U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

Golf Company Swings, Misses at 5th Circuit

In golf, a mulligan means a do-over.

It's an informal golf rule that allows a player who muffs a shot to take another one, and it's not counted on the score card. In SureShot Golf Ventures v. Topgolf International, the plaintiff got the legal equivalent of a mulligan.

SureShot sued Topgolf, only to have its antitrust complaint dismissed. The U.S. Fifth Circuit Court of Appeal affirmed, but gave the plaintiff another chance.

Antitrust, Not

Topgolf International has been in the golf entertainment business for almost 20 years. Its entertainment centers combine driving ranges, food, beverage, and other services.

SureShot, which launched in 2014, entered the field in 2014 by licensing a 3D technology that analyzes the flight of golf balls to help players improve their strokes. The license was due to expire in 2020.

In the meantime, Topgolf bought the technology from the company that owned it. When Topgolf intimated that it would not renew the license to SureShot, the litigation was on.

The plaintiff claimed the defendants were monopolizing the market, but the trial judge dismissed the case with prejudice. SureShot continued its argument before the Fifth Circuit.

Not Ripe

The appeals court affirmed but modified the judgment, dismissing the case without prejudice.

The panel said SureShot's damage claims -- that the market was foreclosed -- were speculative. The court pointed out that SureShot still had a license to use the technology.

Perhaps the company will have a case in the future. For now, the lawsuit was basically an expensive practice shot.

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