Carl W. Hittinger and Tyson Y. Herrold.

Judge Dolores K. Sloviter of the U.S. Court of Appeals for the Third Circuit retired in 2016, leaving behind a remarkable legacy. As a member of the bench for nearly 40 years, Sloviter's contribution to the Third Circuit's jurisprudence bridges the expanse of the court's jurisdiction. Any ranking would be difficult. At the top of any list, however, would be her contribution to antitrust law.

Fresh out of the University of Pennsylvania Law School, Dolores Korman (as she was then known) joined Dilworth, Paxson, Kalish and Green in 1956, 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 Kohn represented class action 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, even foreign entities—all without the assistance of a federal multidistrict litigation statute. At trial, the jury returned a $29 million verdict, and the case prompted the development of new and urgently needed federal rules for managing complex litigation.

In an interview for the University of Pennsylvania's Oral History Project, 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 the only large law firm in Philadelphia that would hire women and African Americans as attorneys. As Sloviter recalled, “more than half of the law firms in Philadelphia wouldn't take a Jewish person. It turned out that all of them except for one [Dilworth] wouldn't take a woman … .” William Coleman, hired by Dilworth Paxson in 1952 after a clerkship with Justice Felix Frankfurter, became the first African American partner at a large Philadelphia firm in 1957. Sloviter soon followed as one of the first women to become partner at a major Philadelphia firm. Later, she went on to teach antitrust law and civil procedure to the next generation of lawyers at Temple Law School (including Carl Hittinger, class of 1979 and former Dilworth partner). By the time she joined the bench in 1979, Sloviter certainly deserved the moniker “Philadelphia antitrust attorney.”

Sloviter's experience in the trenches of private practice served her well on the Third Circuit, where, as the first women to serve on that bench and first woman to serve as chief judge, she helped expand and enrich the court's antitrust jurisprudence. Two antitrust opinions stand out from her others.

In LePage's v. 3M, LePage's, a transparent tape manufacturer, filed Sherman Act Section 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 breadth 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. Sloviter dissented and called for en banc review. She warned that the “the majority applies reasoning that would weaken Section 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 “ignoring 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 Sloviter's dissent. Writing now for the majority of the full court, 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 Section 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.

Sloviter's opinion in LePage's is exceptional for two reasons. First, it stands as a testament to Sloviter's sharp 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.

In a later case, In re K-Dur Antitrust Litigation, Sloviter found herself at the intersection of a burgeoning debate over the competitive effects of name-brand pharmaceutical settlement payments to generic pharmaceutical companies in exchange for terminating patent litigation, so-called “pay-for-delay” settlements.

Sloviter, writing for the panel in K-Dur, concluded these reverse-payment settlements could be anticompetitive and violate the antitrust laws, depending on the terms of the settlement payment. At the time, K-Dur represented the minority view; every other circuit to decide the issue—the Second, Eleventh, and Federal circuits—had concluded otherwise, that reverse-payments generally could not violate the antitrust laws, even if they theoretically prevented market entry.

The Eleventh Circuit, for example, held that anticompetitive effects falling within the “exclusionary potential of a patent” were immune from Sherman Act challenge “in light of the public policy favoring settlement of disputes.” The Second Circuit similarly applied a presumption of patent validity and approved reverse payments “as long as competition is restrained within the scope of the patent.”

By contrast, Sloviter remarked: “In our view, that test improperly restricts the application of antitrust law and is contrary to the policies underlying the Hatch-Waxman Act and a long line of U.S. Supreme Court precedent on patent litigation and competition.” She endorsed a “quick look” test for appraising reverse-payment settlements, a “truncated” version of the rule of reason that essentially shifts part of the burden of proof to the defendant.

Less than a year later, noting the Third Circuit's split from other circuits, the Supreme Court in Federal Trade Commission v. Actavis settled the issue in a seminal decision largely tracking the reasoning and holding of K-Dur. Justice Samuel Alito, joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, held, “a reverse payment, where large and unjustified, can bring with it risk of significant anticompetitive effects.” Like Sloviter in K-Dur, Alito (a former Third Circuit colleague of Sloviter) in Actavis observed that the scope-of-the-patent presumption, endorsed by the Eleventh and Second circuits, incorrectly presumed that the patent holder (and settlement payor) held a valid, enforceable patent, a presumption belied in Actavis by the magnitude of the settlement payment itself. The similarities between K-Dur and Actavis are evident.

K-Dur is notable because it illustrates Sloviter's enthusiasm and undaunted ability to tackle complicated, unsettled antitrust problems and develop original solutions even when the weight of legal authority tilts in another direction. In a sense, Sloviter's bold decision in K-Dur is symbolic of her pioneering legal career. One of the first women to navigate her way to partnership; the first woman to serve on the Third Circuit; and the first woman to administer that court as its chief judge. But first and foremost she is an exemplary antitrust lawyer, and that is her greatest legacy.

Carl W. Hittinger is a senior partner and serves as BakerHostetler's antitrust and competition practice national team leader and is 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. His experience also includes a judicial clerkship with Chief Judge Emeritus Louis C. Bechtle of the U.S. District Court for the Eastern District of Pennsylvania. Contact him 215-564-2898 or [email protected].

Tyson Y. Herrold is an associate in the firm'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 Judge Dolores K. Sloviter of the U.S. Court of Appeals for the Third Circuit, serving during her last year on the bench.