Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 45 (1993)

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Cite as: 509 U. S. 209 (1993)

Stevens, J., dissenting

"There are specific findings that such injuries had resulted from respondent's discounts, although the statute does not require the Commission to find that injury has actually resulted. The statute requires no more than that the effect of the prohibited price discriminations 'may be substantially to lessen competition . . . or to injure, destroy, or prevent competition.' After a careful consideration of this provision of the Robinson-Patman Act, we have said that 'the statute does not require that the discrimination must in fact have harmed competition, but only that there is a reasonable possibility that they "may" have such an effect.' Corn Products Co. v. Federal Trade Comm'n, 324 U. S. 726, 742." FTC v. Morton Salt Co., 334 U. S. 37, 46 (1948).

See also Falls City Industries, Inc. v. Vanco Beverage, Inc., 460 U. S. 428, 435 (1983) ("In keeping with the Robinson-Patman Act's prophylactic purpose, § 2(a) does not require that the discriminations must in fact have harmed competition" (internal quotation marks omitted)).

In this case, then, Liggett need not show any actual harm to competition, but only the reasonable possibility that such harm would flow from B&W's conduct. The evidence presented supports the conclusion that B&W's price war was intended to discipline Liggett for its unprecedented use of price competition in an industry that had enjoyed handsome supracompetitive profits for about half a century. The evidence also demonstrates that B&W executives were confi-dent enough in the feasibility of their plan that they were willing to invest millions of company dollars in its outcome. And all of this, of course, must be viewed against a background of supracompetitive, parallel pricing, in which "prices for cigarettes increased in lockstep, twice a year . . . irrespective of the rate of inflation, changes in the cost of production, or shifts in consumer demand," ante, at 213, bringing with them dramatic increases in profit margins, see n. 5, supra. In this context, it is surely fair to infer that B&W's discipli-

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