Pricing Conduct Beyond The Safe Harbor

Law360, New York (July 29, 2010, 11:48 AM EDT) -- In recent years, antitrust defendants and other monopoly firms navigating rough antitrust waters have sought refuge in what the defendants assert is a “safe harbor” established by the U.S. Supreme Court in the Brooke Group case.[1]

Relying on Brooke Group and its progeny,[2] monopoly firms have proffered arguments that any discount that does not reduce the price of the product below its marginal cost is per se legal, regardless of what form that discount takes.

The powerful rationale for this argument is that “because cutting prices...
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