Filed 12/14/16
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION EIGHT

In re D.R., a Person Coming         B269663
Under the Juvenile Court Law.       (Los Angeles County
                                    Super. Ct. No. DK01646)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

        Plaintiff and Appellant,

        v.

C.R. et al.,

     Defendants and
Respondents;

D.R.,

        Appellant.

     APPEAL from an order of the Superior Court of Los
Angeles County, Marguerite D. Downing Judge. Reversed.
      Mary C. Wickham, County Counsel, R. Keith Davis, Acting
Assistant County Counsel, and Jeanette Cauble, Deputy County
Counsel, for Plaintiff and Appellant.
      Jeanette Freeman Cochran, under appointment by the
Court of Appeal, for Appellant.
      Aida Aslanian, under appointment by the Court of Appeal,
for Defendant and Respondent C.R.
      Kate M. Chandler, under appointment by the Court of
Appeal, for Defendant and Respondent E.M.

       D.R. was born in November 2004. She lived with her
maternal grandmother since she was an infant and felt safe in
her grandmother’s home and loved by her grandmother. She was
“thriving” in her grandmother’s care. D.R.’s two half siblings
lived in the same apartment building as D.R. with D.R.’s
maternal great-grandmother.
       C.R., D.R.’s father (father), who initially was described as
“whereabouts unknown,” eventually was located at the home of
his mother and stepfather, where he lived. Father had been
convicted of statutory rape of D.R.’s mother prior to the
dependency proceedings. Father did not see D.R. after he was
released from incarceration. His name was not on D.R.’s birth
certificate. Father visited D.R. for only a four-month period
during the dependency proceedings, after which he stopped
visiting. Father did not attend conjoint therapy with D.R.
       This appeal concerns D.R.’s permanent plan. The juvenile
court selected legal guardianship over adoption. On appeal, both
D.R. and the Los Angeles County Department of Children and

                                 2
Family Services (DCFS) challenge the order of legal
guardianship. After review, we conclude that the trial court was
required to select the more permanent plan of adoption. No
substantial evidence supported the court’s rationale for selecting
legal guardianship instead of adoption. We therefore reverse the
legal guardianship order.
                          BACKGROUND
1. Petition
       On October 7, 2013, DCFS filed a Welfare and Institutions
Code1 section 300 petition identifying grounds for juvenile court
jurisdiction over mother’s three children—D.R. and her half
siblings Aa.G., and Aw.G. At that time father’s whereabouts
were unknown. Allegations in the petition concerned mother and
A.G., the father of Aa.G. and Aw.G.
       As later sustained following mother and A.G’s stipulation,
the petition alleged that mother and A.G. engaged in a violent
altercation with other family members and mother struck her
cousin with a bat. A.G. hit mother’s relative. Mother possessed
methamphetamine, marijuana, a drug pipe, and a loaded firearm.
Mother also used methamphetamine and marijuana. A.G. used
methamphetamine and marijuana and had a criminal history
involving possession of a controlled substance and being under
the influence of a controlled substance.
2. Mother and A.G. Failed to Reunify with the Children
       After the juvenile court sustained the allegations in the
petition, mother and A.G. were given reunification services.
Mother and A.G. failed to comply with their case plans, and their
reunification services eventually were terminated. Without

1       All statutory citations are to the Welfare and Institutions
Code.

                                   3
objection, adoption was selected as the permanent plan for Aa.G.
and Aw.G.
3. Father C.R.
       As noted, father’s whereabouts were not known at the
detention hearing. The court initially stated that father was
“apparently a presumed father.” But then, after questioning
mother the court revised its determination, stating that father
was the “legal father.” Father’s paternity form indicates that on
October 18, 2013, the juvenile court found him to be an “alleged”
father. The court’s minute order dated October 18, 2013,
confirms this finding, stating: “The court finds that the following
person is the alleged father only of the minor [D.R.]: [C.R.]”
(Capitalization omitted.) In all of its reports, DCFS identified
father as an alleged father.
       Father had not been located for the November 2013
jurisdictional hearing.
       In February 2015, a social worker located father. DCFS
investigated father’s criminal history, which included criminal
threats, possession of a controlled substance, sex with a minor
three years younger than father, misdemeanor driving while
under the influence of alcohol, misdemeanor disobeying a court
order, misdemeanor battery, and robbery. When DCFS contacted
father, father stated that he desired custody of D.R. He began
visiting her, and his visits initially were described as “going well.”
Father progressed from monitored to unmonitored visits.
       In March 2015, DCFS reported that father wanted to
reunify with D.R. DCFS concluded that “[b]ased on the fact that
[D.R.] is starting to bond with her father, it is in the best interest
of the child to remain [a] dependent of the Court and under
supervision from DCFS.” However, DCFS further concluded that

                                  4
D.R. would be at moderate risk of abuse if released to father’s
care and emphasized that father had not been in a parental
relationship with D.R. for 10 years.
       In April 2015, maternal grandmother reported that D.R.
was not being fed while in father’s care. Maternal grandmother
also reported that D.R. did not want to live with father. D.R. told
her therapist that she wanted to have visits with father but did
not want to live with him. D.R. wrote the juvenile court a letter
stating that she did not want to live with father. Her letter
stated that “for the past 10 years I have been living with the
family that has been with me for the sad moments fun moments
and proud moments that my dad hasn’t been there.”
       In June 2015, father reported that he wanted D.R. to live
with him. D.R. did not want to live with father. D.R.’s therapist
recommended conjoint therapy in order that D.R. and father
develop a healthier relationship.
       In August 2015, DCFS reported that D.R. did not want
conjoint therapy with father but nevertheless agreed to it. She
had not visited father for two weekends. Father reported that he
did not visit because he did not have a vehicle but promised to
visit the following weekend. Father did not appear for his
promised visit. Father also did not appear for the scheduled
conjoint therapy session with D.R.
       Also in August 2015, DCFS reported that father did not
appear at 11 regularly scheduled visits or at a scheduled conjoint
therapy session. Father never rescheduled the conjoint therapy
and had no sessions with D.R. DCFS recommended terminating
father’s reunification services and leaving D.R. in the care of her
grandmother.

                                 5
       Father did not appear at a court hearing scheduled for
August 11, 2015, concerning his reunification services. The court
found that returning D.R. to father’s custody would create a
substantial risk of detriment and would result in either severe
emotional or severe physical harm. The court terminated father’s
reunification services.
       In October 2015, father told a social worker that he did not
want to lose his parental rights but also did not want to force
D.R. to live with him. Father confirmed that his last visit had
been May 24, 2015. Father had received a copy of the following
letter from D.R.:
       “Dear, Judge
       “I know that you said that I had to sleep over my dad house
and so I just want one last attempt so you can know that I am
horrible, hurt, ruined, burned up because I am going to miss my
aunts, grandma, great grandma cousins and mom, and brothers
because of a small change I just feel like my heart stopped and
sadness and I just can’t say thing to my dad that are personal
because I need my aunts becaues they are the only ones that
understand. And I am not going to have the same house or close
friends or family birthday partys. and everything is not the
same. [¶] Please I am begging and praying that you would listen
to me please.” (Sic.)
       In December 2015, DCFS reported that father had not
made efforts to see D.R. since May 24, 2015. Father did not
appear for scheduled visits in April, May, June or July, and no
further visits had been scheduled. Father still had not called
D.R.’s therapist to set up a conjoint counseling session.

                                6
4. Maternal Grandmother Sought to Adopt D.R.
       In March 2015, maternal grandmother reported that she
was willing to adopt D.R. D.R. reported that she “likes living
with her grandmother and she is happy there.”
       In June 2015, grandmother reaffirmed that she was willing
to adopt D.R.
       In December 2015, DCFS reported that grandmother’s
homestudy was approved. DCFS reported that grandmother
loved D.R. and was committed to adopting her.
5. The Court Selects Legal Guardianship As D.R.’s
Permanent Plan
       No witness testified at the section 366.26 hearing. Father’s
counsel argued that the exception under section 366.26,
subdivision (c)(1)(B)(i) applied and that therefore adoption should
not be D.R.’s long-term plan. That exception applies when a
parent has “maintained regular visitation and contact with the
child and the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Father’s counsel
requested legal guardianship as D.R.’s long-term plan. Father’s
counsel argued that maternal grandmother manipulated the
situation by failing to provide his information sooner and that
father decided not to visit because D.R. was uncomfortable with
visitation. Counsel acknowledged that father did not have a
“strong relationship” with D.R. Counsel however argued that
father “made the effort that he could” but D.R. did not want to
see him. Mother’s counsel argued that mother visited regularly
and had a strong relationship with D.R.
       On December 30, 2015, the court ordered legal
guardianship as D.R.’s permanent plan. The court’s order stated
that “[t]he child is living with a relative who is unable or

                                 7
unwilling to adopt the child because of circumstances that do not
include an unwillingness to accept legal or financial
responsibility for the child, but who is willing and capable of
providing the child with a stable and permanent environment
through legal guardianship.”
       The court found that it would be detrimental to place D.R.
in father’s custody. Father consented to guardianship, and the
court terminated its jurisdiction.
                            DISCUSSION
1. Substantial Evidence Does Not Support the Juvenile
Court’s Conclusion That an Exception to Adoption Existed
       Under the circumstances of this case, the trial court was
required to order adoption as D.R.’s permanent plan because, as
explained, it is the preferred permanent plan when no exception
exists. Section 366.26 governs the selection of a permanent plan
for a dependent child and carves out six exceptions, only one of
which was relied upon by the juvenile court. Absent one of these
exceptions, if the child is adoptable—and it is undisputed that
D.R. was adoptable—the juvenile court must select adoption as
the child’s permanent plan. (In re Jasmine T. (1999) 73
Cal.App.4th 209, 213 [absent an exception, “the court must order
adoption as the permanent plan for a child found likely to be
adopted”]; In re Casey D. (1999) 70 Cal.App.4th 38, 50 [“If a child
is likely to be adopted, adoption is the plan preferred by the
Legislature.”]; In re Jose V. (1996) 50 Cal.App.4th 1792, 1798 [if
no exception to adoption applies adoption will be “ ‘relatively
automatic’ ”].)
       The exception to adoption relied on by the juvenile court
was as follows: D.R.’s grandmother was “unwilling to adopt the
child because of exceptional circumstances, that do not include an

                                 8
unwillingness to accept legal or financial responsibility for the
child, but who is willing and capable of providing the child with a
stable and permanent environment and the removal of the child
from the physical custody of his or her foster parent . . . would be
detrimental to the emotional well-being of the child.” (§ 366.26,
subd. (c)(1)(B)(iv).
       No evidence supported this exception. (In re Fernando M.
(2006) 138 Cal.App.4th 529, 535 [“Generally, we review the trial
court’s application of the exception to the termination of parental
rights for substantial evidence.”].) D.R.’s grandmother was
willing to adopt D.R., repeatedly expressed a desire to adopt
D.R., and had an approved home study. Grandmother’s
homestudy had been approved prior to the court’s legal
guardianship order, and grandmother had repeatedly reaffirmed
her desire to adopt D.R. The juvenile court’s conclusion that an
exception applied because D.R.’s caretaker was unwilling to
adopt is not supported by any evidence in the record. Nor was
there any support for a conclusion that grandmother was unable
to adopt as she had an approved home study.
2. Mother’s and Father’s Arguments That the Juvenile
Court Could Not Terminate Father’s Parental Rights Lack
Merit
       Neither mother nor father argue that substantial evidence
supported the exception to adoption relied on by the juvenile
court. Neither mother nor father argues that any section 366.26
exception to adoption is applicable to this case.
       Instead, mother and father argue that the legal
guardianship order must be affirmed because father was a
presumed father and the trial court failed to make a finding of

                                 9
detriment necessary to terminate his parental rights. The record
belies these arguments.
      The record can support only the conclusion that father was
an alleged father. Although the court initially stated that
“apparently” father was a presumed father it then questioned
mother and concluded father was only an alleged father. This
conclusion is documented both in the court’s minute order and in
the court’s signature after checking the box “alleged” on the
paternity questionnaire. There is no record support for the
conclusion that father was adjudicated to be a presumed father.2
      Mother and father’s argument that the fact father received
reunification services shows that he was a presumed father is
incorrect. While a presumed father is entitled to reunification
services, a biological father may receive such services if it is in
the best interest of the child. (In re A.A. (2003) 114 Cal.App.4th
771, 780 [“ ‘the juvenile court may order services for the child and
the biological father . . .’ ”]; see Francisco G. v. Superior Court
(2001) 91 Cal.App.4th 586, 597.) Additionally, the trial court
may have erred in ordering reunification services for father, an
error that accrued to his benefit.
      The trial court may not terminate a presumed father’s
parental rights without finding that awarding custody to him
would be detrimental to the child. (In re T.G. (2013) 215
Cal.App.4th 1, 20.) Here, the court was not required to find

2       To the extent father is seeking to adjudicate this for the
first time on appeal, he cannot raise it on appeal in the first
instance. (In re Margarita D. (1999) 72 Cal.App.4th 1288, 1296;
see In re Jason J. (2009) 175 Cal.App.4th 922, 932-933.)

                                10
detriment because father was an alleged, not a presumed,
father.3
      In short, the juvenile court’s determination that an
exception to adoption applied was not supported by any evidence.
Neither mother nor father demonstrate any other impediment to
ordering adoption as D.R.’s permanent plan. Because the
Legislature has expressed a preference for adoption absent an
exception, the juvenile court erred in not ordering adoption as
D.R.’s permanent plan.
                          DISPOSITION
      The juvenile court’s order of legal guardianship is reversed.
The juvenile court is directed to enter a new order of adoption as
D.R.’s permanent plan.

                                           FLIER, J.
WE CONCUR:

      RUBIN, Acting P. J.

      GRIMES, J.

3     Father cursorily claims that his counsel may have been
ineffective in failing to seek presumed father status but argues
any error was not prejudicial. We agree that any assumed error
would not be prejudicial. The juvenile court found that it would
be detrimental to place D.R. in father’s custody and no evidence
supported a different finding.

                                11


                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                         June 7, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-5005
                                                  (D.C. No. 05-CR-91-TCK)
    C URTIS D EO N JO N ES, also known                   (N.D. Okla.)
    as Straight Face, also known as
    Frankfort, also known as Deon,

                Defendant-Appellant.

                             OR D ER AND JUDGM ENT *

Before KELLY, M U RPH Y, and HO LM ES, Circuit Judges.

         Defendant Curtis Deon Jones pled guilty to RICO conspiracy in violation of

18 U.S.C. §§ 1962 and 1963. Pursuant to the plea agreement, M r. Jones waived

his right to “directly appeal the conviction and sentence pursuant to 28 U.S.C.

§ 1291 and/or 18 U.S.C. § 3742(a) . . . and. . . waive[d] the right to collaterally

attack the conviction and sentence pursuant to 28 U.S.C. § 2255, except for

*
      This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
claims based on ineffective assistance of counsel which challenge the validity of

the guilty plea or this waiver.” M ot. to Enforce, Attach. 1, at 3. He was

sentenced to 260 months’ imprisonment, which was w ithin the applicable

advisory guideline range for the offense of 210 to 262 months.

      M r. Jones filed a notice of appeal challenging the district court judgment.

The government has filed a motion to enforce the appeal waiver in its plea

agreement with M r. Jones. In response, M r. Jones’s attorney filed a motion to

withdraw in which he indicated that he believed it would be “a violation of the

Rules of Professional Conduct” to continue representation of M r. Jones. M ot. to

W ithdraw, at 2; see Anders v. California, 386 U.S. 738, 744 (1967) (authorizing

counsel to request permission to withdraw where counsel conscientiously

examines a case and determines that an appeal would be wholly frivolous). This

court gave M r. Jones an opportunity to file a pro se response to the motion to

enforce, see id., and granted him an extension of time to file his response to the

motion. To date, M r. Jones has not filed a response to the motion to enforce.

      Under Anders, we have conducted an independent review and examination

of the motion to enforce. See id. This court will enforce a criminal defendant’s

waiver of his right to appeal so long as the following three elements are satisfied:

(1) “the disputed appeal falls within the scope of the waiver of appellate rights,”

(2) the defendant’s waiver of his appellate rights was knowing and voluntary, and

(3) enforcing the waiver w ill not result in a miscarriage of justice. United States

                                          -2-
v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). W e have

reviewed the plea agreement, the transcripts of the plea and sentencing hearings,

and the response from M r. Jones’s counsel, and under Hahn we conclude that

M r. Jones has waived his right to appeal. See id.

      Accordingly, we GRANT the government’s motion to enforce the appeal

waiver in the plea agreement, DISM ISS the appeal, and DISM ISS counsel’s

motion to withdraw as moot. The mandate shall issue forthwith.

                                                     Entered for the Court
                                                     PER CURIAM

                                         -3-


244 U.S. 202 (1917)
VALLEY STEAMSHIP COMPANY
v.
WATTAWA.
VALLEY STEAMSHIP COMPANY
v.
MRAZ.
Nos. 469, 470.
Supreme Court of United States.
Argued January 10, 11, 1917.
Decided May 21, 1917.
ERROR TO THE COURT OF APPEALS, EIGHTH DISTRICT, OF THE STATE OF OHIO.
*203 Mr. Tracy H. Duncan, with whom Mr. Frank S. Masten was on the brief, for plaintiff in error.
Mr. George H. Eichelberger for defendants in error.
Memorandum opinion by MR. JUSTICE McREYNOLDS.

NUMBER 469.
Seeking damages under the laws of Ohio, defendant in error Wattawa brought this action in the Common Pleas Court of Cuyahoga County. He alleged that by reason of the Steamship Company's negligence he suffered personal injuries in September, 1913 while employed by it as a deck hand on the Edwin N. Ohl then lying at Sandusky, Ohio; and that although an employer of more than five men the company was not a subscriber or contributor to the State Insurance Fund provided for by the Act of May 31, 1911  the first Ohio Workmen's Compensation Act.[1] In defence *204 the company claimed that although employing more than five men it was engaged in interstate commerce and therefore was not required to subscribe to the State Insurance Fund; denied negligence; and alleged that the accident resulted wholly from the employee's want of care and moreover that he had assumed the risk. Upon motion the allegation as to assumption of risk was stricken out.
The court charged that as the company had not accepted the Compensation Act it could not rely upon common-law defences based on the fellow-servant rule, assumption of risk or contributory negligence. Judgment upon a verdict for $5,200.00 was affirmed by the Court of Appeals, and petitions in error and for certiorari were denied by the Supreme Court.
We are asked to reverse the action of the Court of Appeals upon two grounds. First, because the company was engaged in interstate commerce and therefore could not be subjected to the Compensation Act without burdening such commerce contrary to the Commerce Clause of the Federal Constitution. Second, because Article III, § 2 of the Constitution extended judicial power to all cases of admiralty and maritime jurisdiction and thereby rendered the general maritime law part of the federal laws not subject to alteration by state statutes.
The first point relied upon is entirely without merit and inadequate to support our jurisdiction. In the absence of congressional legislation the settled general rule is that without violating the Commerce Clause the States may legislate concerning relative rights and duties of employers and employees while within their borders although engaged in interstate commerce. Lake Shore & Michigan Southern Ry. Co. v. Ohio, 173 U.S. 285, 297; The Minnesota Rate Cases, 230 U.S. 352, 408.
The second reason for reversal now set up was not presented to the trial court in any form. It was not pointed out clearly, if at all, by the petition in error before *205 the Court of Appeals and was not definitely mentioned in the opinion of that court whose powers only extend to a review of the trial court's judgment for errors appearing on the record. Section 12,247, Ohio General Code, as amended by Ohio Laws 103, pp. 405, 431. The question therefore is not properly before us. Mutual Life Insurance Co. v. McGrew, 188 U.S. 291, 308, 309.
The writ of error must be dismissed for want of jurisdiction.

NUMBER 470.
Counsel for the Steamship Company have admitted of record here that this cause involves the same state of facts and questions of law as those presented in Number 469. They were heard together and the same judgment will be entered in each of them.
Dismissed.
NOTES
[1]  General Code, §§ 1465-37 to 1465-70.


J-S25031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

OMAR BRADLEY

                            Appellant               No. 1339 WDA 2015

                  Appeal from the PCRA Order August 25, 2015
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012296-2010

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED APRIL 4, 2016

        Omar Bradley (“Appellant”), appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

        On January 21, 2011, a jury found Appellant guilty of first-degree

murder1 and carrying a firearm without a license2 following a shooting that

occurred on August 20, 2010. On April 18, 2011, the trial court imposed a

life sentence on the murder conviction and a concurrent term of three to six

years’ incarceration for the firearms conviction.       This Court affirmed

Appellant’s judgment of sentence on March 4, 2013. See Commonwealth

____________________________________________

1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 6106(a)(1).
J-S25031-16

v. Bradley, 1587 WDA 2011 (unpublished memorandum).                     Our Supreme

Court denied Appellant’s petition for allowance of appeal on November 6,

2013.    See Order, Commonwealth v. Bradley, 170 WAL 2013 (Pa. filed

November 6, 2013).

        On August 13, 2014, Appellant filed a pro se PCRA petition alleging

ineffective assistance of counsel based on trial counsel’s alleged failure to

(1)    present    expert    testimony      regarding      eyewitness   testimony   and

identifications, (2) present an alibi defense, and (3) present expert

testimony     regarding the       ballistics   evidence    recovered at   the   scene.

Appointed counsel filed an amended petition on March 18, 2015, raising the

ineffective assistance of counsel claims based on counsel’s alleged (1) failure

to object to statements made by the prosecutor regarding ballistics evidence

found at the crime scene, and (2) failure to investigate the potential of, or to

otherwise call, certain individuals as defense witnesses. The Commonwealth

filed a response and a supplemental response to the PCRA petition on July 2,

2015 and July 8, 2015, respectively. On July 20, 2015, the PCRA court filed

a notice of intent to dismiss the PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907, and on August 25, 2015, the court dismissed the petition.

Appellant filed a timely notice of appeal on August 28, 2015.3

____________________________________________

3
    Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

                                           -2-
J-S25031-16

       In his appellate brief, Appellant claims trial counsel “was clearly

ineffective for failing to investigate and call other possible eyewitnesses who

were identifiable to trial counsel prior to the start of trial.” Appellant’s Brief,

p. 15.4 We disagree.

       Our standard of review is well-settled.      “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).

“The PCRA court’s findings will not be disturbed unless there is no support
____________________________________________

4
 Appellant’s Statement of the Questions Involved lists two questions, stated
as follows:

       I. WHETHER APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE,
       WHICH IN THE CIRCUMSTANCES OF THE PARTICULAR CASE, SO
       UNDERMINED THE TRUTH-DETERMINING PROCESS THAT NO
       RELIABLE ADJUDICATION OF GUILT OR INNOCENCE COULD
       HAVE TAKEN PLACE.

       II. WHETHER THERE WAS A VIOLATION OF THE CONSTITUTION
       OF THIS COMMONWEALTH OR THE CONSTITUTION OF THE
       UNITED STATES WHICH, IN THE CIRCUMSTANCES OF THE
       PARTICULAR CASE, SO UNDERMINED THE TRUTH-DETERMINING
       PROCESS THAT NO RELIABLE ADJUDICATION OF GUILT OF [sic]
       INNOCENCE COULD HAVE TAKEN PLACE.

Appellant’s Brief, p. 4. These questions do nothing more than state certain
PCRA eligibility for relief requirements, and they are accordingly insufficient.
See 42 Pa.C.S. §§ 9543(a)(2)(i) and 9543(a)(2)(ii); see also Pa.R.A.P.
2116. However, because the body of Appellant’s brief makes clear that he
argues an ineffective assistance of counsel claim based on a failure to call
certain identified witnesses, our review is not hampered by Appellant’s
deficient Statement of the Questions Involved, and we will not find the claim
waived. See Appellant’s Brief, pp. 14-19.

                                           -3-
J-S25031-16

for the findings in the certified record.”           Commonwealth v. Barndt, 74

A.3d 185, 191-192 (Pa.Super.2013) (internal quotations and citations

omitted). “The scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the

prevailing party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294,

311 (Pa.2014) (citation omitted).              “It is well-settled that a PCRA court’s

credibility determinations are binding upon an appellate court so long as

they are supported by the record.” Commonwealth v. Robinson, 82 A.3d

998, 1013 (Pa.2013) (citation omitted).              However, this Court reviews the

PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d

1080, 1084 (Pa.Super.2014) (citation omitted).

       Pennsylvania courts apply the Pierce5 test to review PCRA claims of

ineffective assistance of counsel:

       When a petitioner alleges trial counsel’s ineffectiveness in a
       PCRA petition, he must prove by a preponderance of the
       evidence that his conviction or sentence resulted from ineffective
       assistance of counsel which, in the circumstances of the
       particular case, so undermined the truth-determining process
       that no reliable adjudication of guilt or innocence could have
       taken place. We have interpreted this provision in the PCRA to
       mean that the petitioner must show: (1) that his claim of
       counsel’s ineffectiveness has merit; (2) that counsel had no
       reasonable strategic basis for his action or inaction; and (3) that
       the error of counsel prejudiced the petitioner-i.e., that there is a
       reasonable probability that, but for the error of counsel, the
       outcome of the proceeding would have been different. We

____________________________________________

5
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).

                                           -4-
J-S25031-16

     presume that counsel is effective, and it is the burden of
     Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).        The petitioner bears the burden of

proving all three prongs of this test.     Commonwealth v. Meadows, 787

A.2d 312, 319-320 (Pa.2001).          “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

            [I]n the particular context of the alleged failure to call
     witnesses, counsel will not be deemed ineffective unless the
     PCRA petitioner demonstrates: (1) the witness existed; (2) the
     witness was available; (3) counsel knew of, or should have
     known of[,] the existence of the witness; (4) the witness was
     willing to testify for the defense; and (5) the absence of the
     testimony was so prejudicial to petitioner to have denied him or
     her a fair trial.

Commonwealth v. Miner, 44 A.3d 684, 687 (Pa.Super.2012); see also

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa.2009) (quoting

Commonwealth         v.   Washington,      927   A.2d    586,   599      (Pa.2007)).

“Moreover,    [the   petitioner]   must   show   how    the   uncalled    witnesses’

testimony would have been beneficial under the circumstances of the case.”

Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa.2008).

     Here, Appellant specifically argues:

     Mr. Tyler Scott and Ms. Marisa Schellman[] were identified as
     possible eyewitnesses on August 20, 2010; however, there are
     no police reports indicating any statements were taken from

                                      -5-
J-S25031-16

       either of them, nor is there any evidence that trial counsel
       attempted to contact either of these individuals.

Amended PCRA Petition, p. 14; see also Appellant’s Brief, p. 15. Appellant

argues that trial counsel was ineffective for failing to determine whether

either of these two individuals would have provided exculpatory testimony, if

called to the stand.       See Amended PCRA Petition, pp. 14-16.          However,

Appellant does not allege either individual was available or willing to testify

in this matter. See Amended Petition, pp. 14-16. Further, Appellant does

not provide a statement or affidavit from either possible witness or

otherwise outline their expected testimony to allow the PCRA court to

determine whether the absence of the witnesses’ testimony prejudiced

Appellant.6    As a result, Appellant has failed to illustrate three of the five

requirements proving ineffectiveness for a failure to call a witness claim: the

witness’ availability, the witness’ willingness to testify, and why the absence

of   the   testimony     prejudiced     Appellant.7   As   a   result,   Appellant’s

ineffectiveness claim fails. See Miner, supra.
____________________________________________

6
  We note Appellant’s inclusion of an affidavit from his mother as illustrative
of Appellant’s understanding of how he could have fulfilled such a
requirement. See Affidavit of Banisha Berry, attached to Appellant’s original
pro se PCRA Petition.
7
    We appreciate Appellant’s argument that trial counsel’s deficient
stewardship occasioned his lack of knowledge as to whether the witnesses
were available and willing to testify. See Amended PCRA Petition, pp. 14-
16; Appellant’s Brief, p. 14. However, this argument does not excuse the
PCRA’s requirement that Appellant plead and prove the witnesses’
willingness and ability to testify, as well as how the lack of such testimony
(Footnote Continued Next Page)

                                           -6-
J-S25031-16

      Order affirmed.8

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/4/2016

                       _______________________
(Footnote Continued)

prejudiced Appellant, to be eligible for relief on his claim that counsel was
ineffective for failing to call certain witnesses. See Appellant’s Brief, p. 17;
see also Miner, supra.
8
   The Commonwealth’s brief also addresses a “further claim” that trial
counsel was ineffective for advising Appellant to plead guilty prior to trial.
Commonwealth’s Brief, p. 14. Appellant did not raise or develop such a
claim in his appellate brief. Accordingly, even if Appellant raised it in his
previous filings, Appellant waived this claim. See Commonwealth v.
Spotz, 18 A.3d 244 (Pa.2011) (claim unreviewable and waived for lack of
development where, in his brief, appellant did not develop the claim factually
or legally, did not support it with citations, and the court could not discern
what error allegedly occurred).

                                            -7-


           If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                revision until final publication in the Michigan Appeals Reports.

                         STATE OF MICHIGAN

                           COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 March 19, 2020
             Plaintiff-Appellant,

v                                                                No. 346450
                                                                 Wayne Circuit Court
MARCELLIS RAYIMONTE TINSLEY,                                     LC No. 18-006627-01-FH

             Defendant-Appellee.

Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ.

RONAYNE KRAUSE, P.J., (concurring.)

      I concur in the result only.

                                                          /s/ Amy Ronayne Krause

                                             -1-


                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 27 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

NELSON A. CHUNG,                                No.   16-15310

                Plaintiff-Appellant,            D.C. No.
                                                1:14-cv-00314-DKW-BMK
 v.

CITY AND COUNTY OF HONOLULU, a                  MEMORANDUM*
municipal corporation; PAMELA
OKIHARA, Managing Employees;
ELIZABETH TSURUDA, Managing
Employees; JOHN DOES 1-56; JANE
DOES 1-56; DOE PARTNERSHIPS 1-56;
DOE CORPORATIONS 1-56; DOE
ENTITIES 1-56; DOE GOVERNMENTAL
UNITS 1-56,

                Defendants-Appellees.

                  Appeal from the United States District Court
                            for the District of Hawaii
                 Derrick Kahala Watson, District Judge, Presiding

                       Argued and Submitted June 15, 2018
                               Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.

      Nelson Chung appeals a summary judgment in favor of the City and County

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of Honolulu and various governmental employees (collectively, “the City”) on

Chung’s (1) Title VII discrimination, constructive discharge, and hostile work

environment claims; (2) Hawaii law discrimination, constructive discharge, and

unlawful work environment claims; and (3) 42 U.S.C. § 1983 claims. Reviewing

the summary judgment de novo, Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir.

2011), and the district court’s denial of Chung’s Rule 59(a) motion for

reconsideration for abuse of discretion, Smith v. Clark Cty. Sch. Dist., 727 F.3d 950,

954 (9th Cir. 2013), we affirm.

      1. Title VII requires that charges be filed with the Equal Employment

Opportunity Commission (“EEOC”) no later than 300 days after the occurrence of

an alleged unlawful employment practice where, as here, the plaintiff pursues state

or local remedies first. 42 U.S.C. § 2000e-5(e)(1); EEOC v. Commercial Office

Prods. Co., 486 U.S. 107, 123–25 (1988). Chung filed charges with the EEOC on

May 8, 2012.     Therefore, a Title VII claim about any employment practices

occurring before July 13, 2011 is time-barred.

      A. Because Chung last worked in March 2008, his hostile work environment

claim accrued no later than that time and is thus time-barred. Although Chung

argues a “continuing violations” theory, he could not have suffered from a hostile

work environment after he stopped coming to work.

      B. We need not decide whether Chung’s constructive discharge claim is also

                                          2
time-barred because he waived that claim on appeal. A constructive discharge claim

requires the employee to terminate his relationship with the employer; otherwise, the

employee has a wrongful discharge claim. See Draper v. Coeur Rochester, Inc., 147

F.3d 1104, 1110 (9th Cir. 1998). On appeal, however, Chung argues that he “did

not ‘resign’” but “believes he was fired pursuant to, among other things, what his

workers’ compensation attorney wrote in his letter, not constructively discharged as

stated in the amended complaint.” Having disavowed the constructive discharge

theory—and instead claiming wrongful termination—Chung has waived the theory

on appeal.1

      2. Under Hawaii antidiscrimination law, “[n]o complaint shall be filed after

the expiration of one hundred eighty days after the date . . . [u]pon which the alleged

unlawful discriminatory practice occurred.” Haw. Rev. Stat. § 368-11(c)(1); see

also Ross v. Stouffer Hotel Co., 879 P.2d 1037, 1043 (Haw. 1994) (“[T]he timely

filing of an administrative complaint with the [agency] was a precondition to a civil

suit under HRS § 378–2.”). Chung’s theories of discrimination under Hawaii law

are identical to his federal law theories, and Hawaii looks to “analogous federal

laws” when interpreting its antidiscrimination laws. Schefke v. Reliable Collection

Agency, Ltd., 32 P.3d 52, 69 (Haw. 2001) (quoting Shoppe v. Gucci Am., Inc., 14

1
       Because Chung conceded below that he was not claiming wrongful discharge,
that claim was waived and is not before the panel.

                                          3
P.3d 1049, 1058 (Haw. 2000)). Chung’s state law antidiscrimination claims are

therefore also untimely.

      3. Hawaii’s two-year statute of limitations for personal injuries governs

Chung’s § 1983 claims. Haw. Rev. Stat. § 657-7; see Lukovsky v. City & Cty. of

S.F., 535 F.3d 1044, 1048 (9th Cir. 2008). Chung’s § 1983 claims accrued when he

knew he “was subjected to unequal terms and conditions of employment.” See

TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (“Under federal law, a claim

accrues when the plaintiff knows or has reason to know of the injury which is the

basis of the action.”). At the latest, any violations of Chung’s rights occurred before

he left his job, and he makes no claim that he was unaware of the alleged violations

at that time. Chung filed this action on August 19, 2013, and his § 1983 claims are

therefore also time-barred.

      4. Chung’s motion for reconsideration sought to “prevent manifest injustice

by addressing equitable tolling” and to “correct a clear error.” The district court did

not abuse its discretion in denying the motion. Equitable tolling is not warranted

because the City did nothing to prevent Chung from filing a discrimination claim

earlier. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). And the

alleged inexperience or neglect of Chung’s prior attorney in this civil action does not

warrant reconsideration. See Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th

Cir. 2004).

                                          4
AFFIRMED.

            5


24 F.Supp.2d 571 (1998)
HOOVER COLOR CORPORATION, Plaintiff,
v.
BAYER CORPORATION, Defendant.
No. Civ.A. 98-0841-R.
United States District Court, W.D. Virginia, Roanoke Division.
July 30, 1998.
*572 *573 Dennis P. Brumberg, Richard H. Wall, Brumberg, Mackey & Wall, P.L.C., Roanoke, VA, Margaret K. Garber, Brumberg, Mackey & Wall, P.L.C., Roanoke, VA, for Hoover Color Corporation, plaintiff.
Michael F. Urbanski, Woods, Rogers & Hazlegrove, P.L.C., Roanoke, VA, William B. Poff, Woods, Rogers & Hazlegrove, P.L.C., Roanoke, VA, Thomas Demitrack, Mary E. Sweeney, Susanne H. Deegan, Jones, Day, Reavis & Pogue, Cleveland, OH, for Bayer Corporation, defendant.

MEMORANDUM OPINION
KISER, Senior District Judge.
This case involves a claim of price discrimination in violation of the Clayton Act, ch. 323, § 2, 38 Stat. 730 (1914), as amended by the Robinson-Patman Act, ch. 592, § 1, 49 Stat. 1526 (1936) (codified as amended at 15 U.S.C.A. § 13(a)). Before me now is defendant's motion for summary judgment. The parties have fully briefed the issues involved, and have presented oral argument. The motion is, therefore, ripe for disposition. For the reasons contained herein, defendant's motion for summary judgment is GRANTED.

BACKGROUND
Bayer [formerly known as Miles; formerly known as Mobay] produces and sells synthetic iron oxide pigments under the trade name "Bayferrox." Bayferrox is used in various segments of the pigment industry, but primarily in the construction products segment, the coatings segment, and the plastics segment.[1] Bayer sells Bayferrox directly to end-users. During the time of the alleged price discrimination, Bayer also sold Bayferrox to distributors who then resold the Bayferrox to subdistributors and end-users. Hoover Color Corporation, Rockwood Industries [also known as Davis Colors; also known as Mineral Pigments],[2] and Landers-Segal Color Company [hereinafter Lansco] were distributors of Bayferrox.
Hoover claims that, from 1992 through 1996, Bayer sold Bayferrox to Rockwood and Lansco at lower net prices per pound than to Hoover.[3] These lower prices occurred as a result of a volume discount schedule which Bayer has included in its distributor contracts since 1980.[4] All three distributors purchased under the same basic discount schedule. Rockwood and Lansco purchased higher volumes of Bayferrox than Hoover, thus, they were able to obtain the pigment at a lower net price per pound. Hoover contends that, by way of the operation of the *574 discount mechanism, the prices paid by Rockwood and Lansco, while theoretically available to all distributors, were functionally available only to Rockwood and Lansco.
Under the discount mechanism, a distributor's price per pound of Bayferrox for a given year was set at the beginning of that year.[5] A distributor's discounted price for the given year was based upon the amount of Bayferrox purchased by the distributor during the previous year. If the distributor actually purchased more in the given year than it had in the previous year, then Bayer would reimburse the distributor for the amount of discount actually earned. The reimbursement would be paid by March of the next year. If the distributor purchased less than had been anticipated, however, it would have to return a portion of the estimated discount to Bayer.
For example, if Hoover had purchased four million pounds of Bayferrox in 1988, then it would have received the corresponding two percent discount in 1989.[6] If Hoover bought six million pounds in 1989, then by March of 1990, it would be reimbursed the difference between the 2% discount Bayer estimated Hoover would earn and the 3% discount Hoover actually earned. If, however, Hoover only purchased two million pounds, then it would be required to reimburse Bayer for its failure to purchase sufficient Bayferrox to earn the 2% discount.
Hoover claims that the discount mechanism prevented uniform pricing at the beginning of each year. According to Hoover, the fact that it would not receive a rebate on its discount for fifteen months prohibited it from purchasing an increased volume of Bayferrox. In other words, Hoover contends that the method of setting a discount for a given year based on the volume purchased in the prior year rendered the higher volumes functionally unavailable to Hoover and, thereby, denied Hoover the opportunity to purchase at the same price as Lansco or Rockwood.

DISCUSSION
Hoover brings this action for price discrimination under § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act. That section provides as follows:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them....
15 U.S.C.A. § 13(a).
A plaintiff must prove several elements to hold a seller liable for price discrimination under § 2(a). First, the seller must be "engaged in commerce," the price discrimination must occur "in the course of such commerce," and at least one of the sales constituting the discrimination must occur "in commerce." Second, the discrimination must involve contemporaneous "sales" to two or more purchasers at different prices. Third, the items sold must be "commodities of like grade and quality." Fourth, there must be a reasonable possibility that the discriminatory prices will substantially lessen competition, or injure, destroy, or prevent competition. Additionally, in order to recover damages under § 4 of the Clayton Act, a private plaintiff who has proved a violation of § 2(a) must also demonstrate that it suffered actual injury to its business or property as a *575 result of the price discrimination. See, e.g., Texaco, Inc. v. Hasbrouck, 496 U.S. 543, 556, 110 S.Ct. 2535, 110 L.Ed.2d 492 (1990) (listing requirements for prima facie case); Falls City Indus., Inc. v. Vanco Beverage, Inc., 460 U.S. 428, 434-38, 103 S.Ct. 1282, 75 L.Ed.2d 174 (1983) (discussing § 2(a) damages); J. Truett Payne Co., Inc. v. Chrysler Motors Corp., 451 U.S. 557, 561-62, 101 S.Ct. 1923, 68 L.Ed.2d 442 (1981) (discussing requirement of § 4 actual antitrust damages).
Bayer brings the present motion for summary judgment. For the purposes of this motion, Bayer admits that: (1) Bayferrox is a commodity; (2) Bayer sold Bayferrox in interstate commerce to Rockwood, Lansco, and Hoover; (3) the Bayferrox sold to Rockwood, Lansco, and Hoover was of like grade and quality; and (4) Bayer contemporaneously sold Bayferrox to Rockwood, Lansco, and Hoover at different prices.
In its motion, Bayer argues that Hoover has failed to put forward any evidence to support its damages claims. First, Bayer contends that Hoover's evidence fails to demonstrate that the price differentials had any reasonable possibility of substantially injuring competition under § 2(a). Second, Bayer contends that even if Hoover could establish a violation of § 2(a), Hoover produced no evidence that its business or property has suffered a § 4 injury as a result of the price differential.
In addition to challenging Hoover's ability to establish a prima facie claim of price discrimination, Bayer asserts that it has established two affirmative defenses, either of which would defeat plaintiff's claim. First, Bayer asserts that the lower prices for Rockwood and Lansco were legal under § 2(b) because they were "made in good faith to meet an equally low price of a competitor. ..." 15 U.S.C.A. 13(b). Second, Bayer asserts that Rockwood's and Lansco's prices were functionally available to Hoover since they purchased Bayferrox under the same basic discount schedule.
For the purposes of this motion, I will assume without deciding, that Hoover has come forward with sufficient evidence to state a prima facie case for price discrimination. Having assumed that Hoover has set forth a prima facie case of price discrimination, I will examine Bayer's claimed affirmative defenses. In granting the motion for summary judgment, I only need to discuss the "meeting competition" defense of § 2(b).[7]

I. Summary Judgment Standard
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial and summary judgment should be granted. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In considering a motion for summary judgment, "the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. The plaintiff is entitled to have the credibility of all his evidence presumed." Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.) (citations omitted), cert. denied, 513 U.S. 813, 115 S.Ct. 67, 130 L.Ed.2d 24 (1994). There is a genuine issue of fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
"While Rule 56 is to be applied to antitrust cases no differently from how it is applied to other cases, that is not to say that the summary judgment device is not an appropriate and useful tool for resolving antitrust cases. On the contrary, because of the unusual entanglement of legal and factual issues frequently presented in antitrust cases, the task of sorting them out may be particularly well-suited for Rule 56 utilization." Thompson Everett, Inc. v. National Cable Advertising, 57 F.3d 1317, 1322 (4th Cir.1995) (citation omitted). The appropriateness *576 of granting summary judgment on a § 2(b) defense is often debated, however. Compare Alan's of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1425 (11th Cir.1990) ("[U]nder summary judgment involving section 2(b) a legal conclusion that the meeting competition defense has been established is rarely, if ever, reachable.") with Reserve Supply Corp. v. Owens-Corning Fiberglas Corp., 971 F.2d 37, 42-43 (7th Cir.1992) ("[W]e must remember that courts traditionally have been quite circumspect in permitting a grant of summary judgment when claims of good faith and belief are involved  especially when the moving party has the burden of establishing that fact at trial.... While these latter considerations require our careful attention, we must also remember that certain characteristics of the `meeting competition' defense ... make application of these summary judgment criteria somewhat more judicially manageable than might be the case in other contexts.") (citations omitted). Thus, while the posture of this case may require a harder look at the evidence presented by both sides, summary judgment remains appropriate where the facts clearly establish that the seller's lower prices were a good faith response to competition. See Reserve Supply, 971 F.2d at 42 (Since defendants bear burden of proving good faith at trial, they "must show that the evidence of their good faith is `so one-sided that ... [they] must prevail as a matter of law.'") (quoting Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505); see also Walker v. Hallmark Cards, Inc., 992 F.Supp. 1335, 1340-42 (M.D.Fla.1997) (granting summary judgment on § 2(b)); Bryant Corp. v. Outboard Marine Corp., 1995-1 Trade Cas. (CCH) ¶ 70,903, 1994 WL 745159, at *4-*6 (W.D.Wash. 1994) (same), aff'd, 77 F.3d 488, 1996 WL 48401 (9th Cir.1996); Krieger v. Texaco, Inc., 373 F.Supp. 108, 112 (W.D.N.Y.1972) (same); McCaskill v. Texaco, Inc., 351 F.Supp. 1332, 1340 (S.D.Ala.1972) (same), aff'd sub nom. Harrelson v. Texaco, Inc., 486 F.2d 1400 (5th Cir.1973).

II. Meeting Competition Defense to a § 2(a) Price Discrimination Claim
Pursuant to § 2(b) of the Clayton Act, as amended by the Robinson-Patman Act, nothing "shall prevent a seller rebutting the prima facie case thus made by showing that his lower price ... was made in good faith to meet an equally low price of a competitor ...." 15 U.S.C.A. 13(b). The meeting competition defense "allows a seller to `set its lower price [to a second line buyer in competition with another buyer] in good faith to meet an equally low price of [the seller's] competitor' without violating the price discrimination prohibitions of the [Robinson-Patman Act]." Walker, 992 F.Supp. at 1340 (brackets in original) (citation omitted). "When proved, the meeting-competition defense of § 2(b) exonerates a seller from Robinson-Patman Act liability." Falls City, 460 U.S. at 438, 103 S.Ct. 1282 (citing Standard Oil Co. v. FTC, 340 U.S. 231, 246-47, 71 S.Ct. 240, 95 L.Ed. 239 (1951)).[8]
*577 Bayer contends that it sold Bayferrox to Rockwood and Lansco at lower prices in a good faith attempt to meet an equally low price of competitors. Bayer bears the burden of establishing this defense. Reserve Supply, 971 F.2d at 41 (citing Falls City, 460 U.S. at 451, 103 S.Ct. 1282). At the summary judgment stage, "the burden in the context of the meeting competition defense is on the defendant to `establish that the evidence supported only one reasonable conclusion  that its lower prices were a good faith response to competition.'" Zoslaw v. MCA Distributing Corp., 594 F.Supp. 1022, 1032 (N.D.Calif.1984) (quoting William Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014, 1045 (9th Cir.1981) (emphasis in original)).

A. Applicable Standard
The Supreme Court repeatedly has addressed what a seller must prove in order to succeed with a meeting competition defense. The "meeting-competition defense requires the seller at least to show the existence of facts that would lead a reasonable and prudent person to believe that the seller's lower price would meet the equally low price of a competitor...." Falls City, 460 U.S. at 451, 103 S.Ct. 1282. The defense "also requires the seller to demonstrate that its lower price was a good-faith response to a competitor's lower price." Id.
"The standard of good faith is simply the standard of the prudent businessman responding fairly to what he reasonably believes is a situation of competitive necessity." Id. at 441 (quoting Continental Baking Co., 63 F.T.C. 2071, 2163 (1963)). "Whether this standard is met depends on `the facts and circumstances of the particular case, not abstract theories or remote conjectures.'" Id. (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 454, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978)). "[A] showing of facts giving rise to a reasonable belief that equally low prices were available to the favored purchaser from a competitor will be sufficient to establish that the seller's lower price was offered in good faith to meet that lower price." Id. at 439, 103 S.Ct. 1282.[9]
In Gypsum, the Supreme Court provided a non-exhaustive list "of factors that could be relevant to determining a seller's good faith, including (1) whether the seller had received reports of similar discounts from other customers, (2) whether the seller was threatened with a termination of purchases if the discount were not met, (3) whether the seller made efforts to corroborate the reported discount by seeking documentary evidence or by appraising its reasonableness in terms of available market data, and (4) whether the seller had past experience with the buyer." Reserve Supply, 971 F.2d at 42 (citing Gypsum, 438 U.S. at 455, 98 S.Ct. 2864).
"Nothing in § 2(b) requires a seller to lower its price in order to meet competition. ... In a period of generally rising prices, vigorous price competition for a particular customer or customers may take the form of smaller price increases rather than price cuts. Thus, a price discrimination created by selective price increases can result from a good faith effort to meet a competitor's low price." Falls City, 460 U.S. at 444, 103 S.Ct. 1282 (emphasis in original).
Also, "[a] seller is permitted to retain a customer by realistically meeting in good faith the price offered to that customer, without necessarily changing the seller's price to its other customers. The plain language of § 2(b) also permits a seller to retain a customer by realistically meeting in good faith the price offered to that customer, without necessarily freezing his price to his other customers." Indeed, "[t]he very purpose of the defense is to permit a seller to treat different competitive situations differently. The prudent businessman responding fairly to what he believes in good faith is a situation of competitive necessity might well raise his prices to some customers to increase is profits, while meeting competitors' prices by keeping his prices to other customers low." *578 Id. at 444-45, 103 S.Ct. 1282 (internal citations and quotations omitted).
Additionally, the meeting competition defense is equally applicable to a seller attempting to retain an old customer or a seller attempting to gain a new customer. Id. at 446, 103 S.Ct. 1282. A seller also is not required to meet competition on a customer-by-customer basis in order to take advantage of the meeting competition defense. Id. at 448, 103 S.Ct. 1282 ("We conclude that Congress did not intend to bar territorial price differences that are in fact responses to competitive conditions.").
Finally, a seller must investigate in an attempt to verify the competitor's offer. F T C v. A.E. Staley Mfg. Co., 324 U.S. 746, 758, 65 S.Ct. 971, 89 L.Ed. 1338 (1945); see also Gypsum, 438 U.S. at 451-52, 98 S.Ct. 2864. This obligation, however, is limited by the prohibitions of the Sherman Act. See Great A & P Tea Co., 440 U.S. at 84, 99 S.Ct. 925 (The seller "could not then attempt to verify the existence and terms of the competing offer from [its competitor] without risking Sherman Act liability."). Open sharing of price information among competitors will tend to stabilize prices, Gypsum, 438 U.S. at 457-58, 98 S.Ct. 2864, and lead to "the growth of prohibited anticompetitive activity." Id. at 458, 98 S.Ct. 2864. Thus, "[a] good faith belief, rather than absolute certainty, that a price concession is being offered to meet an equally low price offered by a competitor is sufficient to satisfy the § 2(b) defense." Id. at 453, 98 S.Ct. 2864. "Since good faith, rather than absolute certainty, is the touchstone of the meeting-competition defense, a seller can assert the defense even if it has unknowingly made a bid that in fact not only met but beat is competition." Great A & P Tea Co., 440 U.S. at 83, 99 S.Ct. 925 (citing Gypsum, 438 U.S. at 454, 98 S.Ct. 2864).

B. Application of the Standard
In analyzing the law of the meeting competition defense and the facts of the case at bar, I "must determine whether [Bayer has] shown `the existence of facts that would lead a reasonable and prudent person to believe that [its] lower price would meet the equally low price of a competitor' and whether [it has] demonstrated that [its] `lower price was a good faith response to a competitor's lower price.'" Reserve Supply, 971 F.2d at 43 (citing Falls City, 460 U.S. at 451, 103 S.Ct. 1282). In doing so, I must keep in mind the indicia of good faith enumerated in Gypsum. Id.

i) The 1980 Bayer-Rockwood Agreement
The material facts regarding the negotiation of the 1980 Bayer-Rockwood Agreement are uncontested.[10]
Hoover, Rockwood, and Lansco were among several Bayferrox distributors in the 1970's and 1980's. During the 1970's, Bayer produced Bayferrox in West Germany. In late 1980, Bayer opened a new Bayferrox production facility in New Martinsville, West Virginia. McCormack Dep., Vol. I, at 13. The facility had high fixed costs, irrespective of the volume of Bayferrox produced at the facility. The marginal cost of each additional pound of Bayferrox was minimal, however. Because of the high fixed costs, Bayer needed to maximize production at the facility to generate a profit. Meikle Affidavit at ¶ 6; Noble Affidavit at ¶ 4; see also McCormack Dep., Vol. I, at 128. To maximize utilization of the West Virginia facility, Bayer sought to lock its distributors into long term commitments to buy Bayferrox. Stroucken Dep. at 73-74; Meikle Affidavit at ¶¶ 7-8; Noble Affidavit at ¶ 5; McCormack Dep., Vol. I, at 128. Volume discounts were viewed as a possible incentive for distributors to increase their purchases of Bayferrox. Meikle Affidavit at ¶ 8; Noble Affidavit at ¶ 5; Stroucken *579 Dep. at 73-74, 144; McCormack Dep., Vol. I, at 128.
Bayer first approached Rockwood, its largest distributor, about a long term commitment to purchase Bayferrox. Entering the negotiations, Bayer was aware that Rockwood purchased and distributed substantial quantities of non-Bayferrox synthetic iron oxides. Meikle Affidavit at ¶ 9; McCormack Dep., Vol. II, at 104; Stroucken Dep. at 144. During negotiations, Rockwood informed Bayer that it had offers for lower priced synthetic iron oxides than Bayer was offering. Meikle Affidavit at ¶ 11. Rockwood demanded that Bayer lower its proposed price for Bayferrox, or Rockwood would not commit to purchase high volumes of the Bayferrox. Meikle Affidavit at ¶ 11; Noble Affidavit at ¶ 9. Rockwood also threatened that unless Bayer lowered its proposed prices, Rockwood would increase its purchases of non-Bayferrox synthetic iron oxides and reduce its purchases of Bayferrox. Meikle Affidavit at ¶ 11; Noble Affidavit at ¶ 9.
Bayer had reason to believe Rockwood's threats. First, Bayer officials believed that Rockwood already purchased one-third of its synthetic iron oxide requirements from other sources. Noble Affidavit at ¶ 6.[11] Second, Bayer knew that Rockwood was a leader in the construction materials market. The lower cost alternatives to Bayferrox were more suitable for use in blends for the construction products segment than for the coatings segment. See Stroucken Dep. at 134-36. Thus, Bayer had reason to be concerned that Rockwood could easily use these non-Bayer synthetics as substitutes for Bayferrox. Noble Affidavit at ¶ 11. Third, Bayer verified that synthetic iron oxides were being imported into the country. Meikle Affidavit at ¶ 14; Noble Affidavit at ¶ 10. Fourth, Bayer contacted various end-users who verified the availability of lower cost alternatives to Bayferrox. Meikle Affidavit at ¶ 14; Noble Affidavit at ¶ 10.
Based on these uncontested facts, I have no trouble concluding that, as a matter of law, Bayer's proposed discount pricing schedule was made in a good faith attempt to meet competition for Rockwood's business. Bayer has shown the "existence of facts that would lead a reasonable and prudent person to believe that the seller's lower price would meet the equally low price of a competitor." Falls City, 460 U.S. at 451, 103 S.Ct. 1282. Indeed, that is the only reasonable conclusion which the evidence supports. See Zoslaw, 594 F.Supp. at 1032.
As for the good faith requirement, that is exhibited by "a showing of facts giving rise to a reasonable belief that equally low prices were available to the favored purchaser from a competitor." Falls City, 460 U.S. at 439, 103 S.Ct. 1282. Such facts have been demonstrated here. Also, given Bayer's need to maximize productivity at its West Virginia facility, it is clear that Bayer was responding to a "competitive necessity" by meeting the price offered to Rockwood. See id. at 441, 103 S.Ct. 1282; see also Great A & P Tea Co., 440 U.S. at 73, 99 S.Ct. 925 (need to maximize utilization of new facility may be considered in good faith determination). The indicia of good faith enumerated in Gypsum also dictate this result. 438 U.S. at 455, 98 S.Ct. 2864; see also Reserve Supply, 971 F.2d at 42. First, Bayer asked various endusers whether or not they were aware of lower priced synthetic iron oxides on the market. Second, while they were not threatened with an outright termination of purchase by Rockwood, they were threatened with a reduction in Bayferrox purchases if the discount were not met. Third, Bayer corroborated the availability of imported synthetic iron oxides in the market.
Finally, the price offered by Bayer was obviously geared towards "meeting" the competitive price offered to Rockwood. Bayer conducted a thorough market analysis to determine what price to offer Rockwood to retain their existing business, earn new business, and still turn a profit. See Meikle Affidavit at ¶¶ 15-17; Meikle Affidavit Exhibit A; Noble Affidavit at ¶ 13.
Given Bayer's need to maximize utilization at the West Virginia facility and its determination *580 of the reasonableness of the alleged lower price in light of the market, the only reasonable conclusion is that Bayer offered the lower price to Rockwood in a good faith attempt to meet a competitor's low price.

ii) The 1985 Bayer-Rockwood Agreement
The uncontested material facts also support the conclusion that, as a matter of law, Bayer's proposed discount pricing schedule in 1985 was made in a good faith attempt to meet competition for Rockwood's business.
During the 1985 negotiations, Rockwood again threatened Bayer that it would shift its purchases of synthetic iron oxides away from Bayer and to cheaper alternatives, if Bayer did not offer competitive prices. Noble Affidavit at ¶ 16. Rockwood informed Bayer that Rockwood was "facing strong pressure from imported products which were selling substantially lower than [Bayer's] and Rockwood's current price levels. Furthermore, [Rockwood] indicated that domestic suppliers (Columbian and Pfizer) were being more aggressive by offering special incentives in some cases." Bayer Exhibit, Vol. II, C-2, at BC 001374. From its internal memoranda, its is evident that Bayer continued to recognize that Rockwood's ability to substitute cheaper synthetic oxides for Bayferrox in its production of pigment for the construction products (concrete) segment posed a "substantial threat" to Bayer. Bayer Exhibit, Vol. II, C-3, at BC XXXXXX-XX. The "substantial threat" existed, in part, because Bayer still was not fully utilizing the capacity of the West Virginia facility, and the plant remained "extremely dependent on high volume utilization to achieve profitability." Stroucken Dep. at 49.
Again, I find that the uncontested facts support only a conclusion that the price terms offered by Bayer during the 1985 negotiations were made in a good faith attempt to meet competition for Rockwood's business. Regarding the element of good faith, the competitive necessity created by the West Virginia facility still existed, and the facts demonstrate that lower prices were available to the favored purchaser. See Falls City, 460 U.S. at 441, 439, 103 S.Ct. 1282. Also, applying the Gypsum criteria, I find that the evidence requires a finding that Bayer acted in good faith. 438 U.S. at 455, 98 S.Ct. 2864; see also Reserve Supply, 971 F.2d at 42. First, Rockwood again threatened to reduce its purchases of Bayferrox if Bayer did not present a competitive price. Second, Bayer corroborated the report by analyzing the availability and impact of low cost substitutes for Bayferrox. Finally, Bayer's dealings with Rockwood during the 1980 negotiations weigh heavily in favor of Bayer's good faith.

iii) The 1981 and 1987 Bayer-Lansco Agreements
In 1981 and 1987, respectively, Bayer extended the same basic volume discount schedule included in the 1980 and 1985 Bayer-Rockwood Agreements to Lansco and Hoover.[12] Bayer clearly was under no obligation to lower its price to Lansco and Hoover or to provide them with the same discount schedule as Rockwood. Falls City, 460 U.S. at 445, 103 S.Ct. 1282 ("The very purpose of the [meeting competition] defense is to permit a seller to treat different competitive situations differently."). Nonetheless, Bayer chose to do so.
Hoover argues that since Bayer did not have to lower its prices to Lansco and Hoover, but it did nonetheless, Bayer must not have been motivated by competition when it lowered prices to Rockwood. According to Hoover, Bayer must have been motivated solely by another interest, namely the maximization of production at the West Virginia facility. I disagree. It is uncontested that, in its negotiations with Rockwood, Bayer was motivated by its desire to maximize productivity at the West Virginia plant. The exigencies of the West Virginia facility were an added incentive, for Bayer to maximize sale of Bayferrox by meeting competition. See Great A & P Tea Co., 440 U.S. at 73, 99 S.Ct. 925 (need to maximize utilization of new facility supports finding that it was competitive necessity for seller to match competing offers for buyer's business). During the negotiations *581 commenced by Bayer, however, Rockwood parlayed the availability of lower cost substitutes for Bayferrox into a demand that Bayer provide Bayferrox at a competitive price or lose a substantial portion of Rockwood's business. The availability of these alternatives to Bayferrox were well known throughout the industry, and Bayer correctly assumed that Lansco and Hoover had access to these substitutes. See McMahon Dep. at 122 (lower cost alternatives could be obtained "by any distributors."). Therefore, in providing the same discount schedule to Lansco and Hoover as it had provided to Rockwood, Bayer was continuing to meet competition. See Falls City, (lower price need not be set on customer-by customer basis). In fact, I find Bayer's willingness to extend the same advantageous discount schedule to Lansco and Hoover indicative of Bayer's good faith during negotiations in the 1980's and 1990's. See Hoover Dep. at HCC SJ 520 (Bayer stated that its intention was to provide a level playing field, where all distributors had the same pricing and discounts.); see Stroucken Dep. at HCC SJ 1144 (Hoover's volume discount schedule was "part of a distribution schedule that applies to all distributors, and that are volume-driven in the purchases."); McMahon Dep. at 114 (Bayer tried to "handl[e] things ... neutrally, fairly among all the distributors.").
This finding of good faith is strengthened by the fact that Bayer did not view Hoover as a significant participant in the concrete segment of the industry. Ali Dep. at 79-80; McCormack Dep., Vol. II, at 41-42; McMahon Dep. at 116-17; Papich Dep. at 135-37. Bayer believed that Hoover was principally involved with natural iron oxides, and that Hoover used synthetic iron oxides to blend with the natural iron oxides and correct any variability in their color. McMahon Dep. at 118; see also Bayer Exhibit, Vol. I, B-7, at 02933. Conversely, Bayer officials believed that Lansco was as focused on the construction products segment as the coatings segment. Ali Dep. at 79-80. Thus, even though Hoover was not as capable of taking advantage of the imports as Lansco and Rockwood, Bayer still offered the same volume discount schedule to Hoover.
Finally, even though Lansco did not threaten to reduce its purchases of Bayferrox in 1987, it is clear that an actual threat to reduce purchases is not required in order to take advantage of the meeting competition defense. Since meeting competition defense can be used in lowering prices to purchasers who have never before purchased from the seller, it cannot be argued that a purchaser must threaten to decrease its purchases from a seller in order to use the meeting competition defense. See Falls City, 460 U.S. at 446-47, 103 S.Ct. 1282 ("[A] seller's response must be defensive, in the sense that the lower price must be calculated and offered in good faith to `meet not beat' the competitor's low price.... Section 2(b), however, does not distinguish between one who meets a competitor's lower price to retain an old customer and one who meets a competitor's lower price in an attempt to gain new customers.") (quotations and citations omitted).
Thus, I find that the uncontested evidence would lead a reasonable and prudent person to believe that Bayer's lower price to Lansco was intended to meet equally low prices available from the seller's competitors in the marketplace.

iv) The 1990 Bayer-Rockwood Agreement
Imports of low cost synthetic iron oxides continued to increase during the late 1980's and early 1990's. See Bayer Exhibit, Vol. I, B-4, at BC 002621 ("The decrease in our sales to distributors from 1989-91 reflects the economic recession, and the purchases by Rockwood of low priced material imported from China.") These imports were more suitable as substitutes in the expanding construction products segment of the market than in the coatings segment.[13] The combined *582 market pressures of increasing imports and growth of the construction segment were present when Rockwood and Bayer renegotiated their supply agreement in 1990.[14]
During the negotiations, Rockwood complained that the changing market dynamics forced them to increasingly compete against lower cost material. McMahon Dep. at 121. Rockwood indicated that it would begin searching for alternate sources of synthetic iron oxides. Bayer Exhibit, Vol. I, B-13. Rockwood advised Bayer that it could still obtain lower cost substitutes for Bayferrox. Paris Affidavit at ¶ 9; Stroucken Dep. at 110; McCormack Dep., Vol. II, at 40; McMahon Dep. at 121. Bayer relied upon Rockwood's concerns in offering the prices included in the 1990 Bayer-Rockwood Agreement. McMahon Dep. at 121-22. I find that these uncontested facts, viewed in the context of the changing market and the factors enumerated in Gypsum, leave as the only reasonable conclusion that Bayer altered its price structure during the 1990 negotiations in an attempt to meet competition from foreign producers for Rockwood's business.

v) The 1994 Bayer-Rockwood and Bayer-Lansco Agreements
The availability of the lower cost imports increased dramatically in the 1990's. Just weeks after negotiating the 1990 contract extension, Rockwood notified Bayer of a Chinese offer to sell synthetic iron oxide at a price much lower than provided in the Bayer-Rockwood Agreement. The offer was so low, in fact, that Bayer was incapable of matching it. See Bayer Exhibit, Vol. I, B-14.[15] On February 13, 1992, Rockwood again notified Bayer that it had received an offer form a foreign source to sell synthetic iron oxides at a lower price than the price under the 1990 Bayer-Rockwood Agreement. Bayer Exhibit, Vol. I, B-5, at BC 002491; see also Bayer Exhibit, Vol. I, B-15; Bayer Exhibit, Vol. I, B-16; Paris Affidavit at ¶ 12.[16] This letter was prompted by Rockwood's concern about Bayer's price of Bayferrox and the lower cost imported pigments. Rapaport Dep. at 83-84.[17] Rockwood was concerned that these low cost pigments could dramatically impact the construction side of the business. Rapaport Dep. at 83.[18] These are just two examples of how the amount of imported synthetic iron oxides dramatically increased in the early 1990's.[19]
*583 While there was an increase in imports which presented problems for Bayer, there also was a consolidation of producers and distributors in the 1990's which troubled Bayer. In 1992, Rockwood was acquired by Laporte, a construction products manufacturer. Additionally, in the early 1990's, Laporte was considering purchasing Silo and Columbian, manufacturers of synthetic iron oxides. These acquisitions would make Laporte a fully vertically integrated competitor of Bayer. Bayer was concerned that these acquisitions would lead to a further decrease in Rockwood's purchases of Bayferrox. See Bayer Exhibit, Vol. I, B-2 ("Between 60% and 75% of Rockwood's Bayferrox purchases could be replaced in 2-3 years by Silo, Columbian and Chinese materials.... If [Bayer] were unable to regain this volume in the marketplace, the profit impact to [Bayer] alone would be sever [sic]."); Bayer Exhibit, Vol. II, C-1, at BC 000388 (The "loss of volume [caused by Laporte's acquisition of Silo] would significantly impact Bayer/Miles' sales and profitability. This situation is particularly critical in North America, because of Laporte's recent acquisition of our largest Bayferrox distributor, Rockwood."), at BC 000389 ("Rockwood's purchases of Bayferrox are critical to the financial success of our North American Pigments business, and to our market leadership position in the strategically important construction industry. It is critical that we find a way to secure this volume both short and long term."). Laporte purchased Silo in September of 1992. See Bayer Exhibit, Vol. I, B-2.
Because of the threats to its distribution network Bayer decided to restructure the network. See Bayer Exhibit, Vol. I, B-2, at BC 002445; Bayer Exhibit, Vol. I, B-3, at BC 002445; McCormack Dep. at 20-24, 34-35. Bayer decided to reduce its dependence on outside distributors. See Bayer Exhibit, Vol. I, B-3, at BC 002445; Bayer Exhibit, Vol. I, B-4, at BC 002621 ("The trend in [Bayer's] sales toward a high portion of direct sales reflects the business group's efforts to reduce the dependence on distributor sales.").[20]
The continued increase in imports and the consolidation of the industry presented further difficulties for Bayer because its objective remained the maximum utilization of the West Virginia facility. McCormack Dep., Vol. I, at 128-29. Facing these competitive pressures, Bayer again renegotiated its contracts with Rockwood and Lansco in 1994, several years after Laporte's acquisition of Rockwood and before Bayer's acquisition of Lansco.
During the negotiation of the 1994 Bayer-Rockwood Agreement, it is clear that Rockwood, either explicitly or implicitly, threatened to, and in fact did, reduce its purchases of Bayferrox. See McCormack Affidavit at ¶ 6; see also Reserve Supply, 971 F.2d at 45-46 (possibility of loss of business which "was clearly implicit within the [relevant] market" was sufficient "threat" under § 2(b)). Given the changes in the international market for synthetic iron oxides and Bayer's continued need to maximize productivity at its West Virginia facility, Bayer was in a "situation of competitive necessity" and was justified in meeting the competitive offers made to Rockwood. See Falls City, 460 U.S. at 441, 103 S.Ct. 1282.
Hoover contends that the fact that the 1990 and 1994 negotiations resulted in actual price increases precludes Bayer from invoking the meeting competition defense. Clearly, this argument is incorrect. "Nothing in § 2(b) requires a seller to lower its price in order to meet competition.... A seller is required to justify a price difference by showing that it reasonably believed that an equally low price was available to the purchaser and that it offered the lower price for that reason; the seller is not required to show that the difference resulted from subtraction rather than addition.... In a period of generally rising prices, vigorous price competition for a particular customer or customers may take the form of smaller price increases rather than price cuts. Thus, a *584 price discrimination created by selective price increases can result from a good faith effort to meet a competitor's low price." Falls City, 460 U.S. at 444, 103 S.Ct. 1282 (emphasis in original). In this case, there is ample evidence that in the late 1980's and early to mid-1990's, prices in the synthetic iron oxide industry were generally increasing. See Bayer Exhibit, Vol. I, B-5, at BC 02490 (noting "rising costs of operating and environmental compliance"); Bayer Exhibit, Vol. II, C-6, at BC 002539 (1994 memorandum stating "In the wake of the rapid growth of construction industry, iron oxide pigment has been in rather short supply in the global market for the past few years, and the price has been rising constantly"); Bayer Exhibits, Vol. II, C-6, at BC 002557 ("From early 1990 onwards, due to the cost of energy is rising, the price of synthetic iron oxide worldwide is going up....").
Like Rockwood, Lansco was shifting purchases of synthetic iron oxides away from Bayer and to foreign producers. See D. Greenwald, Dep. at 81-82. In fact, Lansco's purchases of Bayferrox dropped from sixteen million pounds to thirteen million pounds in 1993. Lansco substituted Mexican and Chinese oxides for Bayferrox. D. Greenwald, Dep. at 81-82. Given the realities of the market, Bayer was aware that Lansco had competitive offers for synthetic iron oxides from other sources. See Reserve Supply, 971 F.2d at 44-46 (view reasonableness of competing offer "in light of market conditions;" "implicit" threats can be inferred from market conditions). In fact, Lansco had informed Bayer that it had been presented with lower offers, and that was one reason offered by Lansco for wanting to renegotiate the agreement. McCormack Dep., Vol. II, at 102; McCormack Affidavit at ¶ 7. These competitive offers concerned Bayer, thus, Bayer reacted with what it believed were competitive counteroffers. McCormack Dep., Vol. II, at 103.
Hoover argues that Bayer was not motivated to meet competition for Lansco's business in 1994. Hoover contends that Bayer sought to renegotiate the volume discount schedule in an attempt to lower the amount of Lansco's discount and to stabilize the fluctuations in Lansco's demand. Undoubtedly, numerous issues were of particular interest to one party or the other during the negotiation of the 1994 contract. In a complex contract, negotiations will always involve many issues. For example, in the face of increasing prices in the market, Bayer sought to reduce the discount given to Lansco. On the other hand, Lansco sought to prevent any price increase. Bayer also wanted to resolve issues involving a customer of Lansco, Hamburger, and both parties wanted to stabilize Lansco's demand. Lansco hoped to increase its allowable purchases of imported iron oxides. See Hoover Exhibit at HCC SJ 0336-358. None of these issues lessen the fact that when Bayer offered its price to Lansco, it did so (1) in light of the developments in the synthetic iron oxides market, including the increase in imports and expansion of the construction products segment, (2) with knowledge, either explicitly or implicitly, that Lansco had access to lower cost substitutes for Bayferrox, and (3) faced with a competitive necessity to maximize production at its West Virginia facility. Despite the other issues addressed in agreeing to the 1994 contract, the material facts, when viewed in the light most favorable to Hoover, could only lead a reasonable and prudent person to believe that Bayer's lower price was offered in a good faith attempt to meet competition for Lansco's business.
Again, the uncontested material facts establish that equally low prices were available to Lansco and Rockwood,[21] and that Bayer was faced with a competitive necessity to meet competition for Lansco's and Rockwood's business.[22] In light of the condition of the synthetic iron oxides market and the factors enumerated by the Supreme Court in *585 Gypsum, only one reasonable conclusion exists: as a matter of law, Bayer was meeting competition in good faith in 1994 when it effectively offered to sell Bayferrox to Lansco and Rockwood at prices which were lower than the price at which it sold Bayferrox to Hoover.

CONCLUSION
The uncontroverted evidence regarding the relationship of the principals and the dynamic market for synthetic iron oxides in the 1980's and 1990's clearly establishes that Bayer offered its lower prices to Rockwood and Lansco out of a good faith competitive necessity to meet competition for their business. Hoover fails to present any material evidence to counter this conclusion.
Accordingly, for the aforementioned reasons, the defendant's motion for summary judgment is GRANTED.
NOTES
[1]  This case primarily concerns the construction products and coatings segments. Rockwood was recognized as the leading distributor in the construction segment, although it participated in all three segments. Lansco participated in all segments as well, although it was much smaller than Rockwood. Hoover was, by far, the smallest of the three distributors. It primarily was involved in the coatings segment, although it did have a presence in the construction products segment.
[2]  Davis Colors handled Rockwood's sales in the construction products segment; Mineral Pigments handled Rockwood's sales in the coatings segment. Paris Affidavit at ¶ 8.
[3]  In its Complaint, Hoover sought damages for discriminatory pricing from January 1, 1982 until September 23, 1992 (Count I), from September 23, 1992 until September 23, 1996 (Count II), and for prospective discriminatory pricing from September 23, 1996 until March 1, 1998. By Order entered July 24, 1997, I limited any prospective recovery by Hoover to the period after September 23, 1992 because of the four year statute of limitations. Additionally, Hoover concedes that no damages could have occurred after December 31, 1996, since Hoover was the only distributor after that date.
[4]  Rockwood and Bayer entered into the first contract with a volume discount schedule in 1980. That same basic volume discount schedule was provided to Lansco and Hoover in 1981, although Lansco and Hoover purchased at far lower volumes than Rockwood.

Rockwood and Bayer renegotiated their contact in 1985. This volume discount schedule was provided to Lansco and Hoover in 1987. Again, however, Lansco and Hoover purchased less Bayferrox than Rockwood.
Rockwood and Bayer renegotiated their contract again in 1990 and 1994, and both times the price per pound increased. This same basic volume discount schedule also was provided to Lansco in 1994. Hoover never purchased under the terms of the latest discount schedule. Even though Rockwood's and Lansco's price per pound increased in 1994, their higher volume allowed them to continue to purchase Bayferrox at a lower price than Hoover.
[5]  The price per pound was the published list price for the Bayferrox, minus a standard discount provided to all distributors, minus the estimated volume discount to be earned by each distributor.
[6]  The figures in this example are based upon the discount schedule included in the 1987 Bayer-Hoover Agreement.
[7]  I do not decide, therefore, whether or not Hoover has put forward evidence of possible competitive injury under § 2(a) or actual antitrust injury under § 4, or whether Rockwood's and Lansco's prices were functionally available to Hoover.
[8]  In passing the Robinson-Patman Act, Congress intended to limit quantity price differentials, otherwise permissible under the Clayton Act, "to the sphere of actual cost differences. Otherwise, ... such differentials would become instruments of favor and privilege and weapons of competitive oppression." FTC v. Morton Salt Co., 334 U.S. 37, 43-44, 68 S.Ct. 822, 92 L.Ed. 1196 (1948) (quoting H.R.Rep. No. 74-2287 at 9 (1936)). This limitation on price differentials was intended to protect small purchasers from the dominant market position and purchasing power of large purchasers. Id. at 49, 68 S.Ct. 822 ("[I]n enacting the Robinson-Patman Act, Congress was especially concerned with protecting small businesses which were unable to buy in quantities."); see also Great Atlantic & Pacific Tea Co., Inc. v. FTC, 440 U.S. 69, 75-76, 99 S.Ct. 925, 59 L.Ed.2d 153 (1979) ("The Robinson-Patman Act was passed in response to the problem perceived in the increased market power and coercive practices of chainstores and other big buyers that threatened the existence of small independent retailers.")

In addition to tightening restrictions on price discriminations, however, Congress also included the meeting competition exception, which seems to swallow the rule to a great extent. The meeting competition defense permits exactly what § 2(a) was amended to prohibit: large purchasers using their greater purchasing power to force sellers to sell their goods to the large purchasers at prices lower than the sellers sell to small purchasers. It seems to me, that in a case such as the one at bar, where the seller can document competition in the market and the threat of reduced sales as a result of that competition, Congress' goals in passing Robinson-Patman are effectively circumvented and the seller necessarily can not be held liable for price discrimination. See generally Great A & P Tea Co., 440 U.S. at 82-85, 99 S.Ct. 925.
[9]  It is clear that the meeting competition defense only entails an analysis of the relevant market and the conduct of the favored purchasers, the seller, and the seller's competitor. These are analyzed to determine whether a reasonable and prudent seller would have believed that the lower price was necessary to meet competition. The defense does not entail an analysis of any alleged harm suffered by the disfavored purchaser or the seller's treatment of the disfavored purchaser.
[10]  In this price discrimination action, I am concerned only with the years 1992 through 1996. Nonetheless, the relationship between the principals and the development of the industry throughout the 1980's and 1990's is relevant to my resolution of this issue. See Gypsum, 438 U.S. at 455, 98 S.Ct. 2864 (reasonableness of threat given the condition of the market and history between seller and favored purchaser are relevant to determination of good faith); Great A & P Tea Co., 440 U.S. at 84, 99 S.Ct. 925 (an established business relationship is relevant to determination of good faith).
[11]  Rockwood purchased around 19 million pounds of Bayferrox in 1980, Defendant's Exhibit C-3, and in 1980 Bayer was made aware that Rockwood purchased "something like ten million pounds from other sources." Stroucken Dep. at 144.
[12]  Hoover bought less Bayferrox than Rockwood and Lansco, so it paid more per pound under the discount schedule.
[13]  See Bayer Exhibit, Vol. II, C-6, at BC 002558 ("Coating is no longer the critical factor to the rise or fall of global iron oxide pigment market, the critical factor is now the construction industry. Since 1980, global construction industry (especially western Europe and north America) is in the ascendant, which caused the global iron oxide pigment market blooming.").
[14]  The 1985 contract had a five-year life, but, it could be continued indefinitely. Because "the market dynamics were changing," the 1985 five-year contract was not continued. McMahon Dep. at 92-94; see also Stroucken Dep. at 110.
[15]  Hoover contends that Bayer could not have been "meeting competition" in the 1990's if it refused to meet this Chinese offer. I disagree. The meeting competition defense does not require a seller to meet all competition. The defense protects a seller from being forced to choose between a decision to not meet a lower price or a decision to provide all purchasers the same lower price, either of which could be ruinous. See Falls City, 460 U.S. at 444-45, 103 S.Ct. 1282. It is illogical then to hold a seller to a requirement that, in order to take advantage of the meeting competition defense, he meet all lower prices, when such a price itself could be ruinous.
[16]  It is unclear whether Bayer ever met this offer, or whether Rockwood ended up purchasing from the supplier.
[17]  It is unclear whether the letter refers to a lower cost European substitute, see Bayer Exhibit, Vol. I, B-15, at BC 001943, or a lower cost Chinese substitute, see Rapaport Dep. at 80-86.
[18]  In 1992, Rockwood's business was 60% to 66% in the construction business. Rapaport
[19]  For a further discussion on the increase of foreign iron oxides in the 1990's, see generally Bayer Exhibit, Vol. II, C-6, at BC 002538-BC 002542; Paris Affidavit at ¶¶ 10-12; McCormack Dep., Vol. II, at 40, 107; Rapaport Dep. at 80-86, 140, 142-43; Bayer Exhibit, Vol. I, B-5, at BC 002490 (Rockwood has "monitored the U.S. efforts of foreign Iron Oxide manufacturers and agents and have seen their presence increase.").

Bayer felt the effects of the increased availability of imported synthetic iron oxides in a decline in purchases by Rockwood. From 1991 through 1995, Rockwood dramatically increased its purchases of imported synthetic iron oxides, see Bayer Exhibits, Vol. II, C-13, at BC 003559; Paris Affidavit at ¶ 4, while its purchases of Bayferrox declined, see Rapaport Dep. at 23 (Between 1992 and 1996, Rockwood "decreased [its] dependence and consumption on the Bayferrox and increased [its] utilization of other pigments."), 30 (Rockwood's purchases of Bayferrox remained "significant, but declin[ed] each year" after 1992), 44 (purchases of Bayferrox "declined during the period 1992 to 1996 as we made ourselves available to other sources of material"). In the same period, Lansco's purchases of imported synthetic iron oxides increased by 400%. The impact was not limited to Rockwood and Lansco. Imports rose from 10% of the total market for synthetic iron oxides in 1991 (17.8 million pounds) to 22% in 1994 (49.3 million pounds). See Bayer Exhibit, Vol. II, C-13, at BC 003559.
[20]  Bayer eventually canceled its contracts with Rockwood (effective January 1, 1997) and Hoover (effective January 1, 1998), and acquired Lansco (October of 1996).
[21]  Bayer was aware of other available sources of synthetic iron oxides by way of direct communication from Rockwood and Lansco, past dealings with Rockwood and Lansco, and by inference from its knowledge of the synthetic iron oxides market.
[22]  The competitive necessity was created by the need to maximize productivity at the West Virginia facility.