The Serpa v. McWane, Inc.

• Court: Court of Appeals for the First Circuit
• Decided: December 8, 1999
• Docket: 99-1256
• Status: Published

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 99-1256



                      THE SERPA CORPORATION,



                      Plaintiff, Appellant,



                                v.



        MCWANE, INC., ANACO, f/k/a ANAHEIM FOUNDRY COMPANY

                    AND TYLER PIPE INDUSTRIES,



                      Defendants, Appellees.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Nancy J. Gertner, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



                 Lynch and Lipez, Circuit Judges.



                      _____________________



    Mitchell A. Kramer, with whom Kramer & Friedman was on brief,

for appellant.

    Margaret A. Lange, with whom Lawrence G. Green, and Perkins,

Smith & Cohen, LLP were on brief, for appellees.


____________________



                         December 8, 1999

                       ____________________         TORRUELLA, Chief Judge.  Plaintiff The Serpa Corporation

brings this suit against defendant corporations McWane, Inc.,

Anaco, and Tyler Pipe Industries, alleging violations of the

federal antitrust laws and various state law causes of action.  The

district court dismissed plaintiff's antitrust claims on June 10,

1998, and granted summary judgment for defendants on the remaining

state law claims on January 12, 1999.  This appeal followed.  After

carefully examining the record and the law, we affirm.

                            BACKGROUND

         The Serpa Corporation is a distributor of plumbing

supplies.  Between 1976 and 1996, Serpa was the exclusive sales

representative in New England for certain plumbing supply products

manufactured by defendant Anaco.

         Anaco manufactures cast iron soil pipes ("CISPs") and

stainless steel no-hub joints known as fittings and couplings.

CISPs, fittings, and couplings are used to transport human waste

from buildings to sewer lines.  Because the products are

manufactured in accordance with industry standards, they are

virtually identical across companies.  Historically, the products

were sold through exclusive sales representatives, like Serpa, who

sold the products to plumbing supply wholesalers on the basis of

price.  In this case, Serpa sold couplings and fittings

manufactured by Anaco and used its position as a regional sales

representative to offer price discounts to wholesalers within

guidelines set by Anaco.

         Serpa's complaint alleges that between November 1995 and

August 1996, defendant McWane acquired both Tyler and Anaco.  Prior

to being acquired by McWane, Tyler was a competitor of Anaco's. 

Plaintiff further alleges that the acquisitions of Tyler and Anaco

gave McWane control of more than eighty-five percent (85%) of the

couplings and fittings market in New England.

         After acquiring Anaco, McWane placed the marketing of

Anaco products under the direction of Tyler and subsequently

terminated Serpa as a sales representative for Anaco products.  The

November 19, 1996 termination letter stated that Anaco would pay

Serpa a duplicate commission for all orders received and invoiced

for one month, rather than have Serpa serve as a "lame duck" sales

representative for that time.

         Serpa filed this suit on July 7, 1997, alleging that

defendants' consolidation lessened competition and constituted an

attempt to monopolize the New England market for CISPs, fittings,

and couplings in violation of the federal antitrust statutes. 

Serpa also alleged state law causes of action for breach of

contract, interference with advantageous business relations, breach

of the implied covenant of good faith and fair dealing, and

violation of the Massachusetts Consumer Protection Act, M.G.L.A.

c. 93A.

         The district court dismissed plaintiff's antitrust claims

on June 10, 1998, and granted summary judgment for defendants on

the remaining state law claims on January 12, 1999.                            DISCUSSION

I.  Plaintiff's Antitrust Claims

         Plaintiff argues that the district court erred in

dismissing its antitrust claims for lack of standing.  We review a

dismissal for failure to state a claim pursuant to Fed. R. Civ. P.

12(b)(6) de novo, accepting all well-pleaded facts as true and

drawing all reasonable inferences in favor of the party dismissed.

See Carreiro v. Rhodes Gill and Co., Ltd., 68 F.3d 1443, 1446 (1st

Cir. 1995); Washington Legal Found. v. Massachusetts Bar Found.,

993 F.2d 962, 971 (1st Cir.1993).  We do not, however, accept a

plaintiff's unsupported conclusions or interpretations of law.  Id. 

For the reasons stated below, we affirm the ruling of the district

court.

         Plaintiff's complaint alleges that McWane's acquisition

of Anaco and Tyler has had and will have the effect of

substantially lessening competition or tending to create a monopoly

in the New England market for CISPs, fittings, and couplings in

violation of  2 of the Sherman Act, 15 U.S.C.  2, and  7 of the

Clayton Act, 15 U.S.C.  18.  Before reaching the merits of the

federal antitrust claim, defendants moved the district court to

dismiss on the grounds that the plaintiff lacks standing under  4

of the Clayton Act. 

         Section 4 of the Clayton Act provides a private cause of

action for violations of the federal antitrust laws.  The statute

states:

                  Any person who shall be injured in his

         business or property by reason of anything

         forbidden in the antitrust laws may sue

         therefor . . . and shall recover threefold the

         damages by him sustained, and the cost of

         suit, including a reasonable attorney's fee.



15 U.S.C.  15.  Despite the broad language of  4, the Supreme

Court has held that  4 of the Clayton Act does not "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, 477 (1982); see also Hawaii v. Standard Oil Co., 405 U.S. 251,

263 (1972) ("Congress did not intend the antitrust laws to provide

a remedy in damages for all injuries that might conceivably be

traced to an antitrust violation.").  Instead, the Court has

created a comprehensive antitrust standing doctrine to determine

which persons are entitled to bring suit under the federal

antitrust statutes.  See Associated General Contractors of Cal.,

Inc., v. California State Council of Carpenters, 459 U.S. 519,

529-35 (1983); Sullivan v. Tagliabue, 25 F.3d 43, 45 (1st Cir.

1994).

         Standing is restricted in antitrust cases to avoid

overdeterrence.  By limiting the availability of private antitrust

actions to certain parties, federal courts "ensure that suits

inapposite to the goals of the antitrust laws are not litigated and

that persons operating in the market do not restrict procompetitive

behavior because of a fear of antitrust liability."  Todorov v. DCH

Healthcare Auth., 921 F.2d 1438, 1449 (11th Cir. 1991); see also 

Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d

391, 394 (7th Cir. 1993) ("Given the potential scope of antitrust

violations and the availability of treble damages, an overbroad

reading of  4 could result in 'overdeterrence,' imposing ruinous

costs on antitrust defendants, severely burdening the judicial

system, and possibly chilling economically efficient behavior."). 

The result is that standing in an antitrust case is "not simply a

search for an injury in fact; it involves an analysis of prudential

considerations aimed at preserving the effective enforcement of the

antitrust laws."  Todorov, 921 F.2d at 1448 (citing Associated

General, 459 U.S. at 535).

         In Associated General, the Supreme Court set forth six

factors that must be evaluated on a case-by-case basis to determine

whether a plaintiff has standing to bring an antitrust action.  See

Sullivan, 25 F.3d at 46 (citing Associated General, 459 U.S. at

537-45).  These factors are:  (1) the causal connection between the

alleged antitrust violation and harm to the plaintiff; (2) an

improper motive; (3) the nature of the plaintiff's alleged injury

and whether the injury was of a type that Congress sought to

redress with the antitrust laws ("antitrust injury"); (4) the

directness with which the alleged market restraint caused the

asserted injury; (5) the speculative nature of the damages; and (6)

the risk of duplicative recovery or complex apportionment of

damages.  See id.

         Although courts must "consider the balance of factors in

each case in an effort to guard against 'engraft[ing] artificial

limitations on the  4 remedy,'" Sullivan, 25 F.3d at 46 (quoting

McCready, 457 U.S. at 472), we can dispose of this case on the

antitrust injury factor since distributors, like Serpa,

presumptively lack antitrust standing.  Cf. SAS of Puerto Rico,

Inc. v. Puerto Rico Tel. Co., 48 F.3d 39, 44-45 (1st Cir. 1995).

         The Supreme Court has defined "antitrust injury" as an

"injury of the type the antitrust laws were intended to prevent and

that flows from that which makes defendants' acts unlawful." 

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489

(1977).  The harm "should reflect the anticompetitive effect either

of the violation or of anticompetitive acts made possible by the

violation.  It should, in short, be 'the type of loss that the

claimed violations . . . would be likely to cause.'"  Id. (quoting

Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 125

(1969)).  Consequently, a proper plaintiff "must prove more than

injury causally linked to an illegal presence in the market."  Id.

         Competitors and consumers in the market where trade is

allegedly restrained are presumptively the proper plaintiffs to

allege antitrust injury.  See SAS, 48 F.3d at 44-45.  ("[T]he

presumptively 'proper' plaintiff is a customer who obtains services

in the threatened market or a competitor who seeks to serve that

market.").  In contrast, a commercial intermediary, such as a

distributor or sales representative, generally lacks standing

because its antitrust injury is too remote.  See, e.g., G.K.A.

Beverage Corp., 55 F.3d at 767; SAS, 48 F.3d at 44; Fischer v. NWA,

Inc., 883 F.2d 594, 600 (8th Cir. 1989); John Lenore & Co. v.

Olympia Brewing Co., 550 F.2d 495, 500 (9th Cir. 1977); Universal

Brands, Inc. v. Philip Morris, Inc., 546 F.2d 30, 33 (5th Cir.

1977).  A leading antitrust treatise explains:

                  [C]learly lacking antitrust injury, and thus

         having no standing, is the firm whose injury

         is caused merely by the efficiency effects of

         a vertical merger.  For example, once a firm

         has integrated vertically into distribution by

         acquiring one or more existing distributors,

         it may reduce costs by dealing only with its

         wholly-owned distributors.  A distributor

         terminated for this reason might certainly

         suffer injury-in-fact, but it would not suffer

         antitrust injury as long as there were

         alternative sources of the product.



Areeda & Hovenkamp, Antitrust Law  381'c, at 114 (Supp. 1999).

         Fischer is indicative of the case law concerning

antitrust injury.  In Fischer, former stockholders of a regional

airline, Fischer Bros. Aviation, filed an antitrust suit against

Northwest Airlines.  The complaint stated that on December 23, 1995

Northwest and Fischer signed an exclusive regional airline service

agreement for all flights originating in Detroit.  On January 23,

1986, one month after the Northwest/Fischer agreement was signed,

Northwest announced that it was acquiring Republic Airlines.  At

that time, Republic had an ongoing, exclusive service contract for

the Detroit market with Simmons Airlines.  Unlike the

Northwest/Fischer agreement, however, the Republic/Simmons

agreement had no subsidization arrangement and was not terminable

at will with six months notice.

         On August 12, 1986, the Department of Transportation

approved Northwest's acquisition of Republic.  Although the

acquisition created a conflict between the Fischer and Simmons

regional service agreements, Northwest believed that a compromise

could be reached, accommodating the contractual rights of both

regional carriers and permitting them to share the Detroit market. 

However, all attempts to resolve the Fischer/Simmons conflict

failed, and Northwest was forced to terminate the Fischer contract.

         Fischer subsequently filed suit in federal court,

asserting antitrust claims against both Northwest and Simmons. 

Defendants moved for summary judgment, and the district court

granted the motion.  The Eighth Circuit concluded that Fischer had

not suffered antitrust injury and therefore lacked antitrust

standing.  The court reasoned:

                  Our review of the record convinces us that

         Fischer failed to prove that it has suffered

         an antitrust injury.  Fischer does not contend

         that it was a customer of Northwest forced to

         pay increased prices.  Nor was Fischer a

         competitor injured by Northwest's acquisition

         of monopoly power (roughly 75% of the Detroit

         market).  Rather, Fischer asserts that it

         suffered damage when it was terminated as

         Northwest's exclusive regional carrier in

         Detroit.  We conclude that Fischer's

         termination was not caused by anticompetitive

         conduct or an anticompetitive effect of such

         conduct; rather, it was caused by Northwest's

         need to avoid employing two regional airlines

         where only one was required.  We are convinced

         that even in a city in which Northwest had far

         less than monopoly power, it would have been

         reluctant to waste resources on overlapping

         contractual agreements providing twice the

         regional connecting flight service required.



Fischer, 883 F.2d at 600.

         Olympia Brewing Co. is also illustrative.  The defendant,

Olympia, acquired Hamm's Brewing Co. and terminated Hamm's

distributors, including the plaintiff, John Lenore & Co.  Lenore

sued Olympia, alleging that the acquisition violated  7 of the

Clayton Act because it substantially lessened competition.  The

district court granted summary judgment in favor of Olympia, and

the Ninth Circuit affirmed.

         Citing Brunswick, the Ninth Circuit held that Lenore did

not have standing to sue because it had not suffered antitrust

injury.  See Olympia Brewing Co., 550 F.2d at 500.  The court

reasoned that the acquisition of Hamm's violated the antitrust

laws, if at all, because competition was reduced in the manufacture

of beer, a market in which Lenore was neither a competitor nor a

consumer.

                  Even though Lenore's injury may have ". . .

         occurred 'by reason of' the unlawful

         acquisitions, it did not occur 'by reason of'

         that which made the acquisition unlawful." 

         The terminations were an incidental matter

         which the merger may have made possible, but

         certainly did not cause.  All Lenore really

         alleges is that because Olympia purchased the

         Hamm's brand, Lenore was replaced in favor of

         other distributors.  This is insufficient to

         make out a case under  7 which is concerned

         with competition, not competitors.



Id. (internal citations omitted).

         Here, Serpa does not bring its claim as either a

competitor or a consumer but as a distributor whose injuries

resulted from the loss of its position as Anaco's exclusive sales

representative in the New England market.  This loss is neither

connected with, nor resulted from, defendant's market power in the

CISPs, fittings, and couplings industry.  Therefore, plaintiff's

injuries do not flow "from that which makes the defendants' acts

unlawful."  Brunswick, 429 U.S. at 489.  Because Serpa's injuries

flow from the termination of its distributorship, and not from any

anticompetitive effects of defendants' acquisition of Anaco, we

find that Serpa has not suffered an antitrust injury.  See G.K.A.

Beverage Corp., 55 F.3d at 767; SAS, 48 F.3d at 44; Fischer, 883

F.2d at 600; Olympia Brewing Co., 550 F.2d at 500.

         In reaching this conclusion, we recognize that there may

be some instances where presumptively disfavored plaintiffs do have

standing to bring an antitrust action.  See SAS, 48 F.3d at 45.  In

SAS, this court stated that although competitors and consumers are

presumptively favored, "'presumptively' does not mean always; there

can be exceptions, for good cause shown."  Id.  Here, Serpa alleges

that it is the "only truly viable plaintiff" because (1) "there is

no real competitor on the manufacturing level," and (2) plumbing

wholesalers, contractors, and home buyers have no incentive to file

an antitrust suit because monopoly pricing in this market increases

the costs to individual consumers by a relatively small margin. 

This Court has stated that the "most obvious reason for conferring

standing on a second-best plaintiff is that, in some general

category of cases, there may be no first best with the incentive to

sue."  Id. (citing Associated General, 459 U.S. at 542).  In this

case, however, we are satisfied that at least some consumers, as

well as defendants' competitors, have ample incentive to bring an

antitrust claim.  

         The complaint alleges:

                  Shortly after the termination of Serpa as the

         representative for Anaco Couplings and

         Fittings, Anaco began to increase its prices

         for Couplings by announcing a wholesale list

         price increase of approximately seven percent

         (7%) and reducing the amount of discounts

         commonly provided to wholesalers.



A seven-plus percent increase in the cost of major plumbing

components is not de minimus.  Although the individual home buyer

may be hindered by imperfect information, there is ample reason to

believe that large contractors and commercial entities involved in

the construction of "multi-unit residential and commercial

buildings" have the necessary information, incentive, and resources

to resist monopoly pricing by defendants.

         As for defendants' competitors, the complaint indicates

that they account for approximately fifteen percent (15%) of the

New England market.  We need look no further to rebut plaintiff's

assertion that "there is no real competitor on the manufacturing

level."  The complaint, however, contains two additional

allegations that we believe are significant.  First, the complaint

states that in 1992 Anaco instituted an antitrust action in federal

court against Tyler for engaging in predatory pricing.  Second, the

complaint alleges that defendants have acted in concert to

"eliminate competition in the sale of Couplings and Fittings in the

New England market."  Although competitors are not necessarily

injured by monopoly pricing, they are clearly injured by an abuse

of monopoly power such as predatory pricing.  Where, as here, the

complaint alleges that defendants have an intent to eliminate

competition in the New England market and have been sued for

engaging in anticompetitive conduct in the recent past, there is

every reason to believe that defendants' competitors have ample

incentive to bring an antitrust claim.  Accordingly, there is no

reason to extend antitrust standing to Serpa, a distributor

incidentally connected to the alleged antitrust violation in this

case.

         Finally, plaintiff's reliance on Blue Shield of Va. v.

McCready, 457 U.S. 465 (1982), is misplaced.  In McCready, the

court held that a consumer of health services could sue under the

antitrust laws to redress an alleged conspiracy between her

insurance plan and Virginia psychiatrists.  The terms of the plan

precluded participants from receiving reimbursements for treatment

given by psychologists.  Although McCready was not the immediate

target of the alleged boycott, she was a plan beneficiary who had

used a psychologist and had been denied reimbursement.  The Supreme

Court granted McCready standing, stating that her injury "was

inextricably intertwined with the injury the conspirators sought to

inflict on psychologists and the psychotherapy market."  Id. at

484.  The Court further stated that McCready was the "necessary

step in effecting the ends of the alleged illegal conspiracy."  Id.

at 479.

         Serpa urges the Court to apply the "inextricably

intertwined" language of McCready to this case.  We decline. 

First, this Court has already stated that "[i]t is doubtful that

this language -- if taken as a physical image -- was ever intended

as a legal test of standing."  SAS, 48 F.3d at 46.  Second, while

standing in McCready was conferred to a plaintiff who was only

derivatively injured, the plaintiff was a consumer in the market

directly affected by the antitrust violation.  Accordingly,

subsequent Supreme Court jurisprudence has interpreted the McCready

language as a legal conclusion; i.e., applying the "inextricably

intertwined" standard to consumers and competitors.  See Atlantic

Richfield v. USA Petroleum Co., 495 U.S. 328, 345 (1990);

Associated General, 459 U.S. at 539; SAS, 48 F.3d at 46.  Moreover,

even if we thought "inextricably intertwined" was a proper test for

standing, the facts do not support its application in this case. 

Specifically, Serpa's marginal pricing discretion belies

plaintiff's assertion that defendants necessarily had to terminate

Serpa to eliminate competition in the New England plumbing supply

market.  Therefore, under the circumstances of this case, we

decline to interpret McCready broadly, believing that such an

approach would needlessly expand the limits of antitrust standing

currently in place in this Circuit.

II.  Plaintiff's State Law Causes of Action

         Following the district court's dismissal of the antitrust

claims, the parties commenced discovery on plaintiff's remaining

state law claims.  The complaint alleged (1) breach of contract;

(2) interference with advantageous business relations; (3) breach

of the implied covenant of good faith and fair dealing; and (4)

violation of the Massachusetts Consumer Protection Act, M.G.L.A.

c. 93A.  At the conclusion of the scheduled discovery period,

defendants moved for summary judgment on these remaining counts,

and the district court granted the motion on January 12, 1999.         A.  Breach of Contract

         Anaco informed Serpa of its intent to terminate Serpa as

its exclusive sales representative by letter dated November 19,

1996.  The letter indicated that Serpa's termination was effective

immediately, but stated that Anaco would pay Serpa a duplicate

commission for all orders received and invoiced for one month,

rather than have Serpa serve as a "lame duck" sales representative

for that time.

         Under Massachusetts law, a contract without a durational

term is terminable at will by either party upon reasonable notice. 

See Teitelbaum v. Hallmark Cards Inc., 520 N.E.2d 1333, 1336 (Mass.

App. Ct. 1988).  Plaintiff argues that whether Anaco provided

reasonable notice of termination is a question of fact, and

therefore summary judgment was inappropriate.  We disagree.

         In Teitelbaum, the court determined that a breach of

contract claim for inadequate notice of termination may be disposed

of by motion for summary judgment.  See id. at 1336.  In reaching

this conclusion, the court stated that reasonableness of notice "is

measured in terms of the ability of the party affected by the

termination to obtain a substitute arrangement."  Id.

                  If that party is able to obtain another

         supplier before the performance of the party

         effecting termination becomes due, then it

         necessarily follows that the terminating party

         has furnished reasonable notice and will not

         be responsible for damages.  Put another way,

         the adequacy of the notice is generally

         coextensive with the amount of harm that can

         be proved by the party who has incurred the

         loss of a supplier.



Id.  Here, there is no evidence in the record that Serpa's injuries

resulted from inadequate notice of termination.  Serpa merely

states that following its termination by Anaco it was deprived of

its commissions on Anaco products.  This is an inevitable loss and

does not arise from the manner in which the contract was

terminated.

         Plaintiff's reliance on Cherick Distributors, Inc. v.

Polar Corporation, 669 N.E.2d 218 (Mass. App. Ct. 1996), is

misplaced.  In Cherick, the plaintiff's exclusive distributorship

agreement was terminated by defendant on four days notice in

retaliation for a letter plaintiff sent to other distributors

urging the distributors to collectively negotiate with the

defendant.  The court determined that "[w]hether the four-day

termination notice constituted reasonable notice under commercial

standards of good faith and fair dealing was a question properly

put to the jury in this case."  Id. at 220.  The court reasoned:

                  The evidence indicated that the four-day

         notice left Cherick with no time to secure

         another supplier, make adjustments in its

         equipment and warehouse, and maintain its

         staff.  Accordingly, there was adequate

         support for the jury's finding that four days'

         notice was unreasonable and that it

         constituted a breach of the covenant of good

         faith and fair dealing.



Id.  Here, in contrast, plaintiff did not present any evidence that

a month was insufficient time to secure another supplier, to make

adjustments to its operations, or that it provided Serpa with an

inadequate opportunity to maintain its staff.  Accordingly, Cherick

does not require reversal of the district court's ruling.

         B.  Implied Covenant of Good Faith and Fair Dealing

         Plaintiff argues that its abrupt termination constitutes

a breach of the implied covenant of good faith and fair dealing

that is implicit in every contract.  See Anthony's Pier Four, Inc.

v. HBC Assocs., 583 N.E.2d 806, 820 (Mass. 1991) ("Every contract

implies good faith and fair dealing between the parties to it."). 

Plaintiff's argument is unavailing.  The notice of termination was

reasonable and there is nothing per se unreasonable about

terminating an exclusive distributorship contract.

         Plaintiff's reliance on Cherick is once again misplaced. 

The Cherick plaintiff was terminated by defendant on four days

notice, in retaliation for its suggestion to similarly situated

distributors that they band together and collectively bargain with

the defendant manufacturer.  In this case, there is no evidence

that Anaco's termination of Serpa had a retaliatory motive, was

undertaken in bad faith, or otherwise violated public policy. 

Additionally, Serpa was paid commissions for a period of thirty

days following its termination.  Under these circumstances, we find

that Serpa cannot show a breach of the implied covenant of good

faith and fair dealing.

                      C.  Intentional Interference With Advantageous Business

             Relationship



         Under Massachusetts law, to state a cause of action for

intentional interference with an advantageous business

relationship, plaintiff "must plead and prove that the defendants

(1) engaged in intentional and willful acts (2) calculated to cause

damage to the plaintiffs' lawful business (3) with an unlawful

purpose and without right or justification, (4) thereby causing

actual damage or loss."  Doyle v. Hasbro, Inc., 884 F. Supp. 35, 40

(D. Mass. 1995); Chemawa Country Golf, Inc. v. Wnuk, 402 N.E.2d

1069, 1072 (Mass. App. Ct. 1980).

         In this case, Serpa argues that "defendants acted in

stealthy haste to terminate Serpa's contract to prevent it from

acquiring competing product lines to sell to its former Anaco

customers."  As with its other contractual claims, Serpa relies on

Cherick in support of its argument.  Again, however, we find that

Cherick is inapposite.  In Cherick, the court held "[t]he jury

could have found that the abrupt termination of Cherick's

distributorship agreement, coinciding as it did with the planned

meeting of Polar distributors, was calculated to put Cherick out of

business and thereby discourage other distributors from meeting." 

669 N.E.2d at 220.  Here, in contrast, defendants made a legitimate

business decision based on obvious efficiency concerns to eliminate

one of two overlapping distributors.  There is no evidence in the

record of an unlawful or improper motive, and nothing in the record

indicates that defendants' conduct was calculated to injure Serpa. 

Further, there is no evidence that a month is insufficient notice

of termination.  Accordingly, we find that summary judgment on this

claim was proper.

         D.  Massachusetts General Laws ("Chapter 93A")

         For conduct to violate Chapter 93(A) it must (1) fall

within "the penumbra of some common-law, statutory, or other

established concept of unfairness"; (2) be "immoral, unethical,

oppressive, or unscrupulous"; and (3) "cause[] substantial injury

to [other businessman]."  Linkage Corp. v. Trustees of Boston

Univ., 679 N.E.2d 191, 209 (Mass. 1997) (quoting PMP Assocs., Inc.

v. Globe Newspaper Co., 321 N.E.2d 915, 917 (Mass. 1975)).  Here,

Serpa relies on the "same facts underlying its federal antitrust

claims to support its Massachusetts statutory claim."

         Having carefully reviewed the record, we conclude there

is no evidence of "immoral, unethical, oppressive, or unscrupulous"

conduct sufficient to state a Chapter 93A claim.  See Bradley v.

Dean Witter Realty, Inc., 967 F. Supp. 19, 29 (D. Mass. 1997).  As

a matter of law, "a refusal to deal, without a showing of

monopolistic purpose or concerted effort to hinder free trade, is

not an unfair trade practice under G.L.C. 93A, and is therefore not

actionable."  PMP Assocs., 321 N.E.2d at 919.  Accordingly, summary

judgment on this claim was proper.

                            CONCLUSION

         For the reasons stated above, we affirm the judgment of

the district court.