Perry Narancic scored a big win in the US District Court for Northern California, in a case of first impression, where the court agreed that a competitor that distributes its products for “free” (but charges inflated shipping and handling fees), is subject to the California below-cost pricing laws under Cal. Bus. & Prof. Code Section 17043. This was a case of first impression where the Court considered for the first time whether the cost of shipping a product should include the cost of shipping the product. The court found that an advertising that claimed to sell products for “free” was, on its faces, a sale below-cost – and that the cost of shipping should not be included in calculating “cost”. Bebe au Lait, LLC v. Mothers
Lounge, LLC, Case No. 13-3035 (N.D. Cal. Filed July 2, 2013).

On April 23, 2013, Perry Narancic, founder of litigation boutique LexAnalytica, PC, secured a multi-million dollar win for his clients in the California Court of Appeal, in Moore v. Bebe au Lait, LLC, Case No. H037266 (6 th Dist. ) The controversy involved an alleged oral promise of shares to a lender. Acting for defendants, Perry obtained summary judgment in the trial court on almost all the claims, and that order was fully affirmed by the Court of Appeal. The appeals courts also upheld a trial court ruling that plaintiff, a successful lawyer, charged a usurious rate of interest, in violation of the California Constitution.

Perry Narancic scored a big antitrust win on behalf of his client, National Association of Investors Corp, in a Colorado action captioned Bivio v. ICLUBcentral, Inc., Case No. 11CV978 (Boulder Count. Dist.). That case arose out of a dispute around settlement terms from prior federal litigation between NAIC and Bivio. Perry successfully represented NAIC in that federal litigation, where Bivio agreed to pay NAIC substantial sums.

As part of the short form memorandum of settlement, the parties agreed to a non-disparagement clause, and to conclude a long-form agreement detailing the basic terms of settlement. However, Bivio took the position that the non-disparagement clause needed to be an absolute prohibition of any negative statements between Bivio and ICLUB (a Bivio competitor, and an NAIC subsidiary), even though Bivio and ICLUB controlled substantially all of the relevant market.

Bivio’s rushed to state court to seek a declaration that its position was right, but the State Court agreed with NAIC that any non-disparagement clause had an implied antitrust carve-out for truthful statements. In the absence of such a carve-out, Bivio would have successfully stifled advertising and other truthful statements in the relevant market. You can read the court’s ruling here.