By: Jarod Bona (The Antitrust Attorney)
The US Supreme Court said in 1986 that “[T]here is a consensus among commentators that predatory pricing schemes are rarely tried, and even more rarely successful.”
This was the famous Matsushita Elec. Indus. Co. v. Zenith Radio Corp. case that is known mostly for stating that to survive summary judgment on antitrust conspiracy, a plaintiff must present evidence that tends to exclude the possibility of independent (rather than conspiratorial) activity. 475 U.S. 574 (1986). Unfortunately, many federal trial judges have misunderstood this standard to apply to the motion-to-dismiss level.
If you don’t know what predatory pricing is, you should first read Steven Cernak’s outstanding article detailing the doctrine’s history and requirements (and rarity).
The purpose of this article is much more modest—to ask whether the quote above from the 1986 Supreme Court decision is out-of-touch with current scenarios that may or may not be reality (you decide)…
