Simmons Hanly Conroy announced the resolution of the antitrust lawsuit brought by their client Synergetics USA, Inc.’s (Nasdaq: SURG) pending against Alcon Laboratories, Inc., and Alcon, Inc. To resolve the lawsuit Synergetics entered into a Settlement and Licensing Agreement and a Supply Agreement with Alcon, pursuant to which all litigation between the companies would be settled and Alcon would receive a license to sell certain Synergetics-patented products. Alcon will pay Synergetics $32 million in the arrangement.
In an unusual approach to commercial litigation, Simmons Hanly Conroy, working with co-counsel Simmons Browder Gianaris Angelides & Barnerd LLC of East Alton, Illinois, took on the high-risk litigation under a contingency fee arrangement, whereby Synergetics would pay attorney fees only as a percentage of any recovery in the case. As noted by Simmons Hanly Conroy’s Paul Hanly: “This arrangement reflects the increasing comfort level of corporate general counsel in using plaintiff-only contingent fee attorneys to pursue commercial litigation. Corporate general counsel increasingly appreciate that plaintiff contingency fee lawyers involved in complex litigation can be a huge boon to companies: such arrangements can involve near-zero cash disbursements and the potential for huge recoveries.” Trading in Synergetics stock was reported up as much as 72 percent the day after the announcement.
Lawyers from Simmons Hanly Conroy Bierstein Sheridan Fisher & Hayes LLP filed the antitrust lawsuit in the United States District Court for the Southern District of New York in April, 2008. The suit alleged that Alcon engaged in certain anti-competitive conduct in the market for vitreoretinal surgical equipment and supplies. Synergetics’ allegations included that Alcon used the market power enjoyed by its vitrectomy machine in an unlawful manner, forcing surgeons to purchase from Alcon the ancillary instruments, tools, and external light sources used in vitreoretinal surgeries. Most notably, Synergetics alleged that Alcon unlawfully tied the sale of its fiberoptic illuminator to the sale of single-use disposable cassettes necessary to operate the Alcon vitrectomy machine.