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WT/DS162/R/Add.1 Page 91

"Even an act of pure malice by one business competitor against another does not, without more, state a claim under the federal antitrust laws […] [a]lthough some of [the defendant's] corporate planning documents speak of a desire to slow the growth of the [generic cigarette] segment, no objective evidence of its conduct permits a reasonable inference that it had any real prospect of doing so through anticompetitive means."301

Moreover, even if such a campaign might conceivably succeed, such statements are frequently ambiguous because they are frequently made to convey perfectly competitive objectives.  Thus, for example, in Geneva Steel, the district court noted:

"Mere knowledge on the part of the importer that his sales will capture business away from his United States competitors, standing alone, will not be sufficient to demonstrate an intent to injure the entire United States steel industry and will therefore be inadequate to establish a violation of the Act."302


The United States argues that, by contrast, establishing civil liability under the RobinsonPatman Act does not require proving that the defendant intended to injure competition or competitors.  As a consequence, the same conduct by two different firms could be found to violate the RobinsonPatman Act but not the 1916 Act.  In short, the 1916 Act's intent requirement because it is so difficult to satisfy without more, serves to render the 1916 Act considerably more favourable to importers than the RobinsonPatman Act is to domestic firms.  This conclusion is supported by the fact that there has never been a successful case brought under the 1916 Act in its 82year history, while plaintiffs have secured relief in thousands of cases filed under the RobinsonPatman Act.  

(c) The recoupment requirement


Japan notes that, in a landmark decision, Brooke Group, the US Supreme Court substantially increased the evidentiary burden on plaintiffs seeking to demonstrate violations of the Robinson-Patman Act in primary-line cases.  The Supreme Court abolished the long-standing ability of a plaintiff to demonstrate that the "lessening of competition" requirement was satisfied by offering evidence of the defendant's intent and imposed a much higher evidentiary threshold for proving a violation requiring in addition proof of effect and recoupment.


Japan recalls that, with respect to primary line cases, the Supreme Court adopted a market-based analysis in which a plaintiff must prove "that the competitor had a reasonable prospect […] of recouping its investment in below-cost prices".303  The Court concluded that to prove recoupment, a plaintiff must show that the below-cost pricing must be capable:  (i) of achieving its intended effects

301 Brooke Group, Op. Cit., p. 225, 241.

302 Geneva Steel, Op. Cit., p. 1224.

303 Japan refers to Brook Group, Op. Cit., pp. 222-24.

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