IntercontinentalExchange (ICE) took issue Thursday with an announcement made by the New York Mercantile Exchange (Nymex) a day earlier concerning a judge’s decision in their legal battle. Nymex had announced that the judge ruled on the merits on the case and dismissed four out of five counterclaims made by ICE against Nymex. But ICE said that’s not entirely true. In fact, the judge left open the possibility that ICE could file amended counterclaims and continue its fight (see Daily GPI, Aug. 14).

“The statements made by Nymex indicating that the judge had made any rulings on the merits of the case are absolutely false and misleading,” said ICE CEO Jeffrey C. Sprecher. “The case is ongoing and the merits will be determined in due course.”

Nymex spokeswoman Nachamah Jacobovits said the exchange stands by its statement. “There are grey areas here and there. Our press release said they can refile their counterclaims. That’s what ‘dismissed without prejudice’ means. But he did rule on the merits of what they had presented and dismissed it on that basis. When you dismiss without prejudice, it gives them the right to re-plead with new information.”

An ICE spokesperson said the judge’s decision was merely procedural. “For either party to claim this” is over already is ludicrous.

The legal battle between the two energy exchange giants erupted following the demise of EnronOnline and the emergence of ICE as a significant presence in the over-the-counter exchange arena.

Feeling its dominance threatened, Nymex threw the first punch, filing a lawsuit on Nov. 20, 2002 that charged ICE with copyright infringement for using Nymex settlement prices in some of its OTC contracts (see Daily GPI, Nov. 21, 2002). Nymex said the settlement prices incorporated the “originality” and “creativity” of Nymex’s settlement committees and therefore demand copyright protection.

ICE then countersued Nymex for abuse of monopoly power for claiming copyright protection over its settlement prices, its requirement that all contracts traded on Nymex be cleared through Nymex and its launch of an trading platform similar to the one ICE operated. ICE said the claim of copyright infringement contradicted repeated claims by Nymex officials that the settlement prices were public benchmarks used worldwide in contracts and other business exchanges. ICE also charged that Nymex had publicized false statements about the ability of traders to engage in wash or round-trip trades on the ICE platform (see Daily GPI, Jan. 7).

Judge John G. Koetl’s order this week dismissed ICE’s antitrust counterclaims, leaving only a false advertising counterclaim, but granted leave for ICE to file amended counterclaims, both ICE and Nymex agree.

ICE said the court’s decision was based on ICE’s argument that the relevant monopoly market has evolved since ICE filed its counterclaims in January 2003 and that ICE’s definition of that market has therefore changed and its filings should reflect those developments. ICE said the court did not even address any of the arguments made by Nymex nor was there a ruling on the merits of ICE’s counterclaims.

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