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. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
