Judge Reverses Earlier Intention: TYR Lawsuit Against Speedo, USA Swimming and Mark Schubert Will Continue Toward Trial

SANTA ANA, California, March 3. IN a stunning development from what was expected to a summary dismissal, portions of the lawsuit brought by swimsuit manufacturer TYR continue their march toward a trial date in May against USA Swimming, Speedo and Mark Schubert.

On Monday, Swimming World reported that Judge James V. Selna made a tentative ruling in favor of Speedo, USA Swimming and Schubert, citing TYR's lack of evidence in proving all of its claims against them. But court documents acquired by Swimming World today note that TYR managed to convince the judge to reverse his summary ruling, claiming they had enough evidence to support some of their claims, or were not required to prove their claims before trial.

As such, a tentative trial date in May has been set, pending additional motions, with the following claims to be heard:

Federal and State Antitrust Claims
Two of the three claims in this section will move forward toward trial. In the claim of disparagement, Selna states TYR will be able to prove Speedo tried to keep swimmers from purchasing TYR products. "(An) antitrust disparagement claim in the Ninth Circuit does not depend on actual coercion or restraints on consumers," Selna writes in his ruling. "It stems from the recognition that ‘[f]alse statements about rivals can obstruct competition and possess no off-setting redeeming virtues,' even if consumers are not actually constrained in their purchasing decisions."

He also writes that TYR need not provide evidence before trial of "an illegal agreement" among USA Swimming, Schubert and Speedo" that would have resulted in "antitrust conspiracy."

"Here … is unquestionably evidence of an agreement between the parties; TYR need not rely on an inference of agreement from evidence consistent with independent competition," Selna writes.

Remaining State Law Claims
The ninth and 10th claims of potential anti-competition agreements between Speedo and USA Swimming/Schubert are based on "unlawful … (and) unfair business practices." Judge Selna ruled that "TYR's tenth claim seeks only injunctive relief and does not state an independent cause of action. However, because TYR's antitrust claims and UCL claim survive summary judgment, TYR's claim for injunctive relief remains as well."

The federal and state coercion claim was dropped by Judge Selna, who writes that Speedo, USA Swimming and Schubert "are entitled to summary adjudication on the issue of antitrust coercion," which means TYR was unable to provide proof that Schubert's comments in 2008 that, on the surface, forced swimmers to wear Speedo products in order to make the 2008 Olympic pool swimming team.

In his ruling, Judge Selna writes "It is not enough to show that Schubert could restrain trade—TYR must come forward with evidence that he actually did so. The only potential threat Schubert made was regarding a spot on the Olympic team. However, as discussed above, Schubert lacked the authority to follow through on the supposed threat. All of the other actions identified by TYR constitute mere promotion—statements to swimmers that the Speedo suit was faster or provided an advantage. TYR has failed to identify any evidence demonstrating that Schubert threatened, even implicitly, to use his discretionary powers to punish a swimmer for not wearing Speedo."

Selna also dropped TYR's claim that Schubert was responsible for Erik Vendt's breach of contract in 2008, when Vendt wore a Speedo suit at a swim meet. Selna claims Vendt was in his contractual right to wear a competitor's brand, and it was Vendt, not Schubert, who voiced concerns about the TYR brand and decided to wear a competitor's suit.

It is unclear if TYR has raised a separate lawsuit against Vendt for breach of contract, as Selna's ruling does not fully approach the topic. Swimming World will have more on this story as it develops.

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