Antitrust Law Daily Wrap Up, ANTITRUST—C.D. Ill.: Affirmative defenses dwindle in prescription eyeglass monopolization case, (Nov 17, 2014)

By Greg Hammond, J.D.

The federal district court in Springfield, Illinois, has struck seven of 15 affirmative defenses raised by vision benefits provider, Davis Vision, Inc., in an action brought by eyeglass manufacturer Acuity Optical Laboratories, Inc. (Acuity Optical Laboratories, Inc. v. Davis Vision, Inc., November 13, 2014, Myerscough, S.).

As the administrator of various vision benefit plans, Davis requires providers in its network to send any eyeglass manufacturing orders to an ophthalmic lens laboratory affiliated with Davis. Acuity filed a petition for injunctive relief, declaratory judgment, and damages against Davis, alleging that Davis’ requirement violated federal and state antitrust law. Specifically, Acuity argued that Davis engaged in illegal restraint of trade, illegal monopolization of trade, illegal tying agreements, and an agreed boycott. Davis raised 15 affirmative defenses, and Acuity moved to strike 12 of them.

The court partially granted Acuity’s motion to strike, discarding six of Davis’ affirmative defenses. In Affirmative Defense No. 1, Davis contended that the complaint failed to state a claim upon which relief could be granted. This affirmative defense was stricken for doing no more than reciting the legal standard.

Affirmative Defenses No. 2 and No. 4 refuted the plaintiff’s proposed markets. Davis asserted that Chicago was not a relevant geographic market and Davis Vision members were not a relevant market. These affirmative defenses were disposed of, as the court determined they were not—in fact—affirmative defenses. Lastly, Affirmative Defenses No. 7 (no proximate causation), No. 11 (conduct did not lessen competition), and No. 12 (no substantial likelihood of success) were dismissed as redundant, because they were already raised in Davis’ Answer.

Although Acuity did not move to strike Affirmative Defense No. 15, in which Davis attempted to reserve the right to bring additional affirmative defenses, the court struck it on its own volition. It reasoned that Davis could not reserve the right to amend its pleadings. Rather, only the court can grant leave to amend.

Affirmative Defenses No. 5, 8, 9, 10, 13, and 14 survived the motion to strike. The defenses claimed—in part—that Acuity lacked antitrust standing; the antitrust claims were barred for failure to mitigate damages allegedly suffered; and the claims were barred by the statute of limitations, laches, waiver, estoppel, unclean hands, course of dealing, and/or ratification.

The case number is 14-3231.

Attorneys: Nicholas Tyler Williams (HW Holdings LLC) for Acuity Optical Laboratories, LLC. Daniel I. Booker (Reed Smith LLP) for Davis Vision Inc.

Companies: Acuity Optical Laboratories, Inc.; Davis Vision, Inc.

Cases: Antitrust IllinoisNews