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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: Sat, 20 May 2006 14:21:23 +0200
User-agent: Gnus/5.11 (Gnus v5.11) Emacs/22.0.50 (gnu/linux)

Alexander Terekhov <> writes:

> 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.

Tell that to the judges.

> As for proof, "A plaintiff must prove (1) that the prices complained
> of are below an appropriate measure of its rival's costs

This will be hard to do, considering that RedHat is profitable in its
operating system business and IBM has recouped its investment into
Linux several times already.

> and (2) that the competitor had a reasonable prospect of recouping
> its investment in below cost prices."

Basically, the standard demands proving that the prices must be both
below cost as well as profitable.  This could be tricky even for a
person less inept than Wallace.

> And Wallace already addressed both elements in his reply brief.

Tell that to the judges.  Your fantasies don't fly in the courts.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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