Always Towing & Recovery Inc. v. City of Milwaukee ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3261
ALWAYS TOWING & RECOVERY, INC., et al.,
Plaintiffs-Appellants,
v.
CITY OF MILWAUKEE, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:20-cv-00919 — Nancy Joseph, Magistrate Judge.
____________________
ARGUED APRIL 21, 2021 — DECIDED JUNE 24, 2021
____________________
Before FLAUM, SCUDDER, and KIRSCH, Circuit Judges.
FLAUM, Circuit Judge. This case is about the scrap metal re-
cycling business—the collection and processing of ferrous
(iron-based) and nonferrous metals. Plaintiffs-appellants, an
assortment of companies that tow or recycle used cars, allege
that defendants-appellees, the City of Milwaukee (“the City”)
and its subcontractor, engaged in anticompetitive behavior to
self-allocate towing services and abandoned vehicles, a pri-
mary input in that industry.
2 No. 20-3261
Among other claims, plaintiffs allege that a contract the
City entered into with one of the area’s largest recycling pro-
viders, defendant-appellee Miller Compressing Co., violates
§ 1 of the Sherman Act, 15 U.S.C. § 1 et seq. Plaintiffs assert
that the contract provided direct evidence of an agreement to
restrain trade. We agree with the district court’s judgment
that plaintiffs failed to state a claim upon which relief could
be granted because they did not plead an unreasonable re-
straint on trade, and we therefore now affirm.
I. Background
A. Factual Background
Always Towing & Recovery, Inc., Apys Cars, Inc., Brew
City Towing, LLC, SP Towing, LLC, and Adams Recycling,
LLC (collectively, “plaintiffs”) are among the various players,
both private and public, that tow, sell, and buy vehicles for
scrap recycling in and around Milwaukee. The City under-
takes various roles—regulating that process, as well as citing,
towing, and disposing of abandoned and unlawfully parked
vehicles.
Plaintiffs allege that the City, its various subdivisions, and
a Milwaukee-area recycling provider called Miller Compress-
ing conspired to improperly divert scrapped vehicles and al-
locate towing services through a decades-long exclusive con-
tract. Plaintiffs further allege that the City and Miller Com-
pressing reinforced their market positions through a conspir-
acy to regulate private tow truck companies along the way.
In light of these allegations, the intersection of laws gov-
erning the removal of unlawfully parked vehicles on the one
hand and the ways in which the City and various players dis-
pose of such vehicles on the other is therefore relevant to this
No. 20-3261 3
case. We will thus proceed by briefly describing the regula-
tory backdrop and the City’s enforcement actions against
plaintiffs before turning to the City’s disposal of vehicles and
the contract central to this appeal.
Regarding the City’s regulatory role, by plaintiffs’ ac-
count, the City has not only enacted, but also enforced regu-
lations to prevent plaintiff towing companies from perform-
ing private and public tows. Plaintiffs take issue with the
City’s enactment of various ordinances that govern the tow-
ing of unlawfully parked vehicles. For example, during the
period relevant to this case, the Milwaukee Common Council
approved a series of laws that require a City-issued license to
tow vehicles from certain areas, that obligate towing compa-
nies to provide various notices, and that cap maximum
charges imposed on vehicle owners who have illegally
parked or abandoned their vehicles. See generally A Substitute
Ordinance Relating to the Licensing and Regulation of Recy-
cling, Salvaging and Towing Businesses and Activities, No.
141893 (codified as amended at Milwaukee, Wis., 1 Reg. Or-
dinances, ch. 93 et seq., Recycling, Salvaging and Towing Reg-
ulations (2021)). In plaintiffs’ view, the City has also enforced
these laws to squeeze them out of the market. To illustrate
these allegations, we note that plaintiffs challenge the City’s
denial (or nonrenewal) of licenses to three of the four plaintiff
towing companies named in this case: Apys Cars, Inc., SP
Towing, LLC, and Brew City Towing, LLC.
Regarding the City’s disposal role, plaintiffs also call into
question the City’s approach to vehicle towing and its sale of
statutorily defined “abandoned” vehicles. See Wis. Stat.
§ 342.40(1m) (defining abandoned vehicles and authorizing
municipalities to designate as such). In addition to
4 No. 20-3261
authorizing removal, Wisconsin law permits municipalities to
dispose vehicles covered by the statute, for example, through
sale or donation (subject to certain notification, impound-
ment, and procedural requirements). See id. § 342.40(2), (3)(c)
(authorizing sale or donation after procedures satisfied).
Plaintiffs’ allegations focus on two aspects of the City’s pro-
cedures. First, plaintiffs allege that the City improperly de-
nied Apys Cars’s bid for a subcontract to perform some of the
City’s tows from public property to a City-operated lot. How-
ever, plaintiffs also concede that the City informed Apys Cars
that although it had submitted the lowest bid, further due dil-
igence later revealed that Apys Cars lacked the financial
wherewithal to carry out the contract.
Second, and at the heart of this appeal, plaintiffs claim the
City improperly promised to sell a significant portion of its
abandoned vehicle inventory to just one company: Miller
Compressing. Plaintiffs allege that the Miller Compressing-
City arrangement dates back to 1996 or 1997. The Complaint
noted that Nick Adams, current owner of plaintiff Adams Re-
cycling, witnessed the parties enter (some version of) this
deal. Further, they allege that by 2003, the City entered a for-
mal contract with Miller Compressing (“the 2003 Contract”)
that is intended to remain in effect through 2023.
The services, price, quantity, and duration of the 2003
Contract are also relevant. As to services, the City agreed to
sell Miller Compressing a percentage of scrapped vehicles at
a fixed cost and to pay Miller Compressing to evacuate fluid
from cars and tow vehicles to Miller’s facilities. As to price,
Miller Compressing thus committed to purchase scrap vehi-
cles at a set price (subject to certain price indexing) less costs
for transporting and removing fluids and refrigerants from
No. 20-3261 5
the vehicles. As to quantity, the City promised to provide Mil-
ler Compressing a certain percentage of its scrap vehicles for
specific periods (at least 80% of those disposed in a calendar
year, 75% of those disposed in a calendar month, and 80% of
those disposed from January 1 through September 30 in a cal-
endar year, in addition to 98% of health-nuisance tows dis-
posed of in a year). Finally, regarding duration, the 2003 Con-
tract lasted for seven years with the possibility of a three-year
extension, and in 2009, the parties renewed their agreement
through October 2023. Plaintiffs also allege that the City
earned more than $5 million in revenue through this arrange-
ment between 2004 and 2009 alone.
Beyond the exclusive terms of the 2003 Contract, plaintiffs
claim the deal circumvents certain requirements the City faces
in the sale of vehicles and procurement of towing services. For
example, they contend that the City must auction its aban-
doned vehicle inventory through a public system called “J-
BID” but that the 2003 Contract bypasses that process. Miller
Compressing either does not bid on J-BID inventory or (if it
does place bids) does not place the highest bids, but Miller
nevertheless obtains the vehicles. Plaintiffs also allege that the
City evaded the City’s own generic procurement obligations
by entering into the agreement with Miller Compressing
without issuing a public solicitation for bids.
B. Procedural Background
Plaintiffs filed suit in federal district court against the City,
the Milwaukee Department of Public Works, the Milwaukee
City Tow Lot, and the Milwaukee Police Department (collec-
tively, “City defendants”). Plaintiffs alleged that City defend-
ants violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. § 1 et
seq., and the Clayton Act, 15 U.S.C. § 12 et seq., and committed
6 No. 20-3261
tortious interference with contract under Wisconsin common
law. The City moved to dismiss all counts of the complaint.
Plaintiffs then moved for and were granted leave to file
the operative first amended complaint (“the Complaint”). In
addition to the previously filed claims, the Complaint added
Miller Compressing as a defendant and alleged that Miller
Compressing entered into an agreement with the City in vio-
lation of § 1 of the Sherman Act. The Complaint also alleged
two additional counts against City defendants and Miller
Compressing for violations of the Federal Trade Commission
Act, 15 U.S.C. § 45, and the Pollution Prevention Act,
42 U.S.C. § 13101. Finally, plaintiffs attached to the Complaint
an unexecuted copy of the 2003 Contract.
City defendants and Miller Compressing each moved to
dismiss the Complaint under Federal Rule of Civil Proce-
dure 12(b)(6) for failure to state a claim upon which relief can
be granted. The district court granted both motions on all fed-
eral counts and released supplemental jurisdiction over the
state law claims. Most relevant to this appeal, the district
court premised its dismissal of plaintiffs’ § 1 Sherman Act
claim on the failure to allege a plausible antitrust agreement
or conspiracy under the pleading standards articulated in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). The district court then dismissed all
the federal claims with prejudice because it reasoned that any
further amendment would be futile.
Plaintiffs timely appealed.
II. Discussion
On appeal, plaintiffs assert that the Complaint stated a
cognizable claim for relief under § 1 of the Sherman Act. In
No. 20-3261 7
reviewing a motion to dismiss, we accept all well-pleaded
facts as true and draw reasonable inferences in plaintiffs’ fa-
vor. See Agnew v. NCAA, 683 F.3d 328, 334 (7th Cir. 2012). A
Rule 12(b)(6) dismissal turns on a question of law, which we
review de novo. Id.Plaintiffs also assert in the alternative that the district
court erred by dismissing their claims with prejudice. Alt-
hough “[g]enerally, denials of leave to amend are reviewed
for abuse of discretion,” Int'l Union of Operating Eng’rs, Loc.
139 v. Daley, 983 F.3d 287, 294 (7th Cir. 2020) (quoting Runnion
ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d
510, 524 (7th Cir. 2015)), the district court here denied leave to
amend on futility grounds. Accordingly, we review the un-
derlying legal basis de novo. Id. (“[R]eview of futility-based
denials includes de novo review of the legal basis for the futil-
ity.” (internal quotation marks and citation omitted)).
A. § 1 Sherman Act Claim
Plaintiffs primarily bring this suit under § 1 of the Sher-
man Act. Section 1 prohibits “[e]very contract, combination in
the form of trust or otherwise, or conspiracy, in restraint of
trade or commerce.” See Agnew, 683 F.3d at 334 (alteration in
original) (quoting 15 U.S.C. § 1). The Sherman Act is designed
“to protect consumers from injury that results from dimin-
ished competition,” and therefore a claim brought under the
Act must allege both “injury to [the plaintiff]” and “to the
market.” Id. at 334–35 (quoting Car Carriers, Inc. v. Ford Motor
Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). To state a claim for
relief under § 1, a plaintiff must show the following three
prongs: “(1) a contract, combination, or conspiracy; (2) a re-
sultant unreasonable restraint of trade in [a] relevant market;
and (3) an accompanying injury.” Id. at 335 (alteration in
8 No. 20-3261
original) (quoting Denny's Marina, Inc. v. Renfro Prods., Inc.,
8 F.3d 1217, 1220 (7th Cir. 1993)).
To survive a motion to dismiss, Twombly requires that the
existence of an agreement that violates § 1 of the Sherman Act
“be pleaded plausible through allegations of fact.” Alarm De-
tection Sys., Inc. v. Village of Schaumburg, 930 F.3d 812, 827 (7th
Cir. 2019). “Such allegations usually take one of two forms:
(1) direct allegations of an agreement, like an admission by a
defendant that the parties conspired; or (2) more often, cir-
cumstantial allegations of an agreement, which are claimed
facts that collectively give rise to a plausible inference that an
agreement existed.” Id. “The task before any plaintiff is thus
to find and produce evidence that reveals coordination or
agreement … .” Kleen Prods. LLC v. Ga.-Pac. LLC, 910 F.3d 927,
936 (7th Cir. 2018).
The district court here determined that the Complaint
failed to state a claim for relief under § 1 of the Sherman Act.
In reaching its conclusion, the district court relied on two rea-
sons. First, the court focused on plaintiffs’ allegations regard-
ing the City’s enactment of certain licensing requirements, no-
tifications, and fees in 2015 and its subsequent denial of li-
censes to plaintiffs. The court concluded that plaintiffs had
not plausibly linked the alleged circumstantial evidence to an
agreement between the City and Miller Compressing to create
an injurious regulatory scheme.
Second, the district court shifted to the 2003 Contract and
reasoned that this agreement did not give rise to a plausible
inference that City defendants and Miller Compressing con-
spired to control the recycling, towing, and salvaging market.
The district court explained that, at most, one could infer from
the 2003 Contract that the City violated its procurement
No. 20-3261 9
obligations, rather than antitrust law but “[n]one of these al-
leged facts … collectively give rise to a plausible inference
that an agreement existed between the City and Miller Com-
pressing to unlawfully control the recycling, towing, and
salv[ag]ing marke[t] in Milwaukee.”
On appeal, plaintiffs do not appear to challenge both the
district court’s bases for dismissing the § 1 claim. 1 Instead,
they focus on the district court’s conclusion regarding the
2003 Contract. In their view, the district court misapplied the
Twombly standard to the 2003 Contract. The Complaint pre-
sented the 2003 Contract as direct evidence that Miller Com-
pressing and City defendants entered a contract to restrain
trade but that the district court treated the 2003 Contract as
circumstantial evidence. Stated differently, plaintiffs assert that
there is no need to draw any inferences from the contract to
1 Plaintiffs do not clarify whether they intend to challenge the district
court’s first basis for concluding that the § 1 Sherman Act claim was not
satisfied. As noted above, the district court’s first reason was that plain-
tiffs’ circumstantial evidence—for example, the enactment and enforce-
ment of the towing licenses—did not raise a plausible inference that the
City and Miller Compressing conspired to enact the City’s regulatory
scheme. However, plaintiffs do not develop any argument regarding that
circumstantial evidence on appeal.
Even if plaintiffs had raised and developed the argument that this reg-
ulatory conduct constituted an agreement, the circumstantial evidence
would not have been dispositive to this appeal. We agree with the district
court’s well-supported view that the regulatory conduct here is insuffi-
cient circumstantial evidence to plead a plausible agreement for § 1 of the
Sherman Act. In this case, plaintiffs’ allegations did not “tend[] to exclude
the possibility’ that the [City] acted independently” of Miller Compress-
ing to enact ordinances and regulate plaintiffs. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
10 No. 20-3261
satisfy the Sherman Act framework: the contract itself is the
unlawful agreement.
There is no question that plaintiffs alleged a contract be-
tween Miller Compressing and the City. However, plaintiffs
have not carried their burden to show a “resultant unreason-
able restraint of trade in [a] relevant market,” see Agnew,
683 F.3d at 335, through the 2003 Contract. The inability to
state a claim for relief on any one of the three prongs ends our
inquiry because “a plaintiff must prove three elements to suc-
ceed under § 1 of the Sherman Act,” and thus dismissal was
appropriate. Id.
“[E]very contract is a restraint of trade, and as [the Su-
preme Court] ha[s] repeatedly recognized, the Sherman Act
was intended to prohibit only unreasonable restraints of
trade.” NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 98
(1984) (emphasis added); see also Leegin Creative Leather Prods.,
Inc. v. PSKS, Inc., 551 U.S. 877, 885 (2007) (explaining that the
Court has never interpreted § 1 to proscribe all contracts,
“only unreasonable restraints” (citation omitted)).
We draw on several analytical frameworks to assess
whether a contract amounts to an unreasonable restraint of
trade: among them, the per se, rule of reason, and quick look
analyses. See Agnew, 683 F.3d at 335–37. “All of these methods
of analysis are meant to answer the same question: ‘whether
or not the challenged restraint enhances competition.’” Id. at
335 (quoting Cal. Dental Ass’n v. FTC, 526 U.S. 756, 780 (1999)).
We may dispense with the rule of reason inquiry if the re-
straint falls into a certain subset of agreements, known as “per
se” violations. “Per se violations are actions where the nature
and necessary effects that result are so plainly anticompetitive
No. 20-3261 11
that an in-depth analysis of their illegality is unnecessary.”
Tri-Gen Inc. v. Int’l Union of Operating Eng’rs, Loc. 150, 433 F.3d
1024, 1032 (7th Cir. 2006). In those cases, an unreasonable re-
straint “is conclusively presumed once the first is proved,” see
Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 705–06
(7th Cir. 2011), because “the probability that these practices
are anticompetitive is so high,” NCAA, 468 U.S. at 100.
Both horizontal price fixing and bid rigging are presump-
tively unlawful under § 1 of the Sherman Act. Texaco Inc. v.
Dagher, 547 U.S. 1, 5 (2006) (“Price-fixing agreements between
two or more competitors, otherwise known as horizontal
price-fixing agreements, fall into the category of arrange-
ments that are per se unlawful.”); Agnew, 683 F.3d at 336
(“Horizontal price fixing and output limitation are classic ex-
amples of behavior that is considered anticompetitive per
se.”); United States v. Fenzl, 670 F.3d 778, 780 (7th Cir. 2012)
(explaining that bid rigging is a form of horizontal price fix-
ing).
On appeal, plaintiffs maintain that the 2003 Contract
amounts to a per se unlawful agreement and therefore is an
unreasonable restraint under § 1 of the Sherman Act. They ad-
vance several theories, among them that the contract repre-
sents (1) horizontal price fixing, and (2) bid rigging. As we
will elaborate below, the 2003 Contract does not fall into ei-
ther of these per se categories and plaintiffs have waived any
arguments under the remaining analytical frameworks avail-
able to plead the 2003 Contract’s unreasonableness (i.e., rule
of reason, quick look). Therefore, plaintiffs fail to show an un-
reasonable restraint of trade to state a claim for relief under
§ 1 of the Sherman Act.
12 No. 20-3261
a. Horizontal Price Fixing
We begin with price fixing. “A Sherman Act combination
‘formed for the purpose and with the effect of raising, de-
pressing, fixing, pegging, or stabilizing the price’ in the mar-
ketplace is illegal per se.” Tri-Gen, 433 F.3d at 1032 (quoting
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223
(1940)). While horizontal price fixing warrants a per se pre-
sumption of unreasonableness, see id; Texaco, 547 U.S. at 5,
that presumption does not attach to all forms of price fixing.
For example, as relevant here, the Supreme Court has held
that certain vertical price restraints do not receive per se treat-
ment. See Leegin, 551 U.S. at 899, 907 (holding that “a per se
rule of unlawfulness” is inappropriate for “judg[ing] vertical
price restraints” and overruling cases to the contrary). “Verti-
cal price restraints are to be judged according to the rule of
reason.” Id. at 907; see also Republic Tobacco Co. v. N. Atl. Trad-
ing Co., 381 F.3d 717, 736 (7th Cir. 2004) (“Unlike horizontal
agreements between competitors, vertical exclusive distribu-
torships (like in this case) are presumptively legal.”). We are
“cautious about importing relaxed standards of proof from
horizontal agreement cases into vertical agreement cases” be-
cause “[t]o do so might harm competition and frustrate the
very goals that antitrust law seeks to achieve.” Republic To-
bacco Co., 381 F.3d at 737. We accordingly must ask: Does the
2003 Contract constitute horizontal price fixing such that the
per se presumption applies?
We conclude that the answer to that question is no: the
multiyear contract between Miller Compressing and the City
imposed a vertical restraint on competition, not a horizontal
one. “Restraints imposed by agreement between competitors
have traditionally been denominated as horizontal
No. 20-3261 13
restraints,” while “those imposed by agreement between
firms at different levels of distribution [have been denomi-
nated] as vertical restraints.” Bus. Elecs. Corp. v. Sharp Elecs.
Corp., 485 U.S. 717, 730 (1988). Through the 2003 Contract,
Miller Compressing agreed to charge the City to transport
and recycle the metal, and the City agreed to sell scrapped
vehicles to Miller Compressing. Read in that light, the parties’
relationship is not that of horizontal competitors but rather of
a seller (the City sells Miller vehicles) and buyer/service pro-
vider (Miller Compressing delivers its purchases from the
City tow lot to its facilities and performs evacuation); their
contract thus represents a vertical restraint. See Brillhart v.
Mut. Med. Ins., Inc., 768 F.2d 196, 199 (7th Cir. 1985) (observing
that agreements “between … the buyer … and … the sellers”
are “really vertical, rather than horizontal”); see also Valley Liq-
uors, Inc. v. Renfield Imps., Ltd., 822 F.2d 656, 660 n.5 (7th Cir.
1987) (“Alleged price fixing between a manufacturer and dis-
tributors, however, is more properly termed a ‘vertical’ con-
spiracy.”). Accordingly, the arrangement between the City
and Miller Compressing is not per se unreasonable on the ba-
sis of horizontal price fixing. See Republic Tobacco Co., 381 F.3d
at 737.
b. Bid Rigging
Plaintiffs’ second theory for why the 2003 Contract was
per se unlawful—that the 2003 Contract between the City and
Miller Compressing circumvented the J-BID system in a man-
ner giving rise to bid rigging—also cannot rescue plaintiffs’
case. “[B]id rigging” is “a form of price fixing in which bid-
ders agree to eliminate competition among them, as by taking
turns being the low bidder.” Fenzl, 670 F.3d at 780. Although
we have defined bid rigging loosely, most of our caselaw
14 No. 20-3261
appears to treat bid rigging as “a synonym for bid rotation.”
See United States v. Heffernan, 43 F.3d 1144, 1146 (7th Cir. 1994)
(interpreting U.S. Sentencing Guidelines’ definition of bid rig-
ging and collecting cases in the criminal antitrust context).
Plaintiffs here cannot establish a bid rigging claim for two
reasons. First, defendants are not competitors for scrapped
vehicles within the J-BID system: the City sells the vehicles,
and Miller Compressing and others purchase them. Second,
even if they were competitors, at most the City and Miller
Compressing interfered with the bid process, rather than ro-
tated the bids. Plaintiffs do not point to, nor could we locate,
a case in the civil context that defines bid rigging so broadly.
In the criminal context, however, we have rejected the argu-
ment that bid rigging “includes all forms of collusion in a bid-
ding process.” See id. Plaintiffs gesture toward a similar argu-
ment here; they allege that the City and Miller Compressing
engaged in, as we framed it in Heffernan, “some … kind of in-
terference with the integrity of a bidding system,” by permit-
ting Miller Compressing to obtain vehicles without bidding.
See id. (rejecting this broader definition). Given our circum-
scribed view and without the need to further define what
does constitute bid rigging, it is clear this alleged interference
with J-BID does not amount to a per se unreasonable trade
restraint.
c. Waiver
In sum, plaintiffs have failed to show the 2003 Contract
amounts to horizontal price fixing or bid rigging. Having de-
termined that plaintiffs cannot demonstrate that the City and
No. 20-3261 15
Miller Compressing’s conduct is per se unlawful, 2 we would
traditionally assess whether plaintiffs nonetheless state a le-
gal claim under the rule of reason framework. As we have ex-
plained, “a plaintiff’s failure to state a per se illegal antitrust
claim does not necessarily prove fatal to his case if he can state
a claim under the rule of reason,” or otherwise show the un-
reasonableness of the restraint. Carl Sandburg Vill. Condo.
Ass'n No. 1 v. First Condo. Dev. Co., 758 F.2d 203, 210 (7th Cir.
1985).
However, plaintiffs have waived their rule of reason and
other arguments. Plaintiffs at most make only brief reference
to the unreasonableness of the 2003 Contract in their reply
brief without citing any controlling authority. “It is not the
court’s responsibility to research the law and construct the
parties’ arguments for them.” Econ. Folding Box Corp. v. Anchor
Frozen Foods Corp., 515 F.3d 718, 721 (7th Cir. 2008).
Therefore, plaintiffs did not plead sufficient facts to sup-
port that the 2003 Contract is per se unlawful and have other-
wise waived any argument that this agreement constituted an
unreasonable restraint on trade. Accordingly, we hold that
plaintiffs’ pleadings fail to carry their burden. Plaintiffs can-
not state a claim without satisfying all three prongs of the § 1
framework, so we need not proceed any further. See Agnew,
683 F.3d at 335, 338 n.4. Plaintiffs cannot state a claim for relief
2 In passing, plaintiffs also refer to output limitations or market allo-
cation as per se unlawful violations of § 1 of the Sherman Act. Even if those
arguments were not waived, any agreement to allocate or restrain output
is, again, the product of vertical agreement and therefore likely not pre-
sumptively unlawful under the Sherman Act. See, e.g., Cont’l T.V., Inc. v.
GTE Sylvania Inc., 433 U.S. 36, 59 (1977) (vertical nonprice restraints
judged under rule of reason analysis).
16 No. 20-3261
under § 1 of the Sherman Act and summary dismissal was ap-
propriate.
B. Remaining Claims
We briefly address plaintiffs’ remaining claims. The dis-
trict court dismissed the other federal counts in the Com-
plaint, which alleged that defendants violated § 5 of the Fed-
eral Trade Commission Act (15 U.S.C. § 45), § 1301 of the Pol-
lution Prevention Act (42 U.S.C. § 13101), § 2 of the Sherman
Act (15 U.S.C. § 2), and the Clayton Act (15 U.S.C. § 12, et seq.).
Plaintiffs have waived all these federal claims on appeal.
Plaintiffs frame the issues before us with only sweeping ref-
erences to “an antitrust claim” and “antitrust laws,” and they
do not develop any argument as to how the City and Miller
Compressing’s conduct amounted to a monopoly for pur-
poses of claims brought under § 2 of the Sherman Act or the
Clayton Act. Meanwhile, plaintiffs do not frame the issues in
this case as involving Federal Trade Commission Act or Pol-
lution Prevention Act claims (nor do they develop them in
their briefing). “As we have repeatedly held, ‘[t]he absence of
any supporting authority or development of an argument
constitutes a waiver on appeal.’” Silk v. Bd. of Trs., Moraine
Valley Cmty. Coll., Dist. No. 524, 795 F.3d 698, 709 (7th Cir.
2015) (alteration in original) (quoting Kramer v. Banc of Am.
Sec., LLC, 355 F.3d 961, 964 n.1 (7th Cir. 2004)).
C. Leave to Amend
Finally, plaintiffs assert that the district court erred by re-
fusing to grant leave to amend. “Although Federal Rule of
Civil Procedure 15(a)(2) directs courts to ‘freely give leave [to
amend] when justice so requires,’ courts may deny a pro-
posed amended pleading if the amendment would be futile.”
No. 20-3261 17
Int'l Union of Operating Eng’rs, 983 F.3d at 296 (alteration in
original).
In this case, plaintiffs have not carried their initial burden
to state a claim for relief under § 1 of the Sherman Act. Plain-
tiffs have also already received an opportunity to remedy
these deficiencies when the district court granted leave to
amend the original complaint. That plaintiffs subsequently
amended but nonetheless proved unable to adequately plead
a claim “indicates the futility of granting further leave to
amend.” See id. Dismissal with prejudice was thus appropri-
ate.
III. Conclusion
For the foregoing reasons, we AFFIRM the decision of the
district court.