# Matsushita v. Zenith (1986) **Argued:** November 12, 1985 · **Decided:** March 26, 1986 · **5–4, Justice Lewis Powell** · 475 U.S. 574 The case that turned summary judgment into the antitrust defendant's standard weapon — and the first of a three-decade sequence in which antitrust law was narrowed through **procedure** rather than doctrine. Zenith and NUE alleged that Japanese consumer-electronics makers had run a twenty-year conspiracy: cartel pricing at home, below-cost pricing in the United States, to drive American television manufacturers out and recoup later. ## The holding Powell held that a §1 plaintiff opposing summary judgment must produce evidence that "tends to exclude the possibility" of independent action — and that where the alleged conspiracy is economically implausible, the plaintiff needs *more* persuasive evidence to get to a jury: > "conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy." Implausibility was supplied by [[Chicago School]] economics: > "there is a consensus among commentators that predatory pricing schemes are rarely tried, and even more rarely successful." A twenty-year scheme to lose money in the hope of monopolizing later made no sense as a business proposition, so the ambiguous evidence could not carry it. Justice White, dissenting with Brennan, Blackmun and Stevens, objected that the Court had substituted its own economic theory for the jury's assessment of the record. ## The pattern it starts *Matsushita* is the opening move in a distinctive method: rather than hold conduct lawful, **make the case unwinnable procedurally**. [[Brooke Group v. Brown & Williamson]] (1993) added a recoupment requirement that predatory-pricing plaintiffs almost never satisfy. [[Bell Atlantic v. Twombly]] (2007) raised the pleading bar so the case can be killed before discovery. Each step is defensible on its own terms; the cumulative effect is that a whole category of claim stopped being brought. The Japanese-electronics conspiracy alleged in *Matsushita* is also, in outline, the strategy [[Lina Khan]] described in "Amazon's Antitrust Paradox" (2017): sustained below-cost pricing financed by patient capital, to be recouped through structural position rather than later price hikes. Whether the 1986 consensus that such schemes are "rarely tried" survives contact with platform economics is one of the live questions in [[FTC v. Amazon]]. See [[US Antitrust and Monopoly Timeline]].