Don T. Hibner, Jr.

Sheppard Mullin (Los Angeles)
Lawyer (Of Counsel)

Don Hibner is Of Counsel at Sheppard Mullin Richter & Hampton LLP. Mr. Hibner has specialized in antitrust litigation and counseling since admission to the Bar, in 1962. He is a former member of the Council of the ABA Antitrust Law Section, and has chaired it’s Private Antitrust Litigation, and Franchise and Distribution Committees. He has been a frequent contributor to its programs, National Institutes, PLI, ALI-ABA and other programs, as well as an author and contributor to numerous Law Reviews. He has lectured at various law schools, including UCLA, Loyola, and Southern Methodist. In 2002, he was selected by the California State Bar Antitrust and Unfair Competition Law Section as its “Antitrust Lawyer of the Year”.

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Sheppard Mullin (San Francisco)
Sheppard Mullin (San Francisco)

Articles

1685 Bulletin

Don T. Hibner, Jr. The Court of Appeal of the State of California holds that cross subsidization through below cost discounts for the purpose of maximized profits of the core business does not violate Californian unfair practices Act (Dixon Gas / Safeway)

62

Cross Subsidization For Purpose Of Enhanced Grocery Sales Through Alleged Below Cost Gasoline Discounts Found Not To Violate California Unfair Practices Act* Injury to competing retail fuel stations is non-actionable where market conditions demonstrate that an “incipient antitrust violation” is (...)

Don T. Hibner, Jr. A US Court of Appeal dismisses a claim against a standard setting association because of lack of evidence supporting an actionable conspiracy or monopoly (Abraham & Veneklasen / AQHA)

43

American Quarter Horse Association Rule Against Registration of Cloned Horses Found Not To Violate Sherman Act* A Matsushita “Quick Look” Analysis Demonstrates that While Plausible, No Evidence Supports An Actionable Conspiracy or Monopoly. Abraham & Veneklasen Joint Venture et al. v. Am. (...)

Don T. Hibner, Jr. The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to allegations that immunity had been forfeited by the inclusion of non-producer members (Mushroom Direct Purchaser)

47

Agricultural Cooperative Antitrust Litigation Continues to Mushroom* Pennsylvania District Court certifies five year ruling for interlocutory appeal, that mushroom cooperative is not immune from antitrust claims based upon “advice of counsel” argument. In Re Mushroom Direct Purchaser Antitrust (...)

Don T. Hibner, Jr., Thomas D. Nevins A US District Court reaffirms that under the Capper-Volstead Act farmers may cooperate to collectively market their products, though the output limitation obtained by concerted action remains precluded by the Sherman Act (Cal-Maine Foods)

38

Of Characterization and Common Sense: Court Holds That Erroneous Interpretation of Allegations of Complaint Doom Counterclaim to Bottom of Chicken Coop* In In Re Processed Egg Products Antitrust Litigation, No. 2:08-Md.-02002-GP (E.D. Pa., June 10, 2014), the plaintiffs alleged that they (...)

Don T. Hibner, Jr. A US Court of Appeals affirms on statute of limitations grounds the district court’s dismissal of the Sherman Act and Clayton Act claims related to an allegation of anti-competitive price increase on the market for petroleum wax-based oxidates (Z Technologies / Lubrizol)

60

Beyond Truth, and Toward Repose: Price Increases Following “Merger to Monopoly” Do Not Rekindle Statute of Limitations* Z Technologies Corp. v. Lubrizol Corp., No. 2:12-cv-12206 (6th Cir., May 23, 2014). In February, 2007, Lubrizol Corporation made a “merger to monopoly” acquisition of the assets (...)

Don T. Hibner, Jr. The US District Court for the Northern District of Georgia refuses to grant renewed motion to dismiss based on Noerr-Pennington doctrine, since such a conclusion would have contradicted the decision of the Supreme Court finding that a reverse payment settlement agreement should be subject to antitrust scrutinity (Actavis)

65

FTC v. Actavis on Remand: A New Chapter* District Court refuses to grant renewed motion to dismiss based on Noerr-Pennington doctrine. In re AndroGel Antitrust Litigation (No. II), MDL No. 2084 (re Federal Trade Commission v. Actavis, Inc., No. 1:09-CV-955-TWT) (N.D. GA April 21, 2014). In (...)

Don T. Hibner, Jr. A US District Court dismisses tying claim related to the market for distribution of hotel content since the tying product and the tied product were not separate (Pro Search Plus / VFML Leonardo)

39

De Facto Exclusive Dealing: What a Difference a Day Makes* In Competition Law360, September 4, 2013, we reported on the dismissal of a complaint which alleged, inter alia, exclusive-dealing claims in a market described as the management and distribution of “photographs in rich media content for (...)

Don T. Hibner, Jr. A US Court of Appeals affirms the order of dismissal as the allegation of a relevant market of black hot rolled coiled steel was insufficient as a matter of law failing to negate the likelihood of supply-side entry (Gulf States / Nucor)

23

Failure to Adequately Allege Lack of Supply Cross-Elasticity Dooms Attempted Monopolization Action to “Quick Look” Dismissal* GULF STATES REORGANIZATION GROUP, INC. V. NUCOR CORP. (11th Cir. July 15, 2013) No. 11-14983. In 1999, Gulf States Steel, Inc., a participant in a market described as (...)

Don T. Hibner, Jr. The US District Court of Miami dismisses claims on monopolization and resale price maintenance on the market for beauty products in duty free shops (Duty Free Americas / Estée Lauder)

100

Claims of Providing Truthful Marketing Information to Airports Issuing Bids for Duty Free Shops Fails to Allege Actionable Conspiracy or Attempted Monopolization* Conclusory allegations of parallel business conduct which are in the economic self-interest of the actor do not state an actionable (...)

Don T. Hibner, Jr. A US District Court grants motion for summary judgment on the grounds that the plaintiffs failed to establish the element of “dangerous probability” for an antitrust claim for attempted monopolization on the market for containerized waste hauling and disposal services (All Star Carts and Vehicles / BFI Canada Income Fund)

56

Summary Judgment Dooms Attempted Monopolization Claim in Small Container Trash Hauling Market* In All Star Carts and Vehicles, Inc., et al. v. BFI Canada Income Fund, et al., Case No. 2:08-cv-01816-LDW-AKT, August 1, 2012, the District Court for Eastern District of New York recently granted (...)

Don T. Hibner, Jr., Tyler M. Cunningham The Kansas Supreme Court holds that the district judge erred in his demand for proof of a "concrete injury" in the price fixing of women’s accessories (O’Brien / Leegin Creative Leather Prods)

37

Kansas Supreme Court Declares “Rule of Reason” Inapplicable to Kansas Antitrust Law; Legislature May Have a Different Idea* In Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the U.S. Supreme Court expressly overruled the categorical ban on vertical price fixing (...)

Don T. Hibner, Jr. A US District Court grants motion for summary judgment stating that the alleged exclusionary conduct constituted nonprice restraints and thus subject to rule of reason analysis (Church & Dwight / Mayer Laboratories)

20

“Planogram” and “Category Captain” Marketing Programs Held Non-Exclusionary* Rival condom manufacturer’s antitrust claims dismissed. Church & Dwight Co., Inc. v. Mayer Laboratories, Inc., United States District Court, Northern District of California, Case No. C-10-4429 EMC (April 12, 2012). (...)

Don T. Hibner, Jr. A US District Court denies a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant having filed an ANDA with the FDA (Shionogi Pharma / Mylan)

40

ANDA Automatic Stay of FDA Approval Does Not Defeat Standing in Sham Litigation Antitrust Counterclaim* The District of Delaware recently denied a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant Mylan, Inc. ("Mylan") having filed an (...)

Don T. Hibner, Jr. A US District Court finds that the alleged facts were insufficient to allege a plausible monopoly power maintenance claim in respect of the market for automotive refrigerant recycling and recovery machines (SPX / Mastercool)

14

Antitrust Counterclaim in Patent Infringement Action Lacks Plausible Allegations of Competitive Injury* Plaintiff SPX Corporation ("SPX") brought a patent infringement action against Master Cool U.S.A. ("Master Cool"). Master Cool answered and counterclaimed. In its counterclaim, it alleged (...)

Don T. Hibner, Jr. A US District Court dismisses the antitrust counterclaims alleging monopolization on the market for maintainance of printers, while allowing the tortious interference claims to continue (Océ North America / MCS)

34

Aftermarket Monopolization Claims Dismissed as Afterthought* Plaintiff Océ North America, Inc. ("Océ") brought an action against a service market supplier for copyright infringement. Defendant MCS Services, Inc. ("MCS") filed a Kodak-style "aftermarket" monopolization counterclaim, in addition (...)

Don T. Hibner, Jr. A US District Court denies a motion to dismiss allegations of a price squeeze implemented through the granting of secret rebates to the plaintiff’s customers on the market for resailing of paper bag products (Western Pacific Kraft / Duro Bag)

23

In Secret Rebate Case, If It Walks Like A Duck, Allegations That It Will Also Quack Are Plausible* On May 24, 2011, United States District Court, Central District of California, denied a motion to dismiss allegations of a "price squeeze" implemented through the granting of secret rebates to (...)

Don T. Hibner, Jr. A US District Court dismisses claims on monopolization, unfair competition and fraud, since the plaintiff did not articulated a proper definition of the relevant market (Digital Sun / The Toro Company)

39

Federal Court Finds Allegations of “Bad Faith” in Sprinkler License Agreements to be “Vox Clamantis in Deserto”* On March 22, 2011, the United States District Court for the Northern District of California entered an order granting defendants The Toro Company’s ("Toro") motion to dismiss plaintiff (...)

Don T. Hibner, Jr. The US Court of Appeals of Atlanta (Eleventh Circuit) affirms a ruling of dismissal of an action brought on behalf of a class of purchasers of visco-elastic foam mattresses against a distributor (Benny Jacobs Wanda / Tempur-Pedic)

61

Lights Out for Resale Price and Dual Distribution Class Action* On December 2, 2010, the Court of Appeals for the 11th Circuit affirmed a ruling of dismissal entered by the United States District for the Northern District of Georgia. Jacobs v. Tempur-Pedic Int.’l, Inc., No. 08-12720. Plaintiff (...)

Don T. Hibner, Jr. A US Court of Appeals finds that in order to allege a viable vertical restraint claim a plaintiff must plausibly allege the defendant’s market power (PSKS / Leegin Creative Leather Products)

86

Fifth Circuit Dismisses Leegin Resale Price Maintenance Case Anew, Following Supreme Court Remand* In 2007, the United States Supreme Court, updating the application of the cumulative advances in antitrust economics as applied to vertical restraint cases, overruled the venerable Dr. Miles Med. (...)

Don T. Hibner, Jr. The US 1st District California Court of Appeal upholds a jury verdict finding that a claim of unfair competition based on below-cost sales of advertising did not require proof of the defendant’s ability to recoup losses by subsequent monopoly pricing (Bay Guardian Company / New Times Media)

18

A Step Back to Square One? California Court of Appeal Elevates UPA Protection of Competitors Over Protection of Competition in Newspaper Ad Dispute* On August 11, 2010, the California Court of Appeal for the First District upheld a jury verdict in favor of plaintiff Bay Guardian Company (...)

Don T. Hibner, Jr. A US District Court finds that the plaintiffs have failed to nudge their antitrust claims against building products distributor and grants order to dismiss the action (Bailey Lumber / BlueLinx)

18

Cross-Market Claims Flunk Twombly* In two companion opinions, Magistrate Judge Louis Guirola, Jr. of the Southern District of Mississippi granted motions to dismiss and greatly limited the scope of the claims asserted against several defendants in "opt out" actions following from the In re OSB (...)

Don T. Hibner, Jr. A US Court of Appeals affirms the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged cumulative anticompetitive effects (Gilley Enterprises / Atlantic Richfield)

28

Spirit of Twombly Exorcises Specter of Revived Aguilar Claims* The Ninth Circuit recently affirmed the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged "cumulative anticompetitive effects." Gilley Enterprises v. Atlantic Richfield Company, No. (...)

Don T. Hibner, Jr. A US District Court finds sufficient ground for a claim on alleged illegal secret rebates, kickbacks and commissions, though it rejects the claim on collusive conduct on the market for sales of title insurance (California Title Insurance)

25

Strike Three: Plaintiffs Again Fail to Allege Facts of Collusion in Oligopoly Market* Rather than being "plus factors," allegations of interdependent industry structure simply demonstrate that the challenged conduct of defendant title insurers was as consistent with competition as with (...)

Don T. Hibner, Jr. A US Court of Appeals finds that the tying arrangement consisting in sales of real estate property didn’t affect a substantial amount of commerce in the market for the real estate services identified as the tied product (Blough / Holland Realty)

37

Ninth Circuit Finds That New Home Buyer Plaintiffs Fail To Satisfy Per Se Tying Element That Amount Of Commerce Not Be “Insubstantial”"Zero Foreclosure” Is Less Than “De Minimus.”* Buyers of newly constructed homes in the Boise, Idaho, area filed a federal antitrust class action, alleging that (...)

Don T. Hibner, Jr. A US Court of Appeals affirms a grant of summary judgment for defendants in an antitrust action on an allegation of conspiration to allocate customers and fix prices within the tools business (Nitro Distributing / Alticor)

30

Eighth Circuit Affirms Dismissal of Antitrust Claims Against Amway* The Court of Appeals for the Eighth Circuit has affirmed a grant of summary judgment for defendants in an antitrust action which, according to the court, mischaracterized a vertical course of conduct as a “horizontal (...)

Don T. Hibner, Jr. A US Court of Appeals affirms the decision of the lower court allowing a summary judgment on all claims including the exclusion of competition from the market for gasoline (Partner / ExxonMobil Oil)

71

PMPA Franchise Agreement Disavowing Plaintiff’s Claim to an Exclusive Market and Geographic Territory Trumps Alleged Oral Commitment* Partner v. ExxonMobil Oil Corp., 08-1590 (6th Cir. May 4, 2009) In 2000, plaintiff Partner & Partner, Inc. entered into a lease/franchise agreement with (...)

Don T. Hibner, Jr. The US Supreme Court affirms that when a regulatory structure aiming to deter and remedy anti­-competitive harm prevails, the costs of antitrust enforcement are likely to be greater than the benefits (Pacific Bell Telephone / Linkline Communications)

38

Supreme Court Restricts “Price-Squeeze” Claims Under Section 2 of the Sherman Act to Situations Where the Defendant has an Antitrust Duty to Deal* In Pacific Bell Telephone Co. v. Linkline Communications Inc., 2009 U.S. Lexis 1635, 555 U.S. ______ (February 25, 2009) ("Linkline"), the U.S. (...)

Don T. Hibner, Jr. The California Supreme Court clarifies the meaning of damages under the Consumers Legal Remedies Act and the matter of standing to seek declaratory relief (Meyer / Sprint Spectrum)

16

California Supreme Court Clarifies the Meaning of “Any Damage” as a Standing Requirement Under California’s Consumers Legal Remedies Act* California Supreme Court’s Kagan analysis is clarified by Proposition 64 spill-over. Meyer v. Sprint Spectrum LP, ___ Cal. __, 2009 WL197560 (January 29, 2009). (...)

Don T. Hibner, Jr. A US District Court dismisses based on the statute of limitations an antitrust complaint alleging a refusal to deal with a professional association of cardiologists expressed by an operator of five hospitals in Arkansas (Little Rock Cardiology Clinic / Baptist Health)

14

What Part of “No” Don’t You Understand? Unequivocal Refusal to Deal Triggers Statute of Limitations* Little Rock Cardiology Clinic v. Baptist Health, 573 F. Supp. 2d 1125 (E.D. Ark., August 29, 2008). Little Rock Cardiology Clinic (“LRCC”) is a professional association of cardiologists practicing (...)

Don T. Hibner, Jr. A US District Court rejects the allegation according to which inducement by a drug wholesaler of a drug price publisher to inflate the wholesale price may constitute a per se violation (New England Carpenters Health Benefits Fund / McKesson)

15

Twombly Meets Leegin. Failure of Plaintiff to Allege “Plausible” Entitlement to Relief Constitutes Failure to Allege “Antitrust Injury.”* In New England Carpenters Health Benefits Fund v. McKesson Corp., 573 F.Supp.2d 431 (Aug. 26, 2008), the District Court for the District of Massachusetts (...)

Don T. Hibner, Jr. The EU Court of First Instance denies application for annulment of Commission decision on merger prohibition, though it finds that the assessment of the conglomerate effects resulting from the concentration was erroneous (Honeywell International / GE)

33

General Electric/Honeywell merger prohibition upheld by European Court of First Instance – “Conglomerate effects” analysis represents “manifest errors of assessment”* On December 14, 2005, the European Court of First Instance (“CFI”) denied the application of General Electric Company (“GE”) and (...)

Don T. Hibner, Jr. The Court of Appeals of Los Angeles rules that in the absence of an abuse of monopoly power in a relevant market, the case on sales of new models of cellular telephones involved nothing more than a permissible unilateral refusal to deal (People’s Choice Wireless / Verizon Wireless)

23

California Court of Appeals affirms dismissal of “unfairness” claim on ground* People’s Choice Wireless, Inc. v. Verizon Wireless, B175179. In a case building upon the definition of “unfair” as defined in the California Unfair Practices Act, plaintiffs, independent dealers of cellular phones (...)

Don T. Hibner, Jr. A US Court of Appeals upholds the finding of the FTC that the prohibition of discounts and advertising was inherently suspect, because such restraints by their nature would tend to raise prices and reduce output (PolyGram)

15

DC Circuit Hits High Note In “Three Tenors” Case – Petition For Review Of FTC Decision In Polygram Holding, Inc. Denied* On July 22, 2005, the Court of Appeals for the District of Columbia Circuit denied a petition for review filed by PolyGram Holding, Inc. In so doing, the DC Circuit, in an (...)

Don T. Hibner, Jr. A US District Court holds that a revenue sharing agreement between three large supermarket chains was not subject to the nonstatutory labor exemption, thus not immune from scrutiny as a potential antitrust violation (Safeway)

13

Supermarket Revenue Sharing Agreement Is Not Immune From Antitrust Scrutiny* On May 25, 2005, United States District Judge, Central District of California, denied the defendant supermarkets’ motion for summary judgment, and held that a revenue sharing agreement between three large supermarket (...)

Don T. Hibner, Jr. The US Supreme Court invalidates state laws in Michigan and New York, barring out of state wineries from selling directly to instate consumers, while allowing such sales by instate wineries (Granholm / Heald)

33

Supreme Court Rules Against State Law Bans On Interstate Direct Shipment Of Wine* On May 16, 2005, the United States Supreme Court struck down state laws in Michigan and New York, barring out of state wineries from selling directly to instate consumers, while allowing such sales by instate (...)

Don T. Hibner, Jr. A US District Court holds that the rule granting exclusive rights to produce “A” horse shows within a 250 mile radius was exempt from antitrust liability pursuant to the doctrine of implied antitrust immunity under the Amateur Sports Act (JES Properties / USA Equestrian)

50

Horse Show Governing Body Mileage Rule Against Competing Horse Shows Is Subject to Summary Judgment On Ground Of Implied Antitrust Immunity* Plaintiffs, promoters of “A” Hunter-Jumper Competitions on the Florida Winter Horse Show circuit, filed an action against USA Equestrian, Inc., (“USAE”), (...)

Don T. Hibner, Jr. The US Court of Appeals for the Federal Circuit reverses the ruling of the lower court maintaning that a rebuttable presumption arises from the possession of patent rights to tying engineered fastening systems (Independent Ink / Illinois Tool Works)

27

Of Bats And Sunshine: Presumption Of Market Power In Patent Tying Case Alive But Rebuttable* In January, the Court of Appeals for the Federal Circuit issued an opinion in Independent Ink Inc. v. Illinois Tool Works, Inc.. Addressing the issue whether, in a Section 1 tying case, a rebuttable (...)

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