Judge Dolores K. Sloviter’s Antitrust Legacy

Third Circuit Judge Dolores K. Sloviter retired in 2016, leaving behind a remarkable legacy. As a member of the bench for nearly 40 years, Judge Sloviter’s contribution to the Third Circuit’s jurisprudence bridges the expanse of the Court’s jurisdiction. Ranking these contributions would prove difficult. At the top of any list, however, would be Judge Sloviter’s contribution to antitrust law.

Fresh out of law school, Dolores Korman (as she was then known) joined Dilworth Paxson, Kalish, and Kohn, where she cut her teeth under the tutelage of antitrust-legend Harold Kohn, the pioneering architect of the modern antitrust class action. In the 1960s, she and Harold Kohn represented plaintiffs in the Electrical Equipment Cases, which involved price fixing claims against General Electric, Westinghouse, and a dozen more manufacturers of electrical equipment. In those cases alone, the firm represented over 1,000 clients, states, cities, and even foreign entities, all without the assistance of a federal multidistrict litigation statute. The jury returned a verdict of $29 million, and the case prompted the development of new and much needed federal rules for managing complex litigation.

In an interview for the University of Pennsylvania’s Oral History Project, Judge Sloviter reminisced, in her characteristically candid way: “I became an antitrust lawyer, although I don’t think it’s because I liked antitrust that much, although I did like it. I think it’s because the firm I went to did a lot of antitrust work.” At the time, Dilworth Paxson was one of a few firms, perhaps the only firm in Philadelphia that would hire female attorneys. Indeed, Judge Sloviter was one of the first women to become partner at a major Philadelphia firm. Later, she went on to teach antitrust law to the next generation of lawyers at Temple Law School (including Carl Hittinger, class of 1979). By the time she joined the bench in 1979, Judge Sloviter certainly deserved the moniker “Philadelphia antitrust attorney.”

Judge Sloviter’s experience in private practice served her well on the Third Circuit, where she helped expand and enrich the Court’s antitrust jurisprudence. One antitrust opinion stands out from her others. In LePage’s Inc. v. 3M, LePage’s, a transparent tape manufacturer, filed Sherman Act §2 monopolization claims against 3M, the manufacturer of Scotch tape, alleging 3M obstructed competition in the transparent tape market by offering bundled rebate pricing to its customers. According to LePage’s, it could not compete with these bundled rebates because it did not manufacture the diverse lineup of products 3M did.

The jury awarded LePage’s $23 million, trebled to $68 million, finding that 3M’s bundled rebates, together with other exclusionary conduct, violated the Sherman Act. On appeal, the Third Circuit overturned the verdict and instructed the district court to enter judgment for 3M. Judge Sloviter dissented, calling for en banc review. She warned that “the majority applies reasoning that would weaken §2 of the Sherman Act to the point of impotence” by “failing to consider the synergistic effect of 3M’s conduct taken as a whole.” She also criticized the majority’s reasoning for “ignor[ing] the jury decision, the District Court’s careful analysis, and this court’s directly applicable precedent.”

Granting en banc review, the Third Circuit vacated the panel decision in favor of Judge Sloviter’s dissent. Writing now for the majority of the full court, Judge Sloviter declared, in a well-reasoned opinion: “Because we conclude that exclusionary conduct, such as the . . . bundled rebates proven here, can sustain a verdict under §2 against a monopolist . . . we will affirm.” LePage’s has since taken its place in the pantheon of Third Circuit cases governing anticompetitive business conduct.

Judge Sloviter’s opinion in LePage’s is exceptional for two reasons. First, it stands as a testament to Judge Sloviter’s keen intellect when it comes to dissecting thorny economic and antitrust issues. Second, it illustrates the great esteem she rightfully earned from her fellow colleagues over the years. That esteem served her well in assembling a coalition of Third Circuit jurists to transfigure an otherwise inconsequential panel dissent into weighty en banc precedent that is still relevant to antitrust decision-making in the Third Circuit 16 years later.

Judge Sloviter was a member of Temple Law’s full-time law faculty from 1972 to 1979, when she was appointed to the 3rd Circuit. She taught the Federal Judicial Clerkship Clinical for 32 years (from 1980-2012) and developed the classroom component of the program.

Carl W. Hittinger is a senior partner and serves as BakerHostetler’s Antitrust and Competition Practice National Team Leader and the litigation group coordinator for the firm’s Philadelphia office. He concentrates his practice on complex commercial and civil rights trial and appellate litigation, with a particular emphasis on antitrust and unfair competition matters, including class actions.

Tyson Y. Herrold is an associate in BakerHostetler’s Philadelphia office in its litigation group. His practice focuses on complex commercial litigation, particularly antitrust and unfair competition matters, as well as civil rights litigation. Immediately before joining the firm, he clerked for Circuit Judge Dolores K. Sloviter of the U.S. Court of Appeals for the Third Circuit.

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