18‐3191‐cv
Charych, v. Siriusware. Inc.


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 4th day of November, two thousand nineteen.

PRESENT:            BARRINGTON D. PARKER,
                    DENNY CHIN,
                    JOSEPH F. BIANCO,
                                         Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

HAROLD CHARYCH, MOUNTAIN PASS
SYSTEMS, LLC,
                  Plaintiffs‐Appellants,

                                        v.                                           18‐3191‐cv

SIRIUSWARE, INC., UNITED STATES SUBSIDIARY
OF A UNITED KINGDOM ENTITY,
ACCESSO TECHNOLOGY GROUP, PLC, UNITED
KINGDOM PARENT ENTITY OF
SIRIUSWARE, INC., AXESS NORTH AMERICA,
LLC, UNITED STATES SUBSIDIARY OF AN
AUSTRIAN ENTITY, AXESS INTERNATIONAL, AG,
AUSTRIAN PARENT ENTITY OF AXESS
NORTH AMERICA, LLC, ACTIVE NETWORK, LLC,
FKA RESORT TECHNOLOGY
PARTNERS, LLC, VISTA EQUITY PARTNERS, LLC,
PARENT COMPANY OF ACTIVE
NETWORK, LLC, SKIDATA, INC., UNITED STATES
SUBSIDIARY OF AN AUSTRIAN ENTITY,
SKIDATA AG, AUSTRIAN PARENT ENTITY OF
SKIDATA, INC.,
                    Defendants‐Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFFS‐APPELLANTS:                                   ROBERT G. LEINO, New York, New York.

FOR DEFENDANT‐APPELLEES:                                     GASPARE J. BONO (John W. Lomas, Jr., on the
                                                             brief), Dentons US LLP, Washington, D.C., for
                                                             Defendants‐Appellees Siriusware, Inc. and Accesso
                                                             Technology Group, PLC.

                                                             MATTHEW SOLUM, P.C. (Alex Stone
                                                             Zukerman, on the brief), Kirkland & Ellis, LLP,
                                                             New York, New York, for Defendants‐Appellees
                                                             Active Network, LLC, formerly Resort Technology
                                                             Partners, LLC, and Vista Equity Partners, LLC.

                                                             DANIEL L. BROWN, Sheppard, Mullin,
                                                             Richter & Hampton LLP, New York, New
                                                             York, and Natalie C. Segall, Segall & Banko,
                                                             Park City, Utah, on the brief, for Defendants‐
                                                             Appellees Axess North America LLC and Axess
                                                             International, AG.

                                                             DOUGLAS F. BRODER (Thomas A. Warnes,
                                                             on the brief), K&L Gates LLP, New York, New
                                                             York, and Anthony P. Badaracco, Dorsey &
                                                             Whitney LLP, New York, New York, on the
                                                             brief, for Defendant‐Appellees Skidata AG and
                                                             Skidata, Inc.



                    Appeal from the United States District Court for the Eastern District of

New York (Seybert, J., and Brown, M.J.).




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                 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

                 Plaintiffs‐appellants Harold Charych and Mountain Pass Systems, LLC

(ʺplaintiffsʺ) appeal from a judgment of the district court, entered September 25, 2018,

dismissing their claims against defendants‐appellees Siriusware, Inc. (ʺSiriuiswareʺ),

Accesso Technology Group, PLC (ʺAccessoʺ), Axess North America, LLC (ʺAxessʺ),

Axess International, AG (ʺAxess AGʺ), Active Network, LLC, FKA Resort Technology

Partners, LLC (ʺActiveʺ), Vista Equity Partners, LLC (ʺVistaʺ), Skidata Inc. (ʺSkidataʺ),

and Skidata AG (ʺSkidata AGʺ). By order entered September 25, 2018, the district court

adopted a report and recommendation of the magistrate judge recommending dismissal

of the fourth amended complaint (the ʺComplaintʺ) pursuant to Federal Rules of Civil

Procedure 12(b)(2), (b)(5) and (b)(6). The magistrate judge concluded that plaintiffs

failed to serve process on three non‐U.S. defendants and failed to state a claim against

the remaining defendants. We assume the partiesʹ familiarity with the underlying facts,

procedural history, and issues on appeal. As we conclude that the district court did not

err in holding that the Complaint failed to state an antitrust claim, we do not decide the

service issue.

                 The facts alleged in the Complaint are assumed to be true. Many ski

resorts in the United States utilize Radio Frequency Identification (ʺRFIDʺ) technology

to ensure that access to their slopes is restricted to valid ticketholders. The RFID



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technology is embedded into the ski lift ticket and can be automatically detected and

scanned at the entry gate. This technology requires two components: management

software and an RFID gate scanning product. Siriusware, Accesso, Active and Vista1

supply management software to ski resorts, while Axess, Axess AG, Skidata, and

Skidata AG2 provide RFID gate scanning products. Siriusware and Active each

respectively control 40% of the ski resort management software market.

              Every ski resort that uses Skidataʹs gate products also uses Activeʹs

management software, and every ski resort that uses Axessʹs gate products uses

Siriuswareʹs management software. Skidata has a 25% ownership in Active.

              Plaintiffs developed a gate‐scanning product that was more accurate and

less expensive. Plaintiffsʹ product, however, was incompatible with Activeʹs and

Siriuswareʹs existing software. Plaintiffs sought to overcome this hurdle on two

occasions by asking potential ski resort customers to inquire with their respective

software management suppliers about the possibility of building a compatible interface.

On both occasions, the ski resorts stopped considering plaintiffsʹ product after being



1      Siriusware is the U.S.‐based subsidiary of Accesso, a corporation based in the
United Kingdom. These entities are referred to collectively as ʺSiriusware.ʺ Active,
formerly known as Resort Technology Partners LLC, is the subsidiary of Vista, a
corporation based in California. These entities are referred to collectively in this order
as ʺActive.ʺ

2       Axess is the U.S.‐based subsidiary of Axess, AG, an Austrian corporation. These
entities are referred to collectively as ʺAxess.ʺ Skidata AG, an Austrian corporation, and
its U.S.‐based subsidiary Skidata are referred to collectively as ʺSkidata.ʺ

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told by the software management company that developing such an interface would be

costly.

              The Complaint asserts two Sherman Act claims: (1) restraint of trade

against Siriusware, Accesso, Axess, Axess AG, Active, Vista, Skidata, and Skidata AG,

in violation of Section 1; and (2) agreement to monopolize against Siriusware, Accesso,

Axess, Axess AG, Active, Skidata, and Skidata AG, in violation of Section 2.3 The

district court concluded that the Complaint failed to state an antitrust claim because it

failed to allege either an unlawful agreement to restrain trade or a monopoly. This

appeal followed.

     I.    Standard of Review

              We review a district courtʹs grant of a motion to dismiss under Rule

12(b)(6) de novo. See Bldg. Indus. Elec. Contractors Assʹn v. City of New York, 678 F.3d 184,

187 (2d Cir. 2012). ʺTo survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.ʺ

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).




3      The Complaint also references the Federal Trade Commission Act (ʺFTCAʺ) and
the Clayton Act. The district court properly declined to address these claims. There is
no private right of action under the FTCA, see Naylor v. Case & McGrath, Inc. 585 F.2d
557, 561 (2d. Cir. 1978), and the Clayton Act provides a vehicle for private plaintiffs to
sue for violations of the antitrust laws, but is not itself relevant until a primary antitrust
violation ‐‐ here under the Sherman Act ‐‐ is shown. See Kruman v. Christieʹs Intʹl PLC,
284 F.3d 384, 397 (2d Cir. 2002), abrogated on other grounds by F. Hoffmann‐La Roche Ltd. v.
Empagran S.A., 542 U.S. 155 (2004).

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ʺ[W]e accept as true all factual allegations and draw from them all reasonable

inferences; but we are not required to credit conclusory allegations or legal conclusions

couched as factual . . . allegations.ʺ Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)

(internal quotation marks and citation omitted).

    II.    Sherman Act Violations

              A.      Applicable Law

              Section 1 of the Sherman Act prohibits ʺ[e]very contract, combination in

the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among

the several States.ʺ 15 U.S.C. § 1. ʺIn restraint of tradeʺ has been read by the Supreme

Court as limited to restraints that are ʺunreasonable.ʺ See, e.g., State Oil Co. v. Khan, 522

U.S. 3, 10 (1997). To violate Section 1, the unreasonable restraint must result from an

agreement between two or more entities. See Twombly, 550 U.S. at 553‐54; see also Mayor

& City Council of Balt. Md. v. Citigroup, Inc., 709 F.3d 129, 135 (2d. Cir. 2013). ʺThe crucial

question in a Section 1 case is therefore whether the challenged conduct stems from

independent decision or from an agreement, tacit or express.ʺ Mayor & City Council of

Balt., 709 F.3d at 135 (internal quotations and citation omitted).

              Section 2 of the Sherman Act makes it an offense to ʺmonopolize, or

attempt to monopolize, . . . any part of the trade or commerce among the several States.ʺ

15 U.S.C. § 2. ʺTo establish a violation of § 2, plaintiffs must prove that defendants

possessed monopoly power, and willfully acquired or maintained that power in the



                                               6
relevant market.ʺ Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.

2004).

              B.     Application

              The district court concluded that defendantsʹ purported conduct was not

anticompetitive because the Complaint merely alleged that defendants were ʺsimply

unwilling to bear the costs of developing an interface without reimbursement.ʺ J. Appʹx

at 208 (citing Compl. ¶¶ 100‐15). As the district court recognized, defendants were

under no obligation to develop an interface that was compatible with plaintiffsʹ

product. ʺ[T]he Sherman Act does not restrict the long recognized right of a trader or

manufacturer engaged in an entirely private business, freely to exercise his own

independent discretion as to parties with whom he will deal.ʺ Verizon Commcʹns Inc. v.

Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 408 (2004) (alteration, internal quotation

marks, and citation omitted). Although the Supreme Court has created a narrow

exception to this general rule, plaintiffsʹ allegations do not fall within it. See Aspen

Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 608 (1985) (identifying a narrow

exception to the right of refusal where the defendant ʺelected to forgo . . . short‐run

benefits because it was more interested in reducing competitionʺ). Unlike in Aspen

Skiing, there was no allegation here that defendants voluntarily withheld a service they

were already providing, or could easily have provided, absent substantial time and

cost.



                                              7
              The district court also did not err in concluding the Complaint failed to

allege a Section 1 violation because it failed to ʺexclude the possibility that the alleged

actions by [Siriusware] and Active represent independent . . . business actions,ʺ J. Appʹx

at 209, or lawful parallel conduct, see Twombly, 550 U.S. at 556‐57. Plaintiffs argue that

anticompetitive agreements were indeed pleaded in the Complaint, but the ʺimpliedʺ

vertical agreements plaintiffs alleged are insufficient. Absent evidence of an

anticompetitive intent or rationale, ʺrun‐of‐the‐the‐mill exclusive distributorship[s] . . .

are presumptively legal.ʺ Elecs. Commcʹns Corp. v. Toshiba Am. Consumer Prod., Inc., 129

F.3d 240, 245 (2d Cir. 1997).

              The nature of the product at issue here similarly supports the district

courtʹs conclusion that defendantsʹ agreements represent rational business decisions,

not anticompetitive conduct. As plaintiffsʹ own allegations demonstrate, not all gate

access products are inherently compatible with Active or Siriuswareʹs software. And

indeed, incompatibility can cause lift tickets not to print, leaving ski resorts unable to

use them. Siriuswareʹs and Activeʹs preference for working with vendors whose gate

products are compatible with their software, then, is easily explained by a desire to

provide a workable product and satisfy customers. Plaintiffsʹ allegations fail because

they do not ʺtend[ ] to exclude the possibility of independent action.ʺ Twombly, 550 U.S.

at 554.




                                              8
              Plaintiffs also argue on appeal that the district court improperly construed

a disputed fact, the actual cost of developing a software interface, in defendantsʹ favor.

While the Complaint conceded that developing the interface ʺwould not be cheap,ʺ J.

Appʹx at 33, it also characterized one of the defendantʹs price quotes for the interface as

ʺan outlandish amount for a very small effort,ʺ J. Appʹx at 31. Plaintiffs contend that

defendantsʹ price quotes for developing an interface should have been construed as a

refusal to deal.

              The district court did not err in giving little weight to the conclusory

statement in the Complaint that such an estimate was ʺoutlandish,ʺ in light of the other

allegations about the cost of developing a new interface. See In re Elevator Antitrust

Litig., 502 F.3d 47, 51 (2d Cir. 2007) (affirming dismissal of an action where ʺplaintiffs

offer[ed] nothing more than conclusory allegationsʺ). The court observed that ʺ[e]ven

assuming, arguendo, that the single conclusory allegation of an inflated estimate for

developing an interface could be construed as a refusal to deal with plaintiffs,ʺ J. Appʹx

at 208‐09, the claim still lacked merit because defendantsʹ conduct was reasonable as a

matter of law.

              Finally, plaintiffs argue that the Complaint sufficiently alleged a Section 2

tying arrangement because the software companies conditioned the sale of their

product on customers also purchasing the gate products of other defendants. See

Kaufman v. Time Warner, 836 F.3d 137, 141 (2d Cir. 2016) (describing the elements of a



                                              9
Sherman Act tying claim). The Complaint, however, failed to allege a single instance of

such coercive conduct. While Active and Siriusware indisputably recommended the

products of other defendants to ski resorts, there is no allegation that either company

ever refused to sell to a ski resort unless it also purchased the product of another

defendant.

                                           *        *   *

              We have considered plaintiffsʹ remaining arguments and conclude they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk




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