# Brooke Group v. Brown & Williamson (1993) **Argued:** March 29, 1993 · **Decided:** June 21, 1993 · **6–3, Justice Anthony Kennedy** · 509 U.S. 209 The decision that made predatory pricing effectively unprovable in American courts — and therefore the specific target of the argument that revived antitrust twenty-four years later. Liggett had introduced generic cigarettes in 1980 and taken share from the branded majors. Brown & Williamson responded with deep discounts on its own generics. A jury found for Liggett; the Supreme Court reversed. ## The two-part test > "a plaintiff seeking to establish competitive injury resulting from a rival's low prices must prove that the prices complained of are below an appropriate measure of its rival's costs." > "The second prerequisite... is a demonstration that the competitor had a reasonable prospect, or, under § 2 of the Sherman Act, a dangerous probability, of recouping its investment in below-cost prices." Recoupment is where the cases die. It requires the plaintiff to prove not just that prices were below cost but that the defendant could plausibly have raised them later and made the loss back — a prediction about a counterfactual future that a defendant can almost always contest. Kennedy's justification is the [[Consumer Welfare Standard]] in one sentence: > "Without recoupment, even if predatory pricing causes the target painful losses, it produces lower aggregate prices in the market, and consumer welfare is enhanced." Justice Stevens dissented with White and Blackmun. ## How hard the test is The most careful statement comes from Hemphill and Weiser in the *Yale Law Journal* (2018): as far as they knew, no predatory pricing case had been litigated to final judgment for a plaintiff since 1993 — a claim they immediately hedge, since very few antitrust cases of any kind reach final judgment and several predatory-pricing claims have survived dismissal. The flat version, "no plaintiff has won since 1993," overstates a footnote its own authors qualified. What is not in dispute is that the test has proven very difficult to meet. ## Why it produced the New Brandeisians [[Lina Khan]]'s "Amazon's Antitrust Paradox" is, structurally, an argument against this case. Her claim was that a platform can pursue below-cost pricing indefinitely with patient capital, and recoup not through later price increases — which *Brooke Group* demands proof of — but through **structural position**: control of the marketplace, the logistics network, and the data. On that theory the recoupment test is not a filter for implausible claims but a rule that makes the most consequential form of predation invisible. That argument runs directly into [[FTC v. Amazon]], which reaches trial in March 2027. See [[New Brandeis Movement]] and [[US Antitrust and Monopoly Timeline]].