International Construction Products, LLC v. Ring Power Corporation, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10231
____________________
INTERNATIONAL CONSTRUCTION PRODUCTS, LLC,
Plaintiff-Appellant,
versus
RING POWER CORPORATION,
ZIEGLER INC.,
THOMPSON TRACTOR COMPANY, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:20-cv-00226-TKW-MJF
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2 Opinion of the Court 22-10231
____________________
Before B RANCH and G RANT, Circuit Judges, and S CHLESINGER ,∗
District Judge.
PER CURIAM:
This antitrust case involves dealers of heavy construction
equipment and their relationship with industry auction platforms.
Plaintiff-Appellant International Construction Products, LLC
(“ICP”) sued Defendant-Appellees Ring Power Corporation (“Ring
Power”), Thompson Tractor Company (“Thompson”), and
Ziegler Inc. (“Ziegler”) (collectively “Defendants”) for alleged
violations of § 1 of the Sherman Act and for tortious interference
with contract. In essence, ICP alleged that Defendants conspired
to thwart ICP’s relationship with IronPlanet, a heavy construction
equipment auction site, by conspiring to boycott IronPlanet if it did
not cut ties with ICP. The district court granted Defendants
summary judgment on each of ICP’s claims. After review, and
with the benefit of oral argument, we affirm.
I. Factual Background
ICP was a distributor of new (as opposed to used) heavy
construction equipment that sold its products online directly to
consumers. This business model was unusual in the heavy
∗ Honorable Harvey E. Schlesinger, United States District Judge for the Middle
District of Florida, sitting by designation.
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22-10231 Opinion of the Court 3
construction equipment marketplace because such equipment is
typically sold through an intermediary dealer network.
Defendants are dealers of heavy construction equipment
manufactured by Caterpillar, Inc. They often sell their used
equipment through online auction websites, such as IronPlanet, or
through auction companies, such as Cat Auction Services (“CAS”)1
and Ritchie Bros. Auctioneers (“Ritchie Bros”).2
Importantly,
Defendants had ownership interests—some overlapping—in the
auction market: Ring Power was a minority shareholder of
IronPlanet; Ziegler was a minority shareholder of CAS; and
Ziegler’s president and CEO, Bill Hoeft, was a founding member
and chairman of the board of directors of CAS.
The industry auction companies began to consolidate. In
January 2014, IronPlanet and CAS began merger negotiations that
were consummated in 2015. Then, the newly-merged entity
merged again—this time with Ritchie Bros, consolidating the three
1 Caterpillar held a 29.8% stake in CAS.
2
Typically, buyers of heavy construction equipment rely upon dealer
networks to connect them with distributors. Distributors, such as ICP,
considered the development of a traditional dealer network a steep barrier to
entry into the heavy equipment market, requiring them to connect with
middlemen who would in turn connect them to buyers. Buyers also had the
option of buying equipment through online auction sites, like IronPlanet, that
permit them to place bids on pieces of equipment at online auctions, sealed-
bid auctions (in which buyers simultaneously submit sealed bids to the seller),
and on-site auctions. See How to buy, IronPlanet,
https://www.ironplanet.com/how-to-buy?kwtag=footer.
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4 Opinion of the Court 22-10231
companies into one. Hoeft, a member of the CAS merger team,
was in regular contact with IronPlanet during these mergers.
While the IronPlanet-CAS merger negotiations were
ongoing, in March 2014, ICP struck a deal with IronPlanet to have
IronPlanet sell ICP’s new heavy construction equipment on its
website through a dedicated IronPlanet-ICP online storefront. ICP
and IronPlanet announced the deal at a trade expo and made
waves, as the new venture represented a shift in the longstanding
business model of the heavy construction equipment industry.3
The following month, IronPlanet abruptly terminated its
relationship with ICP. According to deposition testimony of
IronPlanet employees, the deal with ICP consumed extensive
technological resources, distracted from the “top priority” (the
IronPlanet-CAS merger), and was not as lucrative as originally
anticipated.4
The Defendants for their part made their own concerns
about the ICP partnership known to IronPlanet. Two weeks after
the announcement of the IronPlanet-ICP deal, CAS CEO Gary
3
The record demonstrates that various stakeholders were concerned about
the IronPlanet-ICP deal due to the possibility of IronPlanet shifting from an
auction site that was manufacturer-neutral to one that promoted one
manufacturer over another. Not only was Caterpillar (as the manufacturer)
concerned about the IronPlanet-ICP deal, but the dealers (as exclusive
Caterpillar dealers) were also concerned with the possibility of having their
used equipment listed next to new equipment and potentially selling for less.
4 In fact, only a single sale was made through the new ICP storefront.
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22-10231 Opinion of the Court 5
Trettel emailed Hoeft (Ziegler Chairman and CAS board member):
“[CAS] is greatly concerned over this development [i.e., the
IronPlanet-ICP deal] and we will need to have discussions on how
to proceed with the [merger] negotiations. [Caterpillar] has
indicated this would kill the” IronPlanet-CAS merger.
Hoeft then sent an email to IronPlanet CEO Greg Owens on
March 18, 2014. Hoeft’s email, sent in response to IronPlanet’s
most recent merger offer, was signed with his name and one of his
titles: “Chairman, President & CEO, Ziegler Inc.” The email
stated, in relevant part:
We and Caterpillar, noted the recent article in
Equipment World, which highlighted Iron Planet’s
new relationship with [ICP]. We would like to better
understand that relationship, as we are concerned
that Caterpillar and the CAT dealers would have
significant concerns about any arrangement where
Iron Planet is providing auction services for new
equipment for a Caterpillar competitor.5
5 An investment banker for CAS drafted a proposed email to be sent by Hoeft
to IronPlanet that stated, in relevant part:
We and Caterpillar noted . . . Iron Planet’s new relationship
with [ICP]. Without more full understanding, I have a strong
suspicion that such a relationship would kill any hope of a
transaction between Iron Planet and [CAS] from Caterpillar’s
perspective.
This proposed email was not sent.
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In April 2014, executives from Ring Power and Thompson
discussed the IronPlanet-ICP deal with each other. On April 1,
following a Ring Power board meeting, Ring Power’s Senior VP
Richard Fowler commented in an email to other Ring Power
executives that Caterpillar was “not happy” with the prospect of
the IronPlanet-ICP deal. Over a period of two days that month,
Fowler also had several phone calls with two Thompson officials
(Billy Seals and Richard Lindley),6 IronPlanet CEO Owens, and
Caterpillar’s merger liaison.
On April 3, 2014, IronPlanet scrubbed ICP’s products from
its website—supposedly without informing ICP beforehand. On
April 4, IronPlanet President Jeff Jeter called ICP founder and
chairman Tim Frank to inform him the deal was off because of
“concerns over” the relationship. Jeter told Frank that Caterpillar
and at least one other manufacturer were “putting pressure” on
IronPlanet to terminate the ICP deal and told him that they would
“stop doing business with [IronPlanet] on the equipment side” if
the deal was not terminated.7 Jeter wrote in an email to Owens
6 Lindley testified that these calls with Fowler did not concern IronPlanet or
ICP, relating instead to a piece of used equipment.
7 Specifically, Jeter told Frank that Caterpillar and at least one other
manufacturer were “putting pressure” on IronPlanet to terminate the ICP deal
and told him that they would “stop doing business with [IronPlanet] on the
equipment side” if the deal was not terminated. The district court, in its
summary judgment order, ruled that, to the extent ICP offered this evidence
to prove the truth of the matter asserted (i.e., that IronPlanet terminated its
relationship with ICP because of pressure it received from Caterpillar and
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22-10231 Opinion of the Court 7
that same day summarizing his conversation with Frank, stating
that Frank “underst[ood their] pressure and said he suspect[ed it
would] be hard to brush off if they are serious.”8
Thompson’s Lindley, while negotiating a consignment of a
six-machine package between Thompson and IronPlanet, heard
about the ICP deal and had asked IronPlanet’s Bob Winnette “what
does this mean?” On April 4, Winnette informed Lindley that ICP
products had been removed from the IronPlanet website. Three
days later, Winnette sent an internal email stating that they
“need[ed] a statement from Owens, Jeter, or [another IronPlanet
VP] with [IronPlanet’s] status and where we are headed if
anywhere with ICP.” He warned that, “[u]ntil [they] have a
statement . . . Thompson is in the holding pattern with us.” Jeter,
in response, stated, “Our deal with ICP has been terminated and
removed from the IronPlanet website.” Jeter’s email was then
other entities), it was hearsay. The district court also ruled that it did not
qualify as non-hearsay under Federal Rule of Evidence 801(d)(2)(E) as a co-
conspirator statement because IronPlanet was not alleged to be a co-
conspirator. The district court further ruled that the statements were not
admissible under the exception for unavailable witnesses under Rule
804(b)(3)(A). During his deposition, Jeter testified that he did not recall the
substance of his conversation with Frank but did not testify that he forgot
having the conversation at all; thus, he was not unavailable under Rule
804(a)(3). Regardless of its ruling, the district court chose to consider Jeter’s
statements as part of the summary judgment record and concluded that they
were not direct evidence of a conspiracy and did not tie any specific Defendant
to the supposed “pressure” on IronPlanet.
8 Jeter later testified that “they” referred to manufacturers and dealers.
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8 Opinion of the Court 22-10231
forwarded to Thompson officials by Frank Langham of IronPlanet.
Lindley requested “a [W]ord document on IronPlanet letterhead
with [that] statement” with Jeter’s “name and title at the end.”
IronPlanet complied.
Several days later, on April 14, 2014, after exchanging emails
regarding the termination, Jeter and Frank spoke on the phone.
Jeter told Frank that “the pressure they were under was very
strong,” and when Frank asked from whom the pressure was
coming, Jeter responded “you know who our investors are.” In
June 2014, Thompson VP Kenny Bishop wrote in an email to a
Caterpillar official that IronPlanet’s deal with ICP caused an
“uproar” from Caterpillar dealers, causing IronPlanet to remove
ICP from its website.
On January 29, 2015, ICP sued Caterpillar, CAS, and various
other manufacturers in federal court in Delaware seeking
compensatory damages and injunctive relief under federal
antitrust laws, as well as compensatory damages, punitive
damages, and injunctive relief under state law. The Delaware court
granted ICP leave to amend to add the three dealer Defendants in
this appeal. The court initially dismissed the claims against the
dealers for lack of personal jurisdiction, but then reconsidered and
transferred the claims to the Northern District of Florida. The
claims against Caterpillar remained in Delaware.
Following transfer, the Florida district court granted ICP
leave to file an amended complaint focusing on the claims against
the dealer Defendants. The amended complaint advances four
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22-10231 Opinion of the Court 9
causes of action: two claims under Section 1 of the Sherman Anti-
Trust Act, 15 U.S.C. § 1 (Counts 1 and 2), and two claims for
tortious interference under state law (Counts 3 and 4).9 ICP alleged
that Defendants, in conjunction with Caterpillar and another
manufacturer, illegally conspired to cause IronPlanet to terminate
its contract with ICP by boycotting and pressuring IronPlanet.
Defendants each denied ICP’s allegations and asserted various
affirmative defenses, including that their conduct was lawful,
justified, and pro-competitive.
The district court established a two-phase discovery
schedule, limiting Phase 1 to fact discovery on the issue of whether
a conspiracy existed to boycott IronPlanet. At the close of Phase 1,
the court would entertain summary judgment motions before
moving on to Phase 2, which would focus on expert discovery and
the “issues of market definition, antitrust injury, and damages.”
Phase 1 of discovery ended in July 2021, at which time Defendants
each filed motions for summary judgment.
The district court granted Defendants’ motions for
summary judgment on all counts. First, as to the Sherman Act § 1
antitrust claims, the district court found that “no reasonable jury
could find that Defendants individually threatened to boycott
IronPlanet if it did not terminate its relationship with [ICP].
Accordingly, there is no parallel conduct from which the jury could
9 The complaint alleged that the relevant state law was that of Illinois or, in
the alternative, Florida.
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10 Opinion of the Court 22-10231
possibly infer the existence of a conspiracy.” The district court
concluded that “the summary judgment evidence d[id] not tend to
exclude the possibility that Defendants acted independently and
[the evidence was] as consistent with permissible competition as
with illegal conspiracy.”
Second, as to ICP’s state law claims, the district court,
applying Florida law,10 held that “there [was] no evidence from
which a jury could find that [Defendants] intentionally and
unjustifiably interfered with the business relationship between
IronPlanet and [ICP] or induced IronPlanet to breach its agreement
with [ICP.]” The district court ultimately concluded, as to both
claims, that while
a reasonable jury could find that IronPlanet was
“pressured” into terminating its relationship with
[ICP], there is simply no evidence (direct or
circumstantial) from which a jury could find that the
dealer [D]efendants named in this case were
responsible for exerting that pressure, much less that
they unlawfully entered into an agreement to do so.
Additionally, the district court determined that, as to Thompson
and Ziegler specifically, even if they had threatened to boycott
IronPlanet because of the ICP deal, those Defendants were justified
(or “privileged”) under the Restatement (Second) of Torts § 766
10 The district court recognized that, while the parties disagreed as to which
state law applied (North Carolina, Illinois, or Florida), they agreed that there
were no material differences in the applicable law of those states.
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22-10231 Opinion of the Court 11
cmt. l and Florida law in refusing to deal with IronPlanet out of
concern for their own respective business interests. The district
court entered final judgment for Defendants, and ICP timely
appealed.
II. Discussion
A. Sherman Act claims
Under § 1 of the Sherman Act, “[e]very contract,
combination . . . or conspiracy, in restraint of trade . . . among the
several States, or with foreign nations or commerce among the
several States, or with foreign nations” is illegal. 15 U.S.C. § 1.
Notably, “the Supreme Court has long concluded that Congress
intended only to prohibit ‘unreasonable’ restraints on trade.”
Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917
F.3d 1249, 1260 (11th Cir. 2019) (en banc) (citing Arizona v. Maricopa
Cnty. Med. Soc’y, 457 U.S. 332, 343 (1982)). Section 1, therefore,
“prohibits (1) conspiracies that (2) unreasonably (3) restrain
interstate or foreign trade.” Id.
The “first inquiry” of a Sherman Act claim is whether
defendants made an “agreement that restrains trade.” Tidmore Oil
Co. v. BP Oil Co./Gulf Prod. Div., 932 F.2d 1384, 1388 (11th Cir. 1991).
Importantly, “the Sherman Act ‘does not restrict the long
recognized right of [a] trader or manufacturer engaged in an
entirely private business, freely to exercise his own independent
discretion as to parties with whom he will deal’”; only “collusion,”
rather than independent action, is proscribed. Verizon Commc’ns
Inc. v. L. Offs. of Curtis v. Trinko, LLP, 540 U.S. 398, 408 (2004)
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12 Opinion of the Court 22-10231
(quoting United States v. Colgate & Co., 250 U.S. 300, 307 (1919)). An
illegal conspiracy under § 1 can be demonstrated in two ways:
direct or circumstantial evidence.
A plaintiff can present “direct . . . evidence that reasonably
tends to prove that the parties ‘had a conscious commitment to a
common scheme designed to achieve an unlawful objective.’”
Dinnivant v. Bi-State Auto Parts, 851 F.2d 1575, 1579 (11th Cir. 1988)
(quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764
(1984)). That being said, “it is only in rare cases that a plaintiff can
establish the existence of a conspiracy by showing an explicit
agreement.” Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555,
1573–74 (11th Cir. 1991). “Direct evidence is evidence which, if
believed, resolves a matter in issue.” City of Tuscaloosa v. Harcros
Chems., Inc., 158 F.3d 548, 565 (11th Cir. 1998) (quoting
parenthetically 1 John W. Strong et al., McCormick on Evidence
§ 185, at 777 (4th ed. 1992)). It is evidence that “is based on personal
knowledge or observation and that, if true, proves a fact without
inference or presumption.” Evidence, Black’s Law Dictionary (11th ed.
2019) (emphasis added).
“[M]ost conspiracies are proved by inferences drawn from
the behavior of the alleged conspirators.” Todorov v. DCH Healthcare
Auth., 921 F.2d 1438, 1456 (11th Cir. 1991). To survive summary
judgment on the basis of circumstantial evidence, a “plaintiff must
present ‘evidence that tends to exclude the possibility that the
[defendants] were acting independently.’” Am. Contractors Supply,
LLC v. HD Supply Constr. Supply, Inc., 989 F.3d at 1233 (quoting
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Monsanto, 465 U.S. at 761). “[C]onduct as consistent with
permissible competition as with illegal conspiracy does not,
standing alone, support an inference of antitrust conspiracy.”
Harcros, 158 F.3d at 570 (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)). The plaintiff, “in other words,
must show that the inference of conspiracy is reasonable in light of
the competing inference[ ] of independent action.” Id. (quoting
Matsushita, 475 U.S. at 588 (alterations in original)).11 The evidence
“need not be such that only an inference of conspiracy may be
derived from it,” but the evidence must “tend to exclude the
inference of independent action.” Am. Contractors, 989 F.3d at 1234
(quoting DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d
1499, 1509 (11th Cir. 1989)). “Mere equipoise of the evidence does
not establish an agreement.” Id. at 1233.
While “parallel business behavior” or “conscious
parallelism” can be circumstantial evidence of a conspiracy, the fact
that defendants engaged in parallel conduct does not, on its own,
establish a conspiracy for purposes of § 1. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 561 n.7 (2007). Rather, the plaintiff must demonstrate
that “each defendant engaging in the parallel action acted contrary
to its economic self-interest, or [show] other ‘plus factors’ tending
11
We have stated that “courts must be mindful that,” while “‘on summary
judgment the inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the party opposing the motion[,] . . .
antitrust law limits the range of permissible inferences from ambiguous
evidence in a § 1 case.’” Harcros, 158 F.3d at 569–70 (quoting Matsushita, 475
U.S. at 586) (alteration adopted).
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14 Opinion of the Court 22-10231
to establish that the defendants were . . . in a collusive agreement
to . . . restrain trade.” Harcros, 158 F.3d at 570–71 (internal
quotation omitted). Neither our Court nor the Supreme Court has
established a definitive list of “plus factors”; instead, any evidence
that “tends to exclude the possibility of independent action” could
operate as a “plus factor” sufficient to enhance circumstantial
evidence beyond “the realm of equipoise.” Williamson Oil Co. v.
Philip Morris USA, 346 F.3d 1287, 1301 (11th Cir. 2003) (quoting
Harcros, 158 F.3d at 571 n.35). “[A]n agreement is properly inferred
from conscious parallelism only when ‘plus factors’ exist.” Todorov,
921 F.2d at 1456 n.30.12
1. Direct Evidence
In its opening brief, while not clearly articulated, ICP
appears to argue that there is direct evidence of a conspiracy
among Defendants. But contrary to ICP’s arguments on appeal,
the summary judgment record does not contain any direct evidence
of an agreement between Defendants to boycott IronPlanet. In
other words, there is no evidence that shows that Defendants
explicitly agreed to boycott IronPlanet so that IronPlanet would
terminate its relationship with ICP. We examine each piece of
12 While we have not set forth an exhaustive list of plus factors in our prior
case law, we have recognized that “a showing that the defendants’ behavior
would not be reasonable or explicable (i.e., not in their legitimate economic
self-interest) if they were not conspiring to fix prices or otherwise restrain
trade,” could constitute a plus factor. Harcros, 158 F.3d at 572.
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22-10231 Opinion of the Court 15
evidence that ICP contends constitutes direct evidence and how it
falls short.
First, ICP points to internal emails among Caterpillar
executives discussing the IronPlanet-ICP relationship, including an
email in which the Caterpillar official recounts that IronPlanet’s
Owens, during merger negotiations, said “if we [CAS and
IronPlanet] can come to some for[m] of agreement, then the ICP
initiative would go away.” As an initial matter, neither Caterpillar
nor IronPlanet are not defendants in this lawsuit. Accordingly, an
internal corporate discussion with one non-party about another
non-party is not in any way direct evidence of a conspiracy among
the Defendants.
Second, ICP points to IronPlanet President Jeter’s April 4 call
with ICP founder and chairman Tim Frank to inform him the deal
was off because of “concerns over” the relationship.13 During that
call, Jeter told Frank that Caterpillar and at least one other
13 ICP argues that the district court erred in ruling that comments made by
IronPlanet’s Jeter to ICP’s Frank during the April 4, 2014, phone call were
inadmissible hearsay. “We review a district court’s evidentiary rulings for
abuse of discretion.” Great Lakes Ins. SE v. Wave Cruiser LLC, 36 F.4th 1346,
1353 (11th Cir. 2022). “[E]ven a clearly erroneous evidentiary ruling will be
affirmed if harmless.” Id. (quotation omitted). An error is harmless unless “it
affects the substantial rights of the parties.” Furcron v. Mail Ctrs. Plus, LLC, 843
F.3d 1295, 1304 (11th Cir. 2016) (quotation omitted). Even assuming the
district court incorrectly determined that the statement was admissible, the
error was harmless because the district court considered the statement as
supposed direct evidence of a conspiracy; therefore, ICP’s substantial rights
were not affected.
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manufacturer were “putting pressure” on IronPlanet to terminate
the ICP deal and told him that manufacturers and dealers would
“stop doing business with [IronPlanet] on the equipment side” if
the deal was not terminated. Direct evidence, by definition, does
not require inferences to prove what it is offered to prove. This
phone call is not direct evidence of a conspiracy among the
Defendants because it requires several inferences: just because
Frank understood that some dealers were putting pressure on
IronPlanet does not mean (a) the dealers were the Defendants in
this case or (b) the dealers agreed to put this pressure on IronPlanet
as part of an illegal concerted effort. The telephone conversation
cannot be direct evidence of an agreement on the part of
Defendants due to the necessary inferences its consideration
requires.
Third, ICP contends that Jeter’s email to Owens on April 4
summarizing his conversation with Frank, in which he stated that
Frank “underst[ood IronPlanet’s] pressure and said he suspect[ed it
would] be hard to brush off if they are serious,” constitutes direct
evidence. This email is not direct evidence of a conspiracy because,
despite the fact that Jeter testified that those entities referenced in
his email were manufacturers and dealers, the email does not
indicate which specific entities were exerting pressure on
IronPlanet, or whether those entities were doing so by virtue of an
anticompetitive agreement. To conclude that the email and
preceding conversation concerned the Defendants requires the
drawing of multiple inferences.
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Fourth, ICP points to Frank’s testimony that when he asked
Jeter “who besides Caterpillar was putting pressure on” IronPlanet,
Jeter replied, “you know who our investors are.” ICP argues that
this is direct evidence of a conspiracy, given that Ring Power was a
minority shareholder of IronPlanet. However, ICP gives away the
game by arguing that there are “reasonable inferences [to be]
drawn from Jeter’s admission[.]” Direct evidence of a conspiracy
does not require any inferences to be drawn and a mere reference
to “investors” does not constitute proof of any unlawful conduct
by Ring Power, much less a conspiracy between Ring Power and
any other Defendant.
Fifth, ICP relies on a June 2014 email from Thompson VP
Kenny Bishop to a Caterpillar official referring to “uproar from Cat
dealers” prompting termination of the deal with ICP. But, by its
own words, ICP necessarily concedes that this email is not direct
evidence of a conspiracy when admitting that the desired
conclusion is permitted only by an inference from consideration of
the evidence.
Sixth, ICP points to an email from CAS CEO Gary Trettel to
Ziegler’s Hoeft stating that “[CAS] is greatly concerned over this
development [i.e., the IronPlanet-ICP deal] and we will need to
have discussions on how to proceed with the [merger] negotiations.
[Caterpillar] has indicated this would kill the” IronPlanet-CAS
merger. This email is not direct evidence of a conspiracy because,
on its face, it contains no mention of any agreement between
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18 Opinion of the Court 22-10231
Defendants to boycott IronPlanet but rather speaks to CAS’s
opinion of the IronPlanet-ICP deal.
Seventh, ICP points to an email sent by Hoeft to IronPlanet’s
Owens stating, “We would like to better understand that
relationship [with ICP], as we are concerned that Caterpillar and
the CAT dealers would have significant concerns about any
arrangement where IronPlanet is providing auction services for
new equipment for a Caterpillar competitor.” In ICP’s view, the
email “reflects Ziegler’s coordination with others[,] speak[ing] on
behalf of Caterpillar and a group of ‘dealers.’” ICP contends that
these emails “directly establish that Ziegler executives used the Cat
Auction merger negotiations to pressure IronPlanet into severing
its relationship with ICP.” ICP is incorrect. The parties make much
of the question as to what “hat” Hoeft was wearing when he sent
this email—in other words, was he acting on behalf of Ziegler or
the CAS merger team?14 But even if we were to accept ICP’s
14 ICP raises as an enumeration of error the district court’s apparent decision
not to consider any events related to the CAS-IronPlanet merger because the
Delaware district court previously ruled that the merger did not restrain trade.
Accordingly, the district court did not permit ICP to rely upon the merger
agreement to establish concerted action. However, the district court explicitly
addressed the merger negotiations, including the email from Hoeft to Owens
during negotiations expressing concern about the ICP-IronPlanet relationship.
The district court also considered the context of the merger when analyzing
the speed at which IronPlanet switched from building up the website featuring
ICP’s products to taking it down. The district court directly engaged with
evidence from the merger negotiations and found it not to be probative
evidence tending to show Defendants acted in concert in boycotting
IronPlanet. To the extent that ICP argues that the district court was wrong in
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22-10231 Opinion of the Court 19
argument that Hoeft sent the email in his capacity as a Ziegler
representative rather than as a CAS representative, it is still
insufficient direct evidence that Ziegler entered a conspiracy with
the other Defendants to boycott IronPlanet. On its face, Hoeft’s
email simply asks for information about IronPlanet’s relationship
with ICP. To reach the conclusion that Ziegler entered into a
conspiracy with the other Defendants, we would have to make
several inferences—e.g., that Hoeft was, in fact, acting on behalf of
Ziegler rather than CAS, that Hoeft inquired after the IronPlanet-
ICP deal at the behest of at least one other Defendant, and that an
inquiry into the deal was intended to be and was received as a veiled
threat to boycott IronPlanet—thus disqualifying this evidence as
direct evidence of a conspiracy.
Eighth, ICP points to the emails between Thompson
officials and IronPlanet in which Thompson sought confirmation
that the deal with ICP had been terminated and the ICP products
were removed from the IronPlanet website. These
communications consisted of the following: IronPlanet’s Winnette
informed Lindley that ICP products had been removed from the
IronPlanet website. Three days later, Winnette sent an internal
email stating that they “need[ed] a statement from Owens, Jeter, or
[another IronPlanet VP] with [IronPlanet’s] status and where we
concluding that this information was not probative of concerted action, we
agree with the district court. Communications between non-parties are not
probative of the Defendants actions in this case (even granting ICP’s argument
that Hoeft wore his Ziegler “hat” for purposes of his communications with
IronPlanet). Thus, ICP’s enumeration is meritless.
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20 Opinion of the Court 22-10231
are headed if anywhere with ICP.” He warned that, “[u]ntil [they]
have a statement . . . Thompson is in the holding pattern with us.”
Jeter, in response, stated, “Our deal with ICP has been terminated
and removed from the IronPlanet website.” Jeter’s email was then
forwarded to Thompson officials by Frank Langham of IronPlanet.
Lindley requested “a [W]ord document on IronPlanet letterhead
with [that] statement” with Jeter’s “name and title at the end.”
IronPlanet complied. Nothing in those communications, or the
resulting statement from IronPlanet, constitutes direct evidence of
a conspiracy among the Defendants. There is not even a single
mention of another dealer or entity in those communications, and
the communications simply do not establish that Thompson
unlawfully conspired with anyone to restrain trade. Additionally,
these emails are simply requests for information about an arguably
industry-changing event that do not support the existence of the
alleged conspiracy.
As to Ring Power,15 ICP points to the following: (1) internal
Ring Power emails regarding the “concerns” about the IronPlanet-
ICP deal harbored by Ring Power executives and the
15
ICP seemingly concedes that there is no direct evidence tying Ring Power
to the conspiracy, stating in its opening brief that “[b]ased on record evidence,
a reasonable jury could also conclude that Ring Power played a key role in
coordinating and leading the conspiracy,” and that there is “more than enough
evidence from [which] a jury could reasonably infer Ring Power’s involvement
in the conspiracy.” Irrespective of ICP’s concession, however, we will
consider whether the proffered evidence implicating Ring Power constitutes
direct evidence of a conspiracy.
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22-10231 Opinion of the Court 21
communication of those concerns to Caterpillar; and (2) “a flurry
of phone calls” between Ring Power’s Fowler and officials at
Caterpillar, Thompson, and IronPlanet following Fowler’s email to
Ring Power’s CEO informing him of the IronPlanet-ICP deal.
Neither of these pieces of evidence is direct evidence of a
conspiracy. Emails internal to Ring Power containing no mention
of any other Defendant (much less an agreement between them to
boycott IronPlanet) do not show the existence of an illegal
conspiracy to restrain trade. Nor does a series of phone calls: a
factfinder would be required to make an inference that the phone
calls were, indeed, concerning not only the IronPlanet-ICP deal,
but also an agreement between Ring Power and Thompson, in
order to conclude that there was a conspiracy between those
Defendants. The phone calls are therefore plainly not direct
evidence of such a conspiracy.
Accordingly, ICP has failed to put forth any direct evidence
proving that Defendants conspired to boycott IronPlanet until it
terminated its relationship with ICP.
2. Circumstantial Evidence with Plus Factors
In its reply brief, ICP asserts for the first time that the
evidence it initially argued was direct evidence of a conspiracy is
also circumstantial evidence of such. Thus, ICP also needs to show
the existence of plus factors. But ICP tacitly admits that it has not
done so. Instead, ICP argues that, under DeLong, it is not limited to
a “two-track” requirement of either direct evidence or
circumstantial evidence and plus factors; it contends that “antitrust
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22 Opinion of the Court 22-10231
plaintiffs may rely on the cumulative weight of various kinds of
evidence, including that which requires interpretation or
inferences, even without a showing of ‘parallel conduct.’”
DeLong, however, does not hold that the cumulative weight
of the evidence (without plus factors) can get a plaintiff past
summary judgment in an antitrust case. In DeLong, we considered
a plaintiff’s claims of vertical price conspiracy and concluded that
by “[v]iewing the totality of the evidence . . . , a jury reasonably
could conclude that [the defendants] worked together to develop”
a competing product “and agreed to sell it at an inflated price,” i.e.,
the evidence “all reasonably tend[ed] to support [the plaintiff’s]
conspiracy allegation.” 887 F.2d at 1511–12. While it is true that
we did not explicitly consider any “plus factors,” we did state that
evidence of parallel conduct “need not be such that only an
inference of conspiracy may be derived from it,” but instead, “[i]t
must . . . tend to exclude the inference of independent action.” Id.
at 1509. This holding—which plainly states that inferences are not
enough at summary judgment—is not inconsistent with our
requirement of plus factors discussed in other cases. Indeed, prior
to our decision in DeLong, we held in Dunnivant v. Bi-State Auto Parts
that “[i]n order to avoid a motion for summary judgment, a plaintiff
must come forward with significant probative evidence supporting
its theory of conscious parallelism with some ‘plus’ factor which
tends to indicate the absence of independent action.” 851 F.2d
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1575, 1583 (11th Cir. 1988).16
And after DeLong, we have confirmed
the need for plus factors in a circumstantial evidence case: “To
ensure that we do not punish unilateral conduct, . . . we require
more than mere evidence of parallel conduct by competitors to
support an inference of a conspiracy; an agreement is properly
inferred from conscious parallelism only when ‘plus factors’ exist.”
Todorov, 921 F.2d at 1456 n.30. DeLong does not require otherwise
or hold to the contrary. ICP cannot preclude summary judgment
by reliance on circumstantial evidence alone, without any
discussion or argument of plus factors because “[m]ere equipoise
of the evidence does not establish an agreement.” Am. Contractors,
989 F.3d at 1234.
Even considering all of the purported direct evidence as
circumstantial evidence, nothing permits the inference that
Defendants illegally conspired to boycott IronPlanet in an effort to
thwart the IronPlanet-ICP deal. And even if the circumstantial
evidence permitted such an inference, ICP has failed to put forth
any plus factors that bring its evidence out of the realm of
equipoise. ICP has only made the conclusory argument that the
alleged conspiracy was economically rational for Defendants. At
most, ICP has put forth evidence tending to show that Defendants
16
Under our “prior panel precedent rule,” we are required to follow the
precedent of the first panel to address the relevant issue, “unless and until the
first panel’s holding is overruled by the Court sitting en banc or by the
Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).
Thus, if any conflict did exist between DeLong and Dunnivant, our holding and
reasoning in Dunnivant would win the day.
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24 Opinion of the Court 22-10231
independently harbored concerns about the effects the IronPlanet-
ICP deal would have on the heavy construction equipment
industry and their own respective businesses, and communicated
those concerns to IronPlanet in the form of requests for additional
information. That conduct is not illegal under the Sherman Act.
Because ICP has not pointed to direct evidence of a
conspiracy or to circumstantial evidence with additional plus
factors that would permit the inference that Defendants acted in
concert rather than independently, its Sherman Act claims fail. The
district court did not err in granting Defendants summary
judgment on these claims.
B. Tortious interference with contract
ICP advanced two causes of action for tortious interference
with contract under state law for (1) lost profits and (2) damaged
equity and goodwill. The district court granted Defendants
summary judgment on those claims because it concluded that
there was no evidence from which a jury could find that
Defendants intentionally and unjustifiably interfered with “the
business relationship between” ICP and IronPlanet or induced
IronPlanet to breach its agreement with ICP.17
First, as to Ring Power, the district court found that “the
summary judgment evidence fail[ed] to show that Ring Power
17 The district court used the phrase “business relationship” twice in its
summary judgment order but analyzed ICP’s claims under the correct
framework for tortious interference with contract.
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22-10231 Opinion of the Court 25
threatened to boycott IronPlanet,” because it issued “nothing more
than inquiries” into the IronPlanet-ICP relationship. It concluded
that the record evidence showed that Ring Power’s inquiries did not
contain or imply any threat of a boycott, nor did IronPlanet
perceive any of the inquiries as a threat of a boycott.
Second, the district court found that the same was true for
Thompson, determining that even if Thompson’s request for
confirmation from IronPlanet that it had terminated the deal with
ICP was a “veiled threat,” such a “threat would not be actionable
because Thompson was justified in not dealing (or threatening not
to deal) with IronPlanet under the circumstances” according to the
commentary to § 766 of the Restatement (Second) of Torts. It also
held that Thompson “was motivated by its legitimate business
interests,” i.e., “that its used equipment would sell for less,” and
thus was entitled to summary judgment.
Lastly, as to Ziegler, the district court concluded that even
assuming that Hoeft’s email to IronPlanet inquiring about the ICP
relationship was sent on behalf of Ziegler rather than CAS, and
further assuming that the email contained or implied a threat to
boycott IronPlanet, the claims would still not be actionable because
“Ziegler, like Thompson, was free to independently decide who to
deal with based on its own business interests.”
ICP argues that the district court erroneously determined
that no Defendant threatened to boycott IronPlanet because “there
is evidence from which a reasonable jury could find that IronPlanet
terminated its ICP contract under pressure from dealers, and
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26 Opinion of the Court 22-10231
specifically in response to threats to its merger plans and its
equipment consignments.” It also argues that § 766 to the
Restatement “draws a contrast between a refusal to deal motivated
by an ‘aversion’ to a third party, and a refusal to deal (or threat of
such refusal) that is accompanied by statements or signals actively
seeking the cancellation of a contract with a third party.” Because
Defendants “moved beyond refraining from business based on an
‘aversion,’” their purported threats constituted unjustifiable
interference.
ICP also contends that the district court erroneously relied
on Florida law’s “privilege to interfere” which protects actions
taken to promote one’s own economic self-interest; ICP argues that
the privilege does not apply where improper means are employed,
such as threats and intimidation. ICP contends that Defendants’
“concerted pressure campaign” qualifies as improper means.
Lastly, ICP argues that “[t]he district court usurped the jury’s role”
in determining whether Defendants’ alleged interference was
improper.
Under Florida law,18 “[t]he tort of contractual interference
occurs when: [1] a contract exists; [2] the third-party has knowledge
of the contract; [3] the third party intentionally interferes with a
party’s rights under the contract; [4] there is no justification or
18
The parties do not agree on which state’s laws apply in this case—North
Carolina, Illinois, or Florida. However, the parties have agreed that there is
no meaningful difference between the three states’ tortious interference laws.
The district court applied Florida law, so we will do the same here.
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22-10231 Opinion of the Court 27
privilege for the interference; and [5] there are damages.” Mariscotti
v. Merco Grp. At Akoya, Inc., 917 So. 2d 890, 892 (Fla. 3d DCA 2005).
We focus on the third and fourth elements here: whether there was
an unjustifiable interference by Defendants into ICP’s agreement
with IronPlanet. See, e.g., Cedar Hills Properties Corp. v. E. Fed. Corp.,
575 So. 2d 673, 676 (Fla. 1st DCA 1991) (“In order to maintain an
action for tortious interference with contractual rights, a plaintiff
must prove that a third party interfered with a contract by
influencing, inducing or coercing one of the parties to breach the
contract, thereby causing injury to the other party.” (quotation
omitted and alteration adopted)); Stutzke v. D.G.C. Liquidation Co.,
533 So. 2d 897, 899 (Fla. 4th DCA 1988) (“A cause of action for
tortious interference requires that there be direct, intentional
interference.”).
The Restatement (Second) of Torts § 76619 explains that,
with respect to the “means of interference,” “[t]here is no technical
requirement as to the kind of conduct that may result in
interference,” but notes that “[t]he interference is often by
19 Section 766 provides:
One who intentionally and improperly interferes with the
performance of a contract (except a contract to marry)
between another and a third person by inducing or otherwise
causing the third person not to perform the contract, is subject
to liability to the other for the pecuniary loss resulting to the
other from the failure of the third person to perform the
contract.
Restatement (Second) of Torts § 766.
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28 Opinion of the Court 22-10231
inducement . . . conveying to the third person the actor’s desire to
influence him not to deal with the other.” Restatement (Second)
of Torts § 766 cmt. k.
However, there are certain justifications for interference,
including refusing to deal. Again, the commentary to § 766
provides guidance on when an individual or entity’s refusal to deal
with a third party constitutes an unjustifiable interference with the
third party’s business relationship with the plaintiff:
A refusal to deal is one means by which a person may
induce another to commit a breach of his contract
with a third person. Thus A may induce B to break
his contract with C by threatening not to enter into,
or to sever, business relations with B unless B does
break the contract. This situation frequently presents
a nice question of fact. While, under the rule stated in
this Section, A may not, without some justification induce
B to break his contract with C, A is ordinarily free to refuse
to deal with B for any reason or no reason. The difficult
question of fact presented in this situation is whether
A is merely exercising his freedom to select the
persons with whom he will do business or is inducing
B not to perform his contract with C. That freedom
is not restricted by the relationship between B and C;
and A’s aversion to C is as legitimate a reason for his refusal
to deal with B as his aversion to B. If he is merely
exercising that freedom, he is not liable to C for the
harm caused by B’s choice not to lose A’s business for
the sake of getting C’s.
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22-10231 Opinion of the Court 29
On the other hand, if A, instead of merely refusing to
deal with B and leaving B to make his own decision
on what to do about it, goes further and uses his own
refusal to deal or the threat of it as a means of
affirmative inducement, compulsion or pressure to
make B break his contract with C, he may be acting
improperly and subject to liability under the rule
stated in this Section.
Restatement (Second) of Torts § 766 cmt. l (emphasis added).
Under Florida law, “there can be no claim [for tortious
interference] where the action complained of is undertaken to
safeguard or promote one’s financial or economic interest.” Genet
Co. v. Annheuser-Busch, Inc., 498 So. 2d 683, 684 (Fla. 3d DCA 1986).
Further, “[i]f a defendant interferes with a contract in order to
safeguard a preexisting economic interest of his own, the
defendant’s right to protect his own established economic interest
outweighs the plaintiff’s right to be free of interference, and his
actions are usually recognized as privileged and nonactionable.”
Heavener, Ogier Servs., Inc. v. R. W. Fla. Region, Inc., 418 So. 2d 1074,
1076 (Fla. 5th DCA 1982); see also id. (“Even if the contract is
terminable at will, the interferer’s actions are tortious and
actionable if the motive is purely malicious and not coupled with
any legitimate competitive economic interest.”). Moreover, a
defendant may not utilize improper means, such as threats,
intimidation, or conspiratorial conduct, and still enjoy the privilege
of business competition. See Int’l Sales & Serv., Inc. v. Austral
Insulated Prod., Inc., 262 F.3d 1152, 1159 (11th Cir. 2001) (collecting
cases); see also Sec. Title Guarantee Corp. of Baltimore v. McDill
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30 Opinion of the Court 22-10231
Columbus Corp., 543 So. 2d 852, 855 (Fla. 2d DCA 1989) (“[S]o long
as improper means are not employed, activities taken to safeguard
or promote one’s own financial interests are entirely non-
actionable.”).
1. Ring Power
We turn first to ICP’s argument that Ring Power threatened
to boycott IronPlanet and thus intentionally interfered with ICP’s
relationship with IronPlanet. ICP, however, has not cited to any
evidence from which a jury could reasonably infer that Ring Power
interfered with its IronPlanet deal, either in its opening brief or in
its reply brief. Rather, it rests its arguments on evidence that, at
most, indicates that Ring Power was concerned about the
IronPlanet-ICP deal and that Ring Power’s Fowler “engaged in a
flurry of phone calls with officials at Caterpillar, Thompson, and
IronPlanet.” ICP has not pointed to any evidence that Ring Power
took any action to threaten or pressure IronPlanet to terminate its
deal with ICP and thus has not created a genuine issue of material
fact on the third element of tortious interference with contract
under Florida law. Tamiami Trail, 463 So.2d at 1127. Therefore,
Ring Power is entitled to summary judgment on the tortious
interference with contract claims.
2. Thompson
We turn next to Thompson. ICP relies upon the
communications between Thompson’s Lindley and IronPlanet as
evidence of intentional interference in which IronPlanet expressed
concern internally that it would be in a “holding pattern” with
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22-10231 Opinion of the Court 31
Thompson while the ICP deal remained intact and in which
Thompson requested a formal statement on IronPlanet letterhead
that the ICP deal had been terminated. We agree with the district
court that nothing in those communications could be reasonably
construed as a threat of boycott and thus cannot satisfy the third
element of tortious interference under Florida law. Id.
However, even if they could be so construed, Thompson’s
actions would be justified under § 766 cmt. l to the Restatement
(Second) of Torts, which provides:
A may induce B to break his contract with C by
threatening not to enter into, or to sever, business
relations with B unless B does break the contract
[with C]. . . . A may not, without some justification
induce B to break his contract with C, [but] A is
ordinarily free to refuse to deal with B for any reason
or no reason[, and] A’s aversion to C is as legitimate a
reason for his refusal to deal with B as his aversion to
B.
Restatement (Second) of Torts § 766 cmt. l. In other words, we are
presented with the precise scenario contemplated by the
Restatement: Thompson’s aversion to ICP is “a legitimate reason
for [its] refusal to deal” with IronPlanet. Id.; Heavener, 418 So.2d at
1076; Genet, 498 So.2d at 684. While ICP contends that Thompson
went “beyond” a mere refusal to deal by “actively seeking
cancellation of a contract with a third party,” i.e., affirmatively
inducing a breach of contract, the communications did no such
thing, as evidenced by the fact that they did not take place until
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32 Opinion of the Court 22-10231
several days after ICP’s products had been removed from
IronPlanet’s website and IronPlanet officials informed ICP of the
termination. We agree with the district court that the evidence
showed that Thompson acted primarily to protect its business
interests, and thus any interference was justified. Because
Thompson’s refusal to deal was justified, it is entitled to summary
judgment on these claims.
3. Ziegler
Lastly, with respect to Ziegler, even assuming that Hoeft’s
email to IronPlanet was sent on behalf of Ziegler rather than CAS,
we agree with the district court that the email did not contain any
threat of boycott, it could not have been construed as a threat to
boycott, and it was not received or understood by IronPlanet to be
a threat of boycott, evidenced by Jeter’s testimony that he did not
receive any threats from Defendants. And even if Hoeft’s email
were to be construed as a threat, it would not be actionable as
interference because Ziegler, like Thompson, was entitled to refuse
to deal with IronPlanet while IronPlanet was engaged with ICP
based upon its own business interests. Restatement (Second) of
Torts § 766 cmt. l; Heavener, 418 So. 2d at 1076; Genet, 498 So. 2d at
684. For that reason, Ziegler is also entitled to summary judgment
on ICP’s tortious interference claims.
III. Conclusion
ICP has failed to carry its burden on summary judgment on
its claims arising under § 1 of the Sherman Act as well as its state-
law claims for tortious interference with contract. ICP has not put
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22-10231 Opinion of the Court 33
forth sufficient evidence to permit a reasonable jury to infer that
Defendants acted in concert in conspiring to boycott IronPlanet if
it did not terminate its relationship with ICP and therefore its § 1
claims must fail. ICP has also failed to put forth sufficient evidence
to preclude summary judgment on its state-law tortious
interference claims. Accordingly, we affirm the judgment of the
district court.
AFFIRMED.
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