Euromodas, Inc. v. Zanella, Ltd.

United States Court of Appeals
For the First Circuit

No. 03-1712

EUROMODAS, INC.,
Plaintiff, Appellant,

v.

ZANELLA, LTD. AND CLUBMAN, INC.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Armando Llorens, with whom Dora Peñagarícano and McConnell
Valdés were on brief, for appellant.
José L. Barreto-Rampolla, with whom Rivera, Barreto & Torres
Marcano was on brief, for appellee Clubman, Inc.
Edna Hernández-Arroyo, with whom María Luísa Martínez-López,
Avila, Martínez & Hernández, PSC, Lawrence Fechner, and Jaffe,
Segal & Ross were on brief, for appellee Zanella, Ltd.

May 17, 2004
 SELYA, Circuit Judge. This antitrust case, which

requires us to clarify what sort of evidence a plaintiff must

adduce to make out a trialworthy claim for a vertical restraint of

trade, presents a question of first impression in this circuit. We

turn to this question mindful that vertical restraints have

"provoked more reconsideration of established rules, or more

disagreement between courts and commentators" than most other areas

of antitrust law. Herbert Hovenkamp, Federal Antitrust Policy:

The Law of Competition and Its Practice § 11.1, at 441 (2d ed.

1999).

I

We begin with the cast of characters. Plaintiff-

appellant Euromodas, Inc. is a corporation engaged in the retail

sale of men's clothing. Defendant-appellee Clubman, Inc. is

engaged in the same business. The two retailers are direct

competitors in San Juan, Puerto Rico. Defendant-appellee Zanella,

Ltd. is an Italian manufacturer of fine men's clothing. Until

1997, both Euromodas and Clubman sold Zanella trousers. What

happened thereafter propelled the parties from the marketplace to

the federal courthouse.

Euromodas alleges that Clubman, which operates a large

number of stores in Puerto Rico, used its market power to force

Zanella into a minimum resale price maintenance scheme. Euromodas

claims that this scheme was in part intended to — and did —

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restrict its access to Zanella pants. Because this appeal arises

in an unusual posture, see infra Part II, we defer further

development of the background facts until we reach the merits of

the antitrust claim.

For the nonce, it suffices to say that Euromodas,

endeavoring to regain its competitive footing, sued both Clubman

and Zanella in the federal district court. It alleged a violation

of section 1 of the Sherman Act, 15 U.S.C. § 1. After pretrial

discovery had been completed, all three parties moved for summary

judgment. The district court granted the defendants' motion and

denied the plaintiff's cross-motion. Euromodas, Inc. v. Zanella,

Ltd., 253 F. Supp. 2d 201 (D.P.R. 2003).

The district court's decision comprised three discrete

but interdependent rulings. Initially, the court determined that

the plaintiff — Euromodas — had not complied with local procedural

rules. Id. at 203-04. This determination shaped the court's

conception of which parts of the record could be considered on

summary judgment. Viewing the case through that prism, the court

ruled that the plaintiff had not adduced sufficient evidence of

concerted action to fix prices and, thus, had failed to make out an

antitrust violation. Id. at 205-06. Along the way, the court

denied the plaintiff's cross-motion for summary judgment on the

ground that it did not comply with the court's local rules. Id. at

204 n.5 (discussing D.P.R.R. 311.12).

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 This appeal followed. In it, the plaintiff (i)

challenges the district court's resolution of the procedural issue;

(ii) assigns error to the court's entry of summary judgment for the

defendants; and (iii) protests the denial of its cross-motion for

brevis disposition.

II

Our logical starting point is the procedural issue, for

its resolution will determine what facts properly comprised the

summary judgment record and, thus, what facts the lower court

should have considered in deciding whether to grant summary

judgment. This inquiry centers on D.P.R.R. 311.12.1 The District

of Puerto Rico promulgated that rule to aid in the task of

identifying genuine issues of material fact that might affect the

entry of summary judgment. See, e.g., Ruiz Rivera v. Riley, 209

F.3d 24, 28 (1st Cir. 2000).

The local rule imposes bilateral obligations. It

requires that a party who moves for summary judgment submit, in

support of the motion, "a separate, short, and concise statement of

the material facts as to which the moving party contends there is

no genuine issue to be tried and the basis of such contention as to

each material fact, properly supported by specific reference to the

1
The District of Puerto Rico revised, reorganized, and
renumbered its compendium of local rules in September of 2003.
Because the summary judgment motions in this case were adjudicated
prior thereto, we refer throughout to the earlier version.

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record." D.P.R.R. 311.12. In turn, the rule requires a party

opposing a summary judgment motion to include with its opposition

a short and concise statement "of the material facts as to which it

is contended that there exists a genuine issue to be tried," with

proper record citations. Id. The penalty for failure is

potentially harsh; the facts delineated in the movant's statement

will be "deemed to be admitted unless controverted by the statement

required to be served by the opposing party." Id.

Rules such as Local Rule 311.12 were adopted pursuant to

a suggestion of this court, see Stepanischen v. Merchants Despatch

Transp. Corp., 722 F.2d 922, 931-32 (1st Cir. 1983), and we

consistently have upheld their use, see, e.g., Cosme-Rosado v.

Serrano-Rodriguez, 360 F.3d 42, 45 (1st Cir. 2004); Ruiz Rivera,

209 F.3d at 28. Here, however, the issue is not the enforceability

of the local rule but, rather, how it applies to oppositions to

summary judgment motions. Specifically, the plaintiff questions

the way in which the district court, based on its reading of the

local rule, restricted its consideration of the plaintiff's

evidence in analyzing the defendants' summary judgment motion.2 In

2
To be sure, the district court also denied the plaintiff's
motion for summary judgment on the basis of the plaintiff's
supposed noncompliance, qua movant, with the requirements of
D.P.R.R. 311.12. See Euromodas, 253 F. Supp. 2d at 204 n.5
(refusing to "scavenge through the record to pinpoint the facts
that would support Euromodas's arguments"). But as our subsequent
discussion of the merits reveals, see infra Part III, any error in
that regard was harmless. Accordingly, we discuss only the
district court's treatment of the plaintiff's opposition.

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an effort to put matters into perspective, we explain what

transpired.

Zanella moved for summary judgment in full compliance

with Local Rule 311.12 (Clubman joined Zanella's motion and we need

not discuss separately its quest for summary judgment). When the

plaintiff served its opposition, it omitted a separate statement

listing controverted material facts. The district court perceived

this omission as a "blatant disregard" of Local Rule 311.12,

proceeded to "deem as admitted the relevant uncontested facts

submitted by Zanella with its motion for summary judgment," and

limited the summary judgment record to those facts. Euromodas, 253

F. Supp. 2d at 203-04.

The plaintiff asserts that this approach constituted

error. It tells us that it complied with the imperatives of Local

Rule 311.12 notwithstanding its failure to formulate a separate

statement of controverted material facts. Therefore, its thesis

runs, the district court, while entitled to deem the defendants'

assertions of fact admitted, also should have taken the facts

identified in the plaintiff's opposition fully into account.

We conclude that the district court erred in its

interpretation of the local rule. The court found Euromodas to

have violated Local Rule 311.12 merely because it did not include

a separate statement of disputed facts with its opposition. But

Local Rule 311.12, as written, does not always require that a party

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opposing summary judgment put forth its version of the facts in a

separate statement. The rule requires only that the nonmovant

identify any facts in the movant's statement with which it takes

issue. See D.P.R.R. 311.12. In other words, an opposing party is

required to file such a statement only if (and to the extent that)

it wishes to register and preserve a potential dispute as to one or

more of the facts advanced by the movant.

In this instance, Euromodas was content to accept the

facts proffered by the defendants, so the district court

appropriately treated those facts as admitted. The plaintiff,

however, regarded those facts as incomplete, and it desired to

augment them with further facts — facts that it viewed as

undisputed and which were neither inconsistent with nor

contradictory to those contained in the movants' Local Rule 311.12

statement. The local rule, as it existed at that time, did not

require those additional facts to be presented in a particular

form.3 Because those additional facts were supported by the

record, the lower court should have considered them (while at the

same time accepting the facts set forth in the movants' Local Rule

311.12 statement). Its failure to do so constituted error.

3
The current iteration of this obligation, codified in Local
Rule 56(c), is worded somewhat differently. We take no view as to
what that language requires. See supra note 1.

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 III

This error does not necessarily require reversal. After

all, we afford de novo review to orders granting or denying summary

judgment. Podiatrist Ass'n, Inc. v. La Cruz Azul de P.R., Inc.,

332 F.3d 6, 13 (1st Cir. 2003); Garside v. Osco Drug, Inc., 895

F.2d 46, 48 (1st Cir. 1990). And, moreover, we are not wedded to

the trial court's reasoning, but, rather, may sustain its decree on

any ground made manifest in the record. Houlton Citizens'

Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

Consequently, we undertake an examination of the full summary

judgment record in order to assess the supportability of the lower

court's order. Accord Rathbun v. AutoZone, Inc., 361 F.3d 62, 70-

80 (1st Cir. 2004) (proceeding in this manner).

A

Section 1 of the Sherman Act prohibits "[e]very contract,

combination . . . or conspiracy, in restraint of trade or

commerce." 15 U.S.C. § 1. There are two prerequisites for a

successful section 1 claim. First, there must be concerted action.

Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984);

Podiatrist Ass'n, 332 F.3d at 12. Second, the actors' agreement

must involve either restrictions that are per se illegal or

restraints of trade that fail scrutiny under the rule of reason.

Monsanto, 465 U.S. at 761; Podiatrist Ass'n, 332 F.3d at 12.

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 In this instance, the plaintiff's case hinges on the

interposition of what is alleged to be an illegal vertical

restraint. A vertical restraint is a restraint of trade involving

a combination of persons at different levels of the market

structure. See M & H Tire Co. v. Hoosier Racing Tire Corp., 733

F.2d 973, 978 (1st Cir. 1984). While vertical restraints "may

reduce intrabrand competition by limiting the number of sellers of

a particular product, competing for a given group of buyers, they

also promote interbrand competition by allowing a manufacturer to

achieve certain efficiencies in the distribution of its products."

Id. (quoting Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131 (2d

Cir. 1978) (en banc)). Thus, vertical restraints often have both

pro-competitive and anti-competitive effects. For this reason,

such restraints generally are not deemed per se illegal, but,

rather, are tested under a rule of reason analysis. See Business

Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723 (1988).

Vertical price-fixing agreements, however, are a special

subset of vertical restraints. As such, they qualify for different

treatment. A vertical price-fixing agreement that establishes a

minimum price normally is regarded as a naked restraint of trade

and, thus, as illegal per se. See Business Elecs. Corp., 485 U.S.

at 724; Dr. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S.

373, 404-09 (1911); cf. State Oil Co. v. Khan, 522 U.S. 3, 22

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(1997) (holding that a maximum vertical price maintenance scheme is

not per se illegal).

Here, the district court concluded that the plaintiff had

not adduced enough evidence to sustain a viable section 1 claim

under either theory. Euromodas, 253 F. Supp. 2d at 205-06. We

must examine this conclusion in light of the full summary judgment

record. See supra Part II. In carrying out that task, we remain

cognizant that the proper office of summary judgment is to pierce

the boilerplate of the pleadings and assess the proof in order to

determine the need for a trial. Wynne v. Tufts Univ. Sch. of Med.,

976 F.2d 791, 793-94 (1st Cir. 1992). It follows that summary

judgment is appropriate only 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 a

judgment as a matter of law." Fed. R. Civ. P. 56(c).

In sifting the evidence, we must array it in the light

most hospitable to the party opposing summary judgment (here, the

plaintiff), indulging all reasonable inferences in that party's

favor.4 Houlton Citizens' Coalition, 175 F.3d at 184; Garside, 895

F.2d at 48. To avoid summary judgment, the evidence upon which the

4
The fact that the plaintiff had cross-moved for summary
judgment does not alter this methodology. In that circumstance, a
reviewing court examines each motion independently, applying the
principles articulated above. See Blackie v. State of Me., 75 F.3d
716, 721 (1st Cir. 1996).

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nonmovant relies to create a genuine issue of material fact must be

"significantly probative," not merely colorable. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

In addition to these familiar principles, a special

constraint applies in vertical restraint cases. Antitrust

liability is strong medicine (for example, it exposes a defendant

to treble damages, see 15 U.S.C. § 15), and thus section 1 of the

Sherman Act has been authoritatively interpreted to limit the

inferences that may be drawn from ambiguous evidence. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).

In a vertical restraint case,5 conduct that is "as consistent with

permissible competition as with illegal conspiracy does not,

standing alone, support an inference of antitrust conspiracy." Id.

This means that a section 1 antitrust case predicated upon an

alleged vertical restraint can survive summary judgment only if the

evidence relied upon by the nonmovant, when viewed through this

specially-constructed lens, suffices to show a "bona fide dispute

about a fact that has the potential of affecting the outcome of the

case under the applicable law." Podiatrist Ass'n, 332 F.3d at 13.

To create a trialworthy issue in a vertical restraint

case brought pursuant to section 1 of the Sherman Act, a plaintiff

5
It is abundantly clear that this special constraint —
limiting inferences from ambiguous evidence — applies in vertical
restraint cases. See, e.g., Monsanto, 465 U.S. at 763-64. The
proposition may be less clear in horizontal conspiracy contexts,
but we need not probe that distinction here.

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must make two showings: concerted action and harm to the

competitive process. See id. at 12. The plaintiff cannot make

either of these showings here.

We need not go beyond the first prong of this two-part

test. To satisfy that requirement, there "must be evidence that

tends to exclude the possibility of independent action by the

manufacturer and distributor." Monsanto, 465 U.S. at 764. Phrased

another way, there must be "direct or circumstantial evidence that

reasonably tends to prove that the manufacturer and others had a

conscious commitment to a common scheme designed to achieve an

unlawful objective." Id. (citation and internal quotation marks

omitted). This makes perfect sense: section 1 is not intended to

prohibit entrepreneurial action, and a manufacturer, acting

independently, ordinarily has a right to sell (or not to sell) to

whichever customer(s) it chooses. See id. at 761; United States v.

Colgate & Co., 250 U.S. 300, 307 (1919). Thus, absent a showing of

concerted action, a section 1 claim fails as a matter of law.

B

The basic premise of the plaintiff's complaint is that a

manufacturer (Zanella) and a dealer (Clubman) conspired to maintain

an artificially high retail price for Zanella pants; and that

Clubman, to further this scheme, successfully pressured Zanella to

stop selling goods to its price-cutting competitor (Euromodas).

The question is whether these averments, on the facts of record and

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under the applicable legal standards, add up to a potential

antitrust violation.

As a threshold matter, the plaintiff suggests that we

should answer this question in the affirmative because the

defendants failed to provide any evidence negating the possibility

that they were acting in combination. Appellant's Br. at 32. We

reject this resupinate reasoning. In an antitrust case, the burden

is on the accuser to make at least a prima facie showing of

concerted action. See Monsanto, 465 U.S. at 763; Garment Dist.,

Inc. v. Belk Stores Servs., Inc., 799 F.2d 905, 911 (4th Cir.

1986). Thus, we inquire whether the plaintiff has presented

evidence that reasonably tends to prove that the manufacturer and

others conspired to achieve an illicit objective. Monsanto, 465

U.S. at 764.

We start this phase of our inquiry by rehearsing the

facts that were deemed admitted for purposes of summary judgment.

See Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 43-44

(1st Cir. 2001) (discussing effect of failure to controvert facts

contained in movant's statement of material facts not in dispute);

Ruiz Rivera, 209 F.3d at 28 (similar). Both Clubman and the

plaintiff sell men's clothing at retail in San Juan. Historically,

their wares included Zanella trousers. In mid-1996, Clubman

informed Zanella that the plaintiff had sold trousers to a common

customer at a sharply discounted price. A face-to-face

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conversation between officials of Zanella and officials of the

plaintiff regarding Clubman's complaints occurred in July of 1996.

The next year, Clubman again expressed concern to Zanella about the

plaintiff's persistent discounting. Despite Clubman's obvious

unhappiness, Zanella continued to supply the plaintiff. Clubman

placed no further orders for Zanella pants.

Zanella kept up a dialogue with Clubman during this

period of abstinence. At a meeting in New York, held in September

of 1997, Zanella informed the plaintiff that Clubman had agreed to

create "Zanella corners" in its stores. Although Zanella expressed

enthusiasm about this concept, pricing policies were not discussed.

In or around April of 1998, however, Zanella told the plaintiff

that it would no longer sell to it. Zanella gave no reason for

this exclusionary decision. Clubman proceeded to resume the

marketing of Zanella trousers and to inaugurate the "Zanella

corners."

To these facts we must add the augmentative evidence

assembled by the plaintiff. In a deposition, Clubman's chief

executive officer (Germán Ramírez) testified that he had resolved

not to handle Zanella pants in the future unless Zanella

satisfactorily addressed his concerns about being undersold by the

plaintiff. Ramírez discussed this resolve with Zanella's president

(Armando DiNatale) and received assurances that Zanella would "take

care of" the problem. Ramírez professed neither to know nor to

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care how Zanella intended to proceed or what action it purposed to

take. The plaintiff sees this as "smoking gun" testimony. It asks

us to interpret Ramírez's words as showing that Clubman was seeking

to have Zanella cut off its (the plaintiff's) supply of Zanella

trousers and terminate the preexisting distribution relationship.

The plaintiff also places substantial weight on the

testimony of a Zanella vice-president (Thomas Cohan), which

corroborates the fact that Clubman threatened to stop buying

Zanella pants unless Zanella addressed Clubman's concerns about the

plaintiff's pricing practices. Cohan's testimony does not,

however, go anywhere near as far as the plaintiff suggests. We

have scoured the deposition transcript and find no support for the

plaintiff's brazen assertion that Cohan's testimony "confirmed that

Zanella and Clubman agreed that Euromodas be terminated in order to

allow Clubman to maintain its preferred price of $265 [per pair of

trousers]." Appellant's Br. at 38.

The plaintiff also relies, to some extent, on DiNatale's

deposition testimony. Without question, that testimony shows that

Zanella made no bones about its intention to halt trouser sales to

the plaintiff. It also supports a clear inference that, when

pressed, Zanella opted to do business with the larger retailer

(Clubman) rather than to jeopardize that relationship by continuing

to deal with the plaintiff. But DiNatale, like Cohan, made no

mention of wanting to maintain a particular price or price level,

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and the deposition, taken as a whole, does not evince concerted

action.

These facts leave room for many inferences, which — to

the extent that they are reasonable — ordinarily would be taken in

favor of the plaintiff. See Podiatrist Ass'n, 332 F.3d at 13. In

Sherman Act cases, however, the permissible inferences that can be

drawn from ambiguous evidence are quite limited. Matsushita Elec.,

475 U.S. at 588. If the evidence shows conduct that is as

consistent with lawful competition as it is with an illicit

conspiracy, it cannot be said to support an inference of concerted

action. Id.

So it is here. The record, read as favorably to the

plaintiff as antitrust law and summary judgment practice permit,

shows that Clubman complained bitterly to Zanella about the

plaintiff's low prices, and that Zanella reassured Clubman that it

would, in some unarticulated manner, "take care of" the situation

(i.e., the price-cutting issue). There is nothing, however, that

reflects a commitment on Zanella's part to a minimum retail price

maintenance scheme or that suggests that Zanella's reassurances

were anything more than an acknowledgment of its unilateral

decision to stop supplying the plaintiff. The raw fact that a

distributor's actions are an attempt to pressure a manufacturer

into terminating a distribution relationship with a price-cutting

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competitor is not enough either to show concerted action or to

defeat summary judgment. See Garment Dist., 799 F.2d at 911.

This case is not unique. Other courts consentiently have

held that the fact that a dealer was terminated in response to

complaints from competing dealers is insufficient, without more, to

survive a motion for summary judgment. See, e.g., Winn v. Edna

Hibel Corp., 858 F.2d 1517, 1520 (11th Cir. 1988); Garment Dist.,

799 F.2d at 908; Burlington Coat Factory Warehouse Corp. v. Esprit

De Corp., 769 F.2d 919, 923-24 (2d Cir. 1985); see also Monsanto,

465 U.S. at 763-64 (explaining that "something more than evidence

of complaints is needed"). The policy justification for this rule

is powerful. To allow "the inference of concerted action on the

basis of receiving complaints alone and thus to expose the

defendant to treble damage liability would both inhibit

management's exercise of its independent business judgment and

emasculate the terms of the statute." Monsanto, 465 U.S. at 764

(quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d

105, 111 n.2 (3d Cir. 1980)). Thus, even were we to assume for

argument's sake that Zanella's termination of its distribution

relationship with the plaintiff was in direct response to Clubman's

withdrawal of its patronage, summary judgment would nonetheless be

warranted. See Winn, 858 F.2d at 1520 (stating that "a

manufacturer may legitimately respond to pressure from a dealer in

order to avoid losing that dealer's business").

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 The plaintiff strives to deflect the force of this

reasoning in two ways: (i) by seeking refuge in a pair of Eleventh

Circuit cases, and (ii) by pointing to the fact that Zanella never

advanced any alternative explanation for severing ties with the

plaintiff. Neither foray succeeds.

The Eleventh Circuit's decision in Helicopter Support

Systems, Inc. v. Hughes Helicopter, Inc., 818 F.2d 1530 (11th Cir.

1987), provides no shelter for the plaintiff. Although the court

of appeals vacated summary judgment in favor of the manufacturer-

defendant in that antitrust case, the evidence was appreciably

different. There was proof that the manufacturer terminated a

price-cutter, informed the complaining distributor of the

termination, and requested that it advise the manufacturer if it

learned about any further price-cutters. Id. at 1535. The

complaining distributor responded by thanking the manufacturer in

a way that the court believed reasonably could be viewed as an

agreement to report future violations. See id. Last — but far

from least — the surviving distributorship agreement itself

contained language that reasonably could be read as fixing the

resale price of the goods. Id. at 1536. Given these idiosyncratic

facts, the Eleventh Circuit's decision that the case presented a

trialworthy issue, id. at 1536-37, is unhelpful here.

The plaintiff's reliance on City of Tuscaloosa v. Harcros

Chems., Inc., 158 F.3d 548 (11th Cir. 1998), is equally mislaid.

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In that antitrust case, the court overturned the entry of summary

judgment in favor of one of the defendants because its former chief

executive had admitted an involvement "in fixing chlorine prices in

the [relevant market area]." Id. at 557; see also id. at 568. The

court overturned the entry of summary judgment as to two other

defendants based on its determination that certain expert testimony

and data precluded summary judgment. Id. at 569. The record

before us contains neither an analogous admission of illegal

activity nor any comparable expert testimony or data. Accordingly,

that decision too is inapposite.

The plaintiff's second foray is no more rewarding. It is

true that alternative explanations sometimes are cited as a basis

for finding the existence of substantial evidence supporting a

plausible and legitimate reason for the conduct of antitrust

defendants. See, e.g., Burlington Coat, 769 F.2d at 923-24. There

is no flat rule, however, that requires a defendant to proffer an

alternative explanation. In some instances, the facts speak for

themselves.

This is such a case. The most natural inference from the

evidence — that the manufacturer took sides as between two dealers

and chose the more lucrative of them — makes manifest a legitimate,

independent reason for terminating the less desirable distribution

relationship. See Garment Dist., 799 F.2d at 910-11. Any other

inference necessarily would require building an antitrust claim on

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ambiguous evidence — a practice that the Supreme Court has

forbidden. See Matsushita, 475 U.S. at 588 (warning that conduct

that is equally consistent with permissible competition and with

illegal activity cannot "support an inference of antitrust

conspiracy"). Because the plaintiff failed to provide any

significantly probative evidence tending to negate this legitimate

business reason, the lack of an alternative explanation is

irrelevant.

That ends this aspect of the matter. The plaintiff has

charged price-fixing, impure and simple — and the utter absence of

meaningful evidence of concerted action dooms the plaintiff's case.

C

Although we need go no further, we add a coda. Even were

we to find significantly probative evidence of concerted action

(which we do not), the fabric of the plaintiff's case reveals yet

another flaw. For the sake of completeness, we mention this

shortcoming.

An agreement to terminate a price-cutter to placate

another dealer does not constitute a per se violation of section 1

of the Sherman Act. See Business Elecs. Corp., 485 U.S. at 726-27.

To render such an agreement illegal per se, there must be "a

further agreement on the price or price levels to be charged by the

remaining dealer." Id. at 726. Without an agreement as to a

specific minimum price or price level, a vertical restraint is

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unlawful only if it fails a rule of reason analysis. Id. at 726-

27; Bi-Rite Oil Co. v. Indiana Farm Bureau Coop. Ass'n, Inc., 908

F.2d 200, 203 (7th Cir. 1990).

There is no evidence here that the defendants ever agreed

on either a minimum price or price level. Thus, the plaintiff's

claim of per se illegality founders. See Business Elecs. Corp.,

485 U.S. at 726-27; A-Abart Elec. Supply, Inc. v. Emerson Elec.

Co., 956 F.2d 1399, 1403 (7th Cir. 1992); see also Hovenkamp, supra

§ 11.1, at 441.

This leaves the rule of reason. In a vertical restraint

case, liability under that approach requires a showing of harm to

the competitive process. See Interface Group, Inc. v. Mass. Port

Auth., 816 F.2d 9, 10 (1st Cir. 1987) (clarifying that the term

unreasonable anticompetitive conduct, when used in an antitrust

context, necessarily refers "to actions that harm the competitive

process").

Here, the plaintiff has made no showing that the putative

restraint had an adverse impact on the competitive process.

Although it tendered evidence of its own losses, an injury to an

individual competitor is not the legal equivalent of an injury to

competition in the relevant market. Id. Without any evidence that

the defendants' actions were inimical to the competitive process,

the plaintiff — who had the burden of proof on this point, see

Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 29 (1984)

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— cannot make out at a trialworthy claim under section 1 of the

Sherman Act.

IV

We summarize succinctly.6 Although the district court

took too narrow a glimpse of the summary judgment record, de novo

review of the record as a whole persuades us that there is no

genuine issue as to any material fact and that the defendants are

entitled to judgment as a matter of law. There is no rational view

of the proffered facts that can support the imposition of antitrust

liability.

Affirmed.

6
Because we have upheld the entry of summary judgment for the
defendants, it would be an empty exercise to probe the
circumstances surrounding the denial of the plaintiff's cross-
motion for summary judgment. We caution, however, that we express
no opinion on the district court's reasoning in that regard. See
Euromodas, 253 F. Supp. 2d at 204 n.5.

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