The general legal standard for determining whether unilateral conduct violates Section 2 of the Sherman Act [1]. is murky, to say the least. Many courts have employed a “totality of the circumstances” approach, leaving it to the jury to decide whether, on balance, a particular business practice is anticompetitive, pro-competitive or otherwise has a valid business justification, while providing minimum guidance on how to resolve that issue. In Brooke Group v. Brown & Williamson Tobacco Corp., [2] the U.S. Supreme Court somewhat ameliorated this confusion by adopting a bright-line test for claims alleging one particular type of anticompetitive unilateral conduct – predatory pricing. The Court held that predatory pricing claims turn on proof that a firm (1) lowered prices below some
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The US Supreme Court clarifies that the test for predatory pricing also applies to situations of predatory bidding (Weyerhaeuser / Ross-Simmons Hardwood Lumber)
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