Articles Posted in U.S. Court of Appeals for the Tenth Circuit

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Plaintiff-Appellant Suture Express, Inc. appeals from the district court’s entry of summary judgment in favor of Cardinal Health 200, LLC (“Cardinal”) and Owens & Minor Distribution, Inc. (“O&M”) under Section 1 of the Sherman Antitrust Act, Section 3 of the Clayton Act, and the Kansas Restraint of Trade Act (“KRTA”). Suture Express, Cardinal, and O&M compete in the national broadline medical-and-surgical (“med-surg”) supply and distribution market. After Suture Express entered the "suture-endo" market and steadily grew its market share, Cardinal and O&M responded by instituting bundling packages in their contracts. Suture Express sued Cardinal and O&M, alleging that their bundling arrangements constituted an illegal tying practice in violation of federal and state antitrust laws. The court held that Suture Express’s federal claims failed as a matter of law because it could not establish that either Cardinal or O&M individually possessed sufficient market power in the other-med-surg market that would permit it to restrain trade in the suture-endo market. Even were this not the case, however, the court also held that: (1) Suture Express could not establish antitrust injury because it had not shown that competition itself had been harmed; and (2) Cardinal and O&M cited sufficient procompetitive justifications for the bundling arrangement to overcome any harm caused by any anticompetitive effects resulting from the bundle. Viewing the evidence in the light most favorable to Suture Express, the Tenth Circuit did not think the company could survive summary judgment under Section 1 of the Sherman Act, Section 3 of the Clayton Act, or the Kansas Restraint of Trade Act. "There simply is not enough probative evidence by which a reasonable jury could find that Cardinal’s and O&M’s bundling arrangement unreasonably restrained trade in violation of federal or state antitrust law." View "Suture Express v. Owens & Minor" on Justia Law

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In 2010, Lenox MacLaren Surgical Corporation (“Lenox”) sued several related corporations, Medtronic, Inc.; Medtronic PS Medical, Inc. (“PS Medical”); Medtronic Sofamor Danek, Inc. (“MSD, Inc.”); and Medtronic Sofamor Danek Co. Ltd. (“MSD Japan”) (collectively, “Defendants”), for monopolization and attempted monopolization in violation of section 2 of the Sherman Act. Lenox alleged that Defendants engaged in illegal activity to advance a coordinated, anticompetitive scheme in which a related non-party, Medtronic Sofamor Danek USA, Inc. (“MSD USA”), also participated. Lenox sued MSD USA in 2007 on claims arising from the same set of facts. In this case, Lexon challenged the district court’s disposition of Defendants’ second motion for summary judgment, which claimed that Lenox could not prove the elements of its antitrust claims against any of the named Defendants individually, and that Defendants cannot be charged collectively with the conduct of MSD USA or of each other. They also argued that the doctrine of claim preclusion barred Lenox’s claims, in light of the prior proceeding against MSD USA. The district court granted summary judgment, holding that because Lenox could not establish each of the elements of an antitrust claim against any one defendant, or establish a conspiracy among them, Lenox’s claims failed as a matter of law. Lenox appealed. But finding no reversible error, the Tenth Circuit affirmed. View "Lenox MacLaren Surgical Corp. v. Medtronic" on Justia Law

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Buccaneer Energy (USA) Inc. sued SG Interests I, Ltd., SG Interests VII, Ltd. (together, “SG”), and Gunnison Energy Corporation (“GEC”) (collectively, “Defendants”) after unsuccessfully seeking an agreement to transport natural gas on Defendants’ jointly owned pipeline system at a price Buccaneer considered reasonable. Specifically, Buccaneer alleged that by refusing to provide reasonable access to the system, Defendants had conspired in restraint of trade and conspired to monopolize in violation of sections 1 and 2 of the Sherman Act, respectively. The district court granted summary judgment to Defendants, concluding that Buccaneer could not establish either of its antitrust claims and that, in any event, Buccaneer lacked antitrust standing. The Tenth Circuit agreed that Buccaneer failed to present sufficient evidence to create a genuine issue of fact on one or more elements of each of its claims, and therefore affirmed on that dispositive basis alone. View "Buccaneer Energy v. Gunnison Energy" on Justia Law

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This case involved a dispute between two competing prefabricated steel building companies in Colorado. Defendants-Appellants Atlantic Building Systems, LLC d/b/a Armstrong Steel Corporation and its CEO, Ethan Chumley (collectively, “Armstrong Steel”), appealed the district court’s denial of immunity under the Communications Decency Act (“CDA”). The underlying dispute involved Armstrong Steel’s negative online advertising campaign against General Steel. When internet users searched for “General Steel,” negative advertisements from Armstrong Steel would appear on the results page. Clicking on the advertisements would direct users to Armstrong Steel’s web page entitled, “Industry Related Legal Matters” (“IRLM Page”). General Steel brought four claims: (1) unfair competition and unfair trade practices under the Lanham Act, (2) libel and libel per se, (3) intentional interference with prospective business advantage, and (4) civil conspiracy. Armstrong Steel sought summary judgment, claiming immunity from suit and liability under Section 230 of the CDA. The district court found that Armstrong Steel was entitled to immunity for three posts because those posts simply contained links to content created by third parties. The court refused, however, to extend CDA immunity to the remaining seventeen posts and the internet search ads. The court found that the “defendants created and developed the content of those ads,” and were therefore not entitled to immunity. After review, the Tenth Circuit dismissed this appeal for lack of jurisdiction, concluding that the CDA provided immunity from liability, not suit, and the district court’s order did not qualify under the collateral order doctrine. View "General Steel Domestic Sales v. Chumley" on Justia Law

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This case centered on a dispute between SOLIDFX, LLC, a software development company, and Jeppesen Sanderson, Inc., a subsidiary of Boeing that developed aviation terminal charts. SOLIDFX sued Jeppesen, asserting antitrust, breach-of-contract, and tort claims. The district court granted partial summary judgment on the antitrust claims, but the remaining claims proceeded to trial. A jury ultimately found in favor of SOLIDFX and awarded damages in excess of $43 million. Jeppesen appealed, challenging only the district court’s ruling that SOLIDFX could recover lost profits on its contract claims. SOLIDFX cross-appealed the district court’s summary judgment order in favor of Jeppesen on the antitrust claims. After review, the Tenth Circuit concluded the License Agreement at issue here unambiguously precluded the recovery of lost profits, irrespective of whether they were direct or consequential damages. But the Court also determined that, even if the agreement could be read to allow the recovery of direct lost profits, the lost profits awarded by the jury here were consequential damages and therefore not recoverable. Because the Court held that SOLIDFX was contractually precluded from recovering the amounts awarded for lost profits, it did not reach the question of whether SOLIDFX proved those lost profits with reasonable certainty, nor did it address the admissibility of expert testimony offered by SOLIDFX to establish the amount of its lost profits. Finally, the Court agreed with the district court that Jeppesen was entitled to summary judgment on SOLIDFX’s antitrust claims. View "Solidfx v. Jeppesen Sanderson" on Justia Law

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Plaintiff Forney Industries, Inc.'s product packaging has, since at least 1989, used some combination of red, yellow, black, and white coloration. The issue in this case was whether Forney's use of colors in its metalworking product line was a protected mark under the Lanham Act. Forney alleged that Defendant Daco of Missouri, Inc., which did business as KDAR Co. (KDAR), infringed on its protected mark by packaging KDAR’s “Hot Max” products with similar colors and a flame motif. The district court granted summary judgment to KDAR and the Tenth Circuit affirmed. Forney’s use of color, which was not associated with any particular shape, pattern, or design, was not adequately defined to be inherently distinctive, and Forney failed to produce sufficient evidence that its use of color in its line of products had acquired secondary meaning. View "Forney Industries v. Daco of Missouri" on Justia Law

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Plaintiffs Andrew Alwert and Stanley Feldman brought putative class actions against Cox Communications, Inc. (Cox) claiming that Cox violated antitrust law by tying its premium cable service to rental of a set-top box. The district court granted Cox’s motions to compel arbitration, then certified the orders compelling arbitration for interlocutory appeal. The Tenth Circuit granted Plaintiffs permission to appeal. They argued that the arbitration order was improper because: (1) the dispute was not within the scope of the arbitration agreement; (2) Cox waived its right to invoke arbitration; and (3) Cox’s promise to arbitrate was illusory, so the arbitration agreement was unenforceable. Finding no reversible error, the Tenth Circuit affirmed, holding that the arbitration clause in Plaintiffs’ subscriber agreements with Cox covered the underlying litigation and that Cox did not waive its right to arbitration. The Court did not resolve Plaintiffs’ argument that Cox’s promises were illusory because the argument amounted to a challenge to the contract as a whole, which was a question to be decided in arbitration. View "Alwert v. Cox Enterprises" on Justia Law