Carl W. Hittinger

Experience

Complex Litigation

• Successfully defended California-based Bobrick Washroom Equipment, Inc. against Lanham Act false-advertising claims brought by a competitor, using discovery to formulate counterclaims that forced the competitor to drop its claims and agree to a $7.5 million-dollar settlement in the client’s favor and other corrective actions to create a level playing field; also persuaded court to sanction competitor’s in-house general counsel for unethical conduct in bringing claims against client. He is presently handling litigation against the competitor for breaching the settlement agreement. Scranton Products, Inc. v. Bobrick Washroom Equipment, Inc., No. 2014-cv-00853 (M.D. Pa.).
• Presently representing a shopping center developer in a case that formulated cutting-edge antitrust claim against competing developer and supermarket chain for unlawful agreement to restrain trade in local supermarket sector; complaint withstood aggressive motions to dismiss, with court ruling that it pled a plausible prima facie case under the Sherman Act and various related state-law causes of action, and that client is entitled to full discovery on its claims.
• Successfully obtained dismissal by the Court of Appeals for the Third Circuit after nine years of complex and contentious litigation of all antitrust and unfair competition claims brought against Bobrick Washroom Equipment, Inc., by a rival competitor, which sought more than $31 million in damages and fees. The decision was affirmed by the Supreme Court.
• Successfully resolved an antitrust case for client Church & Dwight Co., Inc. after four years of costly and complex litigation. A federal court in California granted summary judgment on the eve of trial on all antitrust claims brought by a competitor claiming Church & Dwight's marketing practices concerning Trojan condoms constituted illegal monopoly conduct. Church & Dwight v. Mayer Laboratories, 2012 WL 1231801 (N.D. Cal.). The FTC also agreed to close its parallel, three-year and highly publicized investigation of Church & Dwight under Section 5 of the FTC Act for the same conduct. There was no consent decree request, no conditions were imposed, and the FTC agreed to destroy all documents.
• Obtained the successful dismissal of a student due process litigation against a university client. Herbert v. Reinstein, Temple University School of Law and Temple University, 1994. US Dist. LEXIS 15234 (E.D.Pa. 1994), affirmed in part and reversed in part, 70 F.3d 1255 (3d Cir. 1995).
• Represented the plaintiffs in an Americans with Disabilities Act case, which was successfully reversed on appeal concerning issues of religious exemption. Doe v. Abington Friends School, 480 F. 3d 252 (3d Cir. 2007).
• Represented chemical manufacturing client in an individual antitrust action for bid rigging, boycotting and price fixing, resulting in an early settlement by all defendants except the client. The matter was fully litigated by the client, resulting in an insignificant settlement for costs. Horizons v. FMC. et al. (E.D. Pa.).
• Represented chemical manufacturing client in an individual antitrust action alleging price fixing and monopolistic conduct in the plastics industry. The case was settled and the client was not sued. H&W v. Formosa Plastics (N.D. Miss.).
• Handled a Florida criminal antitrust investigation by the Florida Attorney General's Office of chemical manufacturers and distributors for possible price fixing and bid rigging. No prosecutions were brought. Florida Antitrust Investigation.
• Handled a criminal antitrust investigation by the Ohio Attorney General's Office of chemical manufacturers and distributors for possible price fixing and bid rigging. No prosecutions were brought against the client. Ohio Antitrust Investigation.
• Represented client in a civil action alleging price discrimination and related conspiracy by the client in the residential boiler industry. A summary judgment was granted on a price discrimination claim. L&L v. Peerless Industries (M.D. Pa.).
• Represented grocery chain client in a civil action involving an anticompetitive real estate restrictive covenant. The case settled after trial while the appeal was pending. Acme Markets v. Giant Food. Inc. and Wharton Hardware (D.N.J.).
• Represented a scrap dealer alleging an antitrust civil action for sham litigation and related anticompetitive conduct. Baltimore Scrap Corp. v. David J. Joseph Co.(D. Md.).
• Represented client in a civil action for false and misleading advertisements and related alleged anticompetitive conduct. The case was voluntarily dismissed by the plaintiff. Santana Products. Inc. v. Sylvester & Associates (E.D. N.Y.).
• Represented client Sara Lee Corp. against a civil action for franchise termination and fraud. Obtained a directed verdict for the client after a seven-week jury trial. Sanctions were assessed against the plaintiff for improper substitution of an expert and seven experts were excluded under Daubert. The case eventually settled after a lengthy jury trial. LCC v. Sara Lee Corp. (D.N.J.).
• Represented a manufacturing client in a civil action for false and misleading statements, predatory pricing, price discrimination and related anticompetitive conduct by a competitor against client in the boiler industry. The litigation settled on the eve of the jury trial. Peerless Heater Co. v. Mestek. Inc., et al. (E.D. Pa.).
• Represented a road construction client in a civil dispute with an antitrust counterclaim for conspiracy to restrain trade. The case was settled during the jury trial. Shore Slurry Seal v. Koch Industries (E.D. Pa.).
• Represented a hospital client in a civil action for false and misleading statements, and related monopolistic and conspiratorial conduct by clients in an alleged violation of antitrust laws and the Lanham Act. The case was voluntarily withdrawn by the plaintiff after discovery was completed and subsequently dismissed by the court with prejudice. Ellen Memorial Health Care Center. Inc. v. Wayne Memorial Health System. Inc., et al. (M.D. Pa.).
• Served as court-appointed Special Master in Plaza 34 Realty Assoc. v. Resolution Trust Corporation, Civil Action Nos. 93-2520 and 93-0573 (E.D. Pa.).
• Served as court-appointed Special Master in Farley v. Cessna Aircraft Company, Civil Action No. 93-6948 (E.D. Pa.).
• Served as court-appointed defense liaison counsel in Chlorine and Caustic Soda Antitrust Litigation, Civil Action 86-5428 (E.D. Pa.).

Class Actions

• Representing Equity Residential, a coast-to-coast real estate lessor, in defending against dozens of nationwide and local class actions in federal court alleging a Sherman Act Section 1 conspiracy in the purported multifamily residential real estate market. The complaints allege that Equity Residential and more than 30 other property developers conspired to use RealPage, Inc.’s pricing analytic software to fix residential lease prices.
• Successfully defended downstream energy company Alon USA Energy, Inc., a subsidiary of Delek US, against allegations of price-fixing in the California gasoline market. The federal court in the Southern District of California in a precedent-setting 103-page opinion granted Alon’s motion for summary judgment and also the summary judgment and expert preclusion motions of its co-defendants. The cases were brought against multiple major oil refiners by putative classes of direct and indirect gasoline purchasers under the Sherman Antitrust Act and California’s antitrust statute, the Cartwright Act. The plaintiffs alleged that California consumers were overcharged at the pump between 2012 and 2022 due to the defendants’ allegedly coordinated refinery shutdowns, exchange agreements, wash trades, and imports and exports to restrict the supply of gasoline and create the appearance of gasoline shortages. Plaintiffs had sought $15 billion in damages before trebling. Persian Gulf Consolidated Antitrust Litigation (S.D.Cal.).
• Defended client U.S. Healthcare against shareholder actions, which resulted in a dismissal and sanctions against the plaintiff's class counsel. Garr v. US Healthcare, Inc., 22 F.3d 1274 (3rd Cir.).
• Involved in a class action antitrust litigation against chemical manufacturing client Occidental Chemical resulting in the denial of class certification and an eventual settlement. AM/COMM Antitrust Litigation.
• Involved in an individual antitrust action against chemical manufacturing client Occidental Chemical resulting in an eventual settlement. DASA Antitrust Litigation.
• Served as a court-appointed liaison counsel for defendants in a class action alleging price fixing and bid rigging in the chemical industry. The case was settled on the eve of trial by the client Occidental Chemical after all other defendants had settled. Was involved in a subsequent class action litigation brought on behalf of indirect purchasers. Class certification was denied and the case severely limited through motions to dismiss. City of Philadelphia v. FMC. et al. (E.D. Pa. 1989); City of St. Paul v. FMC. et al. (D. Minn.).
• Involved in a civil class action and Department of Justice criminal antitrust investigation against a food processor client Hormel Foods and other processors for price fixing and bid rigging. Catfish Antitrust Litigation (E.D. Pa. and N.D. Miss.).
• Involved in a Department of Justice criminal antitrust investigation of possible bid rigging for government contracts. The investigation was concluded without an indictment. Pharmaceutical Antitrust Investigation (E.D. Pa.).
• Involved in a civil action for predatory pricing and attempted monopolization by client Wheaton Industries. American International Container v. Diaz-Oliver v. Wheaton Industries (S.D. Fla. 1995).
• Represented pharmaceutical client Smithkline Beecham in a class and individual litigation nationwide against drug manufacturers and others alleging price discrimination and other conspiratorial activities. Brand Name Prescription Drug Antitrust Litigation (N.D. Ill.).

Memberships

• Law360: 2023 Competition Editorial Advisory Board
• American Bar Association: Antitrust Law Section
• Pennsylvania Bar Association
• Philadelphia Bar Association: Federal Courts and Antitrust Law Committees
• District of Columbia Bar Association: Antitrust Law Committee
• American Health Lawyers Association
• Phi Beta Kappa

Pro Bono

• Team leader in a case alleging racial discrimination of students through special education placement (Blunt v. Lower Merion School District). The team served as co-counsel with the Public Interest Law Center of Philadelphia (PILCOP) in a lawsuit centered around claims that the Lower Merion School District systematically discriminated against African-American students by disproportionately and inappropriately placing them in special education programs and the lowest-level classes, which Carl argued in the Third Circuit. 767 F3d 247 (3d Cir. 2014). In 2013, PILCOP presented the team with the Thaddeus Stevens Partnership Award in recognition for their support in the case.
• Worked with the Animal Legal Defense Fund, acting as lead counsel in a successful lawsuit against a Pennsylvania business owner who inhumanely kept a female black bear in a concrete and chain-link fence enclosure on his property for more than 18 years.