Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`
`
`
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`SURESHOT GOLF VENTURES,
`INC.,
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`Plaintiff,
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`v.
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`TOPGOLF INTERNATIONAL, INC.,
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`Defendant.
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`
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`CIVIL ACTION NO. 20–1738
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`
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`JURY DEMANDED
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`
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`PLAINTIFF’S ORIGINAL COMPLAINT
`__________________
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`Plaintiff SureShot Golf Ventures, Inc. (“SureShot”) respectfully files this action
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`for treble damages under the antitrust laws of the United States against Defendant
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`Topgolf International, Inc. d/b/a Topgolf Entertainment Group (“Topgolf”).
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`I. PROCEDURAL HISTORY
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`1.
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`Plaintiff SureShot filed a Complaint alleging antitrust violations in this
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`District on January 17, 2017 (hereinafter, SureShot I). The District Court dismissed
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`the action with prejudice on the pleadings. SureShot appealed to the Fifth Circuit
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`Court of Appeals. On October 9, 2018, the Fifth Circuit affirmed the District Court’s
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`dismissal, but modified the order to reflect dismissal without prejudice. The Fifth
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`Circuit affirmed “[b]ecause the case is not ripe,” and thus did not “analyze whether
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`SureShot alleged a cognizable antitrust injury as required for antitrust standing.”
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`SureShot Golf Ventures v. Topgolf Int’l, Inc., 754 Fed. Appx. 235, 241 n.3 (5th Cir.
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`2018). The Fifth Circuit’s opinion concluded that the Complaint in SureShot I was
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`Plaintiff’s Original Complaint—Page 1 of 20
`SureShot v. Topgolf
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`
`
`IN THE UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`
`
`
`
`SURESHOT GOLF VENTURES,
`INC.,
`
`Plaintiff,
`
`v.
`
`TOPGOLF INTERNATIONAL, INC.,
`
`Defendant.
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`CIVIL ACTION NO. 20–1738
`
`
`
`JURY DEMANDED
`
`
`
`
`
`
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`__________________
`
`Plaintiff SureShot Golf Ventures, Inc. (“SureShot”) respectfully files this action
`
`for treble damages under the antitrust laws of the United States against Defendant
`
`Topgolf International, Inc. d/b/a Topgolf Entertainment Group (“Topgolf”).
`
`I. PROCEDURAL HISTORY
`
`1.
`
`Plaintiff SureShot filed a Complaint alleging antitrust violations in this
`
`District on January 17, 2017 (hereinafter, SureShot I). The District Court dismissed
`
`the action with prejudice on the pleadings. SureShot appealed to the Fifth Circuit
`
`Court of Appeals. On October 9, 2018, the Fifth Circuit affirmed the District Court’s
`
`dismissal, but modified the order to reflect dismissal without prejudice. The Fifth
`
`Circuit affirmed “[b]ecause the case is not ripe,” and thus did not “analyze whether
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`SureShot alleged a cognizable antitrust injury as required for antitrust standing.”
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`SureShot Golf Ventures v. Topgolf Int’l, Inc., 754 Fed. Appx. 235, 241 n.3 (5th Cir.
`
`2018). The Fifth Circuit’s opinion concluded that the Complaint in SureShot I was
`
`Plaintiff’s Original Complaint—Page 1 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 2 of 20
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`“ambiguous about the nature and immediacy of SureShot’s injury, and the remainder
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`of its complaint reads in hypotheticals and future threatened injury.” Id at 240.
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`2.
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`As alleged below, additional facts establish that SureShot’s antitrust
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`complaint is not only ripe, but once again satisfies the elements for antitrust standing
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`and injury, as the “feared actions” that result from anti-competitive conducts are
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`reflected in both market realities and Topgolf’s near complete domination of the golf
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`entertainment market. Id. at 241.
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`II.
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`INTRODUCTION
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`3.
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`The antitrust laws forbid a monopolist from foreclosing competition by
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`vertical integration that makes rival entry or growth more costly, riskier, and less
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`likely. For example, a firm who otherwise acquired its monopoly by lawful means may
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`not, with the intent to foreclose entry of a new rival, acquire essential technology or
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`patents and then effectively make its use by rivals economically infeasible.
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`4.
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`These harms are not theoretical. The Draft Vertical Merger Guidelines
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`by the Department of Justice and Federal Trade Commission, issued in January
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`2020, identify the harms, such as those suffered by Plaintiff SureShot, as inimical to
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`maintaining competitive markets for the benefits of consumers and market
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`participants at various levels.1 Indeed, “Example 5” of the Draft Vertical Merger
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`Guidelines largely mirrors the allegations in this case. Importantly, the Guidelines
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`observe that, as applied to the facts of this case, the analysis should focus on whether
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`1
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`See https://www.ftc.gov/news-events/press-releases/2020/01/ftc-doj-announce-draft-
`vertical-merger-guidelines-public-comment.
`Plaintiff’s Original Complaint—Page 2 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 3 of 20
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`following Topgolf’s (the dominant company) purchase of Protracer (the supplier of a
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`key ingredient or product), the “merged firm may find it profitable to refuse to supply
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`the ingredient to any rivals or potential rivals if doing so would deter SureShot (the
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`company considering entering the relevant market) from entering, or prevent it from
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`financing entry ….” Topgolf would not have purchased Protracer if it was not
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`profitable for them both, and the facts here establish that the “likely result was that
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`competition in the relevant market [was] substantially lessened ….”
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`5.
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`Not unexpectedly, the Federal Trade Commission investigated Topgolf’s
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`acquisition of Protracer because of its potential anti-competitive harm to the market
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`and competitors. Plaintiffs do not at this time know the status of the FTC’s
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`investigation or conclusions.
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`6.
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`Topgolf is the dominant business in operating golf entertainment
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`facilities. Other than a handful of other golf entertainment facilities, if that, it is the
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`dominant golf entertainment business in the United States. These centers combine
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`“luxury simulator experience and golf ball tracing tech” with video games, hospitality,
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`and other forms of entertainment, such as video games. Topgolf prides itself as “the
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`only entertainment center of its kind” and the global leader in sports entertainment.
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`At or near the time of the filing of SureShot I, Topgolf was operating approximately
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`28 U.S. locations, and three U.K. locations. As of March 2020, Topgolf venues alone
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`had increased to “60 locations across the U.S. and internationally.”
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`7.
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`Since SureShot I, Topgolf’s market dominance has only increased, with
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`the assistance of Callaway Golf Company, one of the leading golf equipment makers
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`Plaintiff’s Original Complaint—Page 3 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 4 of 20
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`in the world. Topgolf Entertainment Group is the umbrella company of the various
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`Topgolf brands and “is a global sports and entertainment community that connects
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`nearly 100 million fans in meaningful ways ….” TEG’s “brand expressions includ[e]
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`Topgolf venues, Lounge by Topgolf, Toptracer, Toptracer Range, Topgolf Swing Suite,
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`Topgolf Studios, Topgolf Live and World Golf Tour [WGT] by Topgolf.” See
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`https://press.topgolf.com/about-us.
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`8.
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`From its inception in 2000 until 2016, Topgolf was the only interactive
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`entertainment, food and beverage golf facility in the United States. Thus, Topgolf
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`enjoyed the entire market share in the industry and the unfettered power to set
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`monopoly prices. When Topgolf learned that a new competitor—Plaintiff SureShot—
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`was to enter the golf entertainment market using a proprietary technology that
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`Topgolf did not use in its business—technology that would create a more-interactive
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`and friendly consumer experience—Topgolf undertook intentional, predatory action
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`to foreclose new competition from emerging SureShot. It did so by purchasing
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`Protracer, the company that created and owned the unique technology that is at the
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`heart of this case. Protracer and SureShot had signed a licensing agreement in April
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`2015. In late May 2016, Topgolf announced its acquisition of Protracer. SureShot
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`learned then for the first time that its competitor, Topgolf, had purchased Protracer.
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`9.
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`This anticompetitive behavior by a monopolist eliminates or reduces
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`competition in the high-end golf entertainment market, thereby drastically reducing
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`or eliminating consumer choice in the market, in violation of the antitrust laws.
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`Plaintiff’s Original Complaint—Page 4 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 5 of 20
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`III. PARTIES
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`10. Plaintiff SureShot Golf Ventures, Inc. is a Texas corporation. SureShot
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`was injured in its business by reasons of Defendant’s illegal conduct forbidden by the
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`antitrust laws.
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`11. Defendant Topgolf International, Inc. is registered as a foreign for-profit
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`corporation engaging in interstate and international commerce. Summons may be
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`served on its Texas registered agent, C T Corporation System, 1999 Bryan St., Suite
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`900, Dallas, Texas 75201-3136, or wherever else it may be found.
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`IV. JURISDICTION AND VENUE
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`12. This action is brought under Sections 4 and 7 of the Clayton Act, 15
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`U.S.C. §§ 15, 18, to recover treble damages, costs, and attorney’s fees for the injuries
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`sustained by Plaintiff SureShot because of Defendant’s violations of the Sherman Act,
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`15 U.S.C. §§ 1 and 2, and Section 7 of the Clayton act, 15 U.S.C. § 18.
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`13. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1337 and Sections
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`4 and 7 of the Clayton Act, 15 U.S.C. §§ 15(a), 18.
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`14. Venue is appropriate in this District under Sections 4 and 12 of the
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`Clayton Act, 15 U.S.C. §§ 15 and 22, and 28 U.S.C. § 1391(b), (c) and (d) because
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`during the relevant period Defendant resided or transacted business in this District,
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`a substantial portion of the affected commerce described herein was carried out in
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`this District, and a substantial part of the events or omissions giving rise to the claims
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`occurred in this District.
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`Plaintiff’s Original Complaint—Page 5 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 6 of 20
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`V. The Facts
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`A. Topgolf dominates the high-end golf entertainment market.
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`15. Topgolf was founded in 2000 and now is based in Dallas, Texas. It
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`operates golf entertainment centers in the United States and internationally.
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`16. Topgolf’s game, prior to its acquisition and incorporation of Protracer
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`into its business, combined a driving range-type environment, where golfers hit golf
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`balls at outdoor targets, with food and beverage service, golf services, entertainment,
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`and other amenities. Golfers teed off from a hitting bay onto a landscaped driving
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`range, with targets ranging in distance. Using Topgolf’s then technology, golfers
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`learned how far they have hit a shot and how close to the pin and were allocated
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`points based on distance and accuracy. The end result is a sports-bar-type
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`entertainment facility merged with golf games.
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`17. Topgolf is expanding quickly, both domestically and internationally.
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`Since SureShot I was filed, Topgolf has opened dozens of new locations, essentially
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`doubling in size, if not more, and expanded its brand into new divisions and golf-
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`related activities, such as driving ranges, golf tours, and golf competitions in
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`collaboration with other well-known sports brands.
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`B.
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`SureShot was poised to enter the market.
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`18.
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`SureShot was formed to compete with Topgolf’s golf entertainment
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`facilities. SureShot saw the opportunity to take a different approach and create a
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`unique and potentially better game and entertainment experience. The SureShot
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`model was going to use high-speed video cameras and software that would track the
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`Plaintiff’s Original Complaint—Page 6 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 7 of 20
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`balls in flight, creating a unique, immersive Three Dimensional (3-D) ball flight and
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`gaming experience for customers. SureShot’s game experience would be superior to
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`Topgolf’s, attract customers away from Topgolf, and reduce Topgolf’s market share,
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`thus reducing or eliminating Topgolf’s ability to set a monopoly price and increasing
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`competition in the market. Similar to Topgolf, the planned facilities would consist of
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`a golf-driving-like range, but it would be uniquely designed for the SureShot-designed
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`games. The SureShot venues also would have a sports bar and meeting rooms for
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`corporate events.
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`19.
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`SureShot expended significant effort and resources to position SureShot
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`for success. SureShot engaged design and architecture firms; developed SureShot’s
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`own technology to work seamlessly with technology owned by a Swedish company
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`called Protracer; built a prototype center; tested different ideas for ball tracking; built
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`testing and prototype gaming software; engaged attorneys to create private
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`placement memorandums and advise on intellectual property; secured funding;
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`researched to negotiate with technology providers and pinpoint appropriate locations;
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`and entered contracts for licensing, supplies, facilities, support, and technology.
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`C.
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`SureShot built its model on the Protracer platform.
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`20. The bases of SureShot’s unique game design were the high-speed
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`cameras and sensors that track the golf ball in flight, which were developed by
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`Protracer. Founded in 2006, Protracer developed first-of-its-kind cameras combined
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`with software capable of tracking the flight of multiple golf balls in a camera feed,
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`adding graphics to make the ball flight visible in near real time on a monitor. This is
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`Plaintiff’s Original Complaint—Page 7 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 8 of 20
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`the technology used by television networks covering professional golf tournaments,
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`among other sports.
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`21. Protracer’s proprietary hardware and software is, according to Topgolf,
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`“the only technology on the market that actively tracks all ball flight paths across an
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`entire field of vision, powering television broadcasts and golf driving ranges.”
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`Protracer was the only commercially available technology to a startup like SureShot
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`to compete against Topgolf. By building its own unique technologies on top of the
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`technical foundation provided by Protracer, SureShot would be able to create a highly
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`differentiated offering compared to Topgolf. The golf entertainment facilities that
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`SureShot was going to build to compete with Topgolf each costs in the tens of millions
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`of dollars to build.
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`22. Upon information and belief, Protracer’s is the only technology on the
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`market that actively tracks and analyzes every shot hit on a driving range across an
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`entire field of vision, significantly enhancing a golfer’s practice session or, in the case
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`of a golf entertainment center, enhancing the entire game experience. Protracer has
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`also developed a turn-key system for managing and maintaining a complex ball-
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`tracking system across a large-scale driving range facility, addressing the challenges
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`of keeping the system calibrated, tracking shots across multiple bays, mapping
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`tracked shots to physical targets, and determining which shot came from which bay.
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`Protracer is the only ball-tracking provider that provides such a comprehensive
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`solution reliably and economically. In other words, Protracer is the only system that
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`Plaintiff’s Original Complaint—Page 8 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 9 of 20
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`has been developed and demonstrated to work effectively across more than 100 bays,
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`which is the scale of a golf entertainment center.
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`23.
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`In addition to being able to track balls across a wide field sufficient to
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`meet the needs of a golf entertainment center, Protracer had other unique capabilities
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`that made it the only viable technology platform for SureShot. For example, other
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`tracking systems cannot track the ball when it hits the ground and rolls. With the
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`high-resolution cameras and superior back-end processing available through
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`Protracer, the ball can be tracked as it rolls, allowing for the design of a game where
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`the player can be awarded points not only for its accuracy in the air, but also for how
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`close a ball then rolls towards the target.
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`24.
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`It is this unique technology that SureShot chose as its technology
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`platform when it built its own unique game software, making the technology vital to
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`its business model. Indeed, SureShot invested considerable time and money building
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`its own infrastructure around Protracer. It took SureShot nearly nine months to
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`qualify the Protracer system for use in its business, with Protracer even making a
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`number of improvements to ensure the product met SureShot’s specific requirements.
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`D. SureShot contracted with Protracer.
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`25. On April 17, 2015, SureShot and Protracer entered into a Frame
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`Agreement for the Supply of License, Support and Maintenance of Professional
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`Services (the “Frame Agreement”), which governs “the sale of Protracer Range
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`Sensors, license of Protracer Software Products, Professional Services and Support
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`and Maintenance of Protracer Range Systems in Customer facilities.”
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`Plaintiff’s Original Complaint—Page 9 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 10 of 20
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`26. The Initial Term of the Frame Agreement was five years, ending in
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`2020. The agreement contained one-year renewals following the initial term,
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`although either party could terminate the agreement by giving advance notice.
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`SureShot asked Protracer about Topgolf; Protracer stated that it had received no
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`interest from Topgolf. Protracer further stated that it would not enter into exclusive
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`dealing contracts with SureShot or others, meaning its essential technology would
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`not fall into the hands of a single firm who would refuse to share it with competitors.
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`Importantly, given the barriers to entry without Protracer’s intellectual property,
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`SureShot inquired about Protracer’s long-term plans; Protracer responded that its
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`“aim [was] to stay neutral as a tracking provider for GEF [golf entertainment
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`centers].”
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`27. The Frame Agreement required Protracer to “deliver, install, calibrate
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`and test the Protracer Range Systems” in up to 500 bays in up to five facilities each
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`year during the Initial Term, to a maximum commitment of 1600 bays (“Supply
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`Commitment”).
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`28.
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`In addition, the Frame Agreement required Protracer to provide
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`Support and Maintenance of the Protracer Range System to SureShot for five years
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`after acceptance of the System by SureShot, pursuant to a Support and Maintenance
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`Agreement (“Support and Maintenance Agreement”). The support and maintenance
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`contemplated by the agreement necessarily provided Protracer access to SureShot’s
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`facilities, as well as an intimate knowledge of how the facilities are operated, among
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`other information.
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`Plaintiff’s Original Complaint—Page 10 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 11 of 20
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`29. The Support and Maintenance Agreement required Protracer to provide
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`support of the Protracer Range System, including developer and on-site support.
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`Specifically, Protracer Service Managers must “visit (i) each new Customer facility
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`twice a year . . . and (ii) each existing Customer facility once a year” to inspect,
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`maintain, and calibrate the system. This obligation meant that SureShot was
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`required to inform Protracer of its plans to open new facilities, as well as providing
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`access to its existing facilities.
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`30. Both the Frame Agreement and the Support and Maintenance
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`Agreement contemplated that the parties would have access to the other’s sensitive,
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`proprietary, and non-public confidential information. Thus, the agreements obligated
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`the recipient of any such confidential information to protect it from unauthorized
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`disclosure.
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`E. Topgolf’s anticompetitive conduct forecloses competition.
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`31. Topgolf learned of SureShot’s intentions to enter the market as its direct
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`competitor. Hearing that a competitor was entering the market with the benefits of
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`better technology, Topgolf used its position as a monopolist to acquire Protracer, who
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`had until then, expressed its intention to remain vendor neutral. On May 24, 2016,
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`Topgolf announced its acquisition of Protracer. Topgolf used its market power to
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`foreclose SureShot from entering the market by effectively cutting off the supply to
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`SureShot of the unique, leading-edge Protracer technology upon which the SureShot
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`model was built and based.
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`Plaintiff’s Original Complaint—Page 11 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 12 of 20
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`32. Following its acquisition of Protracer in the summer of 2016, Topgolf
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`announced that it would license Protracer only to “driving ranges,” not golf
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`entertainment
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`centers. See https://topgolf.com/uk/company/press-room/press-
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`releases/2016/topgolf-adding-broadcast-media-technology-with-protracer-
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`acquisition/. However, after rebranding Protracer as “Toptracer,” Topgolf has
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`effectively ended any use of Protracer by outside parties. Topgolf’s range business,
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`Toptracer Range, is now located within country and golf clubs throughout the country
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`and internationally. Such business ventures involve Topgolf’s control of the essential
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`components and licensing of the Protracer (now called Toptracer) technology. Upon
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`information and belief, no new entertainment venues such as was being developed by
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`SureShot have been allowed to use Protracer (now Toptracer).
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`33. Other facts and circumstances show Topgolf’s anticompetitive conduct.
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`For example, SureShot was engaged in informal talks with ClubCorp, “The World
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`Leader in Private Clubs®,” about potential business opportunities. During those
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`talks, SureShot shared some of its business plans and potential locations with
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`ClubCorp. Not long after the informal talks, and despite earlier having shown
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`interest, ClubCorp’s executives went silent, indicating ClubCorp’s abandonment of
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`any further talks with SureShot. Later, in June 2017, Topgolf and ClubCorp
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`announced that they were entering a “strategic alliance … result[ing] in Topgolf
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`providing new technology and benefits for ClubCorp members, and ClubCorp
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`providing special offers and experience at ClubCorp clubs.”
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`Plaintiff’s Original Complaint—Page 12 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 13 of 20
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`34. Topgolf’s intent to foreclose the market to SureShot and other
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`competitors is illustrated by its reaction to SureShot’s request for assurances that
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`Protracer would continue to be made available to SureShot even after the initial 5-
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`year term (and after SureShot would have spent tens of millions dollars). SureShot’s
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`owners met with top executives of Topgolf in Houston, Texas. SureShot asked for
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`those assurances, namely that Topgolf’s acquisition of Protracer would not turn
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`effectively into a de facto exclusivity arrangement with respect to any direct
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`competitor of Topgolf; Topgolf refused, with one of its top executives stating, “If I was
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`in your position, I would look for alternatives.” SureShot followed up with the
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`executives about an extension of the 5-year term in light of the enormous capital
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`required to design, build, and operate a golf entertainment center, but again Topgolf
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`stated no decision had been made.
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`35. Thus, even as Topgolf’s executives were saying that Protracer would be
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`kept as a separate entity, which turned out to be false, it was refusing to offer
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`extensions beyond the initial 5-year term for the Protracer-SureShot agreement.
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`When asked about its press release announcing the Protracer acquisition, Topgolf
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`stated that it did not want to promote alternatives or competitors to the Topgolf
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`locations, hence its press release stating that only golf ranges (not entertainment
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`facilities) would be using Protracer in the future.
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`36.
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`It was now obvious that Topgolf had no intention of allowing competition
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`because the very purpose of its Protracer acquisition was to squelch competition,
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`namely SureShot. In short, Topgolf was unwilling to license the technology to
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`Plaintiff’s Original Complaint—Page 13 of 20
`SureShot v. Topgolf
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`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 14 of 20
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`SureShot under terms that would allow SureShot to build its business around the
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`technology platform. SureShot told Topgolf that a 5-year term was insufficient to
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`invest millions of dollars into a business when a competitor with Topgolf’s market
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`power had sole and exclusive control of the technology. In doing so, Topgolf made it
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`clear that it would not act as a neutral supplier of the essential and unique ball-
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`tracking technology to golf entertainment facility competitors. Since that meeting,
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`the market realities have proven SureShot correct: Protracer is owned by Topgolf and
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`other than licenses to use Toptracer Range by ranges, largely in golf and country
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`clubs, the technology is not available for use by competitors in the golf entertainment
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`market.
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`37. Under those circumstances, SureShot’s business was economically
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`unfeasible. Effectively, and this has been borne out by the market realities, SureShot
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`would have had to invest millions and millions of dollars only to lose its ability to
`
`continue to license the technology at the heart of its operations. SureShot folded
`
`because of Topgolf’s anticompetitive acquisition of Protracer. Given Topgolf’s refusal
`
`to assure SureShot access to the technology beyond the initial 5-year term (really
`
`shorter than that because the actual opening and operating of a facility would have
`
`more likely left 4 or fewer years on the initial term), SureShot’s financial backing
`
`began to unravel.
`
`38.
`
`Since SureShot I and the facts alleged then, Topgolf’s market dominance
`
`has grown. Toptracer, the new name for Protracer, is solely Topgolf’s to use in its
`
`multiple brands and golf-related activities. In other words, the statements by the
`
`Plaintiff’s Original Complaint—Page 14 of 20
`SureShot v. Topgolf
`
`
`
`
`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 15 of 20
`
`Topgolf executive that SureShot should move on and find new technology are no
`
`longer, if they ever were, speculation. Topgolf has not shared and has no intention to
`
`share its acquired Protracer technology with competitors who want to compete with
`
`it at multiple locations throughout a region or the country. Thus, SureShot’s millions
`
`of dollar invested to compete have been unfairly lost. Under the circumstances, no
`
`purchases were made under the SureShot–Protracer agreement.
`
`39. With SureShot out of the way, Topgolf will continue to dominate and
`
`monopolize the golf entertainment centers market in the United States. Such conduct
`
`harmed not only SureShot, but consumer choice and the overall market for golf
`
`entertainment centers.
`
`VI. RELEVANT MARKET
`
`40. The relevant product/service market in which the restraint and other
`
`anticompetitive conduct of Defendant has had and will continue to have significant
`
`effects and cause antitrust injury is the market for golf entertainment centers
`
`involving technology that tracks balls and provide other information to customers in
`
`an entertainment venue. The relevant geographic market is the United States.
`
`VII. ANTITRUST INJURY
`
`41. Topgolf’s predatory behavior has been effective. SureShot closed its
`
`operations not long after Topgolf’s anticompetitive acquisition of Protracer. Protracer
`
`is a platform technology provider, and SureShot built its business model on that
`
`basis. By acquiring Protracer, Topgolf purposefully froze out competition and
`
`furthered its monopolization of the market area. After investing so much in the
`
`Plaintiff’s Original Complaint—Page 15 of 20
`SureShot v. Topgolf
`
`
`
`
`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 16 of 20
`
`Protracer technology format for its locations, SureShot did not have the financial
`
`resources as a start-up to then develop its own technology or to work with another
`
`supplier over time to develop a new technology platform. SureShot’s closing results
`
`in harm to consumers, markets, and SureShot itself.
`
`42. The antitrust laws do not require a harmed competitor to continue to
`
`suffer great financial harm after the anticompetitive acts have been completed.
`
`43. Topgolf’s conduct deprives SureShot of a competitive opportunity to
`
`enter the interactive virtual golf market, violating the antitrust laws. This conduct
`
`also constitutes actual and/or attempted monopolization, in that it has used its
`
`dominant market power to unfairly keep and expand its monopoly in the market. By
`
`eliminating SureShot, as well as other competitors who may have relied on Protracer,
`
`as a competitor, Topgolf will continue to strengthen its monopoly in the United States
`
`and internationally. It will also deprive consumers of choice; a choice that would have
`
`offered a different experience at lower costs.
`
`44.
`
`SureShot has suffered injury, including the loss of its business and
`
`property.
`
`VIII. VIOLATIONS ALLEGED
`
`A.
`
` Foreclosure and unfair competition by a monopolist.
`
`45.
`
`SureShot realleges the material fact allegations in the preceding
`
`paragraphs.
`
`46. Defendant possesses dominant market power and monopolies in the
`
`market for golf entertainment facilities in the United States. It has used its power to
`
`Plaintiff’s Original Complaint—Page 16 of 20
`SureShot v. Topgolf
`
`
`
`
`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 17 of 20
`
`purchase and control Protracer, thereby unfairly denying SureShot access to long-
`
`term, continued licensing of Protracer technology and purchasing of Protracer
`
`equipment. By its acts, practices, and conduct, Defendant has insulated itself from
`
`and improperly foreclosed competition with SureShot and others for customers in the
`
`United States.
`
`47. By its acts, practices, and conduct, Defendant has pursued a course of
`
`conduct that amounts to monopolization or unlawful exercise of dominant market and
`
`monopoly power in violation of the antitrust laws.
`
`48. Defendant’s conduct has significant anticompetitive effects and no pro-
`
`competitive benefits. The public has been deprived of the freedom to choose where
`
`and how to enjoy a golf entertainment experience and of the likely pricing choices
`
`that would naturally result from competition.
`
`49. As a direct and proximate result of Defendant’s unlawful conduct,
`
`SureShot suffered injury in its business and property, including by being foreclosed
`
`from competitive long-term access to technology necessary to compete in the industry,
`
`which caused SureShot to close its business. These are injuries to the competitive
`
`process and are the type that the antitrust laws are intended to prohibit under the
`
`following statutes:
`
`a. Count 1—Section 1 of the Sherman Act, 15 U.S.C. § 1;
`
`b. Count 2—Section 2 of the Sherman Act, 15 U.S.C. § 2; and
`
`c. Count 3—Section 7 of the Clayton Act, 15 U.S.C. § 18.
`
`Plaintiff’s Original Complaint—Page 17 of 20
`SureShot v. Topgolf
`
`
`
`
`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 18 of 20
`
`B.
`
`Attempt to monopolize—Count 4.
`
`50.
`
`SureShot realleges the material fact allegations in the preceding
`
`paragraphs.
`
`51. Through its anticompetitive conduct, Defendant did and does intend to
`
`secure dominant market power and monopolies in the markets for golf entertainment
`
`centers in the United States. As evidenced by its market shares, abuse of market
`
`power, ability to exclude or foreclose competition, control access to essential
`
`technology, and the high barriers of entry into the relevant markets, Defendant’s
`
`anticompetitive practices have had a direct adverse effect on competition. SureShot’s
`
`closing is one such example.
`
`52. Defendant’s conduct constitutes attempted monopolization in violation
`
`of the antitrust laws. This unlawful conduct has been willful and flagrant.
`
`53. As a direct and proximate result of Defendant’s unlawful conduct,
`
`SureShot was forced to close its business, thereby suffering injury in its business and
`
`property. These are injuries to the competitive process and are the type that the
`
`antitrust laws are intended to prohibit.
`
`IX. ATTORNEYS’ FEES & COSTS
`
`54. Plaintiff SureShot is entitled to an award of attorneys’ fees and costs
`
`under Section 4 of the Clayton Act, 15 U.S.C. § 15 and other statutory provisions.
`
`
`
`
`
`
`
`Plaintiff’s Original Complaint—Page 18 of 20
`SureShot v. Topgolf
`
`
`
`
`Case 4:20-cv-01738 Document 1 Filed on 05/18/20 in TXSD Page 19 of 20
`
`X. JURY REQUEST
`
`55. Pursuant to the U.S. Const. amend. 7, Federal Rule of Civil Procedure
`
`38, and Local Rule 38.1, Plaintiff SureShot hereby demands a trial by jury on all
`
`issues of fact.
`
`XI. PRAYER
`
`Plaintiff SureShot respectfully prays for the following relief:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`That the acts alleged above by Defendant Topgolf be adjudged violations
`of Sections 1 and 2 of the Sherman Act and Section 7 of the Clayton Act,
`15 U.S.C. §§ 1, 2, and 18.
`
`That judgment be entered for Plaintiff SureShot against Defendant for
`three times the amount of actual damages sustained;
`
`That Plaintiff SureShot recover from Defendant Topgolf all costs of
`Court and attorneys’ fees;
`
`That Plaintiff SureShot be awarded pre- and post-judgment interest at
`the highest legal rate; and
`
`That Plaintiff SureShot receives such other relief as the Court may
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