Come across Baumol, supra note 142, at the 57­59; discover also June 22 Hr’g Tr

Come across Baumol, supra note 142, at the 57­59; discover also June 22 Hr’g Tr


136. Discover Areeda Turner, supra mention 5 Atlanta dating app, at 716 (noting you to definitely “[t]the guy progressive price of and come up with and you can offering the past product do not easily become inferred out-of antique company levels”); look for along with AMR, 335 F.three-dimensional from the 1116 (acknowledging one to “marginal prices, a monetary abstraction, is actually notoriously hard to size and you can ‘cannot feel calculated out of antique bookkeeping methods'” (quoting Ne. Co. v. ATT, 651 F.2d 76, 88 (2d Cir. 1981))).

137. Areeda Hovenkamp, supra note 1, ¶ 735b3 (“Adjustable costs, because the label ways, is actually will set you back one are different with alterations in production,” and you can “[t]the guy mediocre changeable cost is the sum of all adjustable can cost you split up by the yields.” (interior quote scratches excluded)).

141. See AMR, 335 F.3d within 1116; Stearns Airport Let. Co. v. , 170 F.three-dimensional 518, 532 (5th Cir. 1999); discover and Areeda Turner, supra mention 5, during the 718 (“[D]espite the possibility that mediocre changeable prices will differ from limited pricing, it’s a useful surrogate for predatory pricing data”); Feb. 13 Hr’g Tr., supra mention 84, during the 185 (Wark) (“In my opinion it is very important keep in mind that mediocre adjustable prices is most an excellent proxy having marginal prices for the reason that it very we[s] best attempt.”).

142. Pick William J. Baumol, Predation as well as the Logic of the Average Changeable Costs Attempt, 39 J.L. Econ. forty-two, 55­57 (1996); cf. Cascade Fitness Options v. PeaceHealth, 515 F.three-dimensional 883, 910 (9th Cir. 2008) (carrying the suitable way of measuring will cost you within the an effective “bundled discounting context” is mediocre variable costs).

143. , supra mention cuatro, from the thirty-two (Bolton) (“rate being substandard changeable rates[] is actually a very poor proxy getting measuring cash sacrifice, that is what we should are making an effort to follow”).

145. Kelco Disposal, Inc. v. Browning-Ferris Indus. regarding Vt., Inc., 845 F.2d 404, 408 (2d Cir. 1988), aff’d on other grounds, 492 U.S. 257 (1989); look for also You.S. Philips Corp. v. Windmere Corp., 861 F.2d 695, 704 (Given. Cir. 1988) (whether or not advertisements costs had been variable otherwise fixed will set you back try a concern of-fact); Sunshine Instructions, Ltd. v. Temple Univ., 697 F.2d 90, 94­97 (3d Cir. 1982) (if or not inventory shrinkage and you may payroll costs is actually variable otherwise fixed costs was questions of-fact); Ne. Co. v. ATT, 651 F.2d 76, 86 n.a dozen (2d Cir. 1981) (“Whether or not a particular expense, elizabeth.grams., the cost of a separate warehouse, is going to be classified since changeable or fixed depends in part for the enough time in question.”).

147. Id. from the 2272. “Sunk pricing” are “the brand new part of fixed can cost you that is not recoverable.” Carlton Perloff, supra note 27, on 785.

151. Select fundamentally Elzinga Mills, supra note 79, at 2484 (“Implementing . . . [brand new long-work at mediocre progressive prices practical] might be inconsistent towards generally acknowledged view one to predatory costs means rates who not be remunerative with the exception of their exclusionary effect.”); Areeda Hovenkamp, supra notice 1, ¶ 741e, during the 449­55 (listing one to preexisting capital can cost you “aren’t part of the cost of predation, as those can cost you are nevertheless an equivalent”).

FMC Corp

152. Discover Carlton Perloff, supra notice twenty seven, at the 31 (“An effective sunk pricing is like spilled whole milk. Shortly after it’s sunk, there is no have fun with worrying all about it, plus it should not affect one then conclusion. . . . Can cost you, plus repaired costs, which aren’t obtain if surgery cease have been called avoidable will cost you.”).

153. See Race Agency, Is., Enforcement Recommendations: Predatory Cost fourteen­15 (2008), offered at $filage/Prelizabethdatory_Pricing_Guidelines-elizabeth.pdf; Directorate-Gen. to have Race, Western european Comm’n, Conversation Paper to your Applying of Blog post 82 of the Pact to Exclusionary Violations 29 (2005), available at

156. Discover Summer 22 Hr’g Tr., supra notice cuatro, within thirty-six (Bolton), 46 (Melamed); id. at the 53­54 (Melamed); id. at the 77­80 (panelists voiced zero disagreement that average avoidable rates was the newest “top pricing size,” no matter if that panelist expected so it proposition’s phrasing and another panelist noted definitional ambiguities in the cost size); Baumol, supra note 142, on forty-two, 57­59; Bolton mais aussi al., supra mention fourteen, at the 2271­72; find along with Gregory J. Werden, The fresh new American Airlines Decision: Not which have a fuck however, a good Whimper, Antitrust, Slide 2003, within thirty-two, 34­35; Unilateral Conduct Working Classification, Int’l Competition System, Breakdown of Predatory Pricing 3, 10­eleven (2008), offered by (“By far the most aren’t cited size are average variable rates, although there is apparently an ever-increasing trend to your the use off average avoidable rates.”); find supra note 153.