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
20