Predation by the Dominant Buyer

Just as a monopolist may eliminate its rivals through predatory pricing, a monopsonist may eliminate rivals through predatory buying. This, in fact, is what the Ross-Simmons Hardwood Lumber Company accused Weyerhaeuser of doing. This article uses the resulting antitrust case as a platform for defining the twin concepts of overbuying and overbidding, which satisfy the first prong of the modified Brooke Group test for predation. We then examine the feasibility of recoupment, which is the second prong of the modified Brooke Group test.

By Brianna L. Alderman & Roger D. Blair¹

I. INTRODUCTION

Section 2 of the Sherman Act condemns anyone who monopolizes or attempts to monopolize a relevant antitrust market.² Over time, the standards for unlawful monopolization evolved as judicial decisions put flesh on the bare bones of the statute.

In its Grinnell decision, the U.S. Supreme Court spelled out a two-part test for unlawful monopolization: 

The offense of monopoly under section 2 of the Sherman Act has 2 elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition and maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.³  

The notion of “willful acquisition and maintenance” refers to competitively unreasonable, i.e., unlawful conduct. Conduct that is anticompetitive is forbidden, but competition on