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In a tiny batch of orders that marked the final day of its 2003 term, the U.S. Supreme Court Wednesday refused to take up a closely watched antitrust case in which office supply giant 3M Co. was hit with a $68 million verdict. Despite ending the case, Wednesday’s ruling could spur one final round of litigation because the team of lawyers that represented plaintiff LePage’s Inc. is now entitled to an award of attorney fees. Plaintiff’s attorney Barbara W. Mather of Pepper Hamilton said her team had already filed a petition for $6 million in fees for its work up through the date of the verdict. Mather said she expects to file a supplemental fee petition seeking at least $3 million more for the work on post-trial motions and appeals that lasted several years. Along with Mather on the plaintiff’s team in LePage’s Inc. v. 3M Co. were Philadelphia solo practitioner Peter Hearn; Mark W. Ryan, Donald M. Falk and Robert Bronston of Mayer Brown Rowe & Maw in Washington; Jeremy Heep of Pepper Hamilton; and Roy T. Englert of Robbins Russell Englert Orseck & Untereiner. In the suit, LePage’s claimed that 3M set out to drive LePage’s out of the market for transparent tape by offering “bundled” rebates to large retailers for reaching sales goals in several categories of 3M products. In reality, the suit said, the rebates could be earned only by removing LePage’s products from their shelves. A jury agreed and in an October 1999 verdict awarded LePage’s $22,828,899 in damages — a figure that was automatically trebled by U.S. District Judge John R. Padova for a total judgment of $68,486,697. (A bond posted on appeal has now grown to more than $90 million during several years of appeals.) In its first appeal, 3M prevailed when the 3rd U.S. Circuit Court of Appeals overturned the verdict by a 2-1 vote. But the case was later reargued before a 10-judge en banc panel, which reinstated the verdict by a vote of 7-3. Circuit Judge Dolores K. Sloviter flatly rejected 3M’s argument that the theory of LePage’s case was fatally flawed since there was no evidence that 3M ever sold any of its products at below-cost prices. Instead, Sloviter said, the evidence showed that 3M had set out to “kill” the niche market LePage’s had created for discount “private label” or store-brand tape with customers such as Kmart and Staples. By last summer, 3M had amassed an impressive group of “friends” in urging the U.S. Supreme Court to take the case up. Among those joining in filing amicus briefs in support of 3M’s petition were Procter & Gamble Co., Coca-Cola Co., Honeywell International, Xerox Corp., Verizon Communications, Johnson & Johnson, Morgan Stanley and Eastman Kodak Co. When the Supreme Court’s 2003 term began, the justices put off making any decision by inviting the solicitor general’s office to weigh in on the cert petition. The case appeared to be dormant for seven months, but behind the scenes, both sides were busy lobbying the government — not only the SG’s office, but also the Federal Trade Commission. In late May, 3M suffered a setback when a team of lawyers in the SG’s office recommended that cert be denied. The long-awaited brief said that while the business community could use some guidance on the application of antitrust law to the practice of bundled rebates, the LePage’s case “does not present an attractive vehicle for this court to attempt to provide such guidance.” Court watchers said that while the justices often rely on and follow the SG’s advice, there were several cases in the 2003 term in which the justices granted cert despite the SG’s recommendation against doing so. The order denying 3M’s cert petition was one of just five orders handed down on the final day of its 2003 term.

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