In Energy Conversion Devised Liquidation Trust vs. Trina Solar Limited, the Sixth Circuit rejected a $3 billion antitrust case filed by a bankrupt solar energy company.  The plaintiff alleged that three solar panel producers in China agreed to decrease prices to below cost levels, with the support of the Chinese government, and in so doing, drove the plaintiff out of business.  The plaintiff accordingly filed an antitrust suit under § 1 of the Sherman Act seeking to recover damages.

The Sixth Circuit began its analysis by noting that under § 2 of the Sherman Act, for predatory pricing claims, the plaintiff must plead and prove that (1) the defendants charged below caused prices, and (2) they had reasonable prospect of recouping their investment in the below cost prices. The question this appeal boiled down to was whether the latter requirement also applied to a § 1 claim.  The Sixth Circuit ultimately concluded that it did, in large measure because if the plaintiff could not plead or prove that the antitrust actor was ultimately hoping to harm consumers by higher prices, than there may be no actual consumer injury.  Likewise, the Court found support both in Supreme Court authority, prior Sixth Circuit precedent, and cases from other circuits to support the proposition that a § 1 claim had to establish that the actor would ultimately recoup its losses.

At the end of its opinion, the Court paused to consider the plaintiff’s request for leave to file an amended complaint alleging recoupment. Although courts should freely grant leave to amend, the Court pointed out that the permissive standard changes in the wake of an adverse judgment.  At that point, courts must consider the finality of judgments and therefore the plaintiff seeking amendment bears a heavier burden that includes a request to reopen the case.