April 28, 2003

3rd Circuit's LePage's Decision Raises Antitrust Risks Of Bundled Discounting Programs

Arnold & Porter Advisory

Late last month the Third Circuit issued an en banc opinion in the matter of LePage's Incorporated v. 3M.1 This decision upheld a $68 million jury award (after trebling) against 3M based on a finding that 3M's bundled pricing programs violated Section 2 of the Sherman Act, even though 3M's discounted prices were undisputedly above cost and LePage's maintained a significant share of the market. In so doing, the Third Circuit rejected any rule of per se legality for bundled discount programs that are above cost and could be matched by a competitor.

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