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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