_ would have to be shown. ...

Your views re merits of Wallace's allegations are beside the point under 
12(b)(6) standard. As for proof, "A plaintiff must prove (1) that the 
prices complained of are below an appropriate measure of its rival's 
costs and (2) that the competitor had a reasonable prospect of recouping 
its investment in below cost prices." And Wallace already addressed both 
elements in his reply brief.


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