October 31, 2005

Additional good news for consumers: Alito joined Judge Greenberg's dissent in the 7-3 en banc decision by the Third Circuit in LePages v. 3M, where the majority substantially expanded the law of "predatory pricing" and monopolization by upholding a $68 million verdict against 3M for daring to offer products at lower prices through volume discounts. A competitor who had been unable to match 3M's prices and thus lost in the marketplace sued and, after the Supreme Court refused to review the decision, 3M was victimized by several copycat suits. A number of other businesses have used the LePage's precedent to attempt to litigate their way out of competition. The Rehnquist Court notoriously ignored these "run-of-the-mill" cases; in his confirmation hearing, John Roberts made noises that a Roberts Court would be more willing to grant certiorari than the tiny docket of eighty cases a year that the Rehnquist Court heard.