ANTITRUST—PREDATORY PRICING—SIXTH CIRCUIT INCORRECTLY USES POST-CHICAGO ECONOMICS AND ANALYSIS OF NON-PRICE PREDATION TO OVERTURN SUMMARY JUDGMENT GRANTED TO AN ANTITRUST DEFENDANT: SPIRIT AIRLINES, INC. V. NORTHWEST AIRLINES, INC.

摘要

Since 1993, the federal courts have not been friendly places for those businesses claiming to have suffered predatory pricing injuries under section 2 of the Sherman Antitrust Act. Due to the Supreme Court's creation of an objective standard for price predation in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., many lower courts, even in cases where common sense would seem to suggest that predatory pricing was occurring, held that there was no predation. However, with the action brought by Spirit Airlines against Northwest Airlines, the Sixth Circuit wrongly reopened the courts to hear potential predation actions by holding that, in addition to prices, non-price behavior can be taken into account under the Brooke Group test, thus signaling a shift away from Chicago economics and bring-ing subjectivity to the objective requirements previously used in price predation cases.