What Brooke Group Joined Let None Put Asunder: The Need for the Price-Cost and Recoupment Prongs in Analyzing Digital Predation

50 Pages Posted: 19 Nov 2020

See all articles by Timothy J. Muris

Timothy J. Muris

George Mason University, Antonin Scalia Law School

Joseph Coniglio

Sidley Austin LLP

Date Written: November 11, 2020

Abstract

This chapter proceeds in five parts. The first provides a brief history of the law and economics of predatory pricing doctrine in the United States, and how a revolution in economic and legal thinking spurred by Areeda and Turner’s seminal work led to Brooke Group and replaced the regime typified by the Supreme Court’s troubled decision in Utah Pie Co. v. Continental Baking Co. The second surveys the basic objections to the current consensus on predatory pricing that the two groups of reactionaries have articulated, while the following two parts defend both the recoupment and price-cost prongs as requirements to win predatory pricing claims against digital firms. At bottom, efforts to divorce one prong from the other fail to overcome the powerful and lasting insights not just of Areeda and Turner, but of the very nature of antitrust as a legal regime “passed for the ‘protection of competition, not competitors.’” The last part contains concluding remarks.

Suggested Citation

Muris, Timothy J. and Coniglio, Joseph, What Brooke Group Joined Let None Put Asunder: The Need for the Price-Cost and Recoupment Prongs in Analyzing Digital Predation (November 11, 2020). The Global Antitrust Institute Report on the Digital Economy 35, Available at SSRN: https://ssrn.com/abstract=3733758 or http://dx.doi.org/10.2139/ssrn.3733758

Timothy J. Muris (Contact Author)

George Mason University, Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9421 (Phone)
703-993-8088 (Fax)

Joseph Coniglio

Sidley Austin LLP ( email )

One First National Plaza
Chicago, IL 60603
United States

Do you want regular updates from SSRN on Twitter?

Paper statistics

Downloads
72
Abstract Views
477
rank
431,710
PlumX Metrics