Wallace on injury and standing: ------- III. Accompanying Injury Plaintiff Daniel Wallace has alleged market foreclosure and denial of opportunity to enter into competition with his own operating system product: The Defendant's pooling and cross licensing of intellectual property with the described predatory price fixing scheme is foreclosing competition in the market for computer operating systems. Said predatory price fixing scheme prevents Plaintiff Daniel Wallace from marketing his own computer operating system as a competitor.; Plaintiffs Fourth Amended Complaint Plaintiff has alleged a threat of market foreclosure - a type of antitrust injury the Supreme Court has described as "facially anticompetitive". "The alleged conduct - higher service prices and market foreclosure - is facially anticompetitive and exactly the harm that antitrust laws aim to prevent."; EASTMAN KODAK CO. v. IMAGE TECH. SVCS., 504 U.S. 451 (1992)
The Supreme Court has explicitly held that predatory pricing harms both competitors and competition: "Predatory pricing may be defined as pricing below an appropriate measure of cost for the purpose of eliminating competitors in the short run and reducing competition in the long run. 12 It is a practice [479 U.S. 104, 118] that harms both competitors and competition. In contrast to price cutting aimed simply at increasing market share, predatory pricing has as its aim the elimination of competition. Predatory pricing is thus a practice "inimical to the purposes of [the antitrust] laws," Brunswick, 429 U.S., at 488, and one capable of inflicting antitrust injury."; CARGILL, INC. v. MONFORT OF COLORADO, INC., 479 U.S. 104 (1986) [emphasis added]. The Supreme Courts ruling in 1990 in ATLANTIC RICHFIELD CO., supra, re-affirms the principle that both competition and competitors may suffer antitrust injury from predatory pricing. Plaintiff has alleged (1) threatened future loss or damage of the type the antitrust laws were designed to prevent -- market foreclosure and (2) threatened future personal injury which flows from the defendants unlawful acts -- the plaintiff will be substantially deterred from vending in the market with his own operating system product. "To seek an injunction under § 16 of the Clayton Act, a private plaintiff must allege "threatened loss or damage 'of the type the antitrust laws were designed to prevent and that flows from that which makes defendants' acts unlawful.'" Cargill Inc., supra.. The antitrust injury to competition by a diminished market and the resultant personal injury to the Plaintiff by his reduced opportunity as a competitor in the relevant market are inextricably linked. ------- ------- Standing Although plaintiff would be entitled to standing for recovery under even a § 4 action (treble damages), the defendant confuses the standing threshold in the present § 16 action with that of the heightened standard in § 4 cases to which the defendant erroneously cites: Section 16 of the Clayton Act provides in part that "[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief . . . against threatened loss [479 U.S. 104, 111] or damage by a violation of the antitrust laws . . . ." 15 U.S.C. 26. It is plain that 16 and 4 do differ in various ways. For example, 4 requires a plaintiff to show actual injury, but 16 requires a showing only of "threatened" loss or damage; similarly, 4 requires a showing of injury to "business or property," cf. Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), while 16 contains no such limitation. 6 Although these differences do affect the nature of the injury cognizable under each section, the lower courts, including the courts below, have found that under both 16 and 4 the plaintiff must still allege an injury of the type the antitrust laws were designed to prevent. 7 We agree.; CARGILL, INC. v. MONFORT OF COLORADO, INC., supra. See also Judge Posner: But all that this implies, so far as equitable relief is concerned, is that a plaintiff has to prove that he is likely to be harmed by the defendant's wrongful conduct unless that conduct is enjoined.; BLUE CROSS, ET AL. v MARSHFIELD CLINIC, ET AL. No. 94-C-0137 (7th Cir 1998). Whether viewed as a result of a per se pooling agreement as in New Wrinkle Inc, supra, or as a result of a vertical agreement analyzed under a rule of reason as in State Oil Co. v. Khan, supra, predatory pricing results in antitrust injury -- it is "inimical to the purposes of [the antitrust] laws," see Brunswick, 429 U.S., at 488, and harms both competitors and competition, CARGILL, INC, 479 U.S., at 118. The plaintiff has alleged future personal injury because of elimination of market opportunity -- an injury that flows directly from the threatened market foreclosure: Said predatory price fixing scheme prevents Plaintiff Daniel Wallace from marketing his own computer operating system as a competitor.; Plaintiffs Fourth Amended Complaint In the course of vending his competing operating system, the plaintiff has experienced firsthand the deleterious market effect of the GPL license when used by a cartel of competitors to distribute the Linux operating system. The plaintiffs complaint has certainly met the pleading requirements expressed in PEGRAM. ET AL., and Denny's Marina, supra, by directly or inferentially alleging the element of an accompanying injury. ------- regards, alexander. _______________________________________________ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
