In Ciba Vision Corp. v. De Spirito, Northern District of Georgia Judge J. Owen Forrester has dismissed an optometrist’s antitrust and other counterclaims in a trademark infringement suit brought by eye care company Ciba Vision Corp., holding that the defendant failed to sufficiently allege that Ciba engaged in any type of conspiracy in violation of the Sherman Act and that he did not allege any facts that Ciba had refused to deal for reasons other than its own legitimate business purposes. Judge Forrester also granted in part a motion to intervene filed by De Spirito’s company, Hoosier Eye Doctor Inc. as to the claims of trademark infringement, unfair competition, dilution and cybersquatting, while denying Hoosier the right to intervene in the now-dismissed counterclaims.

In In re: Webkinz Antitrust Litigation, Northern District of California Judge Jeffrey S. White dismissed four claims in antitrust multidistrict litigation alleging that Ganz Inc., the supplier of the popular Webkinz toys, required retailers to buy unrelated gift items in order to obtain the plush animals. While leaving the claims under Connecticut Unfair Trade Practices Act and Florida’s Deceptive and Unfair Trade Practices Act in tact, the court dismissed allegations that that Ganzi violated antitrust law and California Unfair Competition Law, among other claims, holding plaintiffs failed to state a claim, but gave plaintiffs a chance to amend their complaint. In dismissing the claims, the court held that “[p]laintiffs summarily assert that consumers have been harmed, but do not allege facts demonstrating that consumers have suffered any injury as a result of limited choices of the tied products in plaintiffs’ stores, … [and c]onclusory allegations of anti-competitive effect are insufficient without supporting facts as to how competition in the tied markets has actually been reduced or harmed.”

Microsoft Corp. and Yahoo Inc. have received the green light from U.S. and European antitrust officials to move forward with their search advertisement partnership, which is intended to take on search engine leader Google Inc., without imposing any restrictions. The 10-year partnership will allow Microsoft to power Yahoo’s search engine, while Yahoo will become the exclusive worldwide relationship sales force for both companies’ premium search advertisers. Microsoft will keep 12 percent of the search revenue generated on Yahoo’s and its partners’ Web sites during the first five years of the deal and will pay 88 percent to Yahoo as a traffic acquisition cost. The companies hope to transition U.S. advertisers and publishers before the holiday season, and all global customers and partners by early 2012.

In Hexcel Corp. v. Ineos Polymers Inc., Central District of California Judge Mariana Pfaelzer denied carbon fiber manufacturer Ineo Polymers Inc.’s motion to dismiss a price-fixing suit brought by rival Hexcel Corp., rejecting Ineos’ claims that Hexcel lacked standing to bring the suit and that Hexcel’s claims were time-barred. The court held that although the standing issue in this case is a novel issue for the court, no authority holds that a direct purchaser like Hexcel is not prohibited from recovering overcharges, even if it competed in the same price-fixed marked in which it bought. The court further held that Hexcel’s suit could not be dismissed based on Ineos’ assertions that its rival’s claims were barred by the statute of limitations because although the company filed suit a mere 10 days after the time limit would have worn out, the suit should not be dismissed at this stage.

In the District of Delaware, Maximo Corp.  filed a suit alleging that Philips has infringed patents on pulse oximeters — monitors that measure oxygen in the blood through sensors attached to the hands or feet.  Philips claims that Masimo, which currently controls about 80% of the market, has sought to monopolize the market by enforcing invalid patents and employing a proprietary system with no legitimate purpose.  Philips has also alleged that Masimo’s policy of providing free pulse oximeters to hospitals in exchange for contracts to purchase cables and senors only from Maximo constitutes illegal tying.

The Fifth Circuit has rejected a class challenge to AT&T exclusive dealing agreements with buildings to provide a so-called Triple Play of telephone, internet, and television services. The court rejected the claim on the ground that the plaintiffs allegation that a single apartment building could constitute a relevant geographic market was too narrow. Although plaintiffs living in the affected building had no choice of service, the court held that sufficient competition exists to prohibit a finding that a single building could be economically significant. Buildings compete for tenants and communications service providers compete to serve buildings. “[G]iven the highly mobile nature of today’s society,” the Court held, sufficient competition exists in a broader market to protect consumer interests.

In a multi-district consolidation, Judge Thrash, Northern District of Georgia, ruled that reverse payment settlements between Solvay Pharmaceuticals and generic drug makers involving the testosterone supplement AndroGel were legal. The Federal Trade Commission and private plaintiffs had alleged that the settlements were anticompetitive because they constituted payments in exchange for keeping generic competition off the market until 2015. The court held otherwise on the ground that because the settlement did not extend Solvay’s patent beyond its 2020 expiration, they could not be anticompetitive.

Despite the setback, the FTC has vowed to continue to challenge reverse payments.

The court did permit a sham litigation challenge to continue. That claim, by direct purchasers of the drug, argued that Solvay filed objectively baseless patent infringement suits to slow the entry of competitors. The plaintiffs argued that the litigation was objectively baseless because of a mistake in a Solvay patent, which Solvay admits. Whether the suits were in fact baseless remains to be determined.

The Department of Justice agreed not to challenge the Ticketmaster/Live Nation merger upon the condition that Ticketmaster would license ticketing software to AEG, enabling that company to offer a competitive ticketing alternative and provides the incentive for it to compete in promotion and venue management.  The merged entity is also required to divest the ticketing business Paciolan, Inc. to Comcast-Spectacor (or another company).  The agreement also prohibits the merged entity from retaliating against any venue that uses another company’s ticketing or promotion services, and it requires them to permit any customer that takes its ticketing business to a competitor to access its own ticketing data.  The merged entity must also set up a firewall, preventing it from using any information garnered in the ticketing business for its promotion business.  Assistant Attorney General for the Antitrust Division Christine Varney commented that Ticketmaster is required to divest more ticketing than it gained through he merger.