Recoupment, Market Power, and Predatory Pricing

Forthcoming, Antitrust Law Journal, Vol. 82 (2018)

Harvard John M. Olin Discussion Working Paper No. 967

44 Pages Posted: 9 Aug 2018

See all articles by Louis Kaplow

Louis Kaplow

Harvard Law School; National Bureau of Economic Research (NBER)

Date Written: July 24, 2018

Abstract

Recoupment inquiries play an important role in predatory pricing cases. Nevertheless, their place in antitrust analysis is unclear and potentially problematic in ways that are not fully appreciated. Does a recoupment requirement define, augment, or replace the preexisting monopoly power requirement that involves similar analysis? How can a recoupment test be inserted in sequential assessments of alleged predatory pricing when all of the steps are intertwined with the others, including those deemed to come later? Why is a plaintiff permitted to show either that recoupment was ex ante plausible or that sufficient ex post profit recovery occurred, rather than requiring one in particular, or both? This article addresses these questions by examining the underlying purposes of recoupment assessments and predatory pricing inquiries more broadly. As will become evident, much of the analysis is relevant not just to predatory pricing but to other forms of anticompetitive conduct as well.

Keywords: predatory pricing, recoupment, antitrust, competition policy, market power

JEL Classification: K21, L12, L41

Suggested Citation

Kaplow, Louis, Recoupment, Market Power, and Predatory Pricing (July 24, 2018). Forthcoming, Antitrust Law Journal, Vol. 82 (2018). Available at SSRN: https://ssrn.com/abstract=3219351

Louis Kaplow (Contact Author)

Harvard Law School ( email )

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Cambridge, MA 02138
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HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=32&show=bibliography

National Bureau of Economic Research (NBER)

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