250
Stevens, J., dissenting
increased twice a year, by identical amounts. The June 1989 increases brought the price of branded cigarettes to $46.15 per carton, and the price of black and whites to $33.75—an amount even higher than the price for branded cigarettes when the war ended in December 1985. Ibid.11 Because the rate of increase was higher on black and whites than on brandeds, the price differential between the two types of cigarettes narrowed, ibid., from roughly 40% in 1985 to 27% in 1989. See 964 F. 2d, at 338.
The expert economist employed by Liggett testified that the post-1985 price increases were unwarranted by increases in manufacturing or other costs, taxes, or promotional expenditures. App. 525. To be sure, some portion of the volume rebates granted distributors was passed on to consumers in the form of promotional activity, so that consumers did not feel the full brunt of the price increases. Nevertheless, the record amply supports the conclusion that the post-1985 price increases in list prices produced higher consumer prices, as well as higher profits for the manufacturers.12
The legal question presented by this evidence is whether the facts as they existed during and at the close of the 18-month period, and all reasonable inferences to be drawn from
11 It is also true that these same years, other major manufacturers entered the generic market and expanded their generic sales. Ante, at 217. Their entry is entirely consistent with the possibility that lockstep increases in the price of generics brought them to a level that was supra-competitive, though lower than that charged on branded cigarettes.
12 "Q Does this mean that the price increases, which you testified are happening twice a year, are used up in these consumer promotions?
"A Not by any stretch of the imagination. Although there has been an increase in the use of this type of promotional activity over the last four or five years, the increase in that promotional activity has been far outstripped by the list price increases. The prices go up by a lot; the promotional activity, indeed, does go up. But the promotional activity has not gone up by anywhere near the magnitude of the list price increases. Further, those price increases are not warranted by increasing costs, since the manufacturing costs of making cigarettes have remained roughly constant over the last five years." App. 509.
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