Here comes the minutes from an in-chambers meeting with Judge V. Selna and the lawyers at large in the case.
Case No. SACV 08-00529-JVS (MLGx) Date March 3, 2010
Order Granting in Part and Denying in Part Defendant Speedo USA’s Motion for Summary Judgment , or in the alternative, for Summary Adjudication of Claims (Fld 12-29-10) and Defendant United States Swimming and Mark Schubert’s Motion for Summary Judgment (Fld 1-20-10)
[Pages and pages omitted for brevity]
For the foregoing reasons, the motions for summary judgment are GRANTED in part and DENIED in part. Speedo is entitled to summary judgment with respect to TYR’s Fourth and Sixth Claims, and USA Swimming and Schubert are entitled to summary judgment on TYR’s Sixth Claim. Speedo, USA Swimming, and Schubert are entitled to summary adjudication on the remaining claims to the extent they rely on a coercion theory of antitrust liability.
As noted above, the Court concludes that the Defendants failed to carry their initial Celotex burden with respect to TYR’s theory of antitrust liability for disparagement. However, the case law imposes a high burden before speech in the marketplace becomes actionable antitrust conduct. Such statements “must have a significant and enduring adverse impact on competition itself in the relevant markets to rise to the level of an antitrust violation.” Harcourt Brace, 108 F.3d at 1052. In fact, the Ninth Circuit “insist[s] on a preliminary showing of significant and more-than-temporary harmful effects on competition (and not merely upon a competitor or customer).” Id. at 1151 (internal quotation marks omitted).
The Court believes that the issue of the requisite preliminary showing should be tested before the matter proceeds to trial. To that end, the Court is willing to entertain a further summary judgment motion, even if that requires a slightly collapsed motions schedule24 or a brief delay in the trial. The Court schedules a telephonic status conference for March 8, 2010 at 11:00 a.m. to discuss the issue.
A link to come later!