Zimmer, Citron & Clarke Represents Surgical Instrument Service in Ninth Circuit Antitrust Appeal

Law360 covered Zimmer, Citron & Clarke LLP’s representation of Surgical Instrument Service Co. in a Ninth Circuit antitrust appeal involving Intuitive Surgical, maker of the da Vinci robotic surgery system.

Surgical Instrument Service (SIS) alleged that Intuitive unlawfully restricted competition in the aftermarket for EndoWrist surgical instruments, which attach to the da Vinci, by preventing hospitals from using EndoWrists refurbished by third parties. Trial was almost concluded in the $140 million case when the district court adopted a jury instruction requiring SIS to establish factors drawn from Eastman Kodak Co. v. Image Technical Services Inc., where the Supreme Court addressed antitrust violations in aftermarkets.  SIS stipulated to the entry of judgment as a matter of law in order to challenge the jury instruction, and the case ended before the jury could consider SIS’s claims.

At oral argument before the Ninth Circuit, Zimmer, Citron & Clarke attorney Eric Citron argued on behalf of SIS, challenging the district court’s application of Kodak.  Mr. Citron argued that the so-called Kodak “lock-in” factors have no part to play where the defendant has market power in a competitive foremarket.  He also maintained that questions concerning the relevant market and Intuitive’s market power, which Intuitive presented as alternate grounds for affirmance of the judgment in its favor, should be resolved by a jury.

The Federal Trade Commission supported Surgical Instrument Service’s legal position through an amicus brief and participated in oral argument, telling the Ninth Circuit that the appeal raises an important antitrust question with implications beyond the dispute itself.  Other amici included a group of leading antitrust scholars, among them one of the authors of the preeminent antitrust treatise.

Law360’s coverage highlighted both Mr. Citron’s argument before the Ninth Circuit and Zimmer, Citron & Clarke’s central role in pursuing the appeal.