Retina Associates, P.A. v. Southern Baptist Hospital of Florida, Inc.

United States Court of Appeals,

Eleventh Circuit.

No. 96-3158

Non-Argument Calendar.

RETINA ASSOCIATES, P.A., Plaintiff-Appellant,

v.

SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., d.b.a. Baptist
Medical Center; Richard L. Simmons, M.D.; Richard L. Simmons,
M.D., P.A.; Gerald A. Coluccelli, M.D.; Gerald A. Coluccelli,
M.D., P.A., et al., Defendants-Appellees,

Baptist Eye Institute, Inc.; BEI, Inc., Movants.

Feb. 19, 1997.

Appeal from the United States District Court for the Middle
District of Florida. (No. 94-255-CIV-J-10), William Terrell
Hodges, Judge.

Before TJOFLAT, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

We affirm the judgment of the district court for the reasons

set out in its dispositive order which is reproduced in the

appendix.

AFFIRMED.

APPENDIX

ORDER

This antitrust case is before the Court on the parties'

cross-motions for summary judgment. Because the Court finds that

the rule of reason, as opposed to the per se doctrine, governs

Count I of Plaintiff's complaint, and because there appears to be

no genuine issue of material fact as to the lack of anticompetitive

effects of the alleged concerted refusal to deal, Defendants'

motions for summary judgment on Count I will be granted. Because
Plaintiff has failed to demonstrate the existence of a triable fact

issue with regard to Defendant Florida Retina Institute's alleged

anticompetitive conduct or specific intent to monopolize, summary

judgment will also be granted on Count II of the complaint.

FACTS

Retina Associates, P.A. ("RA"), the sole plaintiff in this

case, is a Florida professional corporation whose shareholders are

Dr. Fred H. Lambrau, Jr., M.D. and Dr. Michael Stewart, M.D. Drs.

Lambrau and Stewart are board-certified ophthalmologists who have

specialized in the diagnosis and treatment of diseases of the

retina and vitreous. As the name would suggest, RA's practice is

limited to retina-related ophthalmology.

Defendant Southern Baptist Hospital of Florida, Inc., doing

business as Baptist Medical Center ("Baptist"), is a not-for-profit

Florida corporation that owns and operates the Baptist Medical

Center, the largest acute care hospital in Jacksonville, Florida.

Situated on the Baptist Medical Center campus is a four-story

building that houses the Baptist Eye Institute ("BEI"). BEI is an

amalgamation of non-specialized ophthalmologists comprised of

Defendants Richard L. Simmons, M.D., Gerard A. Coluccelli, M.D.,

Ernst Nicolitz, M.D., Charles P. Adams, Jr., M.D., Frank W. Bowden,

III, M.D., Neil T. Shmunes, M.D., and Jeffrey H. Levenson, M.D.

All of the BEI defendants except Dr. Levenson have incorporated

their medical practices and are the principal shareholders of these

professional corporations. The professional corporations are also

named defendants.

Sometime in 1989 Dr. Simmons, apparently on behalf of
Defendants Coluccelli, Nicolitz, Adams and Bowden 1, approached RA

with a proposal for the formation of an ophthalmological services

group involving several non-specialized ophthalmologists, one or

more retina specialists, other ophthalmological specialists and a

major local hospital. The proposal involved marketing the group

and cross-referral relationships among the involved parties.

Simmons goal for the venture was to offer a full range of

ophthalmological services in one location.

General ophthalmologists typically refer patients with
2
specific retina problems to retina specialists. That being the

case, a retina specialist was perceived as necessary for the

venture to provide a wide array of ophthalmological practitioners

under one roof. Prior to the events constituting the gravamen of

the complaint, RA alleges that it received the majority of retina

referrals from the BEI five.

RA declined Simmons' offer to participate in the group.

Meanwhile, the BEI five searched for a hospital that would support

the venture. Baptist ultimately decided to participate and agreed

to construct a "state of the art and user friendly" building for

the provision of myriad ophthalmological services. The building

was to contain office space for the ophthalmologists involved as

well as space for a diagnostic center and outpatient surgery.

True to the "one-stop shop" concept, the BEI five continued to

1
For convenience, these defendants will be collectively
referred to as the BEI five.
2
Plaintiff's expert, Dr. McClave, estimates that
approximately ninety percent of the patients treated by
Jacksonville based retina specialists are referred by other
health care providers.
look for retina specialists willing to participate. RA again

declined an offer to join the group. The BEI five also approached

Defendant James A. Staman, M.D., another retina specialist and the

principal shareholder of Defendant Florida Retina Institute, James
3
A. Staman, M.D., P.A. ("FRI"). In February of 1990, Staman

accepted the proposal but withdrew from the venture in May 1990.

Staman and FRI rejoined BEI permanently in September of 1991. The

complaint alleges that the agreement with FRI included the promise

that FRI would receive all of the retina referrals from the BEI

physicians.

The BEI five started, as a group, seeing patients in early

1990, and the BEI building at the Baptist Medical Center campus

opened in the fall of 1991. Staman and the other FRI specialists

began seeing patients in the BEI building shortly thereafter.

Defendant's Levenson and Shmunes joined the BEI five in 1993, and

opened offices in the BEI building.

The parties estimate that there are between 45 and 50

practicing general ophthalmologists in the Jacksonville area.

Plaintiff's best estimate, assuming the appropriateness of its

definition of the relevant product and geographic markets, is that

the BEI physicians referrals to retina specialists amount to

fifteen percent of the total referrals made. While the record

discloses some exceptions, FRI has received almost all of the

referrals for retina specialty work from the BEI physicians since

3
At the time this lawsuit was commenced, there were three
retinal specialty practices in Jacksonville: RA, Florida Retina
Institute and that of Dr. James Bolling who is affiliated with
the Mayo Clinic.
Staman and FRI joined the group.

On March 21, 1994, Plaintiff filed a complaint (Doc. 1)

alleging that the BEI physicians' referral of almost all of their

retina cases to FRI violates federal antitrust laws. Count I,

against all Defendants, maintains that the alleged exclusive

referral agreement constitutes a horizontal concerted refusal to

deal or group boycott in violation of Section 1 of the Sherman Act.

15 U.S.C. § 1. Count II, against Staman and FRI only, alleges that

their participation in the alleged exclusionary conduct constitutes

an attempt to monopolize in violation of Section 2 of the Sherman

Act. 15 U.S.C. § 2. The complaint prays for monetary and

injunctive relief. The parties have engaged in voluminous

discovery. Plaintiff and all defendants have filed cross-motions

for summary judgment on Count I of the complaint. Defendants

Staman and Florida Retina Institute have filed a motion for summary

judgment on Count II. All of the motions have been thoroughly

briefed.

DISCUSSION

Summary judgment is appropriate only when the Court is

satisfied 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." F.R.Civ.P. 56(c). In making this determination, the Court

must examine the pleadings, affidavits and other evidence in the

record "in the light most favorable to the non-moving party."

Samples on Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th

Cir.1988). The moving party has the initial burden of establishing

the nonexistence of a triable fact issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2458, 91 L.Ed.2d 265 (1986). If

the movant is successful on this score, the burden shifts and the

non-moving party must come forward with "sufficient evidence of

every element that he or she must prove." Rollins v. TechSouth,

Inc., 833 F.2d 1525, 1528 (11th Cir.1987). The non-moving party

may not simply rest on the pleadings, but must use affidavits,

depositions, answers to interrogatories or other evidence to

demonstrate that a genuine fact issue remains to be tried.

Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

A. The Horizontal Concerted Refusal to Deal Claim

Plaintiff contends that the exclusive referral agreement

between the BEI physicians and Staman and the FRI constitutes a

horizontal concerted refusal to deal or group boycott violative of

Section 1 of the Sherman Act as a combination in restraint of

trade. Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits

"[e]very 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...." A Section 1 Plaintiff must

establish an agreement between two or more persons to restrain

trade affecting interstate commerce. Unilateral conduct will not

trigger the prohibition of Section 1. Monsanto Co. v. Spray-Rite

Serv. Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d

775 (1984), Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1455

(11th Cir.1991).

Assuming, without deciding, that the conduct alleged here
constitutes an agreement among several individuals4 to refer retina

cases solely to FRI and to thereby refuse to deal with RA, RA must

still establish that the purported agreement unreasonably restrains

competition. Standard Oil Co. v. United States, 221 U.S. 1, 58-64,

31 S.Ct. 502, 515-17, 55 L.Ed. 619 (1911). A restraint may be

violative of the Sherman Act because it is solely a naked restraint

of trade so offensive to competition as to be unreasonable per se,

or because it runs afoul of the more detailed rule of reason

inquiry. F.T.C. v. Indiana Fed'n of Dentists, 476 U.S. 447, 457-

58, 106 S.Ct. 2009, 2017, 90 L.Ed.2d 445 (1986). Conduct is

unreasonable per se when it "always or almost always tend[s] to

restrict competition and decrease output." Broadcast Music, Inc.

v. Columbia Broadcasting Sys., Inc., 441 U.S. 1, 19-20, 99 S.Ct.

1551, 1562, 60 L.Ed.2d 1 (1979). Claims under the Sherman Act are

presumptively evaluated under the rule of reason. Levine v. Cent.

Florida Medical Affiliates, 72 F.3d 1538, 1549 (11th Cir.1996)

(quoting Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555,

1567 (11th Cir.1991)).

1. Is the Conduct Per Se Unreasonable?

Plaintiff contends that it is entitled to summary judgment

because the alleged horizontal concerted refusal to deal or group

boycott is properly considered unreasonable per se. E.g., Klor's

4
Whether there is an actual combination or conspiracy
appears to be an issue among the parties. Defendants seem to
argue that BEI is a legitimate joint venture and that the
referral of patients exclusively to FRI is reasonably necessary
to effectuate its purpose. However, assuming defendants can
establish the existence of a joint venture, its practices would
not thereby automatically be immune from antitrust scrutiny. See
2 EARL W. KINTNER, FEDERAL ANTITRUST LAW § 9.15 (1980).
Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3

L.Ed.2d 741 (1959). However, the recent jurisprudence of the

Supreme Court and of the Court of Appeals of this Circuit cautions

against the haphazard expansion of the "group boycott label" and

the concomitant imposition of per se liability. Indiana Fed'n, 476

U.S. at 458, 106 S.Ct. at 2018, Levine, 72 F.3d at 1550 (citing

Consultants & Designers, Inc. v. Butler Serv. Group, Inc., 720 F.2d

1553, 1561 (11th Cir.1983)). "[T]he per se approach has generally

been limited to cases in which firms with market power boycott

suppliers or customers in order to discourage them from doing

business with a competitor...." Indiana Fed'n, 476 U.S. at 458,

106 S.Ct. at 2018. Unless the conspirators imposing the group

boycott possess "market power or exclusive access to an element

essential to effective competition, the conclusion that expulsion

is virtually always likely to have an anticompetitive effect is not

warranted." Northwest Wholesale Stationers, Inc. v. Pacific

Stationary and Printing Co., 472 U.S. 284, 296, 105 S.Ct. 2613,

2621, 86 L.Ed.2d 202 (1985).

In sum, the per se rule requires a historically focused

inquiry directed at ascertaining whether the behavior complained of

is of the type that regularly poses anticompetitive consequences.

Where prior cases have shown that a certain practice is of this

type, a deleterious effect on the market will be presumed and no

detailed market analysis is required. Where the anticompetitive

effect of a practice is not historically clear, the practice may

still be per se violative of the antitrust laws if a preliminary

examination of market conditions surrounding the alleged restraint
at issue reveals such an impact absent any procompetitive

justification. Indiana Fed'n, 476 U.S. at 458-59, 106 S.Ct. at

2018 ("[W]e have been slow ... to extend per se analysis to

restraints imposed in the context of business relationships where

the economic impact of certain practices is not immediately

obvious...."); Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466

U.S. 2, 15-19, 104 S.Ct. 1551, 1560-61, 80 L.Ed.2d 2 (1984). This

examination of market forces is not as detailed as the one required

by the rule of reason, and has been referred to as a "quick look"

at market conditions. U.S. Healthcare, Inc. v. Healthsource, Inc.,

986 F.2d 589, 594 (1st Cir.1993).

Plaintiff's argument for evaluation of this case under the per

se rule must fail for two reasons: (1) the boycott alleged here is

not of the type that has been historically shown to always or

almost always adversely affect competition; and (2) the market

power possessed by defendants in terms of patient referrals is

insufficient as a matter of law to justify per se treatment.

Assuming, for the moment, that Plaintiff is able to establish

that the BEI physicians have sufficient market power, analyzing

this case under the per se rubric would remain inappropriate absent

some demonstration that the practice at issue historically leads to

anticompetitive effects in the market. Levine, 72 F.3d at 1550

(citing Consultants and Designers, 720 F.2d at 1562)). Levine

involved a Section 1 attack by an internist excluded from a PPO

panel and a physician provider network.

Levine alleged that the exclusion constituted a concerted

refusal to deal. The PPO and provider network contended that
Levine was excluded because no more internists were needed in

Levine's area. In affirming a district court's grant of

defendants' motion for summary judgment, the Eleventh Circuit

declined to apply the per se rule. Id. at 1550-51.

The court, relying on a recently issued DOJ Enforcement

Policy, held that the courts have had insufficient experience with

multiprovider networks to justify condemning their exclusion

practices as per se violative of the Sherman Act. Id. at 1550. In

an effort to contain costs and enhance the competitive ability of

the network, multiprovider networks typically contract with some,

but not all, health care providers in a given area. Additionally,

multiprovider network membership restrictions may yield a

procompetitive benefit by giving those excluded the impetus to form

competing networks. Id. (quoting DOJ Enforcement Policy, available

in WESTLAW, 1994 WL 642477, at *42).

Levine's analysis on this score is equally applicable to the

this case. Testimony, in the record, apparently uncontroverted,

demonstrates that it is not at all unusual for networks like BEI to

affiliate with only a single retina group. BEI's guiding goal is

the provision of a "one-stop shop" for eye care and the

cost-containment and convenience that it represents. Further,

since BEI's inception, two competing multiprovider eye care

networks formed.5 The anticompetitive effect of the alleged

5
In early 1994, the Florida EyeCare Network was formed.
Plaintiffs' principals were among the initial shareholders of the
network and are the only retina specialists in the network,
although, according to Plaintiff, there is no agreement to refer
retina patients solely to RA. Plaintiff also refers to the
Florida EyeCare Network as an unsuccessful venture, but does not
appear to attribute that lack of success to any allegedly illegal
boycott is far from being "immediately obvious" and, as such,

analysis under the per se rule is improper. Indiana Fed'n, 476

U.S. at 459, 106 S.Ct. at 2018.

Plaintiff contends that the reasoning of Levine and the DOJ

enforcement policy is inapplicable here because those authorities

dealt with the ability of physicians to combine to jointly meet the

needs of managed care organizations. Here, Plaintiff contends, the

BEI physicians are illegally colluding to provide joint services to

non-managed care patients for whom they would normally compete.

However, here the Plaintiff is claiming injury from the alleged

refusal to refer patients to RA, not from the underlying

arrangement among the BEI physicians to treat non-managed care

patients. It is, therefore, the exclusion from patient referrals

that must be scrutinized for consistently anticompetitive effect

before per se analysis may properly be applied. See Northwest

Wholesale Stationers, Inc., 472 U.S. at 295-96, 105 S.Ct. at 2620

(reasoning that where the Plaintiff is not objecting to the

underlying arrangement but rather to expulsion from cooperative

association, it is the act of exclusion that must be evaluated

before the arrangement is condemned as illegal per se). The

reasoning of Levine and the DOJ Enforcement Policy indicates that

the anticompetitive effect of the challenged exclusionary conduct

is not fully understood and therefore should not be condemned out

of hand.

Plaintiff also argues that the BEI/FRI exclusive dealing

conduct of defendants. A third network, Eye Care Associates of
North Florida, has also been formed. Dr. Bolling, of the Mayo
Clinic, is the exclusive retina care provider for that network.
arrangement represents control over retina referrals necessary for

Plaintiff to compete because those referrals represent

"relationships" which RA needs "in the competitive struggle."

Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10

L.Ed.2d 389 (1963). The alleged boycott, plaintiff claims, has

caused it to "lose a significant volume of trading" and has

"hampered substantially" Plaintiff's ability to compete. Id., 373

U.S. at 348, 83 S.Ct. at 1252. However, apart from bald assertion,

Plaintiff presents no factual or evidentiary justification for such

a finding. Plaintiff has not demonstrated that the Defendants'

power over the market of referrals is sufficient to hamper

Plaintiff in its effort to compete.

Plaintiff's best case scenario is that the BEI physicians

control fifteen percent of the referrals made by general

ophthalmologists to retina specialists in the Jacksonville area.

This leaves plaintiff capable of vigorously competing for the other

eighty-five percent of referrals. Courts have refused to impose

antitrust liability upon greater showings of market power.

Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. at 16-25, 104

S.Ct. at 1560-1565 (holding that in product-tying claim thirty

percent control of relevant market was insufficient to warrant a

finding of per se invalidity); U.S. Healthcare, 986 F.2d at 596

(1st Cir.1993) (holding that power over twenty-five percent of

relevant market insufficient to justify, under the rule of reason,

Sherman Act liability for vertical exclusivity arrangement).

The determination that per se analysis is inapplicable in this

case is reinforced by RA's remarkable success during the years of
the alleged boycott. In 1990, when FRI participated in the venture

for only three months, Plaintiff's gross revenues were slightly in

excess of one and one-half million dollars. By contrast, RA's

gross revenues, derived from the practice of only two physicians,

consistently exceeded two million dollars annually between 1991 and

1994, when the asserted boycott was in full effect. In addition,

Plaintiff's records disclose, during the years of the boycott, a

referral base of one hundred and fifty physicians; and more, RA

has opened satellite offices in St. Augustine, Florida and

Waycross, Georgia. Further, Plaintiff has joined a competing

comprehensive eye care network. It clearly appears, therefore,

that RA has competed successfully despite the alleged refusal to

deal. As such, RA should not be heard to complain that Defendants'

use of fifteen percent of the available market is per se

unreasonable. The antitrust laws were designed to protect

competition, not competitors. Brown Shoe Co. v. United States, 370

U.S. 294, 344, 82 S.Ct. 1502, 1534, 8 L.Ed.2d 510 (1962). Attempts

to win the "Super Bowl of remuneration" by invoking rules of per se

invalidity cannot be countenanced. Levine, 72 F.3d at 1551.

2. Is the Conduct Illegal under the Rule of Reason?

Because Plaintiff has failed to establish the applicability

of a per se analysis in the instant case, the presumption that the

rule of reason inquiry governs Section 1 claims remains intact.

Under the rule of reason, the "test of legality is whether the

restraint imposed is such as merely regulates and perhaps thereby

promotes competition or whether it is such as may suppress or even

destroy competition." Chicago Bd. of Trade v. United States, 246
U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918). To

establish that conduct violates Section 1 under the rule of reason,

RA must prove that (1) Defendant's conduct had an anticompetitive

effect in the relevant market; and (2) that no procompetitive

rationale would justify the conduct. Levine, 72 F.3d at 1551. In

showing that the conduct has an anticompetitive effect, Plaintiff

may establish either actual anticompetitive effects of the conduct

or the potential for genuine anticompetitive effect. Id. To

successfully show potential anticompetitive effects, the Plaintiff

must first define the relevant geographic and product markets and

then prove that the Defendants possessed power in that market.

Indiana Fed'n, 476 U.S. at 460-61, 106 S.Ct. at 2019.

a. is there any actual anticompetitive effect?

Plaintiff asserts three grounds upon which the alleged

boycott may be found to have actual anticompetitive effects.

First, Plaintiff argues that the alleged exclusive referral

agreement between the BEI physicians and the Florida Retina

Institute has resulted in higher prices to the consumer for common

diagnostic procedures. As evidence of this claim, Plaintiff

contends that FRI patients referred by BEI pay a higher price for

fluorescein angiograms than other patients because, in addition to

FRI's charge for the service, Baptist charges its own fee for the

use of its equipment and personnel at the BEI building.

Plaintiff is particularly poorly suited to raise this claim

because, should the evidence bear the claim out, Plaintiff stands

to benefit. Plaintiff, as a response, can either raise its fees

for the same procedures and earn more money, or capitalize on its
lower prices in the hope of competing more efficiently. Where a

plaintiff stands to benefit from a price increase, it cannot

recover for a combination imposing nonprice restraints, here a

group boycott, that has the effect of raising the market price.

Matsushita Elec. Indus. Co. v. Zenith Radio Co., Ltd., 475 U.S.

574, 562-63, 106 S.Ct. 1348, 1354, 89 L.Ed.2d 538 (1986). As a

result, the claim by this Plaintiff that the alleged boycott has

resulted in higher prices for some procedures is insufficient as a

matter of law.

Second, the Plaintiff asserts, when Dr. Levenson joined the

BEI physicians in 1993, he cancelled a subcontract with plaintiff

to refer patients Levenson had under a contract with PruCare HMO to

RA for any applicable retina treatments. 6 When Levenson informed

RA of his decision, RA offered to lower its price in order to keep

the contract. Levenson subsequently awarded the contract to FRI.

Plaintiff contends that this constitutes a detrimental effect on

competition because the savings that could have been achieved by

leaving the contract with RA could have been passed on to PruCare

and its subscribers. Plaintiff, for the same reasons stated above,

is particularly ill suited to raise this claim and it is therefore

insufficient to raise an issue of actual detrimental effect.

Finally, Plaintiff contends that the six BEI physicians who

perform radial keratotomy procedures have engaged in illegal price

fixing. Deposition testimony of one of the BEI doctors establishes

that the BEI physicians agreed on a price of $1350 as a benchmark

6
There is no allegation that Levenson breached any
contractual relationship he had with RA when he cancelled the
contract.
for the procedure. This claim can be summarily dismissed as it has

absolutely no relationship to the concerted refusal to deal alleged

by Plaintiff and has caused the Plaintiff no damages. The record

is devoid of any evidence establishing that the alleged price

fixing is in any way connected to the concerted refusal to deal of

which Plaintiff complains.

b. is there any potential anticompetitive effect?

As noted above, to establish potential anticompetitive effect

amounting to a violation of Section 1 under the rule of reason, the

evidence must show that the defendants possess market power. This

power must be shown to exist in properly defined geographic and

product markets. Further inquiry into market definition in this

case is, however, unnecessary. Assuming, arguendo, that

plaintiff's definition of the relevant geographic and product

markets pass legal muster, fifteen percent of the retina referral

market is insufficient, as a matter of law, to establish market

power.

Because plaintiff has failed to establish that the per se rule

governs the case and because there appears to be no triable fact

issue under the rule of reason, defendants' motions for summary

judgment on Count I of the complaint should be granted.

B. The Attempted Monopolization Claim

Plaintiff has also alleged that Staman and FRI have violated

Section 2 of the Sherman Act by attempting to monopolize the market

for retina services. Staman and FRI have moved for summary

judgment on that claim.

To prove attempted monopolization, a plaintiff must prove
that: (1) Defendant has engaged in predatory or anticompetitive

conduct; (2) a specific intent on Defendant's part to monopolize;

and (3) a dangerous probability of achieving monopoly power.

Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 113 S.Ct. 884,

122 L.Ed.2d 247 (1993). There is no evidence to support either the

first or second elements of the claim.

Staman and FRI argue that there is no evidence of

anticompetitive or predatory conduct sufficient to support a

Section 2 claim. They point to the fact that they did not actively

seek to affiliate with the BEI physicians and their initial

reluctance to join BEI. Plaintiff relies on Staman's and FRI's

participation in an unlawful group boycott to establish the

necessary predatory conduct. While participating in an unlawful

horizontal group boycott may be sufficient to establish a Section

2 claim, here such a finding is precluded by the Court's grant of

summary judgment against Plaintiff on Count I. As such, there is

no genuine issue of material fact as to the existence of predatory

conduct.

Proof of the intent element requires proof of "a specific

intent to destroy competition or build a monopoly." Times-Picayune

Publishing Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872,

890, 97 L.Ed.2d 1277 (1953). Plaintiff, in addition to Defendant's

participation in the boycott, points to a letter from FRI seeking

a commitment from BEI to make it the exclusive recipient of retina

referrals should it join the venture. Plaintiff claims that the

letter independently established an intent to exclude RA and

therefore to monopolize the market for retina patients. However
the record shows that Staman and FRI were reluctant to join BEI,

that they left the venture after the first few months and that they

desired to split the BEI referrals fifty-fifty with RA should they

join the venture. This Court's finding that no illegal group

boycott existed in conjunction with these facts permits no

inference of a specific intent to monopolize.

Because no triable fact issue exists with respect to two of

the three elements of the Section 2 claim, summary judgment should

be granted for Staman and FRI.