509 U.S. 209, 113 S.Ct. 2578 BROOKE GROUP LTD., Petitioner v ...

an oligopoly may never provide a means for achieving recoupment and so may not form the basis
of a primary-line injury claim, we disagree. A predatory pricing scheme designed to preserve or
create a stable oligopoly, if successful, can injure consumers in the same way, and to the same
extent, as one designed to bring about a monopoly. However unlikely that possibility may be as a
general matter, when the realities of the market and the record facts indicate that it has occurred
and was likely to have succeeded, theory will not stand in the way of liability. See Eastman
Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 466, 467, 112 S.Ct. 2072, ----, 119
L.Ed.2d 265 (1992).
The Robinson-Patman Act, which amended § 2 of the original Clayton Act, suggests no
exclusion from coverage when primary-line injury occurs in an oligopoly setting. Unlike the
provisions of the Sherman Act, which speak only of various forms of express agreement and
monopoly, see 15 U.S.C. §§ 1-2, the Robinson-Patman Act is phrased in broader, disjunctive
terms, prohibiting price discrimination "where the effect of such discrimination may be
substantially to lessen competition or tend to create a monopoly," 15 U.S.C. § 13(a). For all the
words of the Act to carry adequate meaning, competitive injury under the Act must extend
beyond the monopoly setting. Cf. Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326,
2331, 60 L.Ed.2d 931 (1979) ("Canonsof construction ordinarily suggest that terms connected by
a disjunctive be given separate meanings, unless the context dictates otherwise"). The language
referring to a substantial lessening of competition was part of the original Clayton Act § 2, see
Act of Oct. 15, 1914, ch. 323, 38 Stat. 730, and the same phrasing appears in § 7 of that Act. In
the § 7 context, it has long been settled that excessive concentration, and the oligopolistic price
coordination *230 it portends, may be the injury to competition the Act prohibits. See, e.g.,
United States v. Philadelphia Nat. Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963).
We adhere to "the normal rule of statutory construction that identical words used in different
parts of the same act are intended to have the same meaning." Sullivan v. Stroop, 496 U.S. 478,
484, 110 S.Ct. 2499, 2504, 110 L.Ed.2d 438 (1990) (internal quotation marks omitted). See also
J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 562, 101 S.Ct. 1923, 1927, 68
L.Ed.2d 442 (1981) (evaluating the competitive injury requirement of Robinson- Patman Act §
2(a) in light of analogous interpretations of Clayton Act § 7). We decline to create a per se rule of
nonliability for predatory price discrimination when recoupment is alleged to take place through
supracompetitive oligopoly pricing. Cf. Cargill, 479 U.S., at 121, 107 S.Ct., at 495.
III
Although Liggett's theory of liability, as an abstract matter, is within the reach of the
statute, we agree with the Court of Appeals and the District Court that Liggett was not entitled to
submit its case to the jury. It is not customary for this Court to review the sufficiency of the
evidence, but we will do so when the issue is properly before us and the benefits of providing
guidance **2592 concerning the proper application of a legal standard and avoiding the systemic
costs associated with further proceedings justify the required expenditure of judicial resources.
See, e.g., Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 605-611, 105 S.Ct.
2847, 2859-2861, 86 L.Ed.2d 467 (1985); Monsanto Co. v. Spray-Rite Service Corp., 465 U.S.
752, 765-768, 104 S.Ct. 1464, 1471-1472, 79 L.Ed.2d 775 (1984); United States v. Pabst
Brewing Co., 384 U.S. 546, 550-552, 86 S.Ct. 1665, 1668-1669, 16 L.Ed.2d 765 (1966). The
record in this case demonstrates that the anticompetitive scheme Liggett alleged, when judged
against the realities of the market, does not provide an adequate basis for a finding of liability.
A