The Law of Exclusionary Pricing

Herbert Hovenkamp, Apr 01, 2006

The success of the Areeda-Turner test for predatory pricing and the U.S. Supreme Court’s adoption of demanding proof requirements in its 1993 Brooke Group decision have made it very difficult for plaintiffs to win conventional predatory pricing claims. While many challenges to exclusionary pricing continue to be made, the legal theory has evolved away from classical predation to a variety of other theories. This paper examines the state of the law of both conventional predatory pricing and these recent variants and offers some recommendations.