Act v. Sylvan Learning ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-2775
No. 01-3583
___________
ACT, Inc., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Sylvan Learning Systems, Inc., *
*
Appellee. *
___________
Submitted: February 12, 2002
Filed: July 11, 2002
___________
Before BOWMAN, RICHARD S. ARNOLD, and WOLLMAN, Circuit Judges.
___________
BOWMAN, Circuit Judge.
This case arises from agreements entered into by Sylvan Learning Systems,
Inc., and the National Association of Securities Dealers, Inc. (NASD), concerning the
operation and transfer of computer-based testing (CBT) centers owned by NASD.
ACT, Inc., contends that its own dealings with NASD before Sylvan came on the
scene and Sylvan's behavior in doing business with NASD provide the basis for its
claims under Iowa state law for tortious interference with contractual and prospective
business relations and for its federal antitrust claim. ACT appeals from the final
judgment of the District Court1 in favor of Sylvan on all of ACT's claims and from
a later order awarding costs to Sylvan. We affirm.
I.
At the time of the events leading up to this lawsuit, ACT was a non-profit
corporation providing clients with, among other things, standardized testing for
academic and professional purposes. Sylvan was furnishing high-security computer-
based testing and other educational services to its customers. In 1993, NASD owned
and operated a network of CBT centers providing certification testing to stock
brokers. In the early 1990's, ACT became interested in the CBT market and to that
end entered into two agreements with NASD.
The first agreement was a Memorandum of Understanding (MOU) executed
by both parties in August 1993 stating that ACT and NASD were entering into "a
non-exclusive relationship that facilitates mutual development of business
opportunities involving computer testing services." 1993 Memorandum of
Understanding between American College Testing and National Association of
Securities Dealers (hereinafter MOU) at 1, ¶ A.1. The agreement recognizes that
ACT wished to provide CBT services to some of its clients and that NASD already
was providing such services through the nationwide testing centers it operated. The
agreement says nothing about ACT acquiring NASD's testing centers, indicating only
that "ACT's corporate plan calls for it to eventually administer computerized testing
through its own network of centers," without suggesting how ACT would establish
those centers. Id. at 2, ¶ A.4.
1
The Honorable Michael J. Melloy, United States District Judge for the
Northern District of Iowa. Judge Melloy has since been appointed United States
Circuit Judge for the Eighth Circuit and currently serves in that capacity.
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In May 1995, NASD and ACT jointly executed an interim letter agreement
(Interim Agreement). The letter's purpose was to "supplement the parties' MOU and
govern their relationship" until negotiations "for the joint delivery of computer-based
assessment services" resulted in the execution of a "final" agreement. Letter of
May 3, 1995, from Gerard F. Foley, NASD senior vice-president, to RickiAnn Saylor,
ACT vice-president, Re: Interim Test Assessment Services Agreement (hereinafter
Interim Agreement) at 1. The Interim Agreement was to terminate August 1, 1995,
unless "ACT continue[d] to provide assessment services to NASD after August 1,
1995, without the parties' having executed the" final agreement. Id. at 3, ¶ 9. In that
event, the parties were to continue to be bound by the terms of the Interim Agreement
until terminated by written agreement of ACT and NASD. As with the MOU, the
agreement was not exclusive, clearly was expected to be short term, and did not
involve the transfer of NASD's CBT centers to ACT.
A third proposed agreement between ACT and NASD, which never was
executed by NASD, was in the form of a letter dated December 4, 1995, from ACT
to NASD. Under the terms of this Proposed Letter Agreement, ACT was to provide
"technology-based assessment services" to NASD from January 1996 through
December 2003. Letter of Dec. 4, 1995, from Richard L. Ferguson, ACT president,
to James P. O'Donnell, NASD executive vice-president, Re: Letter Agreement
(hereinafter Proposed Letter Agreement) at 1. Subject to certain conditions, NASD
was to "assign all of its testing centers to ACT on January 1, 1998." Id. at 2, ¶ 5. But
instead of entering into this agreement with ACT, NASD decided to accept a last-
minute offer made by Sylvan. Under the terms of that offer, Sylvan initially would
manage NASD's CBT centers and eventually NASD would transfer the centers to
Sylvan. The Sylvan-NASD agreements were executed in March 1996.
After closing the deal with Sylvan, NASD reached a settlement with ACT on
the termination of the MOU and the Interim Agreement. ACT then sued Sylvan in
November 1996. The complaint included allegations in five counts: Count I, Sylvan
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tortiously interfered with ACT's contractual relations with NASD; Count II, Sylvan
tortiously interfered with ACT's prospective business advantage with NASD; Count
III, Sylvan tortiously interfered with ACT's current and prospective contractual
relations with Regents College; Count IV, Sylvan monopolized the relevant market
in violation of § 2 of the Sherman Act, 15 U.S.C. § 2; and Count V, Sylvan attempted
to monopolize the relevant market. Sylvan sought summary judgment on all counts;
the District Court granted Sylvan's motion on Counts I, II, and III and initially denied
judgment on Counts IV and V. After granting Sylvan's motion in limine on the issue
of antitrust damages, the court granted Sylvan's renewed motion for summary
judgment on Counts IV and V.2
II.
Summary judgment shall be granted on motion of a party if the record shows
"there is no genuine issue as to any material fact and . . . the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c). We review de novo,
applying that same standard. We consider the record in the light most favorable to
ACT and give ACT the benefit of all reasonable inferences that may be drawn from
the evidence. See Netland v. Hess & Clark, Inc., 284 F.3d 895, 898 (8th Cir. 2002)
(standard of review).
To be successful under Iowa law on its claim for tortious interference with
contractual relations, ACT must be able to prove five elements: (1) that it had a
contract with NASD; (2) that Sylvan knew of the contract; (3) that Sylvan
"intentionally and improperly interfered with the contract"; (4) that the interference
caused NASD "not to perform, or made performance more burdensome or
expensive"; and (5) that ACT was damaged as a result. Gibson v. ITT Hartford Ins.
2
ACT did not oppose Sylvan's motion for summary judgment on Count III, and
that judgment is not before us on appeal.
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Co., 621 N.W.2d 388, 399 (Iowa 2001) (citations to quoted cases omitted). The
District Court held that ACT could not prove that Sylvan knew about the MOU and
the Interim Agreement. Viewing the evidence in the light most favorable to ACT, the
court further determined that the Proposed Letter Agreement did not amount to a
contract. On appeal, ACT contends that summary judgment was improper because
genuine issues of material fact remain on these issues.
A.
We consider first Sylvan's knowledge of the MOU and the Interim Agreement.
As ACT points out, it is not necessary under Iowa law that Sylvan knew of the
existence of the specific agreements in order for liability to attach. All that is
required is proof of "knowledge of facts which, if followed by reasonable inquiry,
would have led to the disclosure of the contractual relationship between" ACT and
NASD. Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 764 (Iowa 1999)
(quoting as a correct statement of the law a jury instruction from the case on appeal).
But even though only inquiry notice is required, we conclude that ACT cannot prove
the necessary knowledge on the part of Sylvan.
ACT directs our attention to several parts of the record to support its position
that the question of Sylvan's knowledge of the MOU and the Interim Agreement
should be decided by a jury.3 First, ACT points out that Sylvan's chief financial
3
ACT also contends that Sylvan did not move for summary judgment on the
basis of Sylvan's lack of knowledge of the MOU and the Interim Agreement. But
Sylvan did note the existence of the MOU and the Interim Agreement in its
memorandum in support of its motion for summary judgment. It is true that Sylvan
focused primarily on the Proposed Letter Agreement, but then so did ACT's
complaint. We conclude that ACT was sufficiently on notice that it should defend
the summary judgment motion on all five elements of tortious interference with
contract and address the knowledge question as to all the purported agreements on
which it was basing its claim. In any event, this Court has indicated that we may
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officer testified that he knew that ACT and NASD had a business relationship. The
witness's undisputed testimony, however, was that he was unaware that ACT was
making a competing bid for a long-term contract with NASD and that he did not
know of any relationship between NASD and ACT until NASD had told Sylvan that
it could submit a bid for the CBT business. As ACT notes, Sylvan's co-CEO also was
asked at his deposition if he knew "that NASD had some sort of a business relation
with ACT." Deposition of R.Christopher Hoehn-Saric at 332 (May 13, 1999). He
answered that he was aware NASD and ACT had done some co-marketing and in a
later deposition said that he had seen them sharing space at trade shows, but he said
he was not familiar with the specifics of the relationship. There also is some evidence
that Sylvan employees who were involved in the NASD bid became aware that ACT
and NASD were sharing some CBT centers. But they were told about that only after
Sylvan and NASD were well into discussions on a long-term agreement between
them and only because some parts of the short-term agreements with ACT might have
needed to be accommodated in any Sylvan-NASD agreement. This evidence is
insufficient to prove that Sylvan was on notice that it should have investigated further
to see if the long-term operating and transfer agreements it was proposing to NASD
would interfere with standing short-term co-marketing agreements NASD already had
with ACT.4
affirm a summary judgment on any ground supported by the record. Ozark Heartland
Elecs., Inc. v. Radio Shack, 278 F.3d 759, 763 (8th Cir. 2002).
4
It is arguable that ACT brought the wrong cause of action on the MOU and the
Interim Agreement. Both of these agreements were non-exclusive, short-term
agreements, intended to be temporary. Neither involved the transfer of the CBT
centers from NASD to ACT—unlike Sylvan's ultimate agreements with NASD, the
transactions which allegedly interfered with ACT's purported contracts with NASD.
It is true that NASD, after failing to reach a long-term agreement with ACT,
compensated ACT and agreed to other terms and conditions to resolve differences
that arose upon termination of the MOU and the Interim Agreement. But it appears
that ACT's recovery of expenses was contemplated by the terms of the agreements
because the agreements were terminable at will. Under Iowa law, "contracts
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ACT further points out that Sylvan became aware that ACT was making a
competing bid for the operation and eventual acquisition of NASD's CBT centers at
the same time Sylvan itself was preparing a bid. ACT's evidence does show that
Sylvan knew, as it was preparing its proposal, that NASD was in discussions with
ACT to reach a similar agreement and that NASD staff were making
recommendations in support of ACT's proposal. Evidence that Sylvan knew ACT
was in discussions with NASD on a long-term contract is not equivalent, however,
to evidence that would have put Sylvan on notice that ACT already had interim
agreements with NASD.
We conclude that the evidence in the summary judgment record of Sylvan's
knowledge of the MOU and the Interim Agreement, even viewed in the light most
favorable to ACT's position, is insufficient as a matter of law to create a jury question
on an essential element of ACT's claim: was Sylvan on notice that it should
investigate whether ACT already had contracts that would be breached if Sylvan
successfully closed a deal with NASD to operate and eventually acquire NASD's CBT
centers? Summary judgment on ACT's claim for tortious interference with the MOU
and the Interim Agreement is affirmed.
B.
terminable at will are more properly protected as a prospective business advantage
rather than as a contract. Consequently the higher standard of proof requiring
substantial evidence that the defendant's predominant or sole motive was to damage
the plaintiff was required." Compiano v. Hawkeye Bank & Trust of Des Moines, 588
N.W.2d 462, 464 (Iowa 1999) (citation omitted); see also infra pt. III (discussing
Iowa cause of action for tortious interference with prospective business advantage).
We also note, as to the damages element of ACT's cause of action, that the record
does not reflect that ACT sought to prove and recover damages based on the
termination of these short-term agreements. With the decision we reach today,
however, it is unnecessary for us to address either of these issues.
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As for the Proposed Letter Agreement, Sylvan's knowledge of it is immaterial
because ACT's evidence is insufficient as a matter of law to prove that the letter was
indeed a contract. "[I]f there is no contract, there can be no interference." Tredrea
v. Anesthesia & Analgesia, P.C., 584 N.W.2d 276, 287 (Iowa 1998).
The purported agreement opened with these sentences:
Pursuant to our recent meetings and conversations, this letter sets forth
terms to which [ACT] is prepared to agree with respect to ACT's
providing technology-based assessment services to [NASD]. If the
NASD agrees to these terms, please sign one of the copies of this letter
and return it to me for ACT's files.
Proposed Letter Agreement at 1 (emphasis added). Included in the TERMS section
of the letter was this recitation:
1. Subject to approval of the terms reflected in this letter by NASD's
Board of Directors at its January 1996 meeting, the parties will enter
into an agreement . . . in January 1996 that implements this letter
agreement and supplements the basic terms provided for herein.
Id. (emphasis added).
No NASD representative signed the agreement on behalf of the organization,
and the NASD board never approved it. Notwithstanding this undisputed evidence,
ACT argues there is a genuine issue of material fact on whether there was a contract.
According to ACT, there was a meeting of the minds between NASD and ACT as a
result of discussions that preceded the drafting of the proposed letter agreement, with
ACT believing it was the only entity contending for the sort of long-term operation
and asset-transfer agreement that its proposal contemplated. Nevertheless, when
NASD did tell ACT that it would be considering a proposal from Sylvan, ACT's
president did not cry "breach" but instead went to work on a counterproposal, stating
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in a memorandum to two of his employees, "Jim [O'Donnell, NASD executive vice-
president] indicated that he continues to favor ACT but that he must entertain the
Sylvan proposal. Even so, I don't believe that we can or should underestimate the
potential of a reversal in NASD's position." Memo. from Dick Ferguson to Joe Pugh
and Ricki Saylor (Dec. 22, 1995) at 1, ¶ 7. Ferguson also wrote, "I believe that ACT
is still the 'favored' partner for NASD, but, until we have a written commitment, we
can't be certain that the relationship as laid out in recent weeks will proceed." Id. at
2 (emphasis added). These are not the words of someone who believes he has
cinched a deal. Notwithstanding his deposition testimony that he thought an
"agreement" had been reached, his contemporaneous writing clearly demonstrates that
ACT's president did not believe the parties had a legally binding contract. In any
event, on its face the letter acknowledges that the terms therein are those to which
ACT—not NASD—was prepared to agree. The use of the conjunction "if" in the
opening paragraph of the letter demonstrates that NASD's agreement with those terms
was not a foregone conclusion, at least not in the mind of ACT's president, who sent
NASD the Proposed Letter Agreement on behalf of ACT. And, as we have said, no
NASD representative ever manifested agreement with the terms that ACT was
proposing because no NASD representative ever signed a copy of the letter. See
Magnusson Agency v. Pub. Entity Nat'l Co.–Midwest, 560 N.W.2d 20, 26 (Iowa
1997) ("All contracts must contain mutual assent.").
ACT contends that proof of the existence of a contract can be found in the
"extensive evidence demonstrating that ACT and NASD . . . had begun
implementing" the purported agreement. Br. of Appellant at 26. While we think
ACT's characterization of the evidence is hyperbolic, there is evidence in the record
that both ACT and NASD had made staff assignments to effectuate the transfer; that
NASD employees were told they would soon be working for ACT; and that
employees from NASD had meetings and video conferences to discuss the transfer.
This is not, however, as ACT suggests, evidence of performance that would prove the
formation of the contract. Instead, it is evidence that employees were taking
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preliminary steps to plan for the logistics of the transfer if and when the agreement
actually was finalized. As the president of ACT wrote in the December 22 internal
memorandum, it had been his position "all along" that "no hiring should occur until
we have a written agreement in hand" and no third-party contracts involving
implementation of the agreement as negotiated to date should be entered into "until
we have a signed agreement in hand." Memo. from Dick Ferguson to Joe Pugh and
Ricki Saylor (Dec. 22, 1995) at 2. By his own words, ACT's president admitted his
belief that the unsigned letter agreement was not an enforceable contract.
Further, it is undisputed that the NASD board of directors never approved the
terms of the letter as required by the language of the letter itself, and so the follow-up
January 1996 agreement that ACT proposed would implement and supplement the
Proposed Letter Agreement never happened. Notwithstanding the clear language in
the letter, ACT questions whether board approval was really necessary. By ACT's
reckoning, its president's December 22 memorandum supports its statement that
"NASD informed ACT that it was not certain that board approval was even required."
Br. of Appellant at 27. Whatever NASD's vice-president may have said on the matter
in a telephone conversation with ACT's president is irrelevant here because the
Proposed Letter Agreement—by its own terms—indicated that the final implementing
and supplementing agreement would be negotiated only after the NASD board
approved the Proposed Letter Agreement. ACT also suggests that its "personnel
understood that the board's approval was essentially a 'formality.'" Br. of Appellant
at 27. Be that as it may, the Proposed Letter Agreement—drafted by ACT—required
such approval, however much a foregone conclusion the ACT employees may have
thought it was. The testimony of everyone involved in the negotiations was to the
same effect: NASD board approval, however nominal, was required, and it was not
forthcoming.
Citing a case from a California state court, ACT argues that NASD board
approval was a condition precedent to performance of the contract but not to contract
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formation. Under Iowa law, "[c]onditions precedent are those facts and events,
occurring subsequent to the making of a valid contract, that must exist or occur
before there is a right to immediate performance, before there is a breach of contract
duty, and before the usual judicial remedies are available." Employee Benefits Plus,
Inc. v. Des Moines Gen. Hosp., 535 N.W.2d 149, 154 (Iowa Ct. App. 1995)
(emphasis added). Here, of course, NASD did not execute the agreement, so there
was no "valid contract." In any event, the plain language of the agreement belies
ACT's claim that NASD board approval was a condition precedent: it is the final
agreement, that is, the future formation of a contract to implement the Proposed Letter
Agreement, that hinged upon NASD board approval of the Proposed Letter
Agreement. As ACT itself notes, the letter "provided that the parties would enter into
a further agreement that implemented the parties' agreement if the NASD board
approved the terms" of the Proposed Letter Agreement. Br. of Appellant at 29. There
was no board approval and consequently there was never either an "agreement" or a
"further agreement." In short, there was no contract to perform, with or without
conditions.
We hold that ACT cannot prove, on this record, that the Proposed Letter
Agreement was a contract. That writing therefore cannot be the basis of ACT's cause
of action against Sylvan for tortious interference with contract. The District Court
properly granted summary judgment to Sylvan on ACT's claim under Iowa law for
tortious interference with the Proposed Letter Agreement.
III.
ACT contends that the District Court erred in granting summary judgment to
Sylvan on ACT's claim that Sylvan tortiously interfered with ACT's prospective
business relationship with NASD. The District Court held that ACT was unable to
demonstrate any genuine issue of material fact on whether Sylvan, in submitting its
bid to NASD, intentionally and improperly interfered with ACT's relationship with
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NASD. See Tredrea, 584 N.W.2d at 283-84 (listing and explaining the elements of
a claim of tortious interference with a prospective business contract). That is, the
court concluded that ACT cannot prove, on this record, that Sylvan acted with the
"sole or predominant purpose . . . to financially injure or destroy" ACT, substantial
proof of which was required for ACT to sustain its claim. Id. at 283 (citations to
quoted cases omitted). "In a competitive business setting, this rule of strict proof
operates 'to avoid opening the door to virtually limitless suits of a highly speculative
and remote nature.'" Id. at 287 (citations to quoted cases omitted).
Because we are reviewing a decision granting summary judgment to Sylvan,
ACT is entitled to the benefit of all reasonable inferences that may be drawn from the
evidence. It is not entitled, however, to the benefit of unreasonable inferences, those
that amount to nothing more than mere conjecture. See Mathes v. Furniture Brands
Int'l, Inc., 266 F.3d 884, 885-86 (8th Cir. 2001). After de novo review of the
summary judgment record, we conclude that ACT does not have substantial proof that
Sylvan's proposal to NASD was made solely or predominantly to financially injure
or destroy ACT.
In support of its argument that factual issues remain that should be decided by
a jury, ACT relies primarily on a document to which the District Court gave short
shrift in reaching its decision. ACT quotes for us "explicit admissions" from what it
calls "Sylvan's own documents":
Sylvan was compelled to intervene [in the NASD/ACT contract] for two
reasons. For one, Sylvan naturally loathes the prospect of competition
in CBT delivery from any corner. Second [the Educational Testing
Service ("ETS")] loathes the prospect of its arch-rival ACT in control of
a testing network. ETS is Sylvan's most influential customer in the
academic market and numbers among its top three customers across all
markets. When ETS is unhappy, Sylvan too is unhappy.
***
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. . . Sylvan was willing to accept [the] unfavorable terms [of the NASD
deal] to keep out the competition and appease ETS.
And:
Sylvan gave NASD a sweetheart deal to gain control of its sites, just to
keep ACT out of the CBT market.
Br. of Appellant at 34, 35 (quoting M. Ford, Sylvan Prometric: An Account of its
Business Lines, vol. I (Aug. 1997) (draft) at 27-28; M. Ford, Sylvan Prometric: An
Analysis of its Competitive Position, vol. II (Aug. 1997) (draft) at 37 (alterations by
ACT)). In its main brief, ACT neglects to explain the genesis of these statements.
In fact, the quoted language is from drafts of documents prepared by Michelle Ford,
a graduate student in business whom Sylvan hired as a summer intern in 1997 for the
purpose of preparing background reports on computer-based testing. Ford had no
experience in computer-based testing and little knowledge of the business when she
went to work for Sylvan. It is undisputed that neither Ford nor Nicholas
Kouwenhoven, the Sylvan employee who was Ford's supervisor for the summer, had
personal knowledge of Sylvan's decision to bid for the NASD business or the
mechanics of preparing that bid. The same is true of every Sylvan employee Ford
interviewed in preparing the reports. Indeed, Ford agreed that the language in the
reports suggesting that Sylvan did not like competition in the CBT market was her
own and that she did not discuss her speculation with any other Sylvan employee.
Deposition of Michelle Ford at 228 (Jan. 14, 1999).
After considering the background of these documents (but without going so far
as to declare them inadmissible), the District Court in reaching its decision gave
"little, if any weight" to the statements cited by ACT. Order of Dec. 30, 1999, at 19.
ACT charges that this demonstrates that the court improperly weighed the evidence
and made credibility determinations. We disagree. Putting aside the questionable
admissibility of these documents, we conclude that the statements taken from the
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reports are not evidence, much less substantial evidence, that Sylvan acted with the
predominant purpose to financially injure or destroy ACT. They are not admissions
of a Sylvan agent but merely the conjecture of a summer intern who lacked any
personal knowledge of Sylvan's motivations in submitting its proposal to NASD a
year and a half before and who did not even interview any Sylvan employees who
might have had such knowledge. This speculation by a temporary employee is not,
as a matter of law, substantial proof that Sylvan's primary purpose in pitching a deal
to NASD was to financially injure or destroy ACT.
Even so, according to ACT, it came forward with sufficient evidence to create
a genuine issue on whether Sylvan's business justifications for wanting to do a deal
with NASD were pretextual, so summary judgment was improper. Sylvan's co-CEO
testified that the company had four reasons for submitting its proposal, as written, to
NASD: NASD's test volume would help fill Sylvan's excess testing capacity; NASD
was a prestigious and desirable business partner; NASD made it clear it was seeking
to get its CBT centers off its books, and that is why the asset transfer was included
in Sylvan's proposal even though Sylvan did not have need for some of the testing
centers; and NASD had CBT centers in areas where Sylvan could use additional
testing capacity. ACT attempts to construe the record so as to show a genuine issue
on whether the claimed business purposes are legitimate. But the supposed evidence
to which ACT points requires us to draw inference upon inference in order to
conclude there might be a material fact issue lurking somewhere. We decline to do
so, as did the District Court.
ACT argues that the necessary evidence of pretext is found in Sylvan's
admitted goal of underbidding ACT on the NASD contract in order "to blow the
doors off" ACT's pending proposal, and doing so at financial risk to itself.
Deposition of Derek W. Linden at 43 ("[T]he one line I recall from the meeting is
Doug Becker [Sylvan's co-CEO] saying that they would submit a proposal to us that
would blow the doors off any other proposal we may have received."). Again, we
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seriously question the soundness of the inferences that we must draw from the
evidence in order to agree with ACT's assessment. See Nat'l Parcel Servs., Inc. v. J.B.
Hunt Logistics, Inc., 150 F.3d 970, 971 (8th Cir. 1998) ("[T]he passing remark by
[defendant] that it could 'take you out' is not the kind of competitive threat that will
support a prima facie case of tortious interference.") (applying Iowa law in case
where defendant cut prices so low it lost money). Making a bid below cost is not,
on its face, a bad business move, particularly when Sylvan had numerous other
customers who were paying cost-plus. Cf. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 594 (1986) ("[C]utting prices in order to increase business
often is the very essence of competition. Thus, mistaken inferences in cases such as
this one are especially costly, because they chill the very conduct the antitrust laws
are designed to protect.") (predatory pricing case under federal antitrust law).
Likewise, as Sylvan acknowledged to NASD from the beginning, some of the test
centers were expected to be (and in fact were) closed after Sylvan acquired them. As
Sylvan explained, however, with no contrary evidence from ACT, NASD had made
it clear that it wanted the CBT centers off its books and that an offer for the centers
was a necessary part of doing a deal. Duplicative centers indeed were closed, but it
is undisputed that NASD centers remained open in those locations where the extra
capacity was needed.
It may well be, as ACT argues, that "Sylvan did not want ACT to acquire the
NASD test business and test centers and thereby become a competitor." Reply Br. of
Appellant at 17; see also Br. of Appellant at 34 ("Substantial evidence demonstrates
that Sylvan was motivated by a desire to ensure that ACT did not acquire the NASD
centers and thereby became [sic] a competitor."). If ACT had won NASD's business,
Sylvan could not. Keeping one step ahead of the competition—whoever it might
be—was in Sylvan's self-interest as a for-profit business and does not automatically
translate into a motive to injure or destroy the competitor. See Fin. Mktg. Servs., Inc.
v. Hawkeye Bank & Trust of Des Moines, 588 N.W.2d 450, 459 (Iowa 1999) (noting
"nothing improper" where a bank was acting to improve its own financial position).
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ACT cannot show there is a genuine issue of material fact on the intent element of its
claim simply by presenting evidence that Sylvan preferred to avoid competing with
ACT in offering CBT services. Legitimate business practice should not be converted
by the courts into an intentional tort. Moreover, we see no evidence to support ACT's
intentional tort claim in this record, where evidence of a motivation to acquire the
NASD CBT centers before ACT acquired them is the evidence ACT claims to be
substantial proof that Sylvan's declared business reasons for doing the deal were
pretext for its true goal—to financially destroy or injure ACT. Even giving ACT the
benefit of all the reasonable inferences that may be drawn from the evidence, those
inferences do not, even in the aggregate and without considering Sylvan's evidence
to the contrary, amount to substantial proof that Sylvan was motivated to do anything
other than to win the contract for NASD's business and CBT network, which would
result in ACT losing the deal. "Any harm to [ACT] was merely incidental to the
accomplishment of [Sylvan's] primary goal": to close the deal with NASD. Id. at
460. As a matter of law, ACT cannot show, on the record before the Court, that
Sylvan's purpose in making its proposal to NASD was to financially injure or destroy
ACT—much less that such was Sylvan's primary purpose. ACT therefore cannot
prove an essential element of its claim.
Viewing the undisputed facts in this record in the light most favorable to ACT,
we hold that summary judgment on ACT's claim against Sylvan for tortious
interference with prospective contractual relations was properly granted to Sylvan.
IV.
ACT also appeals the decision of the District Court granting the part of
Sylvan's motion in limine that challenged the admissibility of evidence of ACT's
claimed antitrust damages. The court concluded that ACT could not prove its alleged
damages flowed from monopolistic actions illegal under § 2 of the Sherman Act, and
so ACT would not be permitted to present evidence of such damages.
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Ordinarily, we review a district court's ruling on a motion in limine for abuse
of that court's discretion. See, e.g., Glastetter v. Novartis Pharms. Corp., 252 F.3d
986, 989 (8th Cir. 2001) (reviewing decision to exclude expert testimony for abuse
of discretion, notwithstanding that the decision resulted in summary judgment for the
defendant); Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1081 (8th Cir. 1999) (same).
Not until its reply brief did ACT suggest that the standard should be otherwise,
contending that the court's "exclusion order was based on a pure error of law" and we
should therefore review it de novo. Reply Brief at 19 (citing United States v.
Johansen, 93 F.3d 459, 468 (8th Cir. 1996)). It is unnecessary for us to decide if ACT
properly raised the issue or to determine the appropriate standard, however, because
we already have conducted a de novo review of the underlying question: is Sylvan
entitled to judgment as a matter of law on the question of whether Sylvan's business
justifications for doing the deal with NASD, the conduct claimed by ACT to be in
violation of antitrust laws, were pretextual? We have concluded that the answer to
that question is "yes." See supra pt. III.
ACT has referred in its brief to Sylvan's large market share in computer-based
testing and to Sylvan's acquisition of its potential competitors but has claimed
antitrust damages, in the form of lost profits, only from the transaction between
Sylvan and NASD. "Liability turns, then, on whether 'valid business reasons' can
explain [Sylvan's] actions" in its business dealings with NASD. Eastman Kodak Co.
v. Image Technical Servs., Inc., 504 U.S. 451, 483 (1992).
As we have explained, ACT cannot prove on this record that Sylvan's four
business justifications for structuring the transaction with NASD as it did were not
legitimate. See supra 14-16. First, it is undisputed that Sylvan's testing capacity was
significantly underutilized in some areas and that NASD clients would fill some of
the excess capacity. Second, the desirability of partnering with an organization of
NASD's prestige is unquestioned. Third, it is also without dispute that Sylvan knew
it would have to acquire NASD's CBT network, including some centers that would
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be redundant to Sylvan's own centers, because NASD made it clear that it wanted
those facilities off its books. And finally, it is uncontroverted that some of the gaps
in Sylvan's own testing network were closed by the acquisition of NASD's centers.
Sylvan's pursuit of an agreement with NASD cannot be characterized as "conduct
[that] makes sense only because it eliminates competition." Trace X Chem., Inc. v.
Canadian Indus., Ltd., 738 F.2d 261, 266 (8th Cir. 1984), cert. denied, 469 U.S. 1160
(1985). ACT's evidence does not create a triable jury question on whether Sylvan's
proffered business reasons for doing the deal were legitimate, and "[w]hen a valid
business reason exists for the conduct alleged to be predatory or anti-competitive, that
conduct cannot support the inference of a section 2 violation." Midwest Radio Co.
v. Forum Publ'g Co., 942 F.2d 1294, 1297-98 (8th Cir. 1991) (citing Aspen Skiing
Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 605 (1985)). In these
circumstances, it was correct for the District Court to grant Sylvan's motion in limine,
as the damages ACT claims from its failure to close a deal with NASD did not flow
from conduct by Sylvan that violated § 2. See Amerinet Inc. v. Xerox Corp., 972
F.2d 1483, 1494 (8th Cir. 1992) ("If a plaintiff has suffered financial loss from the
lawful activities of a competitor, then no damages may be recovered under the
antitrust laws.") (citation to quoted case omitted)), cert. denied, 506 U.S. 1080 (1993).
V.
Relying on the District Court's decision granting the motion in limine, Sylvan
renewed its motion for summary judgment on ACT's claims that Sylvan was liable
under § 2 of the Sherman Act. The court granted the motion and ACT appeals.5
5
The court initially denied Sylvan's renewed motion for summary judgment,
noting that ACT had sought not only damages but also injunctive relief and that ACT
might be entitled to the equitable relief. The court certified its order granting Sylvan's
motion in limine for interlocutory appeal; this Court denied leave to file such an
appeal. ACT then dismissed its claim for injunctive relief so that the court would
resolve the summary judgment question.
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"Antitrust injury, causation, and damages all are necessary parts of the proof"
of liability under § 2 of the Sherman Act. Concord Boat Corp. v. Brunswick Corp.,
207 F.3d 1039, 1055 (8th Cir.), cert. denied, 531 U.S. 979 (2000). As we have
explained, any evidence ACT may have of damages it incurred as a result of Sylvan's
deal with NASD was properly excluded from the summary judgment record because
the alleged damages were not caused by unlawful acts of Sylvan. ACT therefore is
unable to prove either causation or antitrust injury. It follows that summary judgment
was properly granted to Sylvan on ACT's claim of a § 2 violation.
VI.
In case number 01-3583, ACT appeals from the order of the District Court
denying ACT's motion for review of taxation of costs. ACT moved to dispense with
briefing on the issue, so we do not know if ACT has a quarrel with the amount of
costs awarded or is challenging the court's authority to award costs as it did. As to
the amount of costs, "[a] court of appeals lacks jurisdiction to hear an appeal where
the sole issue is that the district court abused its discretion as to the amount of costs
awarded." Poe v. John Deere Co., 695 F.2d 1103, 1109 (1982). And to the extent
ACT is challenging whether the award was necessary and otherwise proper, we see
no abuse of discretion. Bathke v. Casey's Gen. Stores, Inc., 64 F.3d 340, 347 (8th Cir.
1995) (standard of review).
VII.
The judgments of the District Court are affirmed in all respects.
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RICHARD S. ARNOLD, Circuit Judge, concurring in part and dissenting in part.
I agree that summary judgment was properly entered for defendant on the claim
for tortious interference with contract, and I therefore join parts I and II of the Court's
opinion.
I also join part VI of the Court's opinion, having to do with taxation of costs.
As to the claim for tortious interference with a prospective business
relationship, however, I respectfully dissent. In my view, when this record is
considered in the light most favorable to ACT, as it must be on this appeal, there is
a genuine issue of material fact as to Sylvan's motivation. Questions of motive are
particularly delicate, and summary judgment should be used more sparingly on such
questions than on most others. The memorandum prepared by Michelle Ford, which
the Court does not hold inadmissible, is sufficient evidence to support ACT's position
at this preliminary stage of the case. Ms. Ford was instructed to prepare a document
describing the history of Sylvan's dealings with NASD. She did what she was told
to do. That she was a summer intern, had little knowledge of the business, and had
no experience in computer-based testing, ante at 13, are considerations going to the
weight of her evidence, not its admissibility. Certainly there is evidence to the
contrary, and a jury could have chosen to disregard Ms. Ford's conclusions. Indeed,
one may go so far as to say, if one wishes, that ACT would probably lose this case,
were it tried to a jury. But that is not the standard we are to apply at this juncture. I
cannot say it would have been irrational, when all of this record, including Ms. Ford's
memorandum, is considered, for a jury to find that Sylvan was predominantly
motivated by a desire to injure ACT. Among other things, the deal made with NASD
was below Sylvan's cost, certainly a potent fact. The directed-verdict standard, or,
as we have learned to say, the standard on motions for judgment as a matter of law,
is the same as the standard to be applied on motions for summary judgment. This
case should have gone to trial on the issue of motivation.
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For many of the same reasons, I also dissent from the Court's affirmance of
summary judgment for the defendant on the claim under § 2 of the Sherman Act.
Again, Sylvan puts forward plausible business justifications, but there is evidence to
the contrary, and a jury could rationally decide in favor of ACT on this issue.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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