906 F.2d 1167
59 USLW 2085, 1990-2 Trade Cases 69,094
MARKET FORCE INCORPORATED, Plaintiff-Appellant,
v.
WAUWATOSA REALTY COMPANY, Coldwell Banker Bruce Barry &
Gleysteen, Incorporated, Four Seasons Realty,
Incorporated, and Century 21 Properties
Limited,
Defendants-Appellees.
No. 89-1674.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 25, 1989.
Decided July 11, 1990.
Edwin J. Hughes, Stafford, Rosenbaum, Rieser & Hansen, Madison, Wis., for plaintiff-appellant.
Walter F. Schmidt, Kent A. Tess-Mattner, Schmidt & Rupke, Marcia R. Rimai, Richard J. Sankovitz, Whyte & Hirschboeck, and Warren S. Blumenthal, Blumenthal, Jacquart, Blumenthal & Leib, Milwaukee, Wis., for defendants-appellees.
Before BAUER, Chief Judge, and RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge.
Market Force began operations in 1986 as a real estate buyers' broker. In this case, it alleged that a group of realtors had conspired to drive it out of business in violation of Section 4 of the Clayton Act (15 U.S.C. Sec. 15) and Section 1 of the Sherman Act (15 U.S.C. Sec. 1).
Market Force's motion for a preliminary injunction was denied by the district court. Subsequently, the defendants individually filed motions for summary judgment. The district court granted these motions. Market Force now appeals the grant of summary judgment to the defendants. For the following reasons, we affirm.
* BACKGROUND
A. Facts
1. Market Force and the Real Estate Business
According to the record, residential real estate sales generally begin when a homeowner signs an exclusive marketing contract with a broker. The broker ("listing broker") then lists the property on a local "multiple listing service" (MLS). By listing on the MLS, the broker is making a general offer of subagency to any salesperson who can find a buyer to complete the sale. Other salespeople can show the house and try to arrange a sale with a prospective buyer. These individuals are called "selling brokers" or "selling agents" and, while working primarily with the buyer, are considered to be agents of the seller. In fact, their duty of loyalty lies with the seller. While commissions may vary, the traditional commission is 6% of the cost of the house, split so that the listing broker receives 60% (or 3.6% of the cost of the house) and the selling agent receives 40% (or 2.4% of the cost of the house).
Market Force began operations in 1986 as a "buyers' broker." It differed from traditional real estate firms in that it signed exclusive contracts with individuals seeking to purchase a house. The Market Force agent would find houses that the agent believed might interest clients, and show the houses to them. Most significantly, Market Force agents owed their duty of loyalty to the buyers. The contract between Market Force and the buyers specified that Market Force would receive a fee equal to 40% of the sales commission, or 2.4% of the selling price. The contract further anticipated that, at the time of sale, the buyer would request that the listing broker pay Market Force this commission. If the broker cooperated, the buyer would owe no further obligation to Market Force.
2. The Real Estate Community's Reaction to Market Force
For some time after Market Force began operation, other real estate firms treated Market Force in an inconsistent manner with respect to splitting commissions. Some firms paid a full 40% commission and others paid nothing. Mayfair Homes was the first real estate firm to adopt a concrete policy, deciding in September 1987 not to share any part of its sales commissions with Market Force. At the same time, Wauwatosa Realty Company (Wauwatosa), a large real estate firm in Milwaukee and throughout Wisconsin, occasionally split commissions and occasionally refused entirely to enter into sales contracts with Market Force buyers.
Before formulating a policy about splitting commissions with buyers' brokers, Joann Glawe, Wauwatosa's general sales manager, contacted Mayfair Homes and inquired about its policy. Wauwatosa subsequently issued its policy on October 23, 1987. Its policy was to pay a buyers' broker the same fee it paid to out-of-state or non-MLS brokers who refer a buyer to Wauwatosa. The district court noted that:According to her affidavit, Ms. Glawe wrote the Wauwatosa policy with specific business reasons in mind: (1) Wauwatosa was paying the same 20% referral fee to out-of-state and non-MLS brokers who referred buyers to Wauwatosa; (2) Wauwatosa might have to pay a selling agent in a transaction even though a buyers' agent was involved, where, for example, a selling agent held an open house and the buyer represented by a buyers' agent toured the home; (3) Wauwatosa pays its listing agents more when a buyers' agent but not a selling agent is involved, on the theory that the listing agent must take on some of the duties of a selling agent, such as answering questions on behalf of the seller; and (4) buyers' agents have lower costs than selling agents because they do not list homes in the MLS.
The Market Force, Inc. v. Wauwatosa Realty Co., 706 F.Supp. 1387, 1390-91 (D.Wis.1989). Wauwatosa mailed a sheet describing its policy to all brokers listed in the MLS book--about 250 firms. Ms. Glawe testified at a deposition that she undertook this mailing following a conversation with Peter Shuttleworth, director of the MLS, who told her that "other brokers other than just buyer brokers were [acting as buyers' brokers] and it might be well to let everyone know." Id.
Coldwell Banker, which lists the second highest quantity of homes in Milwaukee after Wauwatosa, issued its policy on November 11, 1987, after reviewing Wauwatosa's policy. It set its commission rate at 20% of the total commission, a figure its chief operating officer may have believed mistakenly was the same as Wauwatosa's. It also mailed its policy to all MLS brokers. In subsequent months, several other firms issued policy statements about sharing commissions with buyers' brokers. The rates were the same as those offered by Wauwatosa or Coldwell--either 10% or 20% of the total sales commission. All the firms that eventually adopted commission policies for buyers' brokers together represented about 31% of the annual listings of homes for sale in the Milwaukee MLS.
Market Force had several negative experiences with other brokers. Several sales were lost due to intransigence about sharing commissions. R.52 at 2; R.54 at 7. One Market Force buyer was told not to work with Market Force and that she would not get the home she was viewing unless she worked with a sales broker instead of Market Force's agent. R.87 Ex. 15 (McGrew Affidavit). At one closing, an agent for Four Seasons Realty told the president of Market Force that "everyone is against you" and that Market Force should quit business. R.54 at 10.
Market Force advertised in local television and print media. In November 1986, as a result of other real estate firms' complaints, the editor of a magazine wanted to remove Market Force's advertisement. The other firms apparently threatened to remove their own advertisements from the magazine if Market Force's advertisement was not removed. R.54 at 5. Several complaints also were made to the executive director of the MLS.
Market Force decided not to enforce its contracts with buyers-clients that would entitle Market Force to collect from them the difference between the amount actually paid as commissions by other brokers and 2.4% of the sale price (the amount guaranteed to Market Force in its contract with its buyers-clients). However, it paid its agents the fee they would have received if Market Force had received 2.4% of the sale price. Despite the fact that Market Force absorbed this difference, all of its agents eventually left. The company ceased operations in the fall of 1988.
B. The District Court Opinion
Market Force sued under section 4 of the Clayton Act, which permits parties to seek redress for violations of the antitrust laws. Specifically, Market Force alleged that the defendants violated section 1 of the Sherman Antitrust Act. 15 U.S.C. Sec. 1.
As an initial matter, the district court noted that, in order to find antitrust liability on the part of the defendants, a jury would have to find that the defendants " 'had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement....' " 706 F.Supp. at 1393 (quoting American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946)). Proof of conspiracy, the district court noted, "requires parallel behavior plus additional facts or circumstances that raise the inference of agreement." Id. Furthermore, to defeat a motion for summary judgment, the court observed, the plaintiff must come forward with evidence that dispels the possibility that the defendants were acting for independent business reasons. Id. at 1394.
Applying these standards, the district court concluded that Market Force had not put forward evidence that would permit a jury to conclude that the defendants had engaged in a conspiracy in restraint of trade. The evidence of any agreement presented was circumstantial. Notably, the action of the defendants was not totally parallel and involved no more than a third of all properties in the MLS computer. The district court determined that the evidence presented by Market Force of several instances of "hostility" failed to exclude the possibility that the defendants did not conspire. Id. at 1395. Moreover, several defendants had put forward evidence of independent business reasons for adopting a policy regarding buyers' brokers. The district court summarized its reasoning as follows:
Simply stated, coincidence does not a conspiracy make. And even drawing the inferences in favor of Market Force, a conspiracy is not the "compelling, if not exclusive, rational inference" from the record.
Id. (quoting Weit v. Continental Illinois Nat'l Bank & Trust Co., 641 F.2d 457, 463 (7th Cir.1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982)).
II
ANALYSIS
A. Standard of Review
Two recent pronouncements of the Supreme Court of the United States establish the applicable rule of decision in this case: Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984).
Monsanto presented the Court with a question of the sufficiency of proof of a Sherman Act Sec. 1 claim. The Court expressed concern that independent action improperly may be used as evidence of a conspiracy. "On a claim of concerted price fixing, the antitrust plaintiff must present evidence sufficient to carry its burden of proving that there was such an agreement." 465 U.S. at 763, 104 S.Ct. at 1470. The Court then set the evidentiary standard that a plaintiff must meet:
The correct standard is that there must be evidence that tends to exclude the possibility of independent action by the [defendants]. That is, there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective.
Id. at 768, 104 S.Ct. at 1473. This standard was further refined in Matsushita, which, like the present case, involved the grant of the defendants' motion for summary judgment:
To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of Sec. 1 [of the Sherman Act] must present evidence "that tends to exclude the possibility" that the alleged conspirators acted independently. [Monsanto,] 465 U.S. at 764 [104 S.Ct. at 1471]. Respondents in this case, in other words, must show that the inference of conspiracy is reasonable in light of the competing inference of independent action or collusive action that could not have harmed respondents.
475 U.S. at 588, 106 S.Ct. at 1356.
These two cases suggest a two-part inquiry to determine whether summary judgment is appropriate in an antitrust conspiracy case:
(1) is the plaintiff's evidence of conspiracy ambiguous, i.e., is it as consistent with the defendants' permissible independent interests as with an illegal conspiracy; and, if so, (2) is there any evidence that tends to exclude the possibility that the defendants were pursuing these independent interests.
Gibson v. Greater Park City Co., 818 F.2d 722, 724 (10th Cir.1987); see also Riverview Invs., Inc. v. Ottawa Community Improvement Corp., 899 F.2d 474, 483 (6th Cir.1990); Dreiling v. Peugeot Motors of America, Inc., 850 F.2d 1373, 1380 (10th Cir.1988); P. Areeda & H. Hovencamp, Antitrust Law Sec. 316.1b, at 281-82 (1989 Supp.) (approving Gibson two-part inquiry). The Ninth Circuit adopted a similar two-part inquiry in Richards v. Neilsen Freight Lines, 810 F.2d 898 (9th Cir.1987):
In antitrust cases, the analysis ... permits a defendant to rebut an allegation of conspiracy by showing a plausible and justifiable reason for its conduct that is consistent with proper business practice. Once a defendant has met this initial burden, a plaintiff must provide specific factual support for its allegations of conspiracy tending to show that the defendant was not acting independently.
Id. at 902 (citations omitted). The Second Circuit has also articulated the test as a shift in burdens. When the defendants establish that their conduct is consistent with independent action, the plaintiffs are required to come forward with evidence that tends to exclude the possibility of independent action. H.L. Hayden Co. of New York, Inc. v. Siemens Medical Sys., Inc., 879 F.2d 1005, 1014 (2nd Cir.1989). This court has enunciated a similar formulation in Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 660-61 (7th Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987), in which Judge Wood, writing for the court, held that the plaintiff failed to overcome a summary judgment motion because "it has not provided evidence tending to exclude the possibility that [the defendants] acted independently, or that would show that the inference of conspiracy to fix prices is reasonable in light of the competing inference of independent action." See also Great Escape, Inc. v. Union City Body Co., 791 F.2d 532, 536-37 (7th Cir.1986).
B. Application of the Standard to this Case
Following the analytical model used in Gibson, Richards, H.L. Hayden and Valley Liquors, we shall examine the evidence of record to determine if Market Force's case can survive a motion for summary judgment. Accordingly, we shall first examine Market Force's evidence of a conspiracy among the defendants. Second, we shall examine whether the defendants have offered evidence tending to show that the conduct of which Market Force complains is as compatible with the defendants' legitimate business activities as it is with illegal conspiracy. Finally, if we conclude that the foregoing analysis leaves the evidence of conspiracy ambiguous, we shall then determine whether Market Force can point to any evidence that tends to exclude the possibility that the defendants were pursuing their legitimate independent interests.
1. Evidence of a Conspiracy
In its effort to establish a conspiracy, Market Force submitted evidence of a) the defendant companies' mutual awareness of each others' policies; and b) hostile comments allegedly made about Market Force.
a) the circulation of policy statements
Market Force submitted evidence that some defendants had circulated buyers' broker commission rates and other firms had adopted policies regarding buyers' brokers after receiving the circulations. In late October 1987, Wauwatosa mailed to all members of the Milwaukee MLS copies of its policy expressing its intention to pay 20% of the selling agent's commission to buyers' brokers. After James Bruce, Coldwell Banker's chief operating officer, received a copy of the Wauwatosa policy, Coldwell Banker issued its own policy, setting the amount given as a commission at 20% of the total commission--half of the normal selling agent commission. Other firms subsequently adopted similar policies. Equitable/Stefaniak Realty issued a policy identical to Wauwatosa's that became effective December 15, 1987. A copy of the policy was mailed to all Milwaukee MLS members. On December 16, 1987, Realty World-Bloomfield Realty mailed its policy statement. Its policy was identical to the higher Coldwell Banker rates. Copies of the policy were mailed to all MLS members.
There is evidence that these mailings prompted at least one real estate broker to adopt such a policy. Andrew Dean, president of Realty World-Dean Realty, adopted a buyers' broker policy on December 24, 1987. He testified at a deposition that he knew of no buyers' brokers operating in Milwaukee. Nevertheless, he wanted "to be one of the brokers in the area doing what everyone else is doing." R.87 Ex. 8 at 23.
Market Force characterizes Wauwatosa's circulation as "an implicit invitation to their competitors to adopt similar policies." Appellant's Br. at 32. However, evidence that brokers were aware of other brokers' policies regarding buyers' brokers before enacting their own policy is nothing more than a restatement of conscious parallelism. Since conscious parallelism by itself is not enough to support an antitrust conspiracy case, Market Force cannot rest only on examples of conscious parallelism to support its case.
Moreover, it is well established that evidence of informal communications among several parties does not unambiguously support an inference of a conspiracy. See Riverview Invs., Inc. v. Ottawa Community Improvement Corp., 899 F.2d 474, 484 (6th Cir.1990); Bolt v. Halifax Hosp. Medical Center, 891 F.2d 810, 827 (11th Cir.) ("That the defendants might have talked among themselves about [the plaintiff's business difficulties] is also insufficient to permit an inference of conspiracy."), cert. denied, --- U.S. ----, 110 S.Ct. 1960, 109 L.Ed.2d 322 (1990); Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 878 F.2d 801, 805-06 (4th Cir.1989) (evidence that dealers agreed with a ban on discounters not sufficient to support the inference of a conspiracy); cf. Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 662 (7th Cir.) (evidence of meetings among the defendants "is ambiguous at best and does not help to exclude the possibility" of independent action), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987).
b) hostile statements by defendants
As further evidence of conspiracy, Market Force also points to hostile statements attacking Market Force that were made by the defendants to home buyers, Market Force agents, and the MLS. The district court determined that the evidence put forward was insufficient to avoid summary judgment. We agree. The evidence before the district court suggests that there were several incidents in which harsh words were spoken. However, the incidents do not foreclose the conclusion that the competitors were not engaged in a conspiracy. The evidence of hostility appears as likely as not to be isolated incidents or merely "sales hype."
2. Legitimate Business Justification for Actions
The defendants also offered legitimate business reasons for the actions that Market Force suggested were evidence of an illegal conspiracy. Coldwell Banker submits that the reason it sent out its policy was to inform other brokers that it would pay a lower fee to buyers' brokers. R.59 at 2. Wauwatosa asserts that the executive vice-president of the MLS told Joann Glawe that firms other than Market Force were acting as buyers' brokers, and that an appropriate way to inform them was to send the policy to all brokers. R.67 at 10-11. If the exchange of information regarding the commissions that the firms would pay is not unreasonable business behavior, then it is not an illegal agreement. Supermarket of Homes, Inc. v. San Fernando Valley Bd. of Realtors, 786 F.2d 1400, 1407 (9th Cir.1986); cf. City of Long Beach v. Standard Oil Co., 872 F.2d 1401, 1406 (9th Cir.1989) (noting that competitors may exchange price information for legitimate business reasons), cert. denied, --- U.S. ----, 110 S.Ct. 1126, 107 L.Ed.2d 1032 (1990).
3. Evidence Tending to Exclude Possibility of Independent Action
Because the evidence of the existence of a conspiracy among the brokers in Milwaukee is ambiguous, the plaintiff may survive summary judgment only by putting forth "evidence that tends to exclude the possibility that the defendants were pursuing ... independent interests." Gibson v. Greater Park City Co., 818 F.2d 722, 724 (10th Cir.1987).
According to Market Force, "[t]he lame nature of the excuses the companies muster for their referral policies is circumstantial evidence that the policies were adopted for other reasons. The reasonable inference is that the companies' real motivation was their predatory intent to drive buyers' brokers from the market before they could establish a foothold." Appellant's Br. at 43. However, in her affidavit, Joann Glawe of Wauwatosa enumerated several specific reasons for adopting a referral policy regarding buyers' brokers, including (1) that Wauwatosa paid the listing sales associate a greater commission in a sale involving Market Force, or allocated the gross commission among the listing and selling brokers and paid a referral fee to Market Force; (2) that a selling broker may still be involved in the transaction, as in the case of a sale generated from an open house; and (3) that a listing sales associate must do more work when there is no selling broker. R.67 at 4-7. The district court concluded that there were plausible reasons for the firms each to adopt a policy about buyers' brokers. The court noted that Wauwatosa and Coldwell Banker put forth "independent business reasons ... [which were] not economically irrational." 706 F.Supp. at 1394. We agree. Market Force has not met its burden of providing "specific factual support for its allegations of conspiracy tending to show that the defendant was not acting independently." Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.1987). Accordingly, we cannot say that there is any genuine issue of triable fact requiring the reversal of summary judgment.
Conclusion
The teaching of Monsanto and Matsushita is that, in order to survive a summary judgment motion, a plaintiff must put forward evidence that tends to exclude the possibility of independent action. A defendant is entitled to summary judgment when it "provides a plausible and justifiable alternative interpretation of its conduct that rebuts the alleged conspiracy." City of Long Beach v. Standard Oil Co., 872 F.2d 1401, 1406 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1126, 107 L.Ed.2d 1032 (1990). There is no evidence suggested by the plaintiff that sufficiently refutes the possibility that each defendant, acting independently, decided that the difference in services provided by buyers' brokers required a different referral policy than for standard seller brokers. We thus conclude that the district court correctly decided that the evidence left open the possibility of independent action despite the plaintiff's assertion that the defendants did not have a rational economic reason to adopt referral policies. Accordingly, the judgment of the district court is affirmed.
AFFIRMED.