Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co

Date:
Citation Number: 05-381

Joint brief of the United States and the Federal Trade Commission, as amici curiae, urging the Supreme Court to grant certiorari in this case, in which the court of appeals held that the standard for a predatory pricing claim articulated by the Supreme Court in Brooke Group Ltd v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), did not apply to a case in which the plaintiff alleged “predatory bidding” in violation of Section 2 of the Sherman Act, and approved instructions that allowed a jury to find a violation based on subjective assessments of factors such as “fairness” and “necessity.” The brief argues that the economic and prudential concerns that underlie the Supreme Court’s decision in Brooke Group also apply to claims of predatory bidding, and that the court of appeals therefore erred in holding that a plaintiff need not show that the defendant suffered a loss in the short term or that it had a dangerous probability of recouping its losses in the long term.