The opinion of the court was delivered by: Denise Cote, District Judge
An Opinion and Order dated June 4, 2009 dismissed plaintiff Synergetics USA, Inc.'s ("Synergetics") price coercion prong of its tying claim against defendants Alcon Laboratories, Inc. and Alcon, Inc. (collectively, "Alcon"). Synergetics USA, Inc. v. Alcon Laboratories, Inc., No. 08 Civ. 3669 (DLC), 2009 WL 1564113 (S.D.N.Y. June 4, 2009) ("June Opinion"). Synergetics now moves for reconsideration of that dismissal. For the following reasons, Synergetics's motion is denied.
Much of the relevant background is provided in the Opinion of February 23, 2009, Synergetics USA, Inc. v. Alcon Laboratories, Inc., No. 08 Civ. 3669 (DLC), 2009 WL 435299 (S.D.N.Y. Feb. 23, 2009) ("February Opinion"), and the June Opinion, familiarity with which is assumed. Only the facts necessary to a resolution of the pending motion are described here.
Both Synergetics and Alcon make instruments and accessories used in vitreoretinal surgery, which is surgery on the inside of the eye. Alcon supplies 85% of the vitrectomy machines used by American vitreoretinal surgeons, and these machines require a new Alcon disposable cassette to be inserted for each operation. Alcon and Synergetics compete in providing, inter alia, light pipes that deliver the light to the inside of the eye for vitreoretinal surgery. Alcon sells its instruments and accessories alone and in packages. Its packages include: a Total Plus pack, which contains all instruments and accessories a surgeon needs for vitreoretinal surgery, including a cassette and a light pipe; an AccuPak, which always contains a cassette and tubing, and certain versions of which contain additional items; and a "small parts" kit, which includes accessories for surgery but neither a cassette nor light pipe.
Synergetics claims that Alcon has tied the sale of its cassettes (the tying product) to the sale of its light pipes (the tied product) in two ways. First, Synergetics alleges its refusal-to-sell theory: Alcon has refused to sell its cassettes without its light pipes. Second, Synergetics alleges its price coercion theory: Alcon ties cassettes and light pipes together by using a pricing scheme that makes purchasing them together the only economically viable option.
In its first amended complaint ("FAC"), Synergetics alleged that the cassette is available in an AccuPak that also includes tubing, and in another version of an AccuPak that includes both tubing and a probe. Synergetics alleged that Alcon "priced its cassette when purchased without a light pipe substantially higher than the price charged when the cassette is bundled with the light pipe." In support of this claim, Synergetics pleaded the price of Alcon's light pipe and of Alcon's Total Plus pack, but did not plead the price of an AccuPak. The briefing related to Alcon's motion to dismiss the FAC did not distinguish between the two versions of AccuPaks, focusing instead on the plaintiff's failure to plead any price for an AccuPak. Both parties referred generally to the AccuPak as Alcon's only type of package that included a cassette but not a light pipe. See Alcon Mot. to Dismiss FAC Mem. 4, 6 & 18 ("five different models of the AccuPak(r), all of which include the cassette and none of which include an Alcon light pipe") (quotation repeated on each page); id. at 6 ("Alcon also offers the AccuPak(r), which includes the cassette but no light pipe."); id. at 18-20 (referring generally to AccuPaks without distinguishing between versions); Synergetics Opp'n. to Mot. to Dismiss FAC 2 (". . . an AccuPak, which contains an Alcon cassette, but no light pipe").
The February Opinion established that a tying arrangement may result if "the individual products are priced such that the buyer is coerced to accept both products in a discounted package," Synergetics, 2009 WL 435299, at *3; and it noted that Synergetics did not provide "a price for the AccuPak, which contains a cassette and no light pipe." Id. at *4. Because Synergetics failed to plead the price for an Accupak, the February Opinion determined that "Synergetics's pleading does not plausibly suggest the validity of its claim that it is prohibitively expensive to buy the cassette and light pipe separately." Id.
In its second amended complaint ("SAC"), Synergetics repeats its price coercion theory. It alleges that Alcon's Total Plus Pack includes a cassette, light pipe, vitrectomy probe, infusion cannula, scleral plugs, stopcock, syringe, IV administration set, sterile drape, tubing, and occasionally an MVR blade, and it costs $500. It also alleges Alcon's "small parts" kit, which includes an infusion cannula and scleral plugs, costs $110; an AccuPak that includes a cassette, tubing, and a probe costs $400;*fn1 and an Alcon light pipe costs $112. On the basis of these allegations, Synergetics argues that buying a small parts kit ($110), AccuPak ($400), and light pipe ($112) for a total of $622 is prohibitively expensive when compared to purchasing all of these products bundled in a $500 Total Plus Pack.
The briefing related to Alcon's motion to dismiss the SAC distinguished between versions of AccuPaks. Alcon noted that the SAC pleaded a price for an AccuPak that included a cassette, tubing, and vitrectomy probe, and did not plead a price for an AccuPak that included only a cassette and tubing, which Alcon referred to as "the cassette-only, no-vitrectomy probe model." Alcon argued that its 2009 price list, upon which Synergetics repeatedly relied, includes a "cassette-only AccuPak" for $192.
The June Opinion dismissed Synergetics's price coercion theory of tying because Synergetics failed to plead product prices that suggested the plausibility of this type of tying claim. Specifically, the June Opinion noted that Synergetics "fail[ed] to plead the price of a cassette-only AccuPak." Synergetics, 2009 WL 1564113, at *2.
On June 18, 2009, Synergetics filed a motion for reconsideration of the dismissal of the price coercion theory of its tying claim. This motion became fully submitted on July 13.
The standard for reconsideration is strict. "[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by ...