545 F. App'x 30
2d Cir.2013Background
- Vedder sued Xactware and related defendants over the Estimating Wizard, alleging antitrust and trademark infringement.
- Xactware is owned by Insurance Services Office (ISO), which is owned by Verisk Analytics; Liberty Mutual affiliates are among defendants.
- Vedder alleges the insurers’ ownership and demanded use of Xactimate as a basis for conspiracy to restrain trade.
- District court dismissed Vedder’s claims under Rule 12(b)(6) for failure to state a claim, prompting this appeal.
- Second Circuit affirmed, holding no plausible Sherman Act §1 conspiracy and no non-conclusory trademark infringement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sherman Act §1 conspiracy viability | Vedder argues parallel conduct implies agreement via ownership in Verisk. | Defendants contend parallelism alone is insufficient without plus factors. | Dismissal affirmed; no plausible agreement shown. |
| Trademark infringement viability | Vedder asserts distinctive interface and secondary meaning with likelihood of confusion. | Defendants argue allegations are conclusory and not supported by facts. | Dismissal affirmed; no non-conclusory pleadings of infringement. |
| Other antitrust claims (Sherman Act §2 and related theories) | Vedder attributes monopoly power to the conspiracy. | Without an underlying agreement, monopolization claims fail. | Affirmed; cannot prevail without a viable §1 conspiracy. |
Key Cases Cited
- Starr v. Sony BMG Music Entm’t, 592 F.3d 314 (2d Cir. 2010) (parallel conduct alone insufficient; need plus factors)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (S. Ct. 2007) (plausibility pleading standard; require context of agreement)
- Mayor & City Council of Balt., Md. v. Citigroup, Inc., 709 F.3d 129 (2d Cir. 2013) (plus factors: common motive, non-self-serving conduct, high interfirm communications)
- Ashcroft v. Iqbal, 556 U.S. 662 (S. Ct. 2009) (conclusory pleadings insufficient under plausibility standard)
- Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60 (2d Cir. 2012) (pleading standards for state-a claim to survive motion to dismiss)