GREGG COSTA, Circuit Judge:
It would not be an antitrust opinion without the line that the antitrust laws were designed for "the protection of competition, not competitors." Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). Though often included by rote, the axiom is particularly apt in this case.
The competitors are Felder's Collision Parts, Inc., a Louisiana dealer of aftermarket auto body parts that are compatible with General Motors vehicles but not manufactured by GM, and All Star, a dealer of GM-manufactured parts. Felder's filed this antitrust suit against All Star and GM alleging that GM's "Bump the Competition" program is an unlawful predatory pricing scheme. The program lowers the consumer price for GM-manufactured parts below the prices of equivalent "generic" auto parts manufactured by others. It does so by providing rebates to dealers like All Star that sell GM-manufactured parts for the reduced prices. The rebates ensure that the dealers still make a profit on these sales despite the lower price charged consumers.
The primary issue in this appeal from a dismissal of the antitrust claims is whether we consider the effect of this rebate in deciding whether Felder's can meet one of the essential elements of a predatory pricing claim: that the defendant is selling its product at a price below average variable cost. See Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 224, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993); Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 532 (5th Cir. 1999).
There are two types of automobile parts.
Motivated by the cost-conscious insurance companies that are the primary purchasers of auto body parts, GM instituted a program in 2009 to eliminate its historic price disadvantage and offer "highly competitive pricing" with aftermarket equivalents. The program, transparently named "Bump the Competition," is available only for GM parts that have an aftermarket equivalent; prices remain the same for parts with no aftermarket equivalents. A "GM Collision Conquest Calculator" determines prices. The calculator provides a dealer of OEM parts with the "bottom line price" at which they should sell the part. This price is 33% less than the prevailing market price for an aftermarket equivalent. That "bottom line price" is also below GM's list price — the price All Star and other dealers pay GM for the part on the front end. But after a dealer sells a highly discounted part under the program, it is entitled to a rebate from GM. The rebate compensates the dealer for the difference between the sale price and the price it paid GM for the part. On top of making up for that loss, GM also pays the dealer a 14% profit based on the part's original price.
An example from the complaint illustrates how the program works.
Under Bump the Competition, a dealer like All Star would still pay an initial purchase price of $135.01 from GM. It would then sell the part for $119.93, 33% less than the market price for an aftermarket equivalent ($179 * .67). This sale price would also be about $15 less than the $135.01 the dealer had initially paid GM for the part. By submitting the rebate, however, the dealer would get back this $15 "loss" and would also receive a 14% profit, which for this part would be about $18.90 ($135.01 * .14).
Felder's filed this suit alleging that Bump the Competition is a predatory pricing scheme that violates federal and Louisiana antitrust laws as well as other Louisiana laws.
The district court denied Defendants' first motion to dismiss but raised a number of concerns with Felder's complaint that the court instructed Felder's to address in its amended complaint. On the issue of below-cost pricing, the district court found that Felder's failure to incorporate the rebate into All Star's price improperly dissected the transaction into pieces rather than treating it as a whole. In hopes that more information would help cure these defects, the district court also compelled Defendants to turn over documents relevant to their costs and profits. With this information, Felder's amended its complaint. Defendants again moved to dismiss for failure to state a claim, asserting that the complaint lacked facts to support the alleged geographic market, below-cost pricing, and recoupment. The district court dismissed the federal antitrust claims, citing Felder's failure to adequately define the relevant geographic market and its earlier finding that Felder's did not allege below-cost pricing. The resolution of the federal claims also warranted dismissal of the state law antitrust claims, which depend on a finding of federal antitrust liability. See S. Tool & Supply, Inc. v. Beerman Precision, Inc., 862 So.2d 271, 278 (La.App. 4 Cir. 11/26/03) ("Because [the Louisiana antitrust statutes] track almost verbatim Sections 1 and 2 of the Sherman Act, Louisiana courts have turned to the federal jurisprudence analyzing those parallel federal provisions for guidance.").
Predatory pricing occurs when a defendant "sacrifice[s] present revenues for the purpose of driving [a competitor] out of the market with the hope of recouping the losses through subsequent higher prices." Int'l Air Indus., Inc. v. Am. Excelsior Co., 517 F.2d 714, 723 (5th Cir. 1975). Most courts analyze predatory pricing claims as "an attempt by the defendant to preserve or extend its monopoly power" under section 2 of the Sherman Act. IIIA PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶ 724, at 36 (3d ed.2008). That points to an unusual feature of this case. It is unclear which defendant is alleged to be the attempted monopolist or if they both are.
Although there is no heightened pleading standard in an antitrust case, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), we are wary of predatory pricing allegations as "mistaken inferences in [predatory pricing] cases ... are especially costly, because they chill the very conduct the antitrust laws are designed to protect." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 594, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Stearns, 170 F.3d at 527 ("The Supreme Court has expressed extreme skepticism of predatory pricing claims."). To ensure that antitrust liability is not imposed for conduct resulting in lower prices today but carrying no viable risk of supracompetitive pricing in the future, a plaintiff must prove two things. First, it must show that "the prices complained of are below an appropriate measure of its rival's costs." Brooke Grp., 509 U.S. at 222, 113 S.Ct. 2578 (1993). Second, it must show that the defendant has "a dangerous probability[] of recouping its investment in below-cost prices." Id. at 224, 113 S.Ct. 2578; see also Am. Academic Suppliers, Inc. v. Beckley-Cardy Inc., 922 F.2d 1317, 1319 (7th Cir.1991) ("Consumers like lower prices. The plaintiff must therefore show that the defendant's lower prices today presage higher, monopolistic prices tomorrow."). We focus our analysis on the first requirement, given that it was one of the grounds on which the district court dismissed the case.
Low prices benefit consumers and are usually the product of the competitive
The "appropriate measure" of cost has been the subject of much scholarly and judicial debate. See Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 117 n. 12, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986) (citing cases and articles discussing various measures of cost). The debate is settled in our court, however, as we use average variable cost. Stearns, 170 F.3d at 532. Our practice follows the landmark 1975 article Predatory Pricing and Related Practices under Section 2 of the Sherman Act, in which Professors Phillip Areeda and Donald F. Turner explained why "marginal-cost pricing is the economically sound division between acceptable, competitive behavior and `below-cost' predation."
Even calculating average variable cost can be time-consuming and challenging in many cases. See Stearns, 170 F.3d at 532-35 & 533 n. 14 (discounting the plaintiff's expert because he "relied on an erroneous interpretation of the law regarding predatory pricing" by failing to mention average variable cost and did not "explain what [general and administrative expenses] represented or state that it was a variable cost"). Variable costs include "inputs like hourly labor, the cost of materials, transport, and electrical consumption at a plant." Id. at 532. But that complicated inquiry of defining the proper inputs does not arise here because Felder's acknowledges that its ability to show pricing below average variable cost turns on a single issue that the district court termed the "temporal debate": should the calculation
If the rebate were irrelevant as Felder's contends, then Felder's complaint would be sufficient on this issue because it alleges that "at the point of sale to body shops and collision centers, the All Star Defendants and the John Doe Defendants 1-25 sell collision parts lower than their average variable cost" and that "at the time of sale, the price of the good sold was less than the cost to All Star Defendants or the John Doe Defendants plus the costs of selling that part." The example it gives, which was described above, illustrates the basis for this contention: "At the point of sale" — that is, without taking into account the rebate it later receives — All Star would sell a part for $119.93 that it purchased from GM for $135.01.
The calculus is quite different if the rebate is considered. After the rebate, that $15 loss turns into a $19 profit.
Felder's main challenge to the district court's analysis is to argue that it improperly added the rebate amount to the price at which All Star sold the parts to its customers. In predatory pricing cases, Felder's contends, what matters for the "price" side of the equation is the price at which a product is sold in the relevant market. This argument misses the mark. For starters, we do not read the district court opinion as adding the rebate amount to All Star's sales price. Instead, it concluded that "the cost and revenue associated with a particular sale should not be dissected into pieces, but rather treated as a whole, regardless of the time associated with any discount or rebate programs."
We agree with the district court that the rebate should be considered in the predatory pricing analysis. The price versus cost comparison focuses on whether the money flowing in for a particular transaction
Felder's "freeze frame" approach of comparing price and cost as they exist only on the day of the sale ignores the economic realities that govern antitrust analysis. See United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 209, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) ("In interpreting the antitrust laws, ... [w]e must look at the economic reality of the relevant transactions."); Sec. Tire & Rubber Co. v. Gates Rubber Co., 598 F.2d 962, 965-66 (5th Cir.1979) ("There usually is no substitute for a careful analysis of the economic realities presented by the facts of a given case in light of the underlying purpose of the relevant antitrust statute."). Although All Star's profitability is what ultimately matters, it makes sense conceptually to view the rebate as a reduction in All Star's cost of purchasing the parts from GM. In purchasing the parts from GM, All Star is a consumer. As it does for any consumer, a rebate reduces All Star's cost of acquiring the parts. So although All Star would initially pay $135.01 for the example part, the rebate would reduce the price to $101.03.
Felder's conceded at oral argument that if GM had sold the part to All Star at this lower price up front, then Felder's would have no case. The concession was an obvious one because in that scenario, All Star would be selling the part for more than the $101.13 it would have paid GM (and recall that there is no allegation that GM's price is below its average variable cost). Different timing does not change that analysis. A firm's costs related to a transaction are not set in stone on the day of the sale. See Fruitvale Canning Co., 52 F.T.C. 1504, 1520 (1956) ("It is the actual amount paid by the purchaser to the seller after taking into consideration all discounts, rebates, or other allowances with which we are concerned here."), cited in A.A. Poultry, 881 F.2d at 1407.
Any consumer would consider a rebate as a reduction in cost, even if the consumer were "refunded" months after the actual sale for the higher price. Just ask the purchaser of a new "$600" cellphone for which a $300 rebate were available. Perhaps Felder's position in this case stems from the extra step in the transaction; All Star gets a rebate from GM on a product that All Star passes on to its consumers. But any confusion resulting from that extra step is eliminated by considering an example involving a different cost input: If All Star received a rebate on the costs of shipping the collision parts, is there any doubt that rebate would reduce its shipping costs even though the discount would not be realized the day the shipping would take place? An analogy used in a prior predatory pricing case also supports rejecting Felder's isolated view of the transaction. We have noted that when "a company has a `buy one, get one free' promotion, it would be incorrect to look at the nominal price of the `free' product — zero — and infer predation from this fact." Stearns, 170 F.3d at 533 n. 15. The economic reality in that situation is that the two products are both being sold at a 50% discount. The undisputed reality in this case is that All Star is making money on its sale of parts after it receives the GM rebate. And with respect to GM, Felder's does not allege that it is selling its parts below average variable cost, whether the rebate is considered or not.