Weyerhaeuser

• Published date: 01 September 2016
• Date: 01 September 2016
• DOI: http://doi.org/10.1177/0003603X16657227
• Subject Matter: Articles

Article

Weyerhaeuser: An Epilogue

Jeffrey L. Harrison*

Abstract

Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co. could have been influential in three ways. First,

the Court directly addressed the standard for predatory buying and, consequently, could have influ-

enced the likelihood antitrust plaintiffs will rely on that theory. Second, its express recognition of the

similarities between the buying and selling sides of markets could have encourage increased reliance on

monopsony-based theories of liability. Finally, the decision could have created the impetus for refining

the analysis of a number of issues when they arise in monopsony contexts. These include monopsony

tying, the use of monopsony power to gain power on the selling side of markets, as well as standing and

antitrust injury. This study finds that its impact has been to discourage use of the predatory buying

theory and, perhaps, of monopsony theories generally. Interestingly, it has encouraged defendants to

claim plaintiffs are making Weyerhaeser-like claims in hopes of being granted a dismissal.

Keywords

antitrust, monopsony, bilateral monopoly, standing

I. Introduction

The Supreme Court considered monopsony issues well before its early 2007 decision in Weyerhaeuser

Co. v. Ross-Simmons Hardwood Lumber Co.,

1

but that case includes the clearest indication by the

Court that monopsonistic behavior and collusive monopsony will be treated in a fashion similar to that

of anticompetitive behavior by sellers. Although still a relatively recent case, enough time has passed

to make an initial assessment of the impact of Weyerhaeuser. In a volume dedicated to Roger Blair this

is an especially attractive subject, since many of my most enjoyable years as an academic were spent

coauthoring with Roger a series of works on the issue of antitrust and monopsony.

2

*College of Law, University of Florida, Gainesville, FL, USA

Corresponding Author:

Jeffrey L. Harrison, College of Law, University of Florida, Gainesville, FL 32611, USA.

Email: harrisonj@law.ufl.edu

1. 549 U.S. 312 (2007). A Westlaw search for Supreme Court cases in which the terms ‘‘monopsony’’ and ‘‘antitrust’’ were

both used reveal only three cases prior to Weyerhaeuser. Nevertheless, In Klor’s v. Broadway-Hale Stores, Inc., the Court

describes the defendant as using ‘‘‘monopolistic’ buying power.’’359 U.S. 207, 209 (1959). United States v. Griffith, 334

U.S. 100 (1948), is another case in which the use of monopsony power was clearly involved.

2. ROGER D. BLAIR &JEFFREY L. HARRISON,MONOPSONY:ECONOMIC THEORY AND ANTITRUST POLICY (1993); ROGER D. BLAIR &

JEFFREY L. HARRISON,MONOPSONY IN LAW AND ECONOMICS (2010); Roger D. Blair & Jeffrey L. Harrison, Monopsony and

The Antitrust Bulletin

2016, Vol. 61(3) 411-422

ªThe Author(s) 2016

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DOI: 10.1177/0003603X16657227

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