Davis v. First National Bank of Westville

868 F.2d 206, 1989 WL 14923
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 26, 1989
DocketNo. 88-1596
StatusPublished
Cited by9 cases

This text of 868 F.2d 206 (Davis v. First National Bank of Westville) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. First National Bank of Westville, 868 F.2d 206, 1989 WL 14923 (7th Cir. 1989).

Opinion

BAUER, Chief Judge.

Plaintiff-appellants Robert, Virginia, and William Davis appeal from the district court’s grant of summary judgment to defendant-appellees First National Bank of Westville and First National Bank of Dan-ville on the Davises’ claim that the Banks violated an anti-tying provision of the 1970 amendments to the Bank Holding Company Act (“BHCA”). We affirm.

The relevant facts are straightforward. The Davises maintained a relationship with the banks from 1977 until 1985, during which period the Davises borrowed substantial sums of money and, in return, exe-[207]*207euted a number of notes payable to the banks. In late 1984 or early 1985, the Davises realized that they needed an additional $200,000 to keep their business afloat. The banks would not lend the Davises additional funds, however, unless the Davises agreed to liquidate their business and pay off their existing debts to the banks. On June 28, 1985, the Davises signed a loan agreement with the banks, the twelfth paragraph of which required the Davises to enter into a contact to sell their business by September 1, 1985. When the Davises failed to sell their business by that deadline, the banks insisted that the Davises cease operations and start liquidating. In February, 1986, the Davis-es sold their business.

The Davises filed this action in December, 1986, charging that paragraph twelve of their June 1985 loan agreement with the banks violated an anti-tying provision of the 1970 amendments to the BHCA, 12 U.S.C. § 1972(1)(C), because it required the Davises to provide the banks with a service not usually related to or provided in connection with a loan — the liquidation of their business. On February 18, 1988, the district court granted the banks’ motion for summary judgment on the Davises’ tying claim, holding that the requirement in paragraph twelve that the Davises liquidate their business was not an anticompetitive practice, and that the liquidation requirement was a traditional banking practice designed to protect the banks’ investment with the Davises.

Adopted in 1970, Chapter 22 of the BHCA, codified at 12 U.S.C. §§ 1971-1978, proscribes certain conditional transactions where their effect would be to increase the economic power of banks and to lessen competition. 1970 U.S.Code Cong. & Admin.News, pp. 5519, 5535. It was intended “only to ‘prohibit anticompetitive practices which require bank customers to accept or provide some other service or product or refrain from dealing with other parties in order to obtain the bank product or service they desire.’ ” McCoy v. Franklin Savings Ass’n, 636 F.2d 172, 175 (7th Cir.1980) (quoting Senate Banking and Currency Committee Report No. 91-1084, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin.News, pp. 5519, 5535) (emphasis added); Swerdloff v. Miami National Bank, 584 F.2d 54, 58 (5th Cir.1978); Duryea v. Third Northwestern National Bank, 606 F.2d 823, 825 (8th Cir.1979); Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 897 (3d Cir.1981). It “was not intended to interfere with the conduct of appropriate traditional banking practices.” McCoy, 636 F.2d at 175 (emphasis added); Clark v. United Bank of Denver National Ass’n, 480 F.2d 235, 238 (10th Cir.1973); B.C. Recreational Industries v. The First National Bank of Boston, 639 F.2d 828, 831 (1st Cir.1981). Nor was it intended to prohibit attempts by banks to protect their investments. McCoy, 636 F.2d at 175; Tose, 648 F.2d at 897.

To that end, the BHCA’s anti-tying provision, 12 U.S.C. § 1972, states

(1) A bank shall not in any manner extend credit ... on the condition or requirement—
(A) that the customer shall obtain some additional credit, property, or service from such bank other than a loan, discount, deposit, or trust service;
(B) that the customer shall obtain some additional credit, property, or service from a bank holding company of such bank or from any other subsidiary of such bank holding company;
(C) that the customer provide some additional credit, property, or service to such bank, other than those related to and usually provided in connection with a loan, discount, deposit, or trust service;
(D) that the customer provide some additional credit, property, or service to a bank holding company of such bank, or to any other subsidiary of such bank holding company; or
(E) that the customer shall not obtain some other credit, property, or service from a competitor of such bank, a bank holding company of such bank, or any subsidiary of such bank holding company, other than a condition or requirement that such bank shall reason[208]*208ably impose in a credit transaction to assure the soundness of the credit.

Thus, to achieve its purpose of checking the economic power of banks, section 1972 proscribes tying (subsections (1)(A) and (B)), reciprocity (subsections (1)(C) and (D)), and exclusive dealing (subsection (1)(E)) arrangements that traditionally have been targets of the antitrust laws because of their potentially anticompetitive effects. Bruce v. First Federal Savings and Loan Ass’n of Conroe, Inc., 837 F.2d 712, 715 (5th Cir.1988). A tie-in is “an arrangement by one party to sell one product (the ‘tying product’), but only on the condition that the buyer also purchase a different ... product (the ‘tied product’), or at least agree that he will not purchase that product from another supplier.” Northern Pacific Railroad v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518-19, 2 L.Ed.2d 545 (1958). A tie-in lessens competition when it enables an economically powerful seller of the tying product to coerce customers of that product into buying an additional product they do not want or would rather buy elsewhere. A reciprocity arrangement can take more than one form. It may be the harmless practice of buying from and selling to one’s customers, or it may be coercive. An economically powerful bank, for example, may agree to loan money to a pen manufacturer only if the manufacturer agrees to sell pens to the bank and its affiliates at a discount.

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Robert Davis v. First National Bank Of Westville
868 F.2d 206 (First Circuit, 1989)

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Bluebook (online)
868 F.2d 206, 1989 WL 14923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-first-national-bank-of-westville-ca7-1989.