Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

Articles Posted in Antitrust & Trade Regulation

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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

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This antitrust class action stemmed from an allegation that Dow Chemical Company conspired with its competitors to fix prices for polyurethane chemical products. Over Dow’s objection, the district court certified a plaintiff class including all industrial purchasers of polyurethane products during the alleged conspiracy period. The action went to trial, and the jury returned a verdict against Dow. The district court entered judgment for the plaintiffs, denying Dow’s motions for decertification of the class and judgment as a matter of law. Dow raised four issues on appeal, all of which the Tenth Circuit rejected. Accordingly, the Court affirmed the district court. View "In re: Urethane AntiTrust Litigation" on Justia Law

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Lenox MacLaren Surgical began to sell some of its bone mills (a device it manufactured for use in spinal surgery) through a Medtronic entity, Medtronic Sofamor Danek USA. The arrangement ended badly: Medtronic Sofamor Danek USA initiated a recall of Lenox's bone mills, and another Medtronic entity began to manufacture and sell its own bone mill. The result, according to Lenox, was that four Medtronic entities acquired an unfair competitive advantage; thus, Lenox sued these entities for monopolization and attempted monopolization from 2007 to 2010. The district court granted the defendants' motion for summary judgment on both claims, and Lenox appealed. Upon review of the claims and the district court record, the Tenth Circuit concluded that genuine issues of material fact existed regarding market definition, monopoly power, exclusionary conduct, and harm to competition. Thus, the Court reversed the district court's grant of summary judgment to Medtronic on the claims involving monopolization and attempted monopolization, and remanded the case for further proceedings. View "Lenox MacLaren Surgical v. Medtronic, et al" on Justia Law

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Novell, Inc. filed suit against Microsoft Corporation, alleging anti-trust violations. The matter went to trial in 2011, ending in deadlock. The district court concluded Microsoft's conduct did not offend section 2 of the Sherman Act, and entered judgment as a matter of law. Novell appealed to the Tenth Circuit, arguing that Microsoft refused to share its intellectual property with rivals after first promising to do so. The Tenth Circuit concluded after its review that Novell presented no evidence from which a reasonable jury could infer that Microsoft's discontinuation of this arrangement suggested a "willingness to sacrifice short-term profits, […] in a manner that was irrational but for its tendency to harm competition." View "Novell, Inc. v. Microsoft Corporation" on Justia Law

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The City of Newkirk and Kay Electric Cooperative both provide electricity to Oklahoma consumers. "When a city acts as a market participant it generally has to play by the same rules as everyone else. It can't abuse its monopoly power or conspire to suppress competition. Except sometimes it can. If the city can show that its parent state authorized it to upend normal competition [. . . ] the city enjoys immunity from federal antitrust liability. The problem for the City of Newkirk in this case is that the state has done no such thing." Kay sued Newkirk alleging that the City engaged in unlawful tying and attempted monopolization in violation of the Sherman Act, 15 U.S.C. 1,2. The district court refused to allow the case to proceed, granting Newkirk's motion to dismiss after it found the City "immune" from liability as a matter of law. Upon review, the Tenth Circuit found that the state did not authorize Newkirk to enter the local electricity market as it did in this case. The Court reversed the district court and remanded the case for further proceedings.