Update Sept. 2009: In Synergetics USA Inc. v. Alcon Laboratories Inc. et al., Southern District of New York Judge Denise Cote denied microsurgical device maker Synergetics USA Inc.’s bid to revive its theory of price coercion in an antitrust suit accusing Swiss rival Alcon Inc. of illegal product tying. Judge Cote ruled that Synergetics was not entitled to reconsideration of her order dismissing the coercion prong of its tying claim because it had not produced evidence of a pricing scheme that made the joint purchase of the products at issue the only economically viable option. The judge did however, allow Synergetics to proceed with its product tying case on a refusal-to-sell theory.
In Synergetics USA Inc. v. Alcon Laboratories Inc. and Alcon Inc., an antitrust suit brought by Synergetics USA against Alcon and its U.S. subsidiary, accusing them of engaging in anti-competitive conduct by using their monopoly power for vitrectomy machines to bias surgeons’ purchasing decisions toward its surgical equipment, survived a motion to dismiss. Southern District of New York Judge Denise Cote ruled that although Synergetics failed to adequately plead price coercion or predatory pricing, its allegations of illegal product tying against defendants on a refusal-to-sell theory were sufficient. In rejecting Alcon’s argument that Synergetics’ tying allegations concerned an insubstantial amount of commerce as they relate to just two health care institutions, Judge Cote held that 1) “the complaint need not specify a value of lost commerce and by alleging that Alcon has refused to sell cassettes without light pipes to two health care institutions, Synergetics has given fair notice of its claim and identified a plausible theory of impact on a substantial volume of commerce”; and 2) “Synergetics may be able to prove foreclosure of a substantial volume of commerce if in discovery it uncovers sufficient evidence of practice to refuse to sell cassettes unless customers purchased light pipes.”