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

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.