Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount Centers, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-41110

STEWART GLASS & MIRROR, INC., ET AL.,

Plaintiffs,

STEWART GLASS & MIRROR, INC.; TEXAS MOBIL
AUTO GLASS, INC.; RLJ, INC., doing business
as A-1 Glass Co.; FREDDY'S AUTO GLASS & MIRROR,
INC.; NEDERLAND GLASS CO., INC.; LONE STAR
GLASS, INC.; AUTO GLASS SPECIALISTS, INC.;
ALAMO GLASS OF PORT ARTHUR, INC.; RAY GLASS
COMPANY, INC.,

Plaintiffs-Appellants,

v.

U.S. AUTO GLASS DISCOUNT CENTERS, INC., ET AL.,

Defendants,

U.S. AUTO GLASS DISCOUNT CENTERS, INC.;
SAFELITE GLASS CORP.; HARMON GLASS COMPANY,
INC.; WINDSHIELDS AMERICA, INC.; USA GLAS, INC.,

Defendants-Appellees.

_______________________________

Appeal from the United States District Court
for the Eastern District of Texas
_______________________________
January 6, 2000

Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellants, eight independent, Texas-based auto repair shops

engaged in the business of repairing and replacing auto glass and

residential and commercial flat glass, appeal from the district

court’s grant of summary judgment to appellees, two competitors
not based in Texas but also competing in the Texas auto-glass

repair market, on several claimed violations of the anti-trust

laws, as well as a claim sounding in Texas tort law based on

intentional interference with contract.1 Because we find that

the appellants have failed to raise any genuine issues of

material fact in support of their claims, we affirm.

I. Background

Appellants and appellees are primarily engaged in the same

enterprise: the replacement and repair of automobile glass.

Appellants are small, independent shops, incorporated and doing

business in the State of Texas. Appellees are much larger,

nationally organized corporations engaged in the automobile glass

repair and replacement business nationwide.

It is undisputed that each appellees’ glass repair business

is divided into two primary segments: company-owned glass repair

shops and a glass repair network. It is the ownership and

operation of the network component of appellees’ business of

which appellants complain.

1
The eight appellants are Stewart Glass & Mirror Inc.; Texas
Mobil Auto Glass Inc.; RLJ Inc., doing business as A-1 Glass Co.;
Freddy’s Auto Glass & Mirror Inc.; Nederland Glass Co. Inc.; Lone
Star Glass Inc.; Auto Glass Specialists Inc.; Alamo Glass of Port
Arthur Inc.; and Ray Glass Company Inc. The original four
defendants at the time this action commenced included US Auto
Glass Discount Centers Inc., Safelite Glass Corp.; Harmon Glass
Company Inc.; Windshields America Inc.; and USA Glas Inc. Since
the time of filing, Windshields America and USA Glas merged to
form a single company, Vistar Inc. Vistar then merged with
Safelite Glass, leaving two appellees in this matter: Vistar Inc.
and Harmon Glass Company.

2
 The networks were designed and instituted to perform a

function demanded by the primary buyer of automobile glass repair

services: insurance companies. As a large segment of the auto-

insurance market relates to the replacement of auto glass, the

insurance companies began to demand more efficient means to

fulfill the needs of their policy-holders, while simultaneously

reducing costs by centralizing claims handling and payment

processing. The networks were designed to fill this demand.

The networks all function similarly. Periodically, the

network companies bid for the right to enter into regional or

national agreements with insurers to provide a claims management

network service to the insurer’s policy-holders.2 Once a bid is

secured, the network company must maintain an 800 number call-

processing center to receive and process calls from insureds

seeking auto glass repair services.3 While the networks operate

under the guise of the insurance company, they are in fact owned

and maintained by the network companies - appellees in this

matter.

The appellee-network companies each own individual glass

2
Not all insurance companies maintained exclusive
arrangements with one network. Some insurance companies elected
instead to award multiple bids to several competing companies to
fulfill the needs of their policy-holders. When an insurance
company elects this system over an exclusive arrangement, calls
are rotated among the networks based on percentages set by the
insurance company, derived largely from the differing performance
profiles of the networks.
3
Insureds might telephone the toll-free number directly, or
might alternatively telephone their insurance company, and then
be transferred to the call center for processing of their claims.

3
shops capable of performing repair work. However, no network’s

shops alone are capable of providing the nationwide coverage

demanded by insurance companies. As such, network companies

negotiate separate contracts with independent shops across the

nation. These contracts are non-exclusive, and many independent

shops choose to join multiple networks. Each shop individually

negotiates the price at which it will provide services - usually

determined based on the relevant region of the country and the

respective prices insurance companies are willing to pay for the

services offered. Once under contract, the network affiliate

independent shops agree to accept work from the networks at the

pre-arranged price.

It is also undisputed that subcontracting arrangements exist

between network-owned glass shops and competing networks. The

contracts are negotiated in the same manner contracts with

independent shops are formed. This subcontracting situation

reflects the reality that any given network cannot otherwise

guarantee national coverage as demanded by the insurance

companies.

When a policy-holder telephones his respective insurer

requesting service, a customer service representative from the

insurer’s contracted network call center reads from an insurer-

approved script concerning the policy-holder’s options. The

policy-holder will then be informed of the location of several

network owned or affiliated shops under contract to perform the

repair work. The policy-holder will also be asked whether he has

4
a preference as to the shop he would like to use. If the policy-

holder has a preference, he is always free to use that shop, and

the network respects that choice. Typically, however, policy-

holders are encouraged to utilize network affiliated shops.

Once the work is performed, the policy-holder remits the

amount of his deductible to his selected repair shop. The

network then pays the remaining fee due to the affiliated shop

under the pre-negotiated contract. As the final step in this

process, the network bills the insurance company according to the

terms of the existing agreement.

Network companies only benefit from this arrangement when

the price negotiated between the network and the insurance

company exceeds the price negotiated between the network and the

affiliate. While this is most often the case, in some instances

networks are required to maintain contracts with independent

shops at prices which exceed the insurance companies contracted

price, in order the meet the demands for nationwide coverage.

The usual positive difference between the two prices negotiated

by the network represent the costs associated with maintaining

and operating the network call center. Any money earned in

excess is profit for the network. While networks obviously have

a financial incentive to negotiate prices with affiliated shops

that will allow for this profit, the relationship is also driven

by the need for the networks to offer comprehensive regional or

national coverage, in order to secure insurance contracts in the

first instance.

5
 Appellees are not the only companies that own and maintain

networks in response to this demand from insurance companies.

There are several national networks performing the same function

not named as defendants in this matter. One such network, known

as LYNX, is operated by a large glass manufacturer, PPG. As PPG

does not own any glass shops, all members of the LYNX network are

independent shops, including all but one of the appellants in

this matter. Each network competes for insurance contracts, and

each, including LYNX, appear to have secured insurance-contracted

business.4

Appellants sued appellees, claiming that these network

arrangements constitute a violation of both Sections 1 and 2 of

the Sherman Act,5 as well as various claims under Texas law. The

district court dismissed several of these claims in partially

granting defendant-appellants’ motion to dismiss. See Stewart

Glass & Mirror, Inc. v. U.S.A. Glas, Inc., 940 F.Supp. 1026 (E.D.

Tex. 1996). The remaining claims include Section 1 claims for

unreasonable restraint of trade and unlawful boycott;6 a Section

4
In 1997, LYNX secured the contract for State Farm, the
nation’s largest auto insurer, and thus had access to 25-30% of
the national auto insurance market.
5
15 U.S.C. §§ 1-2.
6
Appellees correctly note that appellants’ brief fails to
articulate with specificity the various claims alleged on appeal.
Rather, appellants merely offer an omnibus argument concerning
purported violations of Section 1. We have construed these
arguments as liberally as possible in concluding that the
evidence fails to substantiate any anti-competitive behavior on
the part of appellees.

6
2 claim for monopoly, attempt to monopolize, and conspiring to

monopolize the auto glass repair market; and, a claim for

tortious interference with contract in violation of Texas common

law. The district court granted defendant-appellees’ motion for

summary judgment on each of these claims. See Stewart Glass &

Mirror, Inc., et al. v. U.S.A. Glas, Inc., et al., 17 F.Supp.2d

649 (E.D.Tex. 1998). Appellants timely appealed.

II. Standard of Review

This Court reviews the grant of summary judgment de novo.

S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.

1996). Summary judgment is proper, “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputed

facts preclude summary judgment if the evidence would allow a

reasonable jury to return a verdict for the non-movant. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

While “it is true that summary judgment is less common in

antitrust cases than in other cases, [] this is not because

different rules apply to those cases. Rather, it is because the

relevant factual disputes in antitrust cases are typically more

complicated than those in other cases.” Consolidated Metal Prod.

v. Amer. Petro Institute, 846 F.2d 284, 288 (5th Cir. 1988)

(citations omitted). Mindful of this general caution, we proceed

7
with an analysis of each claim, applying the standards of the

statutes appellants claim have been violated.

III. Analysis

A. Section 1 of the Sherman Antitrust Act

Section 1 of the Sherman Antitrust Act states: “Every

contract, combination in the form of trust or otherwise, or

conspiracy, in restraint of trade or commerce among the several

states, or with foreign nations, is declared to be illegal.” 15

U.S.C. §1. “To prevail on a Section 1 claim, plaintiffs must

show that the defendants (1) engaged in a conspiracy (2) that

produced some anti-competitive effect (3) in the relevant

market.” Johnson v. Hospital Corp. of America, 95 F.3d 383 (5th

Cir. 1996). Additionally, the Supreme Court clarified in

Matsushita Elec. Indus. Co. v. Zenith Radio, that antitrust

plaintiffs must prove they have suffered an injury stemming from

the complained-of anti-competitive behavior. 475 U.S. 574, 586

(1986).

While it is true that this Court must view all inferences to

be drawn from the underlying facts “in the light most favorable

to the party opposing [a summary judgment] motion,” Matsushita,

475 U.S. at 587 (quoting United States v. Diebold, 369 U.S. 654,

655 (1962)), we remain cautious in Section 1 cases as “antitrust

limits the range of permissible inferences from ambiguous

evidence.” Id. at 588. More simply stated, “[t]o survive a

motion for summary judgment or for a directed verdict, a

plaintiff seeking damages for a violation of § 1 must present

8
evidence ‘that tends to exclude the possibility’ that the alleged

conspirators acted independently.” Id. at 588 (quoting Monsanto

Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764 (1984)).

In this case, not uniquely, appellants proffer

circumstantial evidence in support of their claim that appellees

illegally conspired to restrain trade in violation of Section 1.

Antitrust plaintiffs may fairly rely on circumstantial evidence

to defeat a motion for summary judgment. However, appellants

bear the burden of coming forth with evidence sufficient to infer

the existence of an antitrust conspiracy. See Johnson, 95 F.3d

at 392.

As appellants do not argue on appeal that the actions taken

by the networks were per se unlawful, they bear the burden of

demonstrating facts sufficient to demonstrate that the

complained-of actions unreasonably restrained trade contrary to

the judicially constructed rule of reason. “To prove a Section 1

violation under rule of reason analysis, [appellants] must show

that the defendants’ activities caused an injury to competition.”

Doctor’s Hospital of Jefferson, Inc. v. Southeast Medical

Alliance, Inc., 123 F.3d 301, 307 (5th Cir. 1997) (citing Roy B.

Taylor Sales, Inc. v. Hollymatic Corp., 28 F.3d 1379, 1385 (5th

Cir. 1994)). This rule of reason requires us to examine the

unreasonableness of the asserted restraint on competition,

“looking to ‘all of the circumstances of the case, including the

facts peculiar to the business and the history of, reasons for,

and market impact of the restraint. . . .’” Royal Drug Company,

9
Inc. v. Group Life and Health Insurance Co., 737 F.2d 1433, 1436

(5th Cir. 1984) (quoting Medical Arts Pharmacy v. Blue Cross &

Blue Shield of Connecticut, Inc., 675 F.2d 502, 504 (2d Cir.

1982)).

Appellants’ primary contention is that the network glass

programs were designed and implemented with the express purpose

of eliminating small, independent shops from the marketplace.

Specifically, appellants contend that the interrelationships

between the insurance companies and the respective networks go

beyond simply a legal buyer-seller relationship, and in fact were

somehow transformed into illegal, horizontal arrangements

designed to exclude small players from the marketplace.

Appellants’ contentions find no support in the summary

judgment evidence. Insurance companies demanded that the market

for auto glass repair provide services in addition to simple

replacement of windshields. Insurance companies demanded the

formation of networks to manage claims and more efficiently

arrange for the services required by policy-holders. Nothing

indicates that the networks operate as anything more than

preferred providers, once the contracts are awarded. As “conduct

as consistent with permissible competition as with illegal

conspiracy does not, standing alone, support an inference of

antitrust conspiracy,” Matsushita, 475 U.S. at 588, we refuse to

find a violation based solely upon the existence of contracts

between insurance companies and auto glass repair providers.

These preferred provider relationships function based on a

10
series of vertical buyer-seller relationships that remain

perfectly within the bounds of law. Insurance companies enter

into legal, vertical agreements with one, sometimes more, network

companies to provide service. Network companies, in turn, enter

into separate legal, vertical agreements with shops capable of

providing auto glass repair service nationwide, so as to meet the

needs of insurance companies.7

Critical to this arrangement, each glass shop separately

negotiated the prices at which it would agree to accept network-

referred work. The insurance companies did nothing to demand or

fix the price at which these services would be offered, and,

indeed, the evidence demonstrates that they simply could not have

placed such demands, as the insurance companies had no

interaction with the independent, or even the network-owned,

shops that composed the network.

Furthermore, there is no evidence to support the claims made

by appellants that the networks fixed prices or illegally coerced

7
Appellants make much of the fact that any given network in
this system might contract with the shops owned by competing
networks. The evidence demonstrates that these contracts were
nothing more than vertical agreements, separately negotiated, to
the benefit of both the network and the shops involved. These
contracts were motivated by the legitimate business interest of
network-owned shops in securing work from insurance companies
with whom their own network failed to secure a contract. These
subcontracting arrangements, however, do not represent illegal
horizontal agreements between the networks: they are nothing more
than contracts between a supplier and a purchaser of a particular
service for a negotiated price.

11
independent shops into the network system.8 The evidence, in

fact, points in the opposite direction: independent shops retain

the contractual right to enter or leave networks as their

business judgment dictates. Reflecting this reality, several

appellants in this case at one time or another joined various and

multiple networks freely, left networks when prices were

unacceptable, and outright rejected offers to join several

appellee networks.9

In an effort to substantiate these claims, appellants draw

our attention to the subcontracting arrangements between each

network and competitor network-owned glass shops, as evidence of

an alleged boycott.10 The attempt to characterize these

agreements as horizontal restraints on trade is unpersuasive.

8
The summary judgment evidence indicates that even the legal
market pressure to join networks may not be as significant as
stated by appellants. Network utilization remains relatively
low. The majority of policy-holders continue to exercise their
right to choose an auto glass repair shop outside their insurance
companies’ respective networks.
9
The evidence indicates that independents who refuse to join
networks still retain a large segment of the auto glass repair
market nationwide. Further, there are several additional players
in the market, including networks composed of only independent
shops. All of these networks share in the market for auto glass
repair, and openly and vigorously compete for insurance-contract
awards. In fact, LYNX, the network composed primarily of
independent shops, secured the lucrative State Farm contract in
1997.
10
Appellants contend they were boycotted in favor of competing
network-owned shops, as well as through the pricing mechanism
employed by the networks with respect to affiliated independents.
However, as previously stated, there is nothing in the record to
indicate that the contracts between networks and affiliated
independents were anything but freely negotiated, based in large
part on regional market patterns.

12
The evidence demonstrates that once a network loses a bid for a

particular insurance company’s claims, the network-owned shops

are in the same position as independent shops, vis-a-vis the

winning network: they may choose to subcontract with the winning

network to secure insurance work, or they can compete in the open

market, with the hope that consumers will select them over

network affiliates as they always remain free to do.

Appellants complain that even if they choose to join

networks, they are discriminated against by the network in the

awarding of work. Again, this claim fails to find support in the

record. In fact, the evidence overwhelmingly indicates that once

contacted by those seeking service, the networks clearly inform

policy-holders they are free to select any shop of their

choosing. And, by all indications, consumers exercise this right

and frequently choose independent shops affiliated with the

networks over network-owned shops.11

The only evidence of joint activity occurring between the

network companies concerns meetings hosted by the insurance

companies to facilitate the operation of the glass replacement

programs. The evidence indicates that this situation arose only

when an insurance company selected multiple networks to provide

the desired service. The meetings usually involved the

coordination of promotional materials at the behest of the

11
For example, testimony indicates that Windshields America
sub-contracted over $24 million dollars annually to independent
shops, and only $1-2 million dollars annually to network-owned
shops, during the relevant time period.

13
insurance company, paid for by the networks, to promote the

network system.12 The evidence, however, indicates that even in

this type of circumstance, coordination did not involve setting

prices or allocating markets.

In fact, the evidence indicates that when several networks

secured contracts with the same insurance company, competition

between them remained fierce, as the insurance company allocated

a particular percentage of the incoming policy-holder calls to

each network depending upon the networks’ price performance and

customer satisfaction. No network had any incentive to share

information to foster an anti-competitive result, as each network

individually benefitted to the detriment of the others in an

environment of competition.

The Supreme Court cautions us that if the antitrust claims

“simply make[] no economic sense, [appellants] must come forward

with more persuasive evidence to support their claim than

otherwise would be necessary.” Matsushita, 475 U.S. at 587.

Thus, if the networks in this case “had no rational economic

motive to conspire, and if their conduct is consistent with

other, equally plausible explanations, the conduct does not give

rise to an inference of conspiracy.” Id.

The antitrust violations asserted here do not make economic

sense. The insurance companies, the relevant consumer in this

12
Farmers, for example, hosted this type of meeting to
coordinate its FASGLAS program, in which all appellee networks
were invited to join.

14
marketplace, desired and demanded increased cost-efficiency in

the auto glass repair industry. All the evidence indicates that

they have managed to achieve just that - millions of dollars in

savings annually - by insisting on a competitive environment in

which various networks compete for insurance company business.13

These are savings that are passed down to the ultimate consumer -

policy-holders - in a system that only benefits an open

marketplace in terms of price reductions.

Further, the evidence indicates that the networks have every

economic incentive to vigorously compete with one another for

insurance contracts. They stand only to lose by entering into

restrictive agreements with one another, considering that their

ability to win additional contracts is limited only by their

ability to subcontract enough shops to perform the demanded

services.

Thus, the desire to compete filters down to the negotiated

contracts between networks and independent shops: networks must

compete with one another to secure these relationships, and

therefore logically offer competitive prices to independents who

choose to contract. No network has any economic incentive to

frustrate or exclude independent shops, as without the

independents the networks themselves could not secure the

contracts they need to survive in the marketplace.

13
The summary judgment evidence indicates that Allstate saved
in the range of $1.2 to 2.3 million dollars annually, Nationwide
saved $12 to 15 million, and USAA saved $2.4 million, subsequent
to the implementation of the network system.

15
 In sum, the several hundred exhibits submitted in opposition

to the summary judgment motion fail to substantiate Section 1

antitrust violations, whether characterized in terms of

unreasonable restraint of trade or unlawful boycott. As such,

summary judgment with respect to Section 1 was properly granted,

and we affirm.

B. Section 2 of the Sherman Antitrust Act

Section 2 of the Sherman Antitrust Act provides a cause of

action against “single firms that monopolize or attempt to

monopolize, as well as conspiracies and combinations to

monopolize.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447,

454 (1993). Monopoly power is understood as “the power to

control price or exclude competition.” United States v. E.I. du

Pont de Nemours & Co., 351 U.S. 377, 391 (1956).

Although appellants’ claims under Section 2 are vaguely

stated at best, it is clear on the facts of this case that no

single appellee engaged in an attempt to monopolize, nor did any

one entity succeed in singularly monopolizing, the auto glass

repair market. Appellees’ uncontroverted summary judgment

evidence, in fact, points dramatically in the other direction, as

the auto glass repair market includes numerous players, both

large networks and individual shops, none of which individually

wields the power to control prices or exclude competition.

Appellants’ claim, rather, must be based on the notion that

appellees acted jointly to exclude other participants, namely the

independent shops, from freely participating in the market for

16
auto repair work fueled by insurance company demand.

Collectively, the argument must run, appellees wielded market

power sufficient to dominate the market in monopolistic form. As

such, appellants claim must be located in the second clause of

forbidden conduct under Section 2: conspiracies to monopolize.

“A conspiracy to monopolize can be established only by proof

of (1) the existence of specific intent to monopolize; (2) the

existence of a combination or conspiracy to achieve that end; (3)

overt acts in furtherance of the combination or conspiracy; and

(4) an effect upon a substantial amount of interstate commerce.”

North Mississippi Communications, Inc. v. Jones, 792 F.2d 1330

(5th Cir. 1986) (citing United States v. Yellow Cab Co., 332 U.S.

218 (1947)) (string cite omitted). This proof is lacking here.

As our previous analysis demonstrates, appellants have failed to

come forth with sufficient evidence of any agreements or

conspiracies, anti-competitive or otherwise, between the appellee

networks. As appellants’ Section 2 claim is based on a theory of

joint action, this lack of evidence is fatal.

As we found under our analysis with respect to appellants’

Section 1 claims no evidence of a cognizable claim of conspiracy

between or among the respective networks, we hold that summary

judgment with respect to Section 2 was properly granted.

C. Tortious Interference with Actual and Prospective Contracts

“Texas law protects existing and prospective contracts from

interference.” Juliette Fowler Homes, Inc. v. Welch Assocs.,

Inc., 793 S.W.2d 660, 665 (Tex. 1990). To maintain a cause of

17
action for tortious interference with an existing contract, a

plaintiff must demonstrate “(1) the existence of a contract

subject to interference, (2) the act of interference was willful

and intentional, (3) such intentional act was a proximate cause

of plaintiff’s damage and (4) actual damage or loss occurred.”

Johnson, 95 F.3d at 394 (citing Victoria Bank & Trust Co. v.

Brady, 811 S.W.2d 931, 939 (Tex. 1991)). The elements of

tortious interference with prospective contract or business

relationships are: “(1) reasonable probability that the parties

would have entered into a contractual relationship, (2) an

intentional and malicious act by the defendant that prevented the

relationship from occurring, with the purpose of harming the

plaintiff, (3) the defendant lacked privilege or justification to

do the act, and (4) actual harm or damage resulted from the

defendant’s interference.” Exxon Corp. v. Allsup, 808 S.W.2d

648, 659 (Tex. App. - Corpus Christi, 1991, writ denied).

In this case, appellants tied their state law claims to the

asserted antitrust violations. Specifically, appellants

maintained in their second reply to defendants’ motion for

summary judgment that as “defendants engaged in unlawful

conspiratorial behavior in violation of Sections 1 and 2 of the

Sherman Act, and [as] this behavior interfered with Plaintiffs’

existing and prospective business relations with various

insurance companies and their agents,” defendant-appellees were

not entitled to summary judgment on the state law claim. As we

find no genuine issue of material fact with respect to the

18
alleged antitrust violations, we fail to see how appellants can

maintain a cause of action under state law for tortious

interference. Simply stated, appellants’ claims rise and fall

together, and as the antitrust claims are unsubstantiated, so

must be the tortious interference claims.

Appellants attempt to distinguish the two sets of claims on

appeal by asserting that Texas law, as interpreted by this Court

in Leonard Duckworth, Inc. v. Michael L. Field & Co., 516 F.2d

952, 958 (5th Cir. 1975), requires no more than proof of “unfair”

market practices to maintain a cause of action for tortious

interference. It is a bedrock principle of appellate review that

claims raised for the first time on appeal will not be

considered. This rule is equally applicable in summary judgment

cases. See FDIC v. Laguarta, 939 F.2d 1231 (5th Cir. 1991)

(“This Court has clearly held . . . that it will generally not

consider a new ground on appeal raised by an appellant in

opposition to summary judgment.”) As appellants failed to argue

before the district court that their claims for tortious

interference could survive summary judgment on the antitrust

claims, we will not consider that argument now.

It merits mentioning that our careful review of the summary

judgment evidence submitted by appellants in the court below

fails to support the newly-offered allegations of tortious

interference in any event. Appellants vehemently insist that the

evidence points to episodes of untruthful behavior by the network

companies in their initial interactions with prospective

19
customers. Specifically, appellants maintain that lies told to

policy-holders with respect to their various auto glass repair

options interfered with prospective contracts the independents

might have otherwise formed.

Yet upon review, the summary judgment documents put forth in

support of these allegations reveal nothing with respect to

misleading or untruthful behavior on the part of the network

companies. As appellants failed to support their claim for

tortious interference, summary judgment was correctly granted.

IV. Conclusion

Because we find, upon careful review of the summary judgment

record in this case, no genuine issues of material fact

concerning the purported anti-competitive behavior of the network

companies, we AFFIRM the district court’s grant of summary

judgment on appellants’ federal antitrust claims and state law

tort claim.

AFFIRMED

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