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Tuesday, June 27, 2006 - Page updated at 12:00 AM Supreme Court takes Weyerhaeuser appealBloomberg News The U.S. Supreme Court, heeding calls from business groups and the Bush administration, said Monday it would review a $78.8 million antitrust award against Weyerhaeuser for driving a rival lumber producer out of business. Federal Way-based Weyerhaeuser, the world's biggest forest-products company, is fighting allegations it monopolized the Pacific Northwest market for finished alder, a wood used in furniture, by overbidding for scarce hardwood logs. The 9th U.S. Circuit Court of Appeals in San Francisco upheld a jury award to Ross-Simmons Hardwood Lumber of Longview. U.S. companies and corporate trade groups say the lower-court ruling would set a dangerous precedent, opening companies to suits when they aggressively bid for raw materials and other supplies. Microsoft, Dow Chemical and Verizon Communications are among the companies backing Weyerhaeuser's appeal to the high court. The lower court's ruling "will wreak havoc with the most basic purchasing decisions throughout the country," according to a brief filed by Coca-Cola and three other businesses. The Bush administration told the justices that the 9th Circuit ruling "threatens to chill pro-competitive conduct by firms in a wide variety of markets." The high court sought the government's advice on the case in November. The Supreme Court will hear arguments in the case during its 2006-07 term, which starts in October. The antitrust award would be the largest so far in a set of suits against Weyerhaeuser over its finished alder business. The company has paid $62 million to resolve some of those claims and put $95 million in reserve, according to regulatory filings. "It's not the kind of thing that's going to jeopardize Weyerhaeuser," said D.A. Davidson senior research analyst Steven Chercover, who has a "buy" rating on the company and doesn't own any shares. "They're in very solid financial shape right now."
Ross-Simmons, which went out of business in 2001, accuses Weyerhaeuser of artificially increasing alder prices to deprive smaller competitors of needed supplies. Specifically, Weyerhaeuser paid higher-than-market prices for the wood, bought more than it needed, entered into exclusive agreements with suppliers and illegally bought logs from state forests, Ross-Simmons says. A Portland jury in 2003 said Ross-Simmons was entitled to compensation of more than $26 million, an amount that was tripled under federal antitrust rules. The 9th Circuit, voting 3-0, said that "when viewed in its entirety, the evidence sufficiently supports a finding of specific intent to control prices and eliminate competition." In its appeal, Weyerhaeuser says the 9th Circuit was wrong to approve a jury instruction that focused on whether the company bought more logs than it "needed" and paid a "fair price." The company said the standard was like "throwing a marshmallow at a jury," borrowing a phrase first used by federal appeals court Judge Frank Easterbrook. "Under the 9th Circuit's wholly subjective rule, it is impossible for businesses to know what pricing decisions conform with the law," Weyerhaeuser argued. "Firms accordingly will be forced to curb aggressive, and desirable, competitive bidding for fear of triggering unwarranted liability." Weyerhaeuser says the 9th Circuit should have applied a legal standard the Supreme Court used in a 1993 predatory-pricing case. That case required proof that an antitrust defendant sold its product below cost and was likely to recoup those losses after competition had been driven out. Ross-Simmons had urged the Supreme Court not to get involved, saying the 1993 ruling wasn't applicable because the Weyerhaeuser case involved overpayments for raw materials, not predatory price cuts. "Weyerhaeuser's conduct, raising the costs of natural-resource inputs needed for production, is materially different from lowering the price of goods sold to consumers," Ross-Simmons argued. Ross-Simmons blamed Weyerhaeuser for forcing it out of business, Reuters reported. But Weyerhaeuser attributed Ross-Simmons' failure to substandard equipment, inefficient operations, increased natural-gas prices, poor management and inadequate capital investment. Copyright © 2006 The Seattle Times Company Most read articles
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