Should Venture-Capital Backed Or Foreign-Funded Companies Worry About Predatory-Pricing-Antitrust Claims?


Author: Jarod Bona

The US Supreme Court said in 1986 that “[T]here is a consensus among commentators that predatory pricing schemes are rarely tried, and even more rarely successful.”

This was the famous Matsushita Elec. Indus. Co. v. Zenith Radio Corp. case that is known mostly for stating that to survive summary judgment on antitrust conspiracy, a plaintiff must present evidence that tends to exclude the possibility of independent (rather than conspiratorial) activity. 475 U.S. 574 (1986). Unfortunately, many federal trial judges have misunderstood this standard to apply to the motion-to-dismiss level.

If you don’t know what predatory pricing is, you should first read Steven Cernak’s outstanding article detailing the doctrine’s history and requirements (and rarity).

The purpose of this article is much more modest—to ask whether the quote above from the 1986 Supreme Court decision is out-of-touch with current scenarios that may or may not be reality (you decide).

As you learned from reading Steve Cernak’s article, a predatory pricing claim is one that asserts that defendants (with monopoly power) harmed competition by pricing below cost to run competitors out of the market in the short run, so they could raise prices later, after the pesky competitors are out of their way (that is called recoupment).

To prevail, besides antitrust injury, a predatory-pricing plaintiff must show that defendant has monopoly power, priced below some appropriate measure of cost, and had the ability to recoup the costs of taking a loss after they vanquished competition and could again raise prices. This is one form of a monopolization claim.

Let’s look at that 1986 Matsushita Supreme Court quote again: “[T]here is a consensus among commentators that predatory pricing schemes are rarely tried, and even more rarely successful.”

If you are an antitrust attorney or have studied antitrust, this quote is familiar to you and shows up in the defense briefing of just about every predatory-pricing case. And judges like to cite it too. Indeed, it represents the dismissiveness with which courts and, frankly, the entire antitrust world view predatory-pricing claims. And there is some good reason for that.

But is the statement correct and will it continue to be correct?

Let’s reminisce for a moment to the “olden days.” It used to be, I think, that companies sought to make a profit from the start to the finish. And if they didn’t make a profit, they failed, and whoever ran them would face scandal, scorn, and certain involuntary succession. Each company rise and stood alone, so each would try to be profitable. And if the business wasn’t profitable and didn’t survive, the equity of its shareholders or owners would perish, along with hopes and dreams.

Of course, like most general descriptions of a time or the past, this statement has holes and exceptions and could, in many instances, be plain wrong. But it is the narrative that was told (purposeful passive voice here) and that informed statements like that in the 1986-Matsushita-Supreme-Court decision, which is all that really matters for my point.

So, to price below cost, a company risked bankruptcy because pricing below cost, even for part of the company’s offerings, threatens profits, which threatens survival. And it may take a long time to vanquish competition to be able to later increase prices at monopoly-profit levels. And most companies weren’t willing or able to do that. So “predatory-pricing schemes were rarely tried,” as the quote goes. And, I suppose, those that did try them probably did mostly fail. But I haven’t reviewed the empirical evidence on that.

With that narrative, which is part of the history of predatory-pricing doctrine, we can see why the dismissive quote makes sense.

But what if this is the true world?

But what happens if you have a culture in which financial resources are aggregated into individual entities and you have smart people that place bets on large numbers of companies with the knowledge that most of them are going to fail? The financial entities, however, know and accept that and, instead, make their money from the extremely small percentage of companies that blow up (in a good way) and turn into unicorns or otherwise take over an entire market or industry.

And, at the same time, let’s say that a substantial percentage of these companies that are the subject of these financial bets are the type that succeed only if they reach the scale of monopoly. Maybe these are the sort of companies that create two-sided markets or exchanges, in which network effects are necessary to succeed?

And, what if, to obtain sufficient participants on both sides of the market (and the scale necessary to dominate the market), each of the companies (subject to the bets by the smart-financial entities) priced their products or services at zero or some extremely low amount in a race to get everyone on their website or app or system?

If that were to happen, I wonder if most of these companies would fail—they are pricing below cost, after all—and not everyone is going to be able to pull of a victory in these circumstances. But I bet a handful or more of them would survive and end up dominating their market. And I imagine that some of them would continue pricing below cost between the points of market penetration and complete market domination.

After all, profitability isn’t necessary because the money funding these companies—in this scenario—is not incented by mediocre or even strong profits. What makes these smart financial entities rich are the big winners—the companies with monopoly profits that dominate their markets.

If that were to happen, how would that change the accuracy of the 1986-Matsushita-Supreme Court quote: “[T]here is a consensus among commentators that predatory pricing schemes are rarely tried, and even more rarely successful.”

In the scenario I just described—you can decide for yourself whether it sounds familiar or is true—I think that predatory pricing schemes would be commonly tried and periodically successful.

Here is another possible scenario:

Let’s say there is a foreign country that owns or controls a substantial number of companies. It is possible, I suppose, that the bureaucrats in the government are calculating profits and forcing decisions based entirely or mostly on profit-maximization. It is possible that control, power, and influence have nothing to do with their decisions. And that the funding acts just like any other market funding.

But let’s pretend for a second that this isn’t true. Maybe the government money (and control and incentives usually follow the money) is less concerned about profit-maximization and more concerned about other goals. In that case, I wonder if this government money would have the same reluctance to risk profits as companies in the narrative we told earlier. If that is the case, I probably wouldn’t be dismissive of the idea that a predatory-pricing scheme could be tried or successful. Money seeking power or control likes monopoly and may be willing to fund it.

What about this?

This is a little outlandish, but let’s pretend that the people in the government making decisions about bailouts haven’t heard of the term “moral hazard” and are willing to send taxpayer dollars to giant companies whenever the companies have trouble making a profit. For the sake of the story, let’s call them, I don’t know, maybe “too big to fail.”

If you are running one of these too-big-to-fail companies that will receive a bailout if you lose money, especially a lot of money, I suppose you don’t have to worry so much about the olden-days narrative I described earlier: If the company loses money, you have to worry about scandal, scorn, and stockholders and owners losing their money.

Maybe you’d look at the decision whether to predatory price like this? If you try predatory pricing, the upside is that you will obtain or maintain your monopoly, leading to huge margins through monopoly pricing. Everyone gets rich and they throw a party for you, their brilliant leader. The downside—maybe predatory pricing fails—is that the company loses money and, worst case, if it loses a lot of money, you just ask the government to give you more, through a bailout because you are “too-big-to-fail.”

Whether that could happen in the real world, I’ll let you decide.

But if it could, it would certainly cast doubt on the 1986-Matsushita-Supreme-Court quote because the incentives for predatory pricing would be different than the narrative from the olden days.

Image by OpenClipart-Vectors from Pixabay

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