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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: |
Tue, 20 Jun 2006 15:44:06 +0200 |
And in the mean time, in the other Circuits...
------
The Sixth Circuit agreed with the district court's determination
that "'because [plaintiff] is a competitor and its complaint is
about pricing practices, . . . [plaintiff] must allege that
[defendant] engaged in predatory pricing in order to demonstrate
antitrust injury.'"
Plaintiff contended that "it did not need to allege predatory
pricing to satisfy the antitrust injury requirement, since
[defendant's] conduct independently violated Michigan's liquor
distribution laws." The Sixth Circuit rejected plaintiff's
contention explaining that "[w]hen a private plaintiff complains
about a defendant's prices, 'only predatory pricing has the
requisite anticompetitive effect' to establish antitrust injury."
This is because "[l]ow prices benefit consumers regardless of how
those prices are set, and so long as they are above predatory
levels, they do not threaten competition." Plaintiff's claim
"alleges nothing more than an inability to compete with the low
prices offered by [defendant] to dual suppliers through the
rebates and sharing of cost savings." Accordingly, plaintiff's
failure to "allege that [defendant's] prices were set at
anticompetitive levels" requires dismissal "even under the
Ninth Circuit's somewhat unique theory of above-cost predatory
pricing" for situations in which a competitor charges prices
that are above its costs yet below the rates established by a
price or tariff schedule. N.W.S. Michigan, Inc. v. General Wine
& Liquor Co., Inc., 2003 WL 264731 (6th Cir. Feb. 6, 2003).
------
11th Circuit (Covad Communications Co. v. Bellsouth Corp., 374
F.3d 1044 (11th Cir. 2004):
------
... allegations suggest that BellSouth is compensating for
deliberately reduced profits on the retail end of its
operations with correspondingly greater profits on the wholesale
side, in order to stifle competition from firms such as Covad
that are both wholesale customers and retail rivals. We find that
these allegations are sufficient to allege "a dangerous
probability" that BellSouth will "recoup[ ] its investment in
below-cost prices." Brooke Group, 509 U.S. at 224. Whether the
facts contained in Covad's complaint and in the record will bear
out the recoupment allegation against BellSouth is also a matter
for the district court to determine at a later stage, not on the
basis of a motion to dismiss for failure to state a claim. Taken
together, Covad's price predation allegations meet the
"exceedingly low" threshold of sufficiency that a complaint
must meet to survive a 12(b)(6) motion. Quality Foods, 711 F.2d
at 94495 (finding that "we must accept the facts pleaded as true
and construe them in a light favorable to plaintiffs").
------
regards,
alexander.
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/06/17
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;),
Alexander Terekhov <=
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/06/21
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/06/21
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/06/21
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/06/21
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/06/21
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/06/21
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/06/21
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Rui Miguel Silva Seabra, 2006/06/21