Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation Page 16

Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation general information

Media for Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation

Audio Transcription for Oral Argument - March 29, 1993 in Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation

It was commenced as soon as we announced we were going to go into generics.

Antonin Scalia:

Which was what year?

It was July, '84.

Antonin Scalia:

So some... some of the... some of the... the suit was going on during some of this period when the gap had actually increased.

Yes.

And there's one other thing about this chart.

Liggett has compared only its black-and-whites with generic... with brandeds.

Philip Morris and RJR were selling black-and-whites by the time of the trial at over 50 percent off the price of brandeds, some narrowing of the gap.

Moreover, Liggett doesn't mention that it was selling a branded generic, Pyramid, at 50 percent off the price of brandeds.

So there was no plan to narrow the gap and there was no narrowing of the gap.

The gap fluctuated.

That's about all I can say, Your Honors.

The fact is the district court specifically found, at page 36a of the petition,

"No substantial record evidence supports Burnett's alignment of interest theory. "

that's the oligopolistic theory.

"Even before B&W began selling black-and-white cigarettes, RJR had entered the generic segment by repositioning Doral at generic prices. "

"Burnett conceded that RJR had no anticompetitive intent and that Doral's entry expanded the generic segment. "

The court noted that they tried to sell a lot of cigarettes to replace Philip Morris as number one.

Furthermore, the court said there is no evidence that any of the other major cigarette companies had an interest in slowing the growth of generics.

Then five of the six companies sold generics, today all six do.

We started with 2.8 billion cigarettes being sold in generics, that jumped to 80 billion, and today it's about twice that.

So there's been no slowing of the growth of generics, but rather quite the contrary.

This is a lawsuit by one full-line competitor against another full-line competitor, both of whom were profitable throughout the period of predation.

And I think the only inference one can draw, after looking at the facts and seeing that there was no plan to do what Liggett accuses us of and that no such things happened in the market, is that this was a lawsuit designed initially just to keep Brown & Williamson out of black-and-white cigarettes.

You have to be very careful with a lawsuit like this, because there's potential for--

William H. Rehnquist:

Thank you, Mr. Bork.

Mr. Areeda, you have 5 minutes remaining.

Phillip Areeda:

Thank you, Your Honor.

I notice that--

William H. Rehnquist:

Mr. Areeda, do you... do you agree with Mr. Bork's answer to my question, that this seems to be mostly just an argument about sufficiency of the evidence?