FTC Files Joint Amicus Brief with DOJ in Matter of Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.

On May 31, the Commission has authorized the staff to file a joint amicus brief with the U.S. Department of Justice (DOJ) in the case of Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., No. 05-381 (S. Ct.).
The brief, which was filed on May 26, 2006, urges the Court to grant certiorari in this case, in which the Ninth Circuit Court of Appeals: 1) held that the standard for a predatory pricing claim articulated by the Supreme Court in Brooke Group Ltd v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), did not apply to a case in which the plaintiff alleged “predatory bidding” in violation of Section 2 of the Sherman Act, and 2) approved instructions that allowed a jury to find a violation based on assessments of factors such as “fairness” and “necessity.” The Commission vote authorizing the staff to file the brief jointly with the DOJ was 3-2, with Commissioners Jon Leibowitz and J. Thomas Rosch voting no.

Authored by

Robert W. Doyle, Jr.
202-589-1839
rdoyle@dbmlawgroup.com