Case 3:22-cv-00147-B Document 65 Filed 02/16/23 Page 1 of 23 PageID 1015
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`PHILIPS NORTH AMERICA LLC
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`Plaintiff,
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`v.
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`IMAGE TECHNOLOGY CONSULTING,
`LLC; and MARSHALL R. SHANNON,
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`§
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`Case No. 3:22-cv-00147-G
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`Defendants.
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`Defendants Image Technology Consulting II, LLC, incorrectly named as Image
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`Technology Consulting, LLC, and Marshall R. Shannon (“Shannon” together with Image
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`Technology Consulting II, LLC referred to as “Image”) hereby file this their First Amended
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`Counterclaims (the “Counterclaims”) as follows:
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`PARTIES
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`1.
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`Image Technology Consulting II, LLC, is a Texas limited liability company with a
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`principal place of business located in Lancaster, Texas.
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`2.
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`3.
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`Shannon is an individual living and residing in DeSoto, Texas.
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`Philips is a Delaware limited liability company, formerly known and doing business
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`as Philips North America Corporation (a Delaware Corporation), with a principal place of business
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`located in Andover, Massachusetts.
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as this
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`action alleges a claim arising under the laws of the United States. The Court has supplemental
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`Case 3:22-cv-00147-B Document 65 Filed 02/16/23 Page 2 of 23 PageID 1016
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`jurisdiction over the state law claims alleged herein pursuant to 28 U.S.C. § 1367.
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`5.
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`This Court has personal jurisdiction over Philips because Image’s Counterclaims
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`arise out of Philips contacts with Texas. Further, the Court has personal jurisdiction over Philips
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`because it has generally appeared by filing its claims against Image in this Court.
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`6.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 because Image
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`and Shannon reside in this judicial district and/or a substantial part of the conduct, events, or
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`omissions giving rise to Image’s claims occurred in this judicial district and/or had or have
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`connections to this judicial district.
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`INTRODUCTION
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`7.
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`Philips has launched an aggressive corporate campaign against Image aimed at
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`sabotaging Image’s business and stealing Image’s market share for Philips. Philips has
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`intentionally and maliciously blocked Image from servicing Philips’ magnetic resonance imaging
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`machines (“MRI Machines”) owned and/or used by hospitals and other medical facilities in a
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`wrongful attempt to quash competition and corner the aftermarket service industry for Philips’
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`MRI Machines. By implementing malware on Philips-brand MRI Machines under the guise of a
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`software upgrade, Philips has locked out its competition from being able to access, service, repair,
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`and maintain Philips-brand MRI Machines owned by hospitals and healthcare facilities. Moreover,
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`Philips has and continues to defame and disparage Image directly to Image’s customers and clients
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`by spreading lies about Image’s ability to service customers in attempt to steal those customers for
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`Philips. Philips’ unsavory business practices have cost Image customers, have tarnished Image’s
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`respectable reputation in the industry, and caused significant financial and reputational harm to
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`Image and its business.
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`Case 3:22-cv-00147-B Document 65 Filed 02/16/23 Page 3 of 23 PageID 1017
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`FACTS
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`8.
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`There are four major manufacturers of MRI Machines – Toshiba, GE, Siemens, and
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`Philips (the “Manufacturers”). MRIs from these Manufacturers cost hundreds of thousands of
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`dollars and have a life expectancy of between 10 and 15 years. Despite their long lifespan, these
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`machines require frequent maintenance, testing, and calibration to ensure patient safety, as required
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`by Food and Drug Administration (“FDA”) standards. See 21 C.F.R. § 820.170. The
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`Manufacturers typically sell a new MRI Machine with only a one-year warranty for repair parts
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`and service. Accordingly, the hospitals and medical facilities that purchase MRI Machines will
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`also purchase a service contract to provide servicing and maintenance work after the one-year
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`Manufacturer warranty expires.
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`9.
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`Philips develops, manufactures, and sells medical imaging systems, including MRI
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`Machines (“Philips MRI Machines”), to hospitals and other medical facilities. The Philips MRI
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`Machines provide critical imaging information for doctors treating seriously ill patients and are a
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`critical step in treatment and diagnosis as well as overall patient care. Hospitals and medical
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`centers operate Philips MRI Machines at all hours and need them to be available at a moment’s
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`notice. The Philips MRI Machines require technical precision in installation, service, and repair
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`work. See 21 C.F.R. § 820.170. Philips offers service contracts to hospitals and medical facilities
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`to service and repair Philips MRI Machines, often at a premium compared to the services offered
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`by an independent servicing organization (“ISO”), like Image. Thus, hospitals and medical
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`facilities often prefer to use ISOs, like Image, rather than the Manufacturers, as the ISOs tend to
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`be more affordable, faster, more efficient, and provide a better customer experience. In fact, the
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`Manufacturers have been found to charge up to seven times the per-hour cost of an ISO for
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`maintenance services.
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`Case 3:22-cv-00147-B Document 65 Filed 02/16/23 Page 4 of 23 PageID 1018
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`10.
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`ISOs, including Image, provide the necessary installation, service, and repair work
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`on Philips’ MRI Machines for doctors and hospitals. ISOs allow the owners of a Philips MRI
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`Machine to receive installation, service, and repair work on a Philips MRI Machine from a
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`consistent service provider that has knowledge of their requirements and specific systems and can
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`perform work quickly and efficiently to provide services. ISOs operate as an intermediary between
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`Philips and the owners of the Philips MRI Machines. Modern medical imaging devices, like Philips
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`MRI Machines, are complex machines that use computers and electronics to control nearly every
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`function. As a result, diagnosing and repairing medical imaging devices is a complex and highly
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`technical operation. It is critical that service providers like Image and other ISOs have timely
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`access to the parts, tools, information, and training from Philips, including access to the Philips
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`MRI Machines themselves, to effectively carry out necessary repair and servicing work.
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`11.
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`Image is an ISO that specializes in installation, servicing, maintaining, and
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`repairing medical imaging equipment, per performance specifications as required by Food and
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`Drug Administration regulations, manufactured and sold by the Manufacturers, including Philips.
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`Image’s customers comprise healthcare facilities such as hospitals and imaging clinics. Image
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`distinguishes itself from the major Manufacturers by offering high quality service, customer care,
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`and expedited service at a lower cost. Image prides itself on its ability to provide on-demand
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`service and repair of an MRI Machine at a moment’s notice. Image’s rapid response time is critical
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`to its business, as it is extremely disruptive to the operations of a hospital or imaging center if its
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`machines are inoperable for any length of time.
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`12.
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`Typically, in order to perform diagnostic checks and to calibrate MRI Machines
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`after service or maintenance work is performed, Image will need access to the MRI Machine’s
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`basic operating system. Toshiba, GE, and Siemens all provide Image with service and installation
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`Case 3:22-cv-00147-B Document 65 Filed 02/16/23 Page 5 of 23 PageID 1019
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`information required under 21 CFR § 820 as well as a free digital key that allows Image technicians
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`access to the MRI Machines’ operating systems for purposes of installing, maintaining, and
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`servicing the equipment as required by the FDA. While Philips had previously provided ISOs like
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`Image access to Philips MRI Machines’ operating systems for the purpose of installing,
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`maintaining, servicing and repair, Philips has now locked out all ISOs, including Image, from
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`Philips MRI Machines.
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`A.
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`Philips’ Anticompetitive and Exclusionary Conduct.
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`13.
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`Historically, Philips and ISOs, like Image, had the ability to install, maintain,
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`service a Philips’ MRI Machine for hospitals and imaging centers. At the time they purchased a
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`Philips’ MRI Machine, these medical facilities understood that they had options regarding service
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`of the MRI Machine, and that they could retain their own in-house engineers or any ISO to service,
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`maintain, and repair the Philips’ MRI Machine. 21 CFR § 1000.55. The ability to choose a service
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`provider is an important selling point when a medical facility is looking to purchase an MRI
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`Machine, as they typically want to avoid being forced to pay premium prices for the equipment
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`manufacturer to service the MRI Machine.
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`14.
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`Starting on December 18, 2018, Philips began issuing field change orders to
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`Philips’ field engineers to implement a series of firmware updates under the title Service Pack 5
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`(“SP5”) to Philips MRI Machines owned and operated by medical facilities that, for the first time,
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`imposed a new log-in screen that blocks anyone without Philips access credentials from accessing
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`any part of the Philips MRI Machine’s operating menu, operating systems, and diagnostic
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`software, restricting the purchasers of Philips MRI Machines of the ability to choose their service
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`provider and forcing the after-market service industry to cancel contracts with existing ISOs, like
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`Image, and switch to Philips. Philips field engineers and technicians began implementing the field
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`change orders and installing SP5 on Philips MRI Machines in February of 2019 and have since
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`continued to routinely secure and fortify SP5 and its exclusionary features through patches,
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`updates, and fixes. Philips continues to search out Philips MRI Machines lacking the software
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`update so that Philips can continue to install SP5 and continue its attempt to exclude ISOs from
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`servicing and repairing Philips MRI Machines. Indeed, even the medical facilities and other
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`owners of Philips MRI Machines, such as Image, that owned and operated these Philips MRI
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`Machines with full access to these menu options are now locked out of their own Philips MRI
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`Machine. Moreover, SP5 carries with it malware that hacks the Philips MRI Machine and
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`automatically sends communications to Philips regarding the Philips MRI Machine’s use, who
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`accessed it, what actions were taken, and other data that not only violates customer privacy, but
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`also implicates potential HIPPA violations. SP5 did nothing to improve the accuracy, efficiency,
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`or overall performance of Philips’ MRI Machines. Instead SP5 simply prohibited ISOs and owners
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`of Philips MRI Machines from accessing information and menu options needed to properly service
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`or repair Philips MRI Machines. Image is locked out of performing the most basic diagnostic and
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`troubleshooting tests on the machine and cannot run necessary calibrations after performing
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`hardware repairs. Even rudimentary features, such as changing the time on the machine or
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`changing a user name, are now behind the technological barrier Philips imposed by installing SP5
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`on its MRI Machines owned and operated by healthcare facilities. Philips continues to issue
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`updates, bug fixes, and other technological fortification for SP5 that secure its ability to lock out
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`ISOs and corner the aftermarket service industry for itself.
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`15. When it installed SP5, Philips told the owners of the MRI Machines that SP5 was
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`a mandatory safety and security measure and that hospitals and clinics would be out of compliance
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`with applicable regulations if the updates were not installed. Philips never told the owners that SP5
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`would require that Philips service the Philips MRI Machine going forward, that SP5 locked out
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`ISOs, or that SP5 would be sending Philips data regarding the Philips’ MRI Machine’s use,
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`including sensitive and private medical information. In reality, the sole purpose of SP5 was simply
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`to block ISOs from being able to service or repair Philips’ MRI Machines, and the update did
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`nothing to improve MRI Machines’ capabilities or bolster patient safety or performance standards.
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`SP5 allows Philips to corner the market for service of Philips’ MRI Machine and situate itself as
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`the sole aftermarket service provider for any and all Philips MRI Machines.
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`16. Moreover, unlike the other Manufacturers, Philips withholds access credentials or
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`a digital key from ISOs, including Image, and fails to license any of its copyrighted software to
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`Image or other ISOs. Instead, if a hospital or imaging center wants to use an ISO to repair its
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`machine, it typically must contact Philips and request that a Philips technician physically come out
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`to facility to unlock the Philips MRI Machine. The Philips technician often takes two or more days
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`to schedule a site visit, during which time the Philips MRI Machine requiring service is often
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`unusable. Given the significant cost of Philips’ MRI Machines, healthcare facilities generally do
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`not have multiple MRI Machines. Philips charges the Philips MRI Machine owner for travel time
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`in additional to the time it takes for the Philips technician to unlock the machine, which can total
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`roughly $3,000 to $5,000 every time the MRI Machine needs to be unlocked for an ISO to perform
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`service.
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`17.
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`Importantly, before Philips installed SP5 along with all its updates, healthcare
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`facilities could retain Image to install, service, and repair their Philips MRI Machines without
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`involving Philips, without waiting days for a Philips technician to unlock the MRI Machine, and
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`without having to pay Philips thousands of dollars in fees per visit in addition to Image’s service
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`fee. Accordingly, SP5 has quashed the ISOs’ two biggest advantages – lower prices and faster
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`response times. Indeed, by imposing untenable delays in responding to unlock requests and
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`commanding prohibitively high unlocking costs, Philips has unlawfully quashed any cost or time
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`savings a Philips MRI Machine owner previously gained by using ISOs, including Image. In other
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`words, instead of competing by lowering prices, quality of service, or improving response time,
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`Philips has acted to raise prices and lengthen service time of its competitors to levels that leave
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`Philips as the only viable option the market. Philips’ implementation of SP5, subsequent updates
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`to SP5, and purposeful delays and costs associated with unlocking its MRI Machines have
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`effectively preventing ISOs like Image from performing service and maintenance on any Philips
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`MRI Machine that Philips had updated to SP5.
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`18.
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`Philips has no valid business justification for blocking ISOs from installing,
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`servicing, maintaining, or repairing Philips’ MRI Machines. Image technicians, including
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`Shannon, are trained experts in the field and can provide the same or better service work as Philips’
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`technicians. There is no greater risk of harm to consumers or patients as a result of Image and other
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`ISOs having access to install, service, or repair of Philips MRI Machines. In fact, healthy
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`competition would foster a better outcome for patients and patient safety and performance
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`standards, as Philips will have no incentive to compete by offering high-quality services if it is the
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`only option available in the market.
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`19. Moreover, Philips’ exclusion of ISOs, including Image, from Philips MRI
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`Machines has impeded and continues to impede ISOs like Image from fulfilling the critical
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`function of making sure that Philips MRI Machines function properly and are available for much-
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`needed patient use with the least possible downtime. Philips’ exclusionary actions and limitations
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`directly harm competition from ISOs and Image and their ability to compete with Philips in the
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`aftermarket service. Philips has interfered with Image’s contracts with its customers by prohibiting
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`Image from accessing Philips’ MRI Machines. As a result of Philips’ tortious and wrongful
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`conduct, Image has suffered significant economic and reputational harm. Philips’ conduct also
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`makes the performance of Image’s service contracts more burdensome, difficult, expensive, and,
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`at times, impossible. These restrictions unnecessarily and unreasonably restrict downstream repair
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`markets, increase the healthcare costs for consumers in Texas and throughout the United States,
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`and are in violation of Federal and Texas law, as well as against public policy. More importantly,
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`when Philips limits or prevents ISOs ability access Philips’ MRI Machines, this leads to patient
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`care and patient safety and performance standards concerns.
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`20.
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`Philips also has told and is telling Image’s customers that Image is unable to legally
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`service Philips MRI Machines, that Image is conducting illegal activity by servicing Philips MRI
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`Machines, and that Image has stolen Philips alleged proprietary information. Specifically, within
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`the past year, Philips has spread these lies and falsehoods to Image’s customers, including, but not
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`limited to, Alpha Biomedical and Diagnostic Corp. (“Alpha”), to disparage Image’s business in
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`Philips’ attempt to siphon Image’s market share for itself. Philips’ scheme of lies and deceit
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`directly damages Image’s reputations and financially injures Image by causing customers to cancel
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`service contracts with Image and preventing Image from obtaining new customers.
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`21.
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`Based on Philips’ wrongful conduct, Image has encountered resistance in the
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`industry to market and provide its services. Philips’ attempts to take Image’s customers and harm
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`Image’s reputations have caused significant injury to Image, and Image’s sales of parts and service
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`for Philips MRI Machines has suffered. Through Philips exclusionary conduct, Philips has
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`attempted to position itself as the sole provider of installation and service for Philips MRI
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`Machines, effectively pushing out ISOs, including Image. Philips has engaged in such conduct for
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`the sole purpose of extinguishing its competitors and owning the aftermarket installation and
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`service market.
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`B.
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`The Relevant Antitrust Market.
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`22.
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`The relevant antitrust market is the market for the provision of installation,
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`maintenance, service, and repair on Philips MRI Machines in the United States and its territory
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`Puerto Rico (the “Market”). A single MRI Machine can cost hundreds of thousands of dollars to
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`purchase. Thus, it is exceedingly unlikely that a healthcare facility faced with a price increase in
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`the aftermarket for servicing its Philips MRI Machine will opt to purchase a new MRI Machine,
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`whether from Philips or another Manufacturer. MRI Machines are an integral part of healthcare
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`services and require frequent service and maintenance. Moreover, other types of imaging
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`equipment use different technologies and generally are not interchangeable with MRI Machines.
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`Thus, MRI Machines must be up and running at all times to ensure healthcare services can be
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`administered that to ensure patient safety and performance standards.
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`23.
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`Given the prohibitively high cost of purchasing a new MRI Machine, coupled with
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`the need for MRI Machines to be operating at all times, healthcare facilities that own a Philips
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`MRI Machine have no substitute for paying to service and maintain the Philips MRI Machines. In
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`other words, these owners are locked in to the Philips MRI Machine they own. If these healthcare
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`facilities or other owners of Philips’ MRI Machines are faced with an increase in the price of
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`servicing the MRI Machine above the competitive market rate, they have no option but to pay the
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`supracompetitive price rather than purchase a new machine for hundreds of thousands of dollars
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`or forego service altogether, which is not permitted under 21 CFR § 1000.55.
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`24.
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`Philips has monopoly power in this Market for servicing, maintaining, and
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`repairing its machines. On information and belief, since Philips implemented its SP5 requiring
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`consumers to obtain a costly and slow-to-arrive key prior to having the Philips’ MRI Machines
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`serviced by an ISO, approximately 80% of healthcare facilities that have Philips MRI Machines
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`now also use Philips to install, service, and maintain the Philips’ MRI Machines, and this number
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`is only increasing with Philips continued efforts to fortify SP5 with updates and continued
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`installation of SP5 on Philips MRI Machines. This is in stark contrast to the other Manufacturers,
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`which, based on Image’s experience in the industry, have only about 40-50% of the markets for
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`servicing their respective machines. The remaining and continuously dwindling share of the
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`Market is comprised of smaller ISOs, such as Image, that compete with Philips.
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`25.
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`There are numerous barriers to entry for new participants in the Market. Philips’
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`continued implementation and fortification of technological barriers through updates, patches, and
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`fixes prevents any competitors from participating the Market. Moreover, high costs of servicing
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`equipment, required technical skill, and industry knowhow of Philips’ MRI Machines raise
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`additional barriers for competitors looking to enter the Market.
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`26.
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`In the face of direct competition from Image and other ISOs, Philips has engaged
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`in purposeful and exclusionary conduct and has used its dominant market position and monopoly
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`power to hinder, restrain, and harm competition from Image and other ISOs and to unlawfully
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`maintain its monopoly power and exclude competition for aftermarket services on its MRI
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`Machines. In order to suppress competition, Philips has imposed unreasonable and anticompetitive
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`barriers in the industry, such as its implementation of SP5, continued updates related to SP5,
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`continued installation of SP5 on Philips’ MRI Machines, and delayed response times and increased
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`costs for unlocking a Philips’ MRI Machine, that prevent ISOs like Image, and even the purchasers
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`of Philips’ MRI Machines themselves, from accessing the Philips MRI Machines for service,
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`maintenance, and repair, even if ISOs like Image already have the knowledge, information, and
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`skill set to service the Philips MRI Machine. Under the guise of a routine software update, Philips
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`Case 3:22-cv-00147-B Document 65 Filed 02/16/23 Page 12 of 23 PageID 1026
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`used and continues to use SP5 to infiltrate Philips MRI Machines for the sole purpose of
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`eliminating competition and stealing Image and other ISOs’ market share.
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`COUNT I
`MONOPOLIZATION IN VIOLATION OF SECTION 2 OF THE
`SHERMAN ACTITRUST ACT (15 U.S.C. § 2)
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`27.
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`Image repeats and re-alleges each allegation set forth in the preceding paragraphs
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`of these Counterclaims as if fully set forth herein.
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`28.
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`Philips has monopoly power in the Market for the provision of the installation,
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`maintenance, service, and repairs on Philips’s CT and MRI machines in the United States.
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`29.
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`Philips willfully acquired and maintains its monopoly power through restrictive and
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`exclusionary measures, as distinguished from growth or development as a consequence of a
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`superior product, business acumen, or historic accident.
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`30.
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`Philips’s anticompetitive conduct, detailed more fully above, includes its efforts to
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`lock Image and other competitors out of the Market by imposing unreasonable and exclusionary
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`technological barriers that block access to the Philips’ MRI Machines for purposes of servicing,
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`repairing, and maintaining them. These measures significantly impair Image’s ability to perform
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`installation, service and repair work for hospitals and clinics with Philips-brand MRI Machines.
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`31.
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`Philips’s anticompetitive conduct also includes its refusal to provide Image or other
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`ISOs with credentials or a license whereby they can access the machines’ basic systems for
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`purposes of performing routine servicing, repairs, and installation of the Philips MRI Machine.
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`32.
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`Philips is the only one of the major Manufacturers who refuses to provide such
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`credentials to ISOs for MRI Machines or offer alternative methods to access Philips’ MRI
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`Machines.
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`33.
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`Philips willfully and intentionally engaged in this anticompetitive conduct in order
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`to improperly acquire and maintain monopoly power in the Market.
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`34.
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`These measures serve no valid business purpose, and were imposed for purposes of
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`eliminating competition in the Market.
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`35.
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`Philips’s anticompetitive conduct has caused significant antitrust injuries:
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`excluding competition in the Market, eliminating consumer choice in the Market, and raising
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`prices in the Market.
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`36.
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`Image has suffered damage to its business as a result of Philips’s exclusionary
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`conduct. For example, it has lost revenue and business opportunities as a result of being unable to
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`compete on an equal playing field in the Market. Customers that otherwise would have engaged
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`Image as its service and repair provider have instead been coerced to enter into service contracts
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`with Philips. As a direct, substantial, proximate, and immediate result of Philips’ attempt to
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`monopolize the Market, Image has been injured in its business and trade in an amount to be
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`established at trial.
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`COUNT II
`ATTEMPTED MONOPOLIZATION IN VIOLATION
`OF SECTION 2 OF THE SHERMAN ANTITRUST ACT (15 U.S.C. § 2)
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`37.
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`Image repeats and re-alleges the preceding paragraphs of its Counterclaims as if
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`fully set forth herein.
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`38.
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`Philips specifically intended to monopolize the Market for servicing of Philips MRI
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`Machines.
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`39.
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`Philips’s anticompetitive conduct, detailed more fully above, includes its efforts to
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`lock Image and other competitors out of the Market by imposing unreasonable and exclusionary
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`technological barriers that block access to the machines for purposes of installing, servicing,
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`repairing, and maintaining them. These measures significantly impair Image’s ability to perform
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`installation, service and repair work for hospitals and clinics with Philips-brand MRI Machines.
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`40.
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`Philips’ anticompetitive conduct also includes its refusal to provide Image or other
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`Case 3:22-cv-00147-B Document 65 Filed 02/16/23 Page 14 of 23 PageID 1028
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`ISOs with credentials or a license whereby they can access the Philips’ MRI Machine’s basic
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`systems for purposes of performing routine servicing and repairs.
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`41.
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`Philips is the only one of the major Manufacturers that refuses to provide such
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`credentials to ISOs or offer alternative methods to access Philips’ MRI Machines.
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`42.
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`In furtherance of this attempt, Philips has engaged in anti-competitive and
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`exclusionary conduct, as alleged herein, to stifle competition in the Market.
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`43.
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`If Philips has not already acquired monopoly power in the Market, then there is a
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`dangerous probability of its achieving monopoly power as a result of the anticompetitive and
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`exclusionary conduct described above.
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`44.
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`Philips engaged in the exclusionary conduct alleged above with specific intent to
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`monopolize the Market.
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`45.
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`Philips’ anticompetitive and exclusionary conduct has decreased price competition
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`in the Market, pushed ISOs out of the Market, and deprived purchasers of Philips MRI Machines
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`of free choice of service providers. Philips profited, and continues to profit, from its unlawful and
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`deceptive conduct to the detriment of purchaser and to the detriment of patient safety and
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`performance standards.
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`46.
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`As a result of Philips’ exclusionary conduct, and specific intent to monopolize,
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`Philips has substantially harmed competition and caused antitrust injury, and Image has suffered
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`damages to its business or property.
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`47.
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`There are no legitimate business or pro-competitive justifications for Philips’
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`conduct, and any purported legitimate business justifications are mere pretexts. Even if any
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`justifications exist, any purported pro-competitive benefits can be achieved through alternative
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`means less restrictive of competition.
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`PAGE 14
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`Case 3:22-cv-00147-B Document 65 Filed 02/16/23 Page 15 of 23 PageID 1029
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`48.
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`Philips continues to engage in anticompetitive and exclusionary conduct that will
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`further injure Image and competition.
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`49.
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`Image has suffered damage to its business as a result of Philips’s exclusionary
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`conduct. For example, it has lost revenue and business opportunities as a result of being unable to
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`compete on an equal playing field in the Market. Customers that otherwise would have engaged
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`Image as its service and repair provider have instead been coerced to enter into service contracts
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`with Philips. As a direct, substantial, proximate, and immediate result of Philips’ attempt to
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`monopolize the Market, Image has been injured in its business and trade in an amount to be
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`established at trial.
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`COUNT III
`TORTIOUS INTERFERANCE WITH PROSPECTIVE RELATIONS
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`50.
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`Image repeats and re-alleges the preceding paragraphs of their Counterclaims as if
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`fully set forth herein.
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`51.
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`Image had potential business relationships, of which there was a reasonable
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`probability that Image would enter into a business relationship with a third person, including
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`relations leading to potentially profitable service contracts or options to renew or extend existing
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`service contracts.
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`52.
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`Philips intentionally interfered with Image’s potential business relationships,
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`including potentially profitable service contracts or options to renew or extend existing service
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`contracts. Philips’ actions, including locking Image out of the Philips MRI Machines, were
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`designed to prevent and/or discourage the performance of services by anyone other than Philips.
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`53.
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`Philips’ conduct was
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`independently
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`tortious and unlawful, as Philips
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`misrepresented the service requirements of Philips MRI Machines in an attempt to corner the
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`Market for itself and push ISOs, like Image, out of the Market. Specifically, Philips made
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`DEFENDANTS’ FIRST AMENDED COUNTERCLAIMS
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`PAGE 15
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`Case 3:22-cv-00147-B Document 65 Filed 02/16/23 Page 16 of 23 PageID 1030
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`derogatory and defamatory statements about Image to customers and potential customers of Image
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`including, but not limited to statements that Image is unable to legally service Philips MRI
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`Machines, that Image is conducting illegal activity by servicing Philips MRI Machines, and/or that
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`Image has stolen Philips alleged proprietary information.
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`54.
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`Philips’ interference with Image’s potential business relationships proximately
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`caused Image injury and damages.
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`55.
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`As a result of Philips’ interference, Image suffered actual and economic damages
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`and loss of profits from loss of potentially profitable service contracts or options to renew or extend
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`existing service contracts.
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`56.
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`Image is entitled to an award of damages, including punitive damages, and
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`reasonable attorneys’ fees.
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`57.
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`Philips conduct has caused harm to Image and will continue to cause irreparable
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`injury. Absent permanent injuncti