Sixth Circuit Clarifies Proof Required To Show Below-Cost Pricing in Antitrust Case
A recent Sixth Circuit decision clarified the minimum standard a plaintiff must meet to prove a claim of below-cost pricing under either the concerted or independent antitrust provisions of the Sherman Act.
In Superior Production Partnership, d/b/a/ PBSI v. Gordon Auto Body Parts Co., Ltd; Gordon Auto Body Parts USA Corp., No. 13-4466, Gordon Auto Body Parts (“Gordon”), a Taiwanese company, was an early entrant to the US market for replacement truck hoods. Superior Production Partnership (“PBSI”) eventually entered the market for certain replacement hoods but found that it could not match the prices of Gordon or several other Taiwanese firms. Believing that Gordon and the other firms were conspiring to drive it out of business, PBSI brought antitrust claims against Gordon.
The district court granted Gordon’s motion for summary judgment after resolving several discovery disputes and a key Daubert motion. On appeal, the Sixth Circuit affirmed the district court’s discovery rulings and affirmed the summary judgment because it agreed that PBSI failed to make any showing that Gordon’s prices were below an appropriate measure of cost.
After an involved discussion concerning various discovery disputes, the Sixth Circuit affirmed the district court’s admission of Gordon’s expert report and the rejection of PBSI’s expert report on the grounds that PBSI’s expert report: (1) would not assist a factfinder in determining Gordon’s intent under the Sherman act, and (2) relied on an inapplicable predation test – the “no economic sense” test. Essentially, PBSi’s expert report replaced the mandatory “price-cost comparison” with vague references to “predatory intent.”
As it turned out, PBSI’s inadmissible expert report proved fatal to its claims. The Sixth Circuit reasoned that PBSI, without the benefit of its expert opinion, had “little to support an essential part of its case.” The key takeaway from this case is that some form of a “price-cost” matrix along with evidence that shows “sales below cost” is essential to get past a defendant’s motion for summary judgment.
— D. Gil Schuette