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'Don't Fear the Reaper': Why Transferable Assets and Avoidable Costs Should Not Resurrect Predatory Pricing

2003; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

David Perry Close,

Merger and Competition Analysis

Until recently, predatory pricing was a rapidly dying area of antitrust. Following years of judicial tapering of predatory pricing liability in the lower courts, the Supreme Court dealt a devastating, and perhaps final, blow to the hopes of predatory pricing plaintiffs with its 1993 decision in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. The complete inability of plaintiffs to succeed using the Brooke Group test paints a dire, yet telling, picture of the probable future of predatory pricing plaintiffs. Despite this demise, however, new approaches for determining predatory pricing liability continue to appear in antitrust literature. These suggested approaches, for better or worse, aim to resuscitate predatory pricing law by making it easier for plaintiffs to prove liability. Thus, while predatory pricing claims may currently be existing on life support, many scholars remain poised at the electrical outlet to make sure the plug stays in. To that end, the Department of Justice is currently advancing a recently suggested approach for calculating below-cost pricing - the avoidable cost approach - that may, if adopted, significantly increase plaintiffs' probability of success. The most influential discussion of the avoidable cost approach is found in Professor William J. Baumol's 1996 article Predation and the Logic of the Average Variable Cost Test. Baumol argues that avoidable costs (i.e., the costs that a firm can avoid by choosing not to predate) represent the most economically accurate costs to include in the below-cost pricing analysis. In combination with the avoidable cost approach, many economists and lawyers now also recognize that firms employing transferable assets - assets that transfer between different geographic or product markets - present a unique situation that often results in a firm incurring extremely large avoidable costs. If courts choose to utilize the proposed avoidable cost approach in cases where these transferable assets are involved, the combination will likely increase plaintiffs' ability to prove Brooke Group's below-cost pricing, and therefore could resurrect predatory pricing liability from its deathbed. Furthermore, because any asset with multiple uses represents a potential predatory asset transfer, adopting the avoidable cost test could dramatically affect almost all predatory pricing cases. This Note examines the inclusion of the avoidable costs of asset transfer within the context of a Brooke Group below-cost pricing analysis. The Note concludes that, despite being the most economically accurate measure of costs to include in the analysis, the avoidable cost approach raises serious practical, calculation, and policy problems - at least when utilized in cases involving transferable assets. Furthermore, because asset transfer may occur in almost any predatory pricing case, the existence of these problems suggests that a blanket rule adopting the avoidable cost approach is unwise. Finally, if such a conclusion promotes the imminent extinction of predatory pricing as a feasible claim, the Note suggests that predatory pricing plaintiffs follow the sage advice of the Blue Oyster Cult: Come on Baby . . . Don't Fear the Reaper.