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The Predatory Pricing Puzzle: Piecing Together a Unitary Standard

Predatory pricing, pricing below cost, is prohibited by Section 2 of the Sherman Act. While courts agree that a plaintiff must show a competitor engaged in below-cost pricing to succeed on a Section 2 claim, courts and parties disagree on the data relevant to this analysis. To date, plaintiffs have largely based their claims on abstract economic theories and assumptions about costs, revenues, and how these factors affect business decisions. In a recent Sixth Circuit case, the court eschewed the traditional, mechanical approach to below-cost pricing. Instead, it examined the data and information actually used by the defendant in making its business decisions and declared that predation could be shown based on this evidence. This Note contends that a similar approach should be used in all predation cases. First, this Note explores the foundations of antitrust law and predatory pricing. It presents two cases involving the airline industry to illustrate the facts and issues involved in predatory pricing cases. Next, it describes the information that is relevant in determining whether a firm engaged in predatory pricing. It also provides information on how the courts in both airline cases applied these rules. This Note then searches for commonalities in these two cases, which appear on the surface to contradict one another. Finally, it explains factual differences between the cases and proposes a new test for below-cost pricing that can be used in the future.