Don Hibner is of counsel at Sheppard Mullin Richter & Hampton, based in Los Angeles. 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”.
206
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” (...)
144
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. (...)
130
Allegations That Designer Wedding Dress Line Constitutes A Relevant Product Market Found Implausible* Allegations that a highly specialized designer line of wedding dresses lacks reasonable substitutes fail to support allegations of Sherman Act violations for price fixing and group boycott (...)
139
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 (...)
156
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 (...)
163
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 (...)
703
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 (...)
132
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 (...)
119
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 (...)
277
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 (...)
671
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 (...)
172
In Agricultural Regulation, A “Flawed Rate” is Not a “Filed Rate” For Damage Purposes* Notwithstanding the general applicability of the Filed Rate Doctrine, the Ninth Circuit recently held that it does not necessarily bar producer class actions for overcharges. Whether a given rating (...)
134
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 (...)
176
“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, (...)
96
Allegations of Conspiracy to Limit Crop Production: Ripe for Analysis Under Capper-Volstead* On December 2, 2011, the district court denied a motion to dismiss antitrust conspiracy claims against potato grower cooperatives in several states. In re Fresh and Process Potatoes Antitrust (...)
163
Allegations of Conspiracy to Fix Prices in Ohio Rock Salt Duopoly Flunk “Plausibility” Analysis* Creation of duopolistic interdependence by misapplication of a state statute mandating preferential treatment for local producers is an implausible "slippery slope." Erie County v. Morton Salt, (...)
303
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 (...)
90
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 (...)
146
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 (...)
167
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 (...)
138
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 (...)
148
Expanded Standing, or “Back to Basics”? Flash Memory Direct Purchasers Found to Have Standing to Assert Walker Process Claims* In Ritz Camera & Image, LLC v. SanDisk Corporation, et al., United States District Court, ND Cal., Case No. 5:10-CV02787-JF/HRL, the court denied a motion to (...)
172
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. (...)
171
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 (...)
213
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 (...)
94
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 (...)
154
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. (...)
174
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 (...)
157
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 (...)
122
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 (...)
205
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 (...)
218
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. (...)
129
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, (...)
100
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 (...)
187
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 (...)
201
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”) (...)
124
Patent Misuse And Antitrust Tying Analysis – Close But Imperfect Substitutes* Federal Circuit Holds That Patent Pools Without Anticompetitive Effects Are Lawful In U.S. Philips Corp. v. International Trade Commission. On September 21, 2005, the Court of Appeals for the Federal Circuit (...)
105
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 (...)
152
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 (...)
154
FTC Approves Chevron’s Acquisition Of Unocal On Condition Of Release Of Patent Rights To CARB Reformulated Gasoline* The Federal Trade Commission has proposed consent orders that will approve Chevron’s acquisition of the voting securities of Unocal, which will then merge into a Chevron (...)
62
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 (...)
113
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 (...)
149
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., (...)
80
“Active Supervision” Standard Of Midcal Not Applicable To Conduct Of Sovereign. Multistate Tobacco Settlement Is Parker and Noerr Exempt Both For State And Private Parties* In the aftermath of the entry of the Multistate Tobacco Settlement Agreement (“MSA”), and enactment by the California (...)
123
Dentsply International, Inc. In Violation Of Section 2 For Monopoly Maintenance Through Use Of Exclusivity Clauses* In a reversal of the dismissal of the Department of Justice Antitrust Division (DOJ) complaint, alleging violations of Section 1 and 2 of the Sherman Act and Section 3 of the (...)
133
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 (...)
