| Antitrust Report |
August 28, 2017 |
| Competitor's Acquisition of Golf Ball Tracking Technology Not Ripe For Antitrust Review Absent Showing of Lessened Competition |
| The court granted defendant's motion to dismiss plaintiff's Sherman Act claims because plaintiff failed to sufficiently allege antitrust standing. "[Plaintiff] argues that [defendant's] acquisition of [a third party] means that[defendant]
controls the very technology that [plaintiff] built its business model upon, and thereby 'den[ies] [plaintiff] access to long-term, continued licensing of [that] technology and purchasing of . . . equipment.' . . . [Plaintiff] failed
to plead that [defendant's] actions harmed competition overall, and not just [plaintiff's] competitive advantage. . . . The court finds that [plaintiff] failed to plead that [defendant's] acquisition of [the third party] would substantially
lessen competition or tend to create a monopoly in the market overall. . . . At this time, the court finds that [plaintiff] has not presented any plausible factual allegations that [defendant] is foreclosing competition through its
acquisition of [the third party]." |
| Sureshot Golf Ventures, Inc. v. Topgolf International, Inc., 4-17-cv-00127 (TXSD 2017-08-24, Order) (Gray H. Miller) |
| Read Order ➞
Docket Sheet ➞
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| United States District Courts - New Cases (12) |
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| 2-17-cv-06302 (CACD) |
August 25, 2017 |
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| Claim |
| Complaint - Sherman § 1 Contract, Combination, Conspiracy |
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| Defendant |
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| Plaintiff |
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| 2-17-cv-06415 (NJD) |
August 24, 2017 |
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| Judge |
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| Claim |
| Complaint - Sherman § 2 Attempt |
| Complaint - Sherman § 2 Monopolization |
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| Defendant |
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| Plaintiff |
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| 2-17-cv-06417 (NJD) |
August 25, 2017 |
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| Judge |
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| Claim |
| Complaint - Sherman § 1 Contract, Combination, Conspiracy |
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| Defendant |
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| Plaintiff |
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| 1-17-cv-06497 (NYSD) |
August 25, 2017 |
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| Claim |
| Complaint - Sherman § 1 Contract, Combination, Conspiracy |
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| Defendant |
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| Plaintiff |
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| United States District Courts - Cases with New Claims (1) |
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| 2-16-md-02687 (NJD) |
August 24, 2017 |
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| Claim |
| Complaint - Clayton § 16 Injunction |
| Complaint - Sherman § 1 Contract, Combination, Conspiracy |
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| United States District Courts - Significant Decisions (10) |
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| 5-17-cv-00220 (CAND) |
August 24, 2017 |
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| Motion to Compel Discovery |
Granted |
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Objection: Response Barred by Foreign Law |
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The court granted defendant's motion to compel discovery of documents produced to plaintiff the FTC and to foreign governmental bodies by third parties because comity concerns did not forbid such disclosure. "The disputed
documents are in the United States. As a result, the Court agrees with [defendant], and is skeptical that the test in Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for the S. Dist. of Iowa, 482
U.S. 522 (1987) even applies here. However, even if the Court were to examine this request through that test, the Court would still find that [defendant] is entitled to discovery of the dual submissions documents. Neither the
FTC nor the foreign entities have provided the Court with any foreign laws or privileges that would be violated by the production of those documents . . . to [defendant]. The European Commission and the Korea Fair Trade Commission
have simply expressed their concern with disclosure because of the effect the disclosure may have in their investigatory and enforcement efforts. In response to the Court’s request for further information, the European Commission’s
Director General of Competition filed a letter with the Court in support of not producing the dual submissions documents to [defendant]. The Court carefully reviewed the letter, and while it finds the Director General’s concerns
valid, those concerns are not backed up by a persuasive legal argument." (page 2) |
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Objection: Confidential |
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Informant Privilege |
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The court granted defendant's motion to compel discovery of documents turned over to plaintiff FTC because defendant's ability to defend itself and lack of prejudice to the source meant the informant's privilege carried diminished
weight here. "[T]he informant’s privilege is a qualified privilege. The Court must balance the public interest to protect information with the defendant’s right to defend itself. . . . [T]he Court finds compelling [defendant's]
necessity to defend itself, not only in this case, but in the many other related cases that have been filed against it nationwide. In addition, this case has already demonstrated that it will require a very high volume of discovery,
and the close of fact discovery in this case is [approximately 7 months away], making this request time-sensitive. Not granting this discovery now, as opposed to waiting until right before trial would be a waste of the parties
and the Court’s time and resources, as the information obtained may very likely be used in followup discovery." (page 4) |
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| 6-13-cv-01509 (FLMD) |
August 24, 2017 |
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| Motion for Sanctions (FRCP 11) |
Denied |
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Sanctions -- FRCP 11 |
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Objectively Baseless Pleading |
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The court denied plaintiffs' motion for Rule 11 sanctions when defendant moved the court to keep certain funds in escrow pending outcome of a related qui tam action in alleged contravention of a prior agreement because defendant's
action was not objectively frivolous. "The Undersigned is painfully familiar with settlement discussions surrounding both this action and the Qui Tam Action. Having reviewed the e-mail communications concerning settlement
between the Health First Defendants and the relator in the Qui Tam Action, as well as the declaration submitted by the . . . Defendants in response to the Second Motion for Sanctions . . . the Court does not agree that
the . . . Defendants’ belief that the settlement of both actions was co-dependent is objectively frivolous. In any event, notwithstanding the grounds raised in the Emergency Motion, the Undersigned later found that holding the
settlement proceeds in escrow was the most prudent course of action." (page 10) |
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| 2-06-cv-01797 (PAED) |
August 24, 2017 |
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| Motion in Limine -- Expert Testimony (Daubert) |
Denied In Part, Granted in Part |
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Expert Opinion on Ultimate Issue of Law |
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Numerosity (FRCP 23(a)) |
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The court partially denied defendants' Daubert motion to strike plaintiffs' expert's opinions on the numerosity of a proposed class because the expert asserted impermissible legal conclusions. "[The expert] begins his
report by explaining that he was retained to offer an opinion on 'whether joinder is (or would have been) impracticable under the circumstances of this case, using the definition of impracticability set forth in the Third Circuit’s
decision in this matter.' He then summarizes his conclusion, stating that 'it is his expert opinion that the class in this case meets the requirements of Rule 23(a)(1).' . . . [The expert's] statement that joinder is impracticable
in this case clearly constitutes a legal conclusion. While the concerns regarding jury confusion are not present here, [the expert's] legal conclusions usurp my duty to fulfill the mandate the Third Circuit has tasked me with
completing, would not assist me in making the ultimate determination regarding numerosity and, therefore, will be excluded." (page 5) |
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| 4-17-cv-00127 (TXSD) |
August 24, 2017 |
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| Motion to Dismiss -- Lack of Standing |
Granted |
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Sufficiency Of Pleadings |
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Article III Standing |
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The court granted defendant's motion to dismiss plaintiff's Sherman Act claims because plaintiff's claims were premature and therefore plaintiff lacked Article III standing to sue. "[Defendant] argues that it simply possesses
an option not to renew [plaintiff's] license of the [business critical technology] at the end of the five-year contract, and that [plaintiff] is prematurely suing under the fear that [defendant] will decline to renew or extend
the existing contract 'when and if it occurs' in the future. The court agrees with [defendant] that [plaintiff] has failed to plead that [defendant] has denied it access to the [technology] . . . . At this point, the court finds
that [plaintiff's] perceived threats of monopolistic behavior are speculative and do not confer standing." (page 7) |
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Injury to Competition |
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Sufficiency Of Pleadings |
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The court granted defendant's motion to dismiss plaintiff's Sherman Act claims because plaintiff failed to sufficiently allege antitrust standing. "[Plaintiff] argues that [defendant's] acquisition of [a third party] means
that [defendant] controls the very technology that [plaintiff] built its business model upon, and thereby 'den[ies] [plaintiff] access to long-term, continued licensing of [that] technology and purchasing of . . . equipment.'
. . . [Plaintiff] failed to plead that [defendant's] actions harmed competition overall, and not just [plaintiff's] competitive advantage. . . . The court finds that [plaintiff] failed to plead that [defendant's] acquisition
of [the third party] would substantially lessen competition or tend to create a monopoly in the market overall. . . . At this time, the court finds that [plaintiff] has not presented any plausible factual allegations that [defendant]
is foreclosing competition through its acquisition of [the third party]." (page 8) |
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