MADISON KAHN shares an abridged history of waterproof-breathable warfare in this timeline.
Morlacchi told me that, more recently, something similar happened with Mountain Hardwear. In 2008, the company began using OutDry in its gloves, at which point Gore pulled its license for all accessories. (Mountain Hardwear is also owned by Columbia, which stands behind Morlacchi’s allegation.) In another instance, in 2009, said Morlacchi, a consumer used an industry discount to buy 43 pairs of OutDry-equipped gloves; a short while later, disparaging reviews of the same model of gloves—citing the recent purchase of 43 pairs—appeared on the REI and Backcountry.com websites under the pseudonym “chilikook.” After some sleuthing, Mountain Hardwear discovered that an order of exactly that number of pairs of gloves had been made by a Gore employee and shipped to a Gore business address.
Ratchford initially told me that he hadn’t heard of the chilikook incident, but he later confirmed in an e-mail that it was true. As for the pulling of the licenses, he maintained that the EU complaint is “without merit.” While that may be the case, the EU nevertheless decided to launch a formal investigation last summer.
Even the retail giant REI, which in 2008 began using eVent in a few house-branded garments, claims it hasn’t been immune to Gore’s alleged strong-arming. “Shortly after we introduced our eVent line” in jackets and pants, Libby Catalinich, REI’s director of corporate communications, told ESPN.com last year, “Gore terminated our footwear license” and “essentially eliminated our REI-branded footwear.”
For this reason, many believe that REI, perhaps with help from eVent’s parent company, GE, filed the confidential complaint with the FTC. Catalinich wouldn’t confirm or deny whether REI was involved but said the company would cooperate with the FTC if asked. Columbia and eVent declined to comment on the matter; Polartec’s Nate Simmons told me that he doesn’t know who filed the complaint.
In the meantime, last spring the FTC subpoenaed Gore for every sliver of documentation dating back to 2001 that related to its waterproof-breathable-fabrics business. Gore attempted to fight the subpoena—its petition is public and searchable on the FTC’s website—saying that complying would cost millions of dollars and man-hours. The FTC wouldn’t budge. Gore’s Ratchford told me that the FTC complaint, like the one in Europe, is baseless and that time will prove him right. “We have and will continue to cooperate with the FTC,” he said, “and we’ll keep providing innovative technology and products with confidence in the integrity of our business practices.”
UNTIL THE EU AND FTC release their findings—which might not happen for several months or, more likely, years—it’s impossible to tell whether Gore has really been abusing its market dominance or is simply the victim of other manufacturers’ envy. While there’s an overwhelming, if not maddening, amount of information about membranes and face fabrics and construction to sift through, there’s practically none about either complaint against W. L. Gore and Associates. As with many cases, the current FTC investigation is so sensitive that the agency is forbidden to even acknowledge it.
It’s possible that, once the FTC concludes its investigation, the case will be dismissed and the allegations of exclusionary practice—in this case locking up the market and stifling competition in violation of FTC codes—will be proved baseless. If Gore isn’t exonerated, according to the former FTC lawyer, then chances are Gore will “enter into a consent decree, which basically says ‘Thou shalt not sin again.’ ” If this happens, they agree to change their behavior or face stiff penalties. Of potentially greater damage, a consent decree unseals the FTC case files, which could then be used as ammunition against Gore by any number of entities interested in suing the behemoth.
While the antitrust matter gets sorted out, Columbia, eVent, and NeoShell are still using their technology—and fighting words—to capture market share from the company that forever changed the way we recreate outdoors. For NeoShell, it appears to be working; North Face and Marmot now sell both Gore-Tex and NeoShell jackets, and by next fall some two dozen brands will be selling NeoShell garments. eVent hasn’t been quite as successful. Though the fabric can now be found in more than 60 brands, GE isn’t happy with the membrane’s position in the market. A few years ago, the conglomerate decided to change its business model and also sell its membrane as an unbranded fabric—meaning that, unlike with Gore-Tex, gear makers can simply buy eVent fabric and call it what they want. “We’re happy to accommodate whatever suits a customer’s business needs,” Glenn Crowther, GE’s global-product-line leader and a former Gore employee, told me at the OR show, firing a familiar-sounding shot across Gore’s bow. “Who are we to put rules on how garments and footwear should be made and say ‘You can’t use our technology unless you put our name on it’? We don’t need the credit.” One company that has taken them up on the arrangement is Mountain Hardwear, whose Dry.Q fabric contains GE technology that’s also used to produce eVent.