Weyerhaeuser Company v. Ross-Simmons Hardwood Lumber Company, Inc.

Subject:

Sherman Act, Antitrust & Trade Regulation, Predatory Buying

In Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), the Court held that an antitrust plaintiff alleging predatory selling must prove that the defendant (1) sold its product at a price level too low to cover its costs and (2) had a dangerous probability of recouping its losses once the scheme of predation succeeded.

The question in this case is whether a plaintiff alleging predatory buying may, as the Ninth Circuit held, establish liability by persuading a jury that the defendant purchased more inputs "than it needed" or paid a higher price for those inputs "than necessary," so as "to prevent the Plaintiffs from obtaining the [inputs] they needed at a fair price"; or whether the plaintiff instead must satisfy what the Ninth Circuit termed the "higher" Brooke Group standard by showing that the defendant (1) paid so much for raw materials that the price at which it sold its products did not coyer its costs and (2) had a dangerous probability of recouping its losses.

• U.S. Court of Appeals - 9th Circuit, Opinion Filed: May 31, 2005
• United States Supreme Court, Cert. Granted: June 26, 2006

Resources:

• Docket Sheet From the U.S. Supreme Court.
• Northwestern University - Medill School of Journalism: On the Docket

Briefs:     Parties Petition Phase Petition for Writ of Certiorari Petitioner's Reply Brief Second Supplemental Brief for Respondent Amici Supporting Petitioner Amicus Brief of Washington Legal Foundation Amicus Brief of the United States Merits Phase Petitioner's Brief Brief for Respondent Amici Supporting Petitioner Amici Brief of Business Roundtable, et al. Amici Brief of the Chamber of Commerce, et al. Amici Brief of Economists Amici Supporting Respondent Amici Brief of States Amicus Brief of American Antitrust Institute Amici Brief of Forest Industry Participants

Counsel of Record For Petitioner Weyerhaeuser Company: Andrew J. Pincus Mayer, Brown, Rowe & Maw LLP Washington, DC For Respondent Ross-Simmons Hardwood: Michael E. Haglund Haglund Kelley Horngren Jones & Wilder LLP Portland, OR

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