Alito Noncommittal on Monopolies

During his nomination hearings for the U.S. Supreme Court, Judge Samuel Alito shed little light on how he would rule in any future cases involving product bundling.

On Jan. 11, Senator Mike DeWine (R-OH) asked the Supreme Court Justice nominee about the 3M v. LePage’s Inc. case. DeWine is chairman of the Senate Judiciary Antitrust Subcommittee, which has held hearings about healthcare group purchasing over the past several years.

In 3M v. LePage’s, filed in 1997, LePage’s, a Canadian manufacturer of transparent tape (much of it private label), charged that 3M engaged in monopolistic practices by offering rebates to retailers who bought a wide range of 3M products, including transparent tape. LePage’s had argued that retailers could only receive their 3M rebates by removing LePage’s products from their shelves. (LePage’s product line is much more limited than that of 3M, focusing almost exclusively on tape.)

In April 2000, a jury in the U.S. District Court for the Eastern District of Pennsylvania held that 3M was guilty of monopolization under Section 2 of the Sherman Act. In January 2002, a three-judge panel of the U.S. Court of Appeals for the Third Circuit – of which Alito was a member – overturned the lower court’s ruling, saying that LePage’s had not established that 3M’s conduct was illegal. The Third Circuit’s 10 active judges later overturned the panel’s judgment, reinstating the trial verdict and the $68 million damage award. 3M filed to take the case to the U.S. Supreme Court, but the high court refused to hear the case.

When asked about his finding in favor of 3M, Alito said he was no antitrust expert and that he “plods his way through these antitrust issues.” He added that much uncertainty remains about the monopolization standard. “So I think it’s quite up in the air and should it come up again, I think it merits re-examination.”