Third Circuit Upholds Finding Of Antitrust Liability For Above-Cost Pricing Arrangement

The Third Circuit has been a source of important and controversial jurisprudence regarding antitrust liability for single-firm conduct. For example, in LePage's Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) (en banc), cert. denied, 542 U.S. 953 (2004), the court found that bundled discounts that had exclusionary effects violated the antitrust laws despite no showing of below-cost pricing. See also United States v. Dentsply Int'l, 399 F.3d 181 (3d Cir. 2005). In a recent split decision, the Third Circuit explicitly declined to establish a per se rule of non-liability for above-cost pricing. ZF Meritor, LLC v. Eaton Corporation, Nos. 11-3301 & 11-3426, 2012 WL 4483899 (3d Cir. Sept. 28, 2012). The Third Circuit further declined to create a rule that requirements contracts covering less than 100% of the buyer's needs are never unlawful exclusive dealing arrangements. While recognizing the Supreme Court's general safe harbor for above-cost discounting, the Third Circuit