868 F. Supp. 2d 876
N.D. Cal.2012Background
- Mayer Labs (Kimono condoms) and Church & Dwight (Trojan condoms) dispute C&D’s planogram rebate program (POG) used to allocate retailer shelf space.
- Mayer alleges the POG program forecloses competing shelf space and constitutes anticompetitive conduct, including category captain abuses.
- Mayer pleads twelve counterclaims under Sherman Act §§1–2, Cartwright Act, California’s UCL, and related claims (Lanham Act, false designation, and tort claims).
- Court previously allowed most claims to proceed; parties engaged extensive discovery; this order addresses summary judgment.
- Court finds no direct admissible evidence of retailers being coerced by POG and largely relies on theoretical correlations, denying summary judgment on tortious interference but granting it on all other antitrust and related claims.
- Order: grant summary judgment to C&D on Mayer’s §1 Sherman Act claims, §2 monopoly claim, Cartwright Act, UCL, Lanham Act, and related claims; but deny as to Mayer’s tortious interference with contract claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does C&D’s POG programforeclose competition under §1? | Mayer argues POG materially forecloses shelf space for rivals. | C&D contends program is non-forcive, with open channels and short duration. | No genuine issue; program does not foreclose competition substantially; §1 claim granted to C&D. |
| Does Mayer show monopoly power and exclusionary conduct under §2? | Mayer asserts C&D’s POG and category captain actions exclude rivals. | Court should assess market power and exclusionary conduct; evidence insufficient. | No triable issue; summary judgment for C&D on §2 claim. |
| Has Mayer suffered antitrust injury? | Loss of Mayer’s market share due to C&D’s conduct. | Injury not shown to flow from anticompetitive acts; competing firms’ performance undermines claim. | No antitrust injury shown; grant on antitrust claims. |
| Do California Cartwright Act/UCL claims fail alongside federal claims? | Same theory as federal antitrust claims. | California claims depend on federal antitrust proof. | Grants summary judgment for Cartwright Act & UCL claims. |
| Is Mayer’s tortious interference with contract viable? | C&D induced Sagami to breach Mayer’s exclusive agreement. | Evidence is insufficient/credibility issues; contract existence contested. | Denied summary judgment; jury question remains on elements. |
Key Cases Cited
- Allied Orthopedic Appliances, Inc. v. Tyco Health Care Group LP, 592 F.3d 991 (9th Cir. 2010) (foreclosure analysis for exclusive/dealer contracts; balance of foreclose vs. alternatives)
- Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157 (9th Cir. 1997) (exclusive dealing and foreclosure with channel alternatives; limitations on foreclosure)
- Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421 (9th Cir. 1995) (definition of relevant market; market power requires foreclosure potential and barriers to entry)
- Reynolds v. F. W. Woolworth Co., 199 F. Supp. 2d 362 (M.D.N.C. 2002) (foreclosure/market power analysis in retail space context)
- Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039 (8th Cir. 2000) (exclusive dealing/market-share discounts; short duration not inherently exclusionary)