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Everything has its price, and the New York Mercantile Exchange, Inc. (NYMEX) has been helping people settle on one since 1872 (though back then it was known as the Butter and Cheese Exchange). But now NYMEX is getting protective of its prices. In November 2002 NYMEX filed suit in federal district court in New York against IntercontinentalExchange, Inc. (ICE), a three-year-old online energy exchange that uses NYMEX prices to set its own prices. ICE’s practice, NYMEX claims, violates the copyright that the New York exchange holds on its prices. In January, ICE filed a countersuit, accusing NYMEX of anticompetitive practices. ICE says it believed that NYMEX’s prices were in the public domain, since NYMEX has been promoting its settlement prices as an industry standard for years, and that those prices were facts, like sports scores, that could not be copyrighted. Attorneys for ICE add that the timing of NYMEX’s copyright — last April, at roughly the same time ICE added a clearing function to its business that put it in more direct competition with NYMEX — strengthens its argument that the original suit is anticompetitive. According to NYMEX, ICE is unfairly capitalizing on the NYMEX reputation, though the New York exchange adds that it does not plan to sue other market participants who also use its settlement prices. For plaintiff/counterdefendant New York Mercantile Exchange, Inc. (New York) In-house: General counsel and chief administrative officer Christopher Bowen and vice president and counsel Suellen Galish. Olshan Grundman Frome Rosenzweig & Wolosky (New York): Herbert Ross, Jr., and associate Jack Kint, Jr. Ross has been working with NYMEX on IP issues for two years. Pollack & Kaminsky (New York): Martin Kaminsky and Edward McDermott. Kaminsky has represented NYMEX on a range of issues for more than a decade. Skadden, Arps, Slate, Meagher & Flom (New York): Shepard Goldfein, James Keyte, and associates Andrew Fuchs, John Lyons, and Geralyn Trujillo. (Lyons is in Washington, D.C.) Kaminsky asked Goldfein to work with him because they had worked together on the American Stock Exchange’s recent options litigation. For defendant/counterplaintiff IntercontinentalExchange, Inc. (Atlanta) In-house: Vice president, general counsel, and corporate secretary James Falvey. Sullivan & Cromwell (New York): James Carter, Jr., David Gilberg, Richard Klapper, and associate Michael Cheah. Winston & Strawn (Chicago): Steven Molo and Dan Webb. Falvey selected both firms because he had worked with them previously, at ICE and during his tenure at The Allstate Corporation. OUTLOOK Attorneys for both parties expect the suits to be resolved simultaneously, though as of press time no ruling had been made in either case. — Heather Smith

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