Big Antitrust Win on Motion for Judgment

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.