Yesterday’s denial of certiorari in the Eaton v. ZF Meritor litigation rang the temporary death knell for any hope you might have sustained that the Circuit split between the 3d and virtually all other jurisdictions on what amounts to an exclusionary discounting practice would be resolved.

One critique — aside from the nagging Circuit split, which of course hampers country-wide operations of large companies that now must be wary of the lowest-common-denominator rule of the 3d Circuit — has been that the plaintiffs re-labeled the true issue (legality of Brooke Group-type above-cost pricing, even by a monopolist) and framed the crux of the case as something entirely different (partial de facto exclusive dealing).

In spite of the (1) compelling substantive legal arguments and (2) economic rationales for legitimizing discounts that still result in above-cost pricing; despite the (3) stated SCOTUS goal of avoiding Circuit splits on important areas of law (and unilateral-conduct antitrust doctrine should count as one); and in the face of a persuasive amicus curiae brief submitted by 18 of some of the country’s foremost legal and economic scholars and experts** in favor of granting cert, the Supremes decided not to hear the case.

Some (H. Hovenkamp) have interpreted the cert denial as stemming from the already heavily antitrust-laden SCOTUS docket. Others (J. Briggs) have expressed doubt that this particular case was the right vehicle to challenge the 3d Circuit’s outlier position — among other reasons, because only a small group of very-high-market-share companies would be affected by the outcome one way or another.

That said, I wonder when the right time — and what the right set of facts — will be to make a successful run at challenging the Third Circuit’s discounting and loyalty rebate stance. As to the first reason given above (for not granting cert), chances are that antitrust cases won’t disappear from the SCOTUS docket. And as to the second, challenging a Sherman section 2 discounting case will, almost by definition, always involve high-market share parties.

So what’s the conclusion — is the Third Circuit sitting pretty (and safe), as there will never be a good time or a fitting case to contest its now decade-long (since LePage’s v. 3M bundled discount ruling in 2003) lone-rider discount & rebate position?

You tell me… Comments welcome below.

[** Elzinga, Hovenkamp, Kovacic, etc.]