CHURCH & DWIGHT CO. v. MAYER LABORATORIES, INC.
868 F.Supp.2d 876 (2012)
CHURCH & DWIGHT Co., INC., Plaintiff,
MAYER LABORATORIES, INC., Defendants.
No. C-10-4429 EMC.
United States District Court, N.D. California.
April 12, 2012.
Carl W. Hittinger, Lesli Esposito, Matthew A. Goldberg, John Diawon Huh, DLA Piper US LLP, Philadelphia, PA, Jarod Michael Bona, DLA Piper US LLP, Minneapolis, MN, for Plaintiff.
Neil S. Cartusciello, Cartusciello and Associates PC, Mendham, NJ, Kristin Newman De La Vega, Anne Hiaring Hocking, Vijay K. Toke, Hiaring & Smith LLP, San Rafael, CA, Christian Jeffrey Keeney, Jeff S. Westerman, Milberg LLP, Los Angeles, CA, Paul F. Novak, Milberg LLP, Detroit, MI, Gary S. Snitow, Peggy Wedgworth, Milberg LLP, New York, NY, Azra Z. Mehdi, The Mehdi Firm, San Francisco, CA, Peter G.A. Safirstein, Morgan & Morgan, New York, NY, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
EDWARD M. CHEN, District Judge.
Plaintiff/Counterdefendant Church & Dwight, Inc. ("C & D"), the maker of Trojan brand condoms, moves for summary judgment on Defendant/Counterclaimant Mayer Labs, Inc.'s ("Mayer's") counterclaims. Docket No. 187, 198 (redacted version). Mayer is the maker of Kimono brand condoms. The parties' primary dispute surrounds C & D's use of planogram1 agreements with condom retailers, whereby C & D offers a percentage rebate off its wholesale price in exchange for a retailer's commitment to devote a certain percentage of the condom shelf space to C & D products. Mayer alleges that C & D's planogram rebate ("POG") program operates to foreclose competition from vital retail display space and hence sales. Mayer also alleges that C & D has engaged in other anticompetitive conduct, including abusing its position as category captain for certain retailers to exclude its rivals from, or at least disadvantage them in, the condom retail market. Based on this and other alleged conduct, Mayer brought twelve counterclaims against C & D for purported violations §§ 1 and 2 of the Sherman Act, the Cartwright Act, the Lanham Act, and California unfair competition laws, as well as tort claims for tortious interference with contract and economic relations.
The parties have engaged in over three years of hotly contested litigation. This Court previously denied C & D's motion to dismiss Mayer's counterclaims finding that Mayer's complaint raised viable claims of anticompetitive conduct potentially violative of the Sherman Act. See Docket No. 105; Church & Dwight Co., Inc. v. Mayer Laboratories, Inc., C-10-4029 EMC, 2011 WL 1225912 (N.D.Cal. Apr. 1, 2011). The parties have conducted extensive discovery of over 15 million pages of documents and dozens of depositions. Reply at 1. Documents submitted in conjunction with the parties' summary judgment briefing total over four thousand pages.
Despite this voluminous record, Mayer has been unable to proffer any direct, admissible evidence of retailers switching or removing rival condom brands from their shelves as a result of any coercive effect of C & D's planogram program. Nor has Mayer submitted any admissible evidence that C & D misused its category captain positions to the detriment of its rivals. Surprisingly, Mayer failed to take the deposition of — or obtain other direct evidence from — any retailer's employees or other third parties who might have testified to the supposed coercive, anticompetitive effect of C & D's conduct. Indeed, the only direct (and unrebutted) evidence from third party retailers indicates just the opposite: that the planogram program has little, if any, effect on retailers' shelf space allocations, and that C & D had no undue influence over retailers' decisions as category captain. Without any such direct evidence, the Court is left largely with Mayer's (and its experts') own theory based largely on a rough correlation between C & D's moderately increasing market share and Mayer's moderately decreasing market share.
Accordingly, having considered the parties' briefs, accompanying submissions, oral argument, and all evidence of record, the Court DENIES the motion for summary I. FACTUAL & PROCEDURAL BACKGROUND
judgment as to tortious interference with contract, and GRANTS the motion as to all other claims.