Weyerhaeuser Company v. Ross-Simmons Hardwood Lumber Co., Inc.

Whether a plaintiff alleging predatory buying may, as the Ninth Circuit held, establish liability by persuading a jury that the defendant purchased more inputs "than it needed" or paid a higher price for those inputs "than necessary," so as "to prevent the Plaintiffs from obtaining the [inputs] they needed at a fair price"; or whether the plaintiff instead must satisfy what the Ninth Circuit termed the "higher" Brooke Group standard by showing that the defendant (I) paid so much for raw materials that the price at which it sold its products did not coyer its costs and (2) had a dangerous probability of recouping its losses.

NCLC filed twice in this case: once supporting cert. and once on the merits.

NCLC argued that the Ninth Circuit’s effort to resolve predatory purchasing claims with vague standards (like paying a price “higher than necessary” and preventing competitors from being able to buy at a “fair” price) would impede competition and cause unnecessary treble damages liability. Instead, NCLC argued the Ninth Circuit should have adopted the recoupment standard employed in analyzing predatory selling claims.

Unanimously agreeing with NCLC, the Supreme Court adopted, for the purposes of predatory purchasing claims, the same standard it employs in predatory pricing cases.

Amicus brief in support of cert. filed 10/26/05. Review granted 6/26/06. Amicus brief on the merits filed 8/24/06. Oral argument held 11/28/06. Decided 2/20/07.