Three years ago, the 3rd U.S. Circuit Court of Appeals’ controversial en banc decision in LePage’s Inc. v. 3M brought forth a torrent of — mostly critical — analysis from the antitrust commentariat. There were multiple warnings regarding the expected “LePage’s effect” — an undue chilling of aggressive pricing practices by low-cost but high-market-share companies and an undue coddling of high-cost but smaller-market-share rivals. The Supreme Court’s denial of certiorari left other courts and antitrust counsel to sort out the practical implications.
The intervening years have confirmed the reality of the mess left by LePage’s. Disgruntled rivals have been emboldened to bring copycat suits that challenge sales-enhancing, cost-reducing, loyalty-building incentives offered to buyers as unlawful “bundling” or “de facto” exclusives. The haziness of anti-monopolization standards since LePage’s has called into question long-standing sales and marketing practices.
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