The United States Court of Appeals for the Federal Circuit affirmed dismissal of plaintiff Power Analytics’ lawsuit, which alleged violations of Sherman Act Section 1 and Section 2 based on allegedly exclusive agreements between defendant ETAP (KBS’s client), and defendants OSI and Schneider, respectively. The case centered on software used to design and monitor electrical power grids, including software certified for use with nuclear power plants. Trevor V. Stockinger argued before the Federal Circuit. Power Analytics asserted on appeal that the District Court applied the wrong legal theory and erred in finding it failed to adequately allege cognizable Sherman Act claims.
ETAP responded that Power Analytics waived an argument under its new legal theory; substantively, it argued the District Court properly held, among other things, that the Complaint failed to adequately allege exclusive dealing arrangements and that, even had the allegations of agreement been sufficient, the agreements were part of the competitive process so that any harm to Power Analytics arose out of competition, not anticompetitive acts. The Federal Circuit agreed, finding waiver as to the Section 1 claim and affirming on the merits as to the Section 2 claim. KBS co-counselled this case with Klarquist Sparkman, LLP, who handled the parallel patent infringement claims. Dismissal of those claims was earlier affirmed by the Federal Circuit. The opinion can be found here.