McGarry & McGarry, LLC v. Bankruptcy Management Solution ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2619
MCGARRY & MCGARRY, LLC,
Plaintiff-Appellant,
v.
BANKRUPTCY MANAGEMENT SOLUTIONS, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 17 CV 5779 — Joan H. Lefkow, Judge.
____________________
ARGUED NOVEMBER 7, 2018 — DECIDED SEPTEMBER 5, 2019
____________________
Before ROVNER, SYKES, and BARRETT, Circuit Judges.
SYKES, Circuit Judge. McGarry & McGarry, LLC, a creditor
in a closed Chapter 7 bankruptcy case, tried three times to
bring a price-fixing claim against Bankruptcy Management
Solutions, Inc. (“BMS”), the trustee’s software-services
provider. In the first suit, McGarry alleged claims under the
Sherman Act and the Illinois Antitrust Act. Because McGarry
is not a direct purchaser of bankruptcy software services, the
district court dismissed the Sherman Act claim, see Ill. Brick
2 No. 18-2619
Co. v. Illinois, 431 U.S. 720 (1977), and relinquished jurisdic-
tion over the state-law claim.
McGarry tried a different tack and moved to reopen the
bankruptcy proceedings. The bankruptcy court denied that
request because the case had been closed for more than three
years. Undeterred, McGarry filed a new lawsuit in state
court alleging a stand-alone claim under the Illinois Anti-
trust Act. The state statute has an “Illinois Brick repealer”
provision that permits indirect purchasers to sue. BMS
removed the case to federal court and moved to dismiss. The
district judge granted the motion because McGarry is not
even an indirect purchaser of bankruptcy software services; it
does not purchase these services at all. McGarry appealed.
We affirm. McGarry is a one-time creditor in a closed
Chapter 7 bankruptcy case. It does not participate in the
market for bankruptcy software services in any way that
would make it a proper plaintiff to bring an antitrust claim
against a firm that provides those services to bankruptcy
trustees.
I. Background
A Chapter 7 bankruptcy petition creates a bankruptcy
estate, which becomes the temporary legal owner of the
debtor’s property. 11 U.S.C. § 541(a). When a petition is filed,
the Executive Office of the U.S. Trustee (a division of the
U.S. Department of Justice) appoints a trustee to administer
the estate. The trustee collects and liquidates nonexempt
estate assets to maximize the return to creditors. The trustee
also files periodic reports with the bankruptcy court and the
U.S. Trustee. Id. § 704.
No. 18-2619 3
The reports are prepared on special software, and trus-
tees typically use one of three providers to supply these
services. BMS is the largest supplier of bankruptcy software
services. The complaint alleges that BMS has a market share
of approximately 50% as measured by the total number of
bankruptcy trustees in the country. Epiq Systems and
TrusteSolutions have 35% and 15%, respectively. A trustee
normally does not use more than one software-services
provider at any one time.
For many years BMS partnered with banks to jointly de-
liver services to the estate. Under this model BMS directed
the trustee to deposit the estate’s funds into a partner bank,
and in return the trustee received integrated case-
management and banking services. The bank earned money
from the deposit and paid interest to the estate and a fee to
BMS. This business model relied on the existence of a
“spread” between the interest the bank could charge its
borrowers and the interest it paid to its depositors. The
model worked well as long as interest rates remained high
enough to support the bank’s flexibility to work within the
spread, allowing all parties to prosper.
But the model collapsed with the economic downturn in
2008. Interest rates declined precipitously from more than
4% in late 2007 to near 0% one year later, so the spread
evaporated. BMS had to adapt to a new reality. It soon
designed a different business model: it would sell its soft-
ware services in combination with banking services (as it
had in the past), but the bank would charge a set percentage
of the estate’s funds as a fee for the combined services and
pay a portion of that fee to BMS. For this new model to
work, however, BMS had to overcome two obstacles. First, it
4 No. 18-2619
needed its competitors to also adopt the new arrangement.
The complaint alleges that sometime before 2011 BMS
approached Epiq Systems and TrusteSolutions and pro-
posed the new billing model. Both agreed to implement a
similar system.
Second, BMS needed the Executive Office of the U.S.
Trustee to suspend its rule prohibiting trustees from using
estate funds to pay bank fees. All three providers asked the
Executive Office to do so. In April 2011 the agency suspend-
ed the rule. All three providers then changed their billing
model. Now the standard agreement requires the estate to
pay a combined fee for software and banking services based
on a percentage of the funds in its bank account.
In May 2011 Integrated Genomics, Inc., a software devel-
oper specializing in genome analysis, filed a Chapter 7
petition in the U.S. Bankruptcy Court for the Northern
District of Illinois. The U.S. Trustee appointed Eugene Crane
as trustee. Crane contracted with BMS for software services
and deposited the estate’s funds with Rabobank, BMS’s
partner bank. Crane also contracted directly with Rabobank,
authorizing it to automatically withdraw a fee from the
estate’s account.
McGarry & McGarry, a Chicago law firm and an unse-
cured creditor of Integrated Genomics, filed a claim in the
Chapter 7 proceeding. On August 30, 2013, Crane filed his
final report listing a service-fee payment of $514.16 to
Rabobank, which deducted that sum from the estate’s
account. McGarry did not object to the fee. The estate’s
funds were disbursed, and the case was closed in April 2014.
McGarry received $12,472 of its allowed claim of $78,308.
No. 18-2619 5
Two years later McGarry learned that most, if not all, of
the $514.16 fee went to BMS. In September 2016 McGarry
filed a class-action lawsuit against BMS in the Northern
District of Illinois alleging violations of the Sherman Act,
15 U.S.C. § 1, and the Illinois Antitrust Act, 740 ILL. COMP.
STAT. 10/3 (2018). The district judge granted BMS’s motion to
dismiss, applying the “indirect purchaser” doctrine an-
nounced in Illinois Brick. There the Supreme Court explained
that indirect purchasers are not proper parties to bring a
price-fixing claim under the Sherman Act; the claim belongs
to the direct purchaser. Illinois Brick Co., 431 U.S. at 735.
McGarry was neither a direct nor an indirect purchaser of
bankruptcy software services, so the judge dismissed the
federal claim with prejudice. She then relinquished supple-
mental jurisdiction over the state-law claim, dismissing it
without prejudice. McGarry did not appeal.
Instead, McGarry moved to reopen the Chapter 7 pro-
ceeding with the aim of raising the issue there. Because the
motion was not made within a reasonable time, the bank-
ruptcy judge denied it. McGarry filed a new class-action
complaint against BMS, this time in Cook County Circuit
Court. This second suit alleged a stand-alone price-fixing
claim under the Illinois Antitrust Act. BMS removed the case
to federal court, where it was assigned to the judge who
handled the first case. A motion to dismiss followed, see FED.
R. CIV. P. 12(b)(6), and the judge dismissed the case for
failure to state a claim. Referring back to her earlier order,
the judge reasoned that although the Illinois antitrust statute
permits indirect purchasers to sue, that feature of the law
does “nothing to help McGarry … for it has admitted that it
is not a purchaser at all.”
6 No. 18-2619
II. Discussion
We review a dismissal order de novo. Deppe v. Nat’l Col-
legiate Athletic Ass’n, 893 F.3d 498, 500 (7th Cir. 2018). The
Illinois Antitrust Act prohibits any agreement to fix, main-
tain, or stabilize the price of any commodity or service.
740 ILL. COMP. STAT. 10/3. The Act expressly requires harmo-
nization with federal antitrust law as interpreted by the
federal courts, see id. § 10/11, so Illinois courts interpret the
state antitrust law in harmony with “[f]ederal case law
construing analogous provisions of [f]ederal legislation”—
here, Section 1 of the Sherman Act. People ex rel. Scott v. Coll.
Hills Corp., 435 N.E.2d 463, 469 (Ill. 1982). McGarry alleges a
conspiracy to fix the price of bankruptcy software services, a
per se violation of federal and Illinois antitrust law. See, e.g.,
Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 647 (1980);
Baker v. Jewel Food Stores, Inc., 823 N.E.2d 93, 100 (Ill. App. Ct.
2005).
Both Article III and the Sherman Act impose threshold
barriers on a party bringing an antitrust suit in federal court.
Article III limits “the judicial power of the United States to
the resolution of ‘Cases’ and ‘Controversies.’” Hein v. Free-
dom From Religion Found., Inc., 551 U.S. 587, 597 (2007). To
satisfy the case-or-controversy requirement, a plaintiff must
establish standing to sue. Id. at 598. Three elements comprise
the “irreducible constitutional minimum” of standing: (1) a
concrete and particularized injury in fact that is (2) fairly
traceable to the alleged action of the defendant and (3) likely
to be redressed by a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992).
McGarry has pleaded sufficient facts to support
Article III standing, though just barely. The complaint
No. 18-2619 7
alleges that the $514.16 fee Rabobank deducted from the
Integrated Genomics Chapter 7 account and paid to BMS
was greater than it would have been absent the price-fixing
conspiracy. The inflated fee reduced the pot of money from
which unsecured creditors were paid, and McGarry alleges
it received a smaller distribution as a result. If true, the
difference is likely quite small given the modest amount of
the fee. Still, “financial injuries are prototypical of
[Article III] injuries.” Milwaukee Police Ass’n v. Flynn, 863 F.3d
636, 639 (7th Cir. 2017); see also Korte v. Sebelius, 735 F.3d 654,
667 (7th Cir. 2013). And there is a causal connection between
the injury and the alleged conspiracy that can be remedied
by a favorable judicial decision.
But the “Sherman Act has additional rules for determin-
ing ‘whether the plaintiff is the proper party to bring a
private antitrust action.’” Loeb Indus., Inc. v. Sumitomo Corp.,
306 F.3d 469, 481 (7th Cir. 2002) (quoting Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of Carpenters,
459 U.S. 519, 535 n.31 (1983)). These requirements have been
“incautiously lumped together under the umbrella term of
‘antitrust standing.’” Id. at 480. But this nomenclature, like
that of its cousins “prudential standing” and “statutory
standing,” is a “misnomer.” Lexmark Int'l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 127 (2014); see also id.at 128 n.4 (describing “statutory standing” as “an improve-
ment” over “prudential standing” because it “correctly
places the focus on the statute” but is nevertheless “mislead-
ing”).
We’ve previously noted our concern with the term “anti-
trust standing” because of its potential for confusion with
Article III standing. See U.S. Gypsum Co. v. Ind. Gas Co.,
8 No. 18-2619
350 F.3d 623, 627 (7th Cir. 2003). The latter, of course, is a
necessary requirement for a justiciable case or controversy.
The former, on the other hand, concerns a different issue:
which plaintiffs may bring the cause of action. See Hammes v.
AAMCO Transmissions, Inc., 33 F.3d 774, 778 (7th Cir. 1994)
(“‘[A]ntitrust standing’ is not a jurisdictional require-
ment … .”).
Federal antitrust law provides a treble-damages remedy
to “any person … injured in his business or property by
reason of anything forbidden in the antitrust laws.”
15 U.S.C. § 15(a). Though broadly phrased, the Supreme
Court has construed this language “to limit the parties who
may bring an antitrust action to (1) those who have suffered
the type of injury that the antitrust laws were intended to
prevent and (2) those whose injuries are a result of the
defendant’s unlawful conduct.” Serfecz v. Jewel Food Stores,
67 F.3d 591, 595 (7th Cir. 1995) (citing Brunswick Corp. v.
Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)). Because
antitrust violations “may be expected to cause ripples of
harm to flow through the Nation’s economy,” the Court has
held that “Congress did not intend to allow every person
tangentially affected by an antitrust violation to maintain an
action to recover threefold damages for the injury to his
business or property.” Blue Shield of Va. v. McCready, 457 U.S.
465, 476–77 (1982). Some injuries are “too remote from the
violation and the purposes of the antitrust laws to form the
predicate for a suit.” Id. at 477.
For price-fixing claims in particular, the Supreme Court
long ago held that persons downstream in the distribution
chain are not proper plaintiffs. The “indirect purchaser”
doctrine announced in Illinois Brick “forbids a customer of
No. 18-2619 9
the purchaser who paid a cartel price to sue the cartelist,
even if his seller—the direct purchaser from the cartelist—
passed on to him some or even all of the cartel’s elevated
price.” Motorola Mobility LLC v. AU Optronics Corp., 775 F.3d
816, 821 (7th Cir. 2015). As we’ve noted, the district judge
invoked the Illinois Brick principle in dismissing the Sherman
Act claim in McGarry’s first suit.
The analogous provision in the Illinois Antitrust Act is
phrased in terms similar to its federal counterpart, but there
is one notable difference: Illinois has adopted an “Illinois
Brick repealer” clause that permits indirect purchasers to
sue. 740 ILL. COMP. STAT. 10/7(2). But that provision doesn’t
apply here. As the district judge noted, McGarry isn’t even
an indirect purchaser of bankruptcy software services. The
law firm is just a former creditor of a Chapter 7 debtor in a
closed bankruptcy case. It doesn’t purchase bankruptcy
software services at all.
The inapplicability of the Illinois Brick repealer provision
in the state statute raises the possibility that the judgment in
McGarry’s first case has preclusive effect in this second suit.
“When an issue of fact or law is actually litigated and de-
termined by a valid and final judgment, and the determina-
tion is essential to the judgment, the determination is
conclusive in a subsequent action between the parties,
whether on the same or a different claim.” RESTATEMENT
(SECOND) OF JUDGMENTS: ISSUE PRECLUSION–GENERAL RULE
§ 27 (AM. LAW INST. 1980), quoted in B&B Hardware, Inc. v.
Hargis Indus., Inc., 135 S. Ct. 1293, 1303 (2015). The Illinois
Antitrust Act’s harmonization provision, 740 ILL. COMP.
STAT. 10/11, bolsters the case for preclusion. But BMS hasn’t
10 No. 18-2619
developed a preclusion argument along these lines, so we
proceed to the main thrust of McGarry’s appeal.
McGarry argues that although it is not a purchaser of
bankruptcy software services, it is nonetheless a proper
plaintiff to bring this price-fixing claim under the multi-
factor test derived from the Supreme Court’s decision in
Associated General Contractors, 459 U.S. at 537–44. As we’ve
synthesized it in earlier cases, the test examines several
factors to determine whether the plaintiff has demonstrated
the necessary “direct link” between the alleged antitrust
violation and the claimed antitrust injury. Sanner v. Bd. of
Trade of Chi., 62 F.3d 918, 926–27 (7th Cir. 1995).
The Associated General Contractors factors include:
(1) The causal connection between the alleged
antitrust violation and the harm to the plaintiff;
(2) Improper motive;
(3) Whether the injury was of a type that Con-
gress sought to redress with the antitrust laws;
(4) The directness between the injury and the
market restraint;
(5) The speculative nature of the damages;
[and]
(6) The risk of duplicate recoveries or complex
damages apportionment.
Id. at 927 (quotation marks omitted). Together, the first three
factors relate to what courts commonly refer to as “antitrust
injury.” Nelson v. Monroe Reg’l Med. Ctr., 925 F.2d 1555, 1563–
64 (7th Cir. 1991); see also Novell, Inc. v. Microsoft Corp.,
505 F.3d 302, 311 (4th Cir. 2007). The remaining factors
No. 18-2619 11
address whether the plaintiff is among those “who can most
efficiently vindicate the purposes of the antitrust laws.”
Serfecz, 67 F.3d at 598 (quotation marks omitted).
The factors are neither strict requirements nor exclusive
analytical tools. They simply illustrate the areas of inquiry
that may be relevant to a case-specific evaluation of “the
plaintiff’s harm, the alleged wrongdoing by the defendant[],
and the relationship between them.” Associated Gen. Contrac-
tors of Cal., 459 U.S. at 535.
To put the inquiry more generally, McGarry must
demonstrate that its injury is “of the type the antitrust laws
were intended to prevent.” Brunswick Corp., 429 U.S. at 489.
It’s not enough to allege that the injury is merely causally
linked to the alleged anticompetitive behavior. Id. McGarry
must also demonstrate that its injury “is attributable to an
anti-competitive aspect of the practice under scrutiny.” Atl.
Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334 (1990). In
other words, the injury must flow directly “from higher
prices or lower output, the principal vices proscribed by the
antitrust laws.” Popp v. Cash Station, Inc., 613 N.E.2d 1150,
1158 (Ill. App. Ct. 1992) (quotation marks omitted).
McGarry hasn’t alleged the type of injury the antitrust
laws were meant to prevent. It claims that absent the con-
spiracy, BMS would not have been able to charge a percent-
age of the estate’s funds as a fee for its bankruptcy software
services. But of course McGarry is not a participant in the
market for bankruptcy software services. Instead its alleged
injury is quite attenuated from the claimed price-fixing
violation. McGarry alleges that the conspiracy caused the
estate to pay a higher fee for the combined banking and
software services, which reduced the funds available in the
12 No. 18-2619
Chapter 7 estate to pay claims (however modest the reduc-
tion), which caused unsecured creditors like McGarry to
receive a smaller distribution. This alleged injury is too
remote to serve as the predicate for an antitrust suit.
But even if we concluded that McGarry had adequately
pleaded an antitrust injury, the law firm must also demon-
strate that it can “efficiently vindicate the purposes of the
antitrust laws.” Kochert v. Greater Lafayette Health Servs., Inc.,
463 F.3d 710, 716 (7th Cir. 2006) (quotation marks omitted).
The fourth Associated General Contractors factor—“the direct-
ness between the injury and the market restraint”—weighs
particularly heavily here. We usually presume that competi-
tors and consumers in the relevant market are the only
parties who suffer antitrust injuries and are in a position to
efficiently vindicate the antitrust laws. Associated Gen. Con-
tractors of Cal., 459 U.S. at 538; see also In re Aluminum Ware-
housing Antitrust Litig., 833 F.3d 151, 158 (2d Cir. 2016)
(collecting cases).
In Blue Shield of Virginia v. McCready, the Supreme Court
carved out a narrow exception. There the Court held that
Carol McCready, a patient treated by a clinical psychologist,
suffered an antitrust injury when her insurer, allegedly in
concert with a professional organization of psychiatrists,
refused to reimburse her psychologist’s fees because the
health plan covered only psychiatrists. McCready, 457 U.S. at480–81. The Court held that McCready’s injury was “inextri-
cably intertwined with the injury the conspirators sought to
inflict” on the market. Id. at 484. As the Court later described
its holding, what mattered was that the plaintiff was a
participant in the market targeted by the alleged conspiracy
No. 18-2619 13
and was “directly harmed by the [insurer’s] unlawful con-
duct.” Associated Gen. Contractors of Cal., 459 U.S. at 529 n.19.
McGarry, however, is not a participant in the market for
bankruptcy software services. It is simply a creditor of a
Chapter 7 debtor. McGarry’s alleged injury is thus entirely
derivative of the estate’s injury. We held decades ago that
“[m]erely derivative injuries sustained by employees, offic-
ers, stockholders, and creditors of an injured company do not
constitute ‘antitrust injury’ sufficient to confer antitrust
standing.” Sw. Suburban Bd. of Realtors, Inc. v. Beverly Area
Planning Ass’n, 830 F.2d 1374, 1378 (7th Cir. 1987) (emphasis
added); see also Cong. Bldg. Corp. v. Loew’s, Inc., 246 F.2d 587,
590 (7th Cir. 1957) (“The courts have uniformly denied
recovery to … creditors … who claimed injury as the result
of alleged antitrust violations.”) (citations omitted). The
Supreme Court has agreed in dicta. See Associated Gen.
Contractors of Cal., 459 U.S. at 533–34 (citing with approval
Loeb v. Eastman Kodak Co., 183 F. 704, 709 (3d Cir. 1910),
which held that a creditor of an injured company does not
have antitrust standing).
There is, after all, a more appropriate person to pursue
the claim should it be in the estate’s interest to do so: the
trustee. Because a trustee in bankruptcy owes a fiduciary
duty to an estate’s creditors, In re Salzer, 52 F.3d 708, 712 (7th
Cir. 1995), the trustee could “pursue the debtor’s claim
against [the alleged conspirators] on behalf of all the debtor’s
creditors equally, without preference for any particular
creditor. That injury is much more efficiently measured on
behalf of the debtor, moreover, rather than in fortuitous
segments claimed by those creditors who happen to sue.”
IIA PHILLIP E. AREEDA ET AL., ANTITRUST LAW ¶ 353c, at 298–
14 No. 18-2619
99 (4th ed. 2014). “The existence of an identifiable class of
persons whose self-interest would normally motivate them
to vindicate the public interest in antitrust enforcement
diminishes the justification for allowing a more remote
party … to perform the office of a private attorney general.”
Associated Gen. Contractors of Cal., 459 U.S. at 542.
Because McGarry does not participate in the market for
bankruptcy software services in any meaningful way, it is
not an appropriate plaintiff to bring this price-fixing claim.
The case was properly dismissed.
AFFIRMED