Ultimate Collision Repair, Inc. v. State Farm Indemnity Company

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 7, 2017
• Docket: 15-14162
• Status: Published

Opinion

Case: 15-14160 Date Filed: 09/07/2017 Page: 1 of 77

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 15-14160 ________________________

D.C. Docket Nos. 6:14-md-02557-GAP-TBS, 6:14-cv-06012-GAP-TBS

QUALITY AUTO PAINTING CENTER OF ROSELLE, INC., Traded as Prestige Auto Body,

Plaintiff-Appellant,

versus

STATE FARM INDEMNITY COMPANY, STATE FARM GUARANTY INSURANCE COMPANY, et al.,

Defendants-Appellees.

________________________

No. 15-14162 ________________________

D.C. Docket Nos. 6:14-md-02557-GAP-TBS, 6:14-cv-06013-GAP-TBS

ULTIMATE COLLISION REPAIR, INC.,

Plaintiff-Appellant, Case: 15-14160 Date Filed: 09/07/2017 Page: 2 of 77

STATE FARM INDEMNITY COMPANY, STATE FARM GUARANTY INSURANCE COMPANY, et al.,

No. 15-14178 ________________________

D.C. Docket Nos. 6:14-md-02557-GAP-TBS, 6:14-cv-06018-GAP-TBS

CAMPBELL COUNTY AUTO BODY, INC.,

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, STATE FARM FIRE & CASUALTY COMPANY, et al.,

No. 15-14179 ________________________

D.C. Docket Nos. 6:14-md-02557-GAP-TBS, 6:14-cv-06019-GAP-TBS

2 Case: 15-14160 Date Filed: 09/07/2017 Page: 3 of 77

LEE PAPPAS BODY SHOP, INC., DAVID C. BROSIUS, d.b.a. Martins Auto Body Works, Inc., ART WALKER AUTO SERVICES, INC., WHITEFORD COLLISION AND REFINISHING, INC.,

Plaintiffs-Appellants,

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, STATE FARM FIRE & CASUALTY COMPANY, et al,

No. 15-14180 ________________________

D.C. Docket Nos. 6:14-md-02557-GAP-TBS, 6:15-cv-06022-GAP-TBS

CONCORD AUTO BODY, INC.,

Plaintiff – Appellant,

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, STATE FARM FIRE & CASUALTY COMPANY, et al,

3 Case: 15-14160 Date Filed: 09/07/2017 Page: 4 of 77

Appeals from the United States District Court for the Middle District of Florida ________________________

(September 7, 2017)

Before WILSON and ANDERSON, Circuit Judges, and ROTHSTEIN, * District Judge.

WILSON, Circuit Judge:

Automobile body shops filed five complaints, each asserting federal antitrust

and state tort claims against insurance companies. The body shops appeal the

dismissal of their complaints for failure to state a claim.

The automobile insurance and repair industries have customs and practices

that the public frequently encounter and endorse. The public’s level of familiarity,

however, has no bearing on whether such customs and practices have been

employed for the benefit of a long-term scheme designed to thwart antitrust and

tort laws. Wary of the prejudicial effect of preconceptions about these industries,

assuming as true only those facts within the four corners of the complaints, and

drawing inferences from those facts only in favor of the body shops, we determine

* Honorable Barbara Jacobs Rothstein, United States District Judge for the Western District of Washington, sitting by designation. 4 Case: 15-14160 Date Filed: 09/07/2017 Page: 5 of 77

that the shops pleaded enough facts to plausibly support their federal antitrust and

state tort claims. We reverse the dismissal of those claims.

I. Introduction

In their complaints, the body shops argue that the insurance companies

engaged in two lines of tactics in pursuit of a single goal: to depress the shops’

rates for automobile repair. The first line of tactics was designed to set a “market

rate,” which reflected not the forces of the market but an artificial rate that would

benefit only the insurance companies. The second line of tactics was designed to

pressure the body shops into accepting the market rate by steering insureds away

from the non-compliant shops that charged more than the rate. The body shops

argue that the insurance companies’ concurrent lines of tactics violated both

federal antitrust and state tort laws.

The body shops argue two types of antitrust violations. First, the body shops

argue that the insurance companies engaged in horizontal price fixing, an illegal

agreement among competitors to fix prices. Instead of pleading facts that directly

support the existence of an agreement, the body shops plead facts supporting

circumstances—such as parallel conduct, adoption of a uniform price despite

variables that would ordinarily result in divergent prices, and uniform practices—

from which the shops infer the existence of an agreement. Second, the body shops

argue that the insurance companies boycotted the non-compliant shops that 5 Case: 15-14160 Date Filed: 09/07/2017 Page: 6 of 77

charged more than the fixed prices by enlisting unwitting insureds into their

scheme. Specifically, the body shops argue that the insurance companies steered

insureds away from the non-compliant shops with misleading or false statements

about the shops’ business integrity and quality.

Arguing the commission of three state torts, the body shops assert that the

insurance companies were unjustly enriched, deprived the shops of quantum

meruit, and tortiously interfered with potential business of the shops.

Because the body shops plead enough facts to plausibly support their federal

antitrust and state tort claims, we reverse the dismissal of those claims.

II. Factual Allegations 1

A. The insurance companies generate a significant portion of the body shops’ revenues.

The body shops operate in Kentucky, Missouri, New Jersey, and Virginia.

The insurance companies offer policies in these states and collectively control

approximately 65% of the private passenger automobile insurance market in

Kentucky, 85% in Missouri, 72% in New Jersey, and 100% in Virginia. Of the

insurance companies, the State Farm companies have the largest market share: they

1 Reviewing a dismissal for failure to state a claim, we accept the factual allegations as true and draw all reasonable inferences in favor of the claimant. Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns, Inc., 376 F.3d 1065, 1070 (11th Cir. 2004). The facts as pleaded in the complaints, and viewed in the light most favorable to the plaintiffs, are as follows. 6 Case: 15-14160 Date Filed: 09/07/2017 Page: 7 of 77

control approximately 22.3% of the private passenger automobile insurance market

in Kentucky, 22.88% in Missouri, and 14.85% in Virginia. 2 The insurance

companies’ insureds generate 60% of the Kentucky body shop’s revenue and

between 70% and 95% of the revenue of each of the remaining body shops. Most

of the insurance companies are subsidiaries or affiliates, or are otherwise related.

B. First line of tactics: The insurance companies select the “market rate” at which they reimburse the body shops.

The insurance companies refuse to reimburse the body shops at more than

the “market rate,” which is a term that appears in direct repair program (DRP)

agreements between the companies and certain body shops. Under a DRP

agreement, an insurance company lists a body shop as a “preferred provider” in

exchange for the company’s paying the shop no more than the “going rate in the

market area.” However, even if a body shop does not participate in an insurance

company’s DRP, the company refuses to reimburse the shop at more than the

market rate. None of the plaintiff body shops participates in a defendant insurance

company’s DRP. 3

2 The New Jersey complaints do not allege State Farm’s control of that state’s private passenger automobile insurance market. 3 The Missouri body shop participated in State Farm’s DRP for ten years; State Farm eliminated the shop from the program in 2013 after the shop refused to implement the company’s parts procurement program. 7 Case: 15-14160 Date Filed: 09/07/2017 Page: 8 of 77

The market rate comprises the market labor rate and the market materials

costs, both of which the insurance companies select. The insurance companies use

the market labor rate that one company, State Farm, determines by using a method

that is unverified and the results of which State Farm manipulates. Also, the

insurance companies depress the market material costs by pressuring body shops

into using inferior parts and into offering discounts and concessions.

1. The insurance companies use the market labor rate that one company determines and manipulates.

In determining the market labor rate that all of the insurance companies use,

State Farm uses an unverified “half plus one” method of calculation and

manipulates the result.4 The half plus one method (1) calculates half plus one—an

amount we designate as “n”—of the total number of employees or work bays

(whichever is fewer in each body shop) in the market area; (2) lists the shops in a

market area from the shop with the fewest employees or work bays to the shop

with the most; and (3) declares the market labor rate as the labor rate of the shop

that employs the n-th employee or work bay. It is unclear how the method

designates a market area. No insurance company other than State Farm has

attempted to independently verify the results of this method.

4 In addition to using the market labor rate, the other insurance companies have specifically advised the body shops that the companies “will pay no more than State Farm pays for labor.” 8 Case: 15-14160 Date Filed: 09/07/2017 Page: 9 of 77

In addition to using an unverified method of calculating the market labor

rate, State Farm manipulates the results of the method by affecting the inputs.

First, State Farm affects the labor rate that a body shop submits through an online

survey compiling information used in the half plus one method. A body shop that

enters a DRP agreement with State Farm can fill out a survey about the shop’s

labor rate through an electronic forum, State Farm’s Business to Business portal.

State Farm can and does manipulate a body shop’s survey submission. Second,

State Farm affects the inputs used in the half plus one method by removing a body

shop that charges a higher labor rate from the DRP. If a DRP body shop tries to

charge more than the market labor rate, State Farm first tells the shop that it is the

only shop that is attempting to raise its labor rate—when in fact several shops have

done the same. If the DRP body shop continues to charge a higher labor rate, State

Farm threatens to and does remove the shop from the DRP. Thus the labor rate of

the body shop no longer contributes, even facially, to the calculation of the market

labor rate.

By using an unverified method of calculating the market labor rate and by

manipulating the results, State Farm achieves a wholly artificial market labor rate.

2. The insurance companies lower the market materials costs by pressuring the body shops into using inferior parts and into offering discounts and concessions.

9 Case: 15-14160 Date Filed: 09/07/2017 Page: 10 of 77

The insurance companies depress the market material costs. They use

tactics such as requiring a body shop to repair a faulty part rather than installing a

replacement part, even when the shop strongly recommends against continued use

of the faulty part; requiring a shop to install a used or recycled part, even when a

new part is available and would be best; and requiring a shop to offer discounts and

concessions, even if doing so will force the shop to operate at a loss.

3. The resulting market rate is arbitrary and inconsistent with leading collision repair estimating databases.

The resulting market rate is arbitrary and inconsistent with three leading

collision repair estimating databases, ADP, CCC, and Mitchell, on which the

insurance companies selectively rely. For example, insurance companies strictly

adhere to the labor time estimated by a database, yet they argue that materials costs

are included in a repair estimate (the amount that the companies would have to

pay) although the databases state that the costs are not included in an estimate.

The Kentucky and Missouri complaints include allegations about an employee of

Safeco Insurance Company who stated that “the corporate direction given was” for

the employee to pay a body shop in accordance with the databases only “when it

was financially advantageous to the insurer to do so.” This practice of creating

arbitrary rates forces a body shop either to perform an incomplete or substandard

repair—which prevents the shop from fulfilling an obligation to a customer to

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return a vehicle to its pre-accident condition—or to accumulate costs without

compensation—which jeopardizes the shop’s business. 5

C. Second line of tactics: The insurance companies force compliance with their artificial market rate.

The insurance companies force the body shops to charge at or less than the

market rate with misleading or false statements to insureds about a non-compliant

shop’s business integrity and quality. For example, the insurance companies tell

an insured that the body shop takes longer to repair (and that the company would

not pay for a rental car after a certain number of days); that the company cannot

guarantee the shop’s work as it does for other shops; that the shop offers lower

quality services; and that previous customers had complained about the shop. The

statement that a body shop takes longer is misleading because any delay by a shop

is caused by an insurance company’s delay in sending an appraiser to inspect an

insured’s vehicle.6 Also, the statement that an insurance company cannot

guarantee the body shop’s work is misleading because the company does not

guarantee the work of any shop. Finally, the insurance companies make the

5 The body shops attached as an exhibit to each complaint a “non-exhaustive list of procedures and processes the [d]efendants refuse to pay and/or pay in full.” 6 The New Jersey body shops allege that the GEICO companies in particular delay supplemental payments and delay re-inspecting vehicles. After finally inspecting a vehicle, a GEICO inspector would refuse to pay a body shop because the bill is “too old.” If the insured also refuses to pay the bill, the body shop must absorb the unpaid cost. 11 Case: 15-14160 Date Filed: 09/07/2017 Page: 12 of 77

remaining statements without ascertaining the truth of the statements and with the

intent to disparage a non-compliant body shop’s business integrity and quality.

III. Procedural History

Initially, the body shops sued in the states in which they are located.

Because the actions involved similar antitrust and tort claims, the Judicial Panel on

Multidistrict Litigation transferred the actions to the Middle District of Florida for

consolidated pretrial proceedings. This appeal is by body shops in five of fourteen

actions that were dismissed. Although the district court granted the body shops an

opportunity to amend their complaints, the shops in the five actions chose to appeal

instead. 7

IV. Standard of Review

We review de novo a dismissal for failure to state a claim. Spanish Broad.

Sys., 376 F.3d at 1070. We must reverse the dismissal if the complaint “state[s] a

claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,

127 S. Ct. 1955, 1974 (2007)), after we accept the factual allegations as true and

7 “Generally, an order dismissing a complaint is not final and appealable unless the order holds that it dismisses the entire action or that the complaint cannot be saved by amendment. . . . However, [in this circuit] the plaintiff need not wait until the time for amendment expires; he can waive the right to later amend, treat the dismissal as final, and file a notice of appeal before the expiration of the amendment period.” Van Poyck v. Singletary, 11 F.3d 146, 148 (11th Cir. 1994) (per curiam). 12 Case: 15-14160 Date Filed: 09/07/2017 Page: 13 of 77

draw all reasonable inferences in favor of the claimant, see Spanish Broad. Sys.,

376 F.3d at 1070.

An antitrust complaint must include allegations “plausibly suggesting (not

merely consistent with)” an illegal agreement among the defendants. Jacobs v.

Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1332 (11th Cir. 2010) (citing Twombly,

550 U.S. at 557, 127 S. Ct. at 1966). This requirement “reflects”—and does not

exceed—“the threshold requirement of Rule 8(a)(2) [of the Federal Rules of Civil

Procedure] that the [complaint’s] plain statement [of a claim] possess enough heft

to show that the pleader is entitled to relief.” Twombly, 550 U.S. at 557, 127 S. Ct.

at 1966 (internal quotation marks omitted); see also id. at 570, 127 S. Ct. at 1974

(clarifying that an antitrust claim is not subject to a “heightened” pleading

standard).

V. Federal Antitrust Claims

A. Horizontal Price Fixing

1. A price fixing agreement can be inferred in the absence of direct evidence of an agreement.

Under 15 U.S.C. § 1 of the Sherman Antitrust Act, any unreasonable

contract, combination, or conspiracy in the restraint of interstate trade or commerce

is illegal. See Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723,

108 S. Ct. 1515, 1519 (1988) (interpreting § 1 “to prohibit only unreasonable

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restraints of trade”). Generally, a plaintiff must demonstrate that such a contract,

combination, or conspiracy is “unreasonable and anticompetitive”; in other words,

we ordinarily apply the “rule of reason.” See Texaco Inc. v. Dagher, 547 U.S. 1, 5,

126 S. Ct. 1276, 1279 (2006). Certain classes of conduct, however, are deemed

“per se” violations, which are “conclusively presumed to be unreasonable and

therefore illegal without elaborate inquiry as to the precise harm they have caused

or the business excuse for their use.” See Nw. Wholesale Stationers, Inc. v. Pac.

Stationery & Printing Co., 472 U.S. 284, 289, 105 S. Ct. 2613, 2617 (1985).

An example of a per se violation is horizontal price fixing, Jacobs, 626 F.3d

at 1334, which must involve an agreement among competitors, “tacit or express,”

see Twombly, 550 U.S. at 553, 127 S. Ct. at 1964 (internal quotation marks

omitted). If the existence of the agreement is in doubt, the agreement can be

inferred. See id. Necessary for this inference is “parallel conduct or

interdependence,” ideas that are often used interchangeably. See id. at 554,

127 S. Ct. at 1964; Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1411

(3d ed. 2012). An example of parallel conduct is “conscious parallelism,” which is:

the process, not in itself unlawful, by which firms in a concentrated market might in effect share monopoly power, setting their prices at a profit-maximizing, supracompetitive level by recognizing their shared economic interests and their interdependence with respect to price and output decisions. 14 Case: 15-14160 Date Filed: 09/07/2017 Page: 15 of 77

Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227,

113 S. Ct. 2578, 2590 (1993); see also Williamson Oil Co. v. Philip Morris USA,

346 F.3d 1287, 1291 (11th Cir. 2003). Interdependence, also known as

“interdependent parallelism,” “means that the profitability of [a company’s]

decision depends upon rivals’ reactions.” Areeda ¶¶ 1434a, 1434c.

However, a party claiming horizontal price fixing based on an inferred

agreement must show more than parallel conduct, which on its own “falls short of

conclusively establishing agreement or . . . constituting a Sherman Act offense.”

Twombly, 550 U.S. at 553, 127 S. Ct. at 1964 (internal quotation marks omitted);

see also id. at 554, 127 S. Ct. at 1964 (finding that parallel conduct appears in “a

wide swath of rational and competitive business strategy unilaterally prompted by

common perceptions of the market”). Thus, in the absence of direct evidence of an

agreement, an antitrust claimant must show not only “parallel conduct” but also

“further factual enhancement.” Id. at 557, 127 S. Ct. at 1966; see also Almanza v.

United Airlines, Inc., 851 F.3d 1060, 1069 (11th Cir. 2017).

Often labeled “parallel plus” or “plus factors,” see, e.g., Twombly, 550 U.S.

at 553, 127 S. Ct. at 1963 (discussing the practice in the Second Circuit);

Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 45 (1st Cir. 2013),

these factual enhancements “serve as proxies for direct evidence of an agreement,” 15 Case: 15-14160 Date Filed: 09/07/2017 Page: 16 of 77

In re Flat Glass Antitrust Litig., 385 F.3d 350, 360 (3d Cir. 2004). This circuit has

never prescribed factors or a combination of factors that may be sufficient to tip

parallel conduct into the domain of per se violation. Compare Williamson Oil,

346 F.3d at 1301, with In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896,

907 (6th Cir. 2009) (prescribing which “‘plus factors’ [a]re important when

evaluating circumstantial evidence of concerted action”). Instead, this circuit has

determined that “any showing by [a plaintiff] that tends to exclude the possibility

of independent action can qualify as a plus factor.” Williamson Oil, 346 F.3d

at 1301 (internal quotation marks omitted); see also Almanza, 851 F.3d at 1069

(reproducing and refuting the plaintiffs’ list of “further factual enhancement[s]

needed to support a plausible inference of an agreement”).

Because we do not prescribe plus factors, we do not assign a predetermined

weight to a factor; we decide a factor’s importance only after reviewing it in the

context of the facts of the case and determining its tendency “to exclude the

possibility of independent action.” See Williamson Oil, 346 F.3d at 1301 (internal

quotation marks omitted); In re Musical Instruments & Equip. Antitrust Litig.,

798 F.3d 1186, 1189 (9th Cir. 2015) (“But plaintiffs’ plus factors are no more

consistent with an illegal agreement than with rational and competitive business

strategies, independently adopted by firms acting within an interdependent

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market.”). In the same vein, we do not prescribe how many plus factors would be

necessary to establish an illegal agreement; the number of factors present has no

bearing on whether an antitrust claimant has established an illegal agreement.

2. The body shops’ allegations readily and plausibly establish an inferred agreement.

The body shops’ allegations, accepted as true, readily and plausibly establish

both parallel conduct and the “further factual enhancement needed to support a

plausible inference of an agreement.” See Almanza, 851 F.3d at 1069. The body

shops plausibly establish parallel conduct; they allege that the insurance companies

adopted the same labor rate and materials costs and employed the same line of

tactics to depress the rate and costs. See Williamson Oil, 346 F.3d at 1304 (“As

evidenced by the repeated, synchronous pricing decisions that occurred within the

tobacco industry between 1993 and 2000, appellees plainly priced their products in

parallel.”).

Also, the body shops plausibly establish further factual enhancement. The

body shops identify two plus factors that together support a plausible inference of

an illegal agreement:

[1] Conduct that probably does not result from chance, coincidence, independent responses to common stimuli, or mere interdependence unaided by an advance understanding among the parties[; and] . . .

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[2] whether the defendants have been uniform in their actions[.]

The first is a well-recognized plus factor—the presence of “[c]ustomary

indications of traditional conspiracy”—and supports an inference of an illegal

agreement here. See Areeda ¶ 1434b; id. ¶ 1434b n.20 (listing “unnatural

parallelism” as an example of a customary indication of traditional conspiracy);

id. ¶ 1425 (defining unnatural parallelism as “parallel behavior that would

probably not result from chance, coincidence, independent responses to common

stimuli, or mere interdependence unaided by an advance understanding among the

parties”); Twombly, 550 U.S. at 556 n.4, 127 S. Ct. at 1965 n.4 (citing the Areeda

treatise for the proposition that unnatural parallelism is an illegal agreement). One

customary indication of traditional conspiracy is a group’s adoption of a uniform

price despite variables that would ordinarily result in divergent prices. See, e.g.,

Fed. Trade Comm’n v. Cement Inst., 333 U.S. 683, 713, 68 S. Ct. 793, 809 (1948)

(“The use of the multiple basing point delivered price system by the cement

producers has been coincident with a situation whereby for many years, with rare

exceptions, cement has been offered for sale in every given locality at identical

prices and terms by all producers.”); Areeda ¶ 1434b (stating that customary

indications of traditional conspiracy are present if rivals place “simultaneous

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identical bids on a made-to-order product not readily assembled from standard and

conventionally priced items”).

According to the body shops, the insurance companies “specifically advised

the [shops] they will pay no more than State Farm pays” despite variables that

would ordinarily contribute to divergent amounts of reimbursement. For example,

the insurance companies utilized State Farm’s market rate although the rate

necessarily depends on how each company defines a market. This definition can

depend on factors such as the geographic area that an insurance company offers

services, the locations that the company has physical offices, and the company’s

relationship with the body shops in certain areas. Also, the insurance companies

utilized State Farm’s market rate although the companies have the ability to

differentiate themselves by offering reimbursement for repairs using high quality

parts (e.g., only “replacement parts” from original manufacturers rather than

repaired faulty parts from insureds’ cars and “used or recycled parts” from other

cars) and highly skilled labor. Finally, the insurance companies utilized State

Farm’s market rate although the companies conduct business with different body

shops, which would charge different labor prices. A customary indication of

traditional conspiracy is present here and contributes to a plausible inference of an

illegal agreement.

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The second plus factor—uniform practices—also favors finding an illegal

agreement. The body shops allege that the insurance companies all engaged in the

first line of tactics, which included requiring a shop to repair a faulty part rather

than install a replacement part; to install a used or recycled part; and to offer

discounts and concessions, even to the detriment of the shops offering such

discounts and concessions. Also, the body shops allege that the insurance

companies all engaged in the second line of tactics. Although this line of tactics

primarily aims to force the body shops into compliance with the market rate, the

tactics aid also in creating an artificial market rate. The tactics include stating to

an insured that a body shop takes longer to repair (and that the insurance company

would not pay for a rental car after a certain number of days); that the company

cannot guarantee the shop’s work as it does for other shops; that the shop offers

lower quality services; and that previous customers had complained about the

shop. Each statement is either misleading or false. Each insurance company’s use

of this same collection of tactics contributes to a plausible inference of an illegal

agreement.

The body shops’ allegations readily and plausibly establish the existence of

parallel conduct, adoption of a uniform price despite variables that would

ordinarily result in divergent prices, and uniform practices, all from which we can

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infer the existence of an illegal agreement. See Twombly, 550 U.S. at 572,

127 S. Ct. at 1975. We reverse the dismissal of the price fixing claims.

3. The arguments against the plausible inference of an illegal agreement fail.

Dismissing the price fixing claims, the district court states—and the

insurance companies recite on appeal—that, “aside from conclusory allegations

that it exists, the Plaintiffs offer no details at all in the Amended Complaint about

the alleged agreement, such as how the Defendants entered into it, or when.”

However, allegations directly supporting the existence of an agreement, such as

form (written or oral) and date of entry, are unnecessary for a plausible claim of

horizontal price fixing. In the absence of direct evidence of an agreement, the

allegations necessary are those that plausibly establish parallel conduct and further

factual enhancement. “Asking for plausible grounds to infer an agreement . . .

simply calls for enough fact to raise a reasonable expectation that discovery will

reveal evidence of illegal agreement.” Twombly, 550 U.S. at 556, 127 S. Ct.

at 1965 (emphasis added). 8

The insurance companies argue that the body shops fail to allege an

agreement to fix a price because the “market rate” is a mere “ceiling” on what the

8 Notwithstanding our disagreement with the district court’s analysis, we would like to recognize the tremendous effort that the district court expended in handling a multidistrict litigation of this scale. 21 Case: 15-14160 Date Filed: 09/07/2017 Page: 22 of 77

companies are willing to pay. However, whether the market rate in fact functions

as a ceiling or as the rate at which the insurance companies reimburse the body

shops is inapposite. “[A]greements to fix maximum prices” are likewise per se

violations that “cripple the freedom of traders and thereby restrain their ability to

sell in accordance with their own judgment.” See State Oil Co. v. Khan, 522 U.S.

3, 11, 118 S. Ct. 275, 280 (1997) (internal quotation marks omitted).

Also, the insurance companies argue that the body shops’ plus factors are

not properly before us because the shops argued their existence for the first time on

appeal. Although the body shops have not used the phrase “plus factors,” the

shops have consistently argued that their allegations support the inference of an

illegal agreement. And use of the phrase “plus factors” is not necessary for the use

of these factors on appeal. As we have explained, “any showing by appellants that

tends to exclude the possibility of independent action can qualify as a plus factor.”

Williamson Oil, 346 F.3d at 1301 (internal quotation marks omitted). Even this

circuit’s precedent has not always used the phrase to characterize “further factual

enhancement needed to support a plausible inference of an agreement.” See

Almanza, 851 F.3d at 1069; Jacobs, 626 F.3d at 1343. The body shops’ recent use

of the phrase “plus factors” does not change the fact that they have consistently

argued that the allegations support the inference of an illegal agreement.

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The Dissent, although agreeing with the existence of parallel conduct, argues

that the proposed plus factors fail to “bear the weight attributed to them.” Dissent

at 6. Challenging the first plus factor—the insurance companies’ adoption of a

uniform price despite variables that would ordinarily result in divergent prices—

the Dissent disputes that “auto body repairs” are “the type of made-to-order

product not readily assembled from standard and conventionally priced items.”

Dissent at 11. In support, the Dissent substitutes allegations in the complaint with

an external knowledge of auto repair:

Certainly, some parts—such as spark plugs, windshield wipers, brakes, and tires—may be standard across many makes and models of cars, while others—such as doors, windshields, headlights, and fenders—may only fit a few. But for the overwhelming majority of cars, the necessary parts are ubiquitous, interchangeable, and standardly priced.

See Dissent at 12. Although Iqbal instructs us to “draw on [our] judicial

experience and common sense,” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950, what

automobile parts are necessary for repairs and whether those parts are “ubiquitous,

interchangeable, and standardly priced” are hardly “judicial experience” or

“common sense.” The Dissent’s substitution based on external knowledge belies

the “the tenet that a court must accept as true all of the allegations contained in a

complaint.” Id. at 678, 129 S. Ct. at 1949. And the substitution is not an inference

23 Case: 15-14160 Date Filed: 09/07/2017 Page: 24 of 77

in favor of the claimants, the body shops. See Spanish Broad. Sys., 376 F.3d

at 1070. Rather, it is the opposite. Review of the body shops’ allegations does

indeed reveal variables that would ordinarily result in divergent prices: the shops

allege that they use parts from different sources (e.g., “replacement parts” from

original manufacturers, repaired faulty parts from insureds’ cars, and “used or

recycled parts” from other cars) and charge different prices for the labor required

to install the parts.

Also, challenging the first factor, the Dissent compares the allegations of this

case to the facts in Cement Institute, which involved sealed bids to supply cement

for the same price per barrel. See 333 U.S. at 713, 68 S. Ct. 809. The Dissent

compares first the secrecy of the bids in Cement Institute with the brazenness of

the insurance companies’ declaration that “they will pay no more than State Farm

pays.” See Dissent at 9–10. However, secrecy is not necessary for the first plus

factor—adoption of a uniform price despite variables that would ordinarily result

in divergent prices—“to raise a reasonable expectation that discovery will reveal

evidence of illegal agreement.” Twombly, 550 U.S. at 556, 127 S. Ct. at 1965.

Also, the Dissent compares the fact that the cement companies in Cement Institute

agreed upon a specific price ($3.286854 per barrel) with the fact that the insurance

companies here declared that “they will pay no more than State Farm pays.” See

24 Case: 15-14160 Date Filed: 09/07/2017 Page: 25 of 77

Dissent at 10. But the per se violation of horizontal price fixing includes an

agreement “formed for the purpose and with the effect of raising, depressing,

fixing, pegging, or stabilizing” prices. See United States v. Socony-Vacuum Oil

Co., 310 U.S. 150, 223, 60 S. Ct. 811, 844 (1940) (emphasis added).

Challenging the second plus factor, the Dissent argues that the body shops’

tactics are “among the most common and time-worn methods of increasing

corporate profits in any industry.” Dissent at 15. This argument, however, relies

on the Dissent’s external knowledge about practices commonplace in the

automobile industry and consequent derogation of the severity of the tactics

alleged in the complaint. Again, we must look only within the four corners of the

complaint. The complaints contain extensive allegations about the concerning

practices of insurance companies that make the same misleading or false

statements about certain body shops to ensure that the amount that the companies

must reimburse the shops stays low. They contain the practices of insurance

companies that all force body shops to install parts that the shops believe are

unsafe and force shops to offer discounts and concessions at the risk of losing

between 70% and 95% of their revenue (60% for the Kentucky body shop). The

Dissent’s external knowledge about these practices is inapposite to whether these

25 Case: 15-14160 Date Filed: 09/07/2017 Page: 26 of 77

practices violate federal antitrust law. The Dissent’s external knowledge is

inapposite to this review of the sufficiency of the complaints.9

B. Boycotting

The Sherman Act’s prohibition of any unreasonable contract, combination,

or conspiracy in the restraint of interstate trade or commerce extends to a

prohibition of boycotting. See 15 U.S.C. §§ 1, 1013(b); St. Paul Fire & Marine Ins.

v. Barry, 438 U.S. 531, 541, 98 S. Ct. 2923, 2929 (1978). “The generic concept of

boycott refers to a method of pressuring a party with whom one has a dispute by

withholding, or enlisting others to withhold, patronage or services from the target.”

St. Paul Fire & Marine Ins., 438 U.S. at 541, 98 S. Ct. at 2930. Boycotting that is

per se illegal involves “horizontal agreements among direct competitors.” See

NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 135, 119 S. Ct. 493, 498 (1998). The

“ultimate target” of the agreement can be either a competitor or “a customer of

some or all of the [boycotters] who is being denied access to desired goods or

services because of a refusal to accede to particular terms set by some or all of the

[boycotters].” St. Paul Fire & Marine Ins., 438 U.S. at 543, 98 S. Ct. at 2931.

9 The Dissent disputes both plus factors by emphasizing the absence from the complaints of a statement in the body shops’ brief: that the insurance companies used identical “scripts” to steer insureds away from noncompliant shops. See Dissent at 13–14. Also, the Dissent emphasizes that “the body shops’ [brief] takes undue liberties in construing the allegations that can be fairly read from their pleadings.” Dissent at 1 n.1. The absence from the complaints of the allegation about “scripts” and other “constructions” of the allegations is inapposite to the soundness of the allegations that are present in the complaint. 26 Case: 15-14160 Date Filed: 09/07/2017 Page: 27 of 77

Accepted as true, the body shops’ allegations readily and plausibly establish

the per se violation of boycotting. The body shops allege that the insurance

companies targeted non-compliant shops by keeping insureds away until those

shops charged at or less than the market rate. And the body shops allege that, in

accordance with the agreement, the insurance companies used identical tactics to

keep insureds away. Specifically, they allege that the insurance companies made

misleading or false statements about the body shops’ business integrity and quality,

including that a shop takes longer to repair (and that the company would not pay

for a rental car after a certain number of days); that the company cannot guarantee

the shop’s work as it does for other shops; that the shop offers lower quality

services; and that previous customers had complained about the shop. We reverse

the dismissal of the boycotting claims.

Challenging this reversal, the Dissent argues that, because the insurance

companies can choose from an ambit of different (and commonplace) tactics, the

tactics are not uniform. In support, the Dissent draws an analogy to people

choosing from different but limited modes of transportation (car, bike, train, etc.)

to reach the same destination. This analogy again belies allegations in the

complaint that each tactic was misleading or false. As compared to the common

and limited means of transportation, the insurance companies’ misleading or false

27 Case: 15-14160 Date Filed: 09/07/2017 Page: 28 of 77

tactics together create an idiosyncrasy, the repetition of which is hardly “common.”

The insurance companies’ use of the same ambit of tactics “raise[s] a reasonable

expectation that discovery will reveal evidence of illegal agreement.” Twombly,

550 U.S. at 556, 127 S. Ct. at 1965.

VI. State Tort Claims

In addition to claiming antitrust violations, the body shops claim that the

insurance companies committed state torts, three of which are on appeal: unjust

enrichment, quantum meruit, and tortious interference. Because the body shops’

allegations plausibly support each claim, we reverse the dismissal of the claims.

A. Unjust Enrichment

Generally, unjust enrichment requires a showing that a plaintiff conferred a

benefit on a defendant that the defendant knew about and that allowing the

defendant to retain the benefit without payment would be unjust. See Jones v.

Sparks, 297 S.W.3d 73, 78 (Ky. Ct. App. 2009); JB Contracting, Inc. v. Bierman,

147 S.W.3d 814, 819 (Mo. Ct. App. 2004); Iliadis v. Wal-Mart Stores, Inc.,

191 N.J. 88, 110 (2007); Schmidt v. Household Fin. Corp., II, 276 Va. 108, 116

(2008). The allegations readily and plausibly establish the claims of unjust

enrichment. The body shops allege that the shops conferred benefits by providing

repair services at the low price that the insurance companies collectively selected.

Also, the body shops allege that the insurance companies not only knew about the 28 Case: 15-14160 Date Filed: 09/07/2017 Page: 29 of 77

benefits but also forced the shops to confer the benefits with two lines of tactics:

first selecting a low market rate and second pressuring the shops into accepting the

market rate. If we assume the truth of these allegations, the body shops have stated

claims for unjust enrichment. We reverse the dismissal of the unjust enrichment

claims.

Both the district court and the Dissent reject the claims for unjust enrichment

based on the argument that, because the body shops knew how much they were

going to be paid before repairing cars, these claims for unjust enrichment are based

on buyer’s remorse—based on unsatisfactory bargaining by the shops—and that

the claims are for post hoc judicial determination of a reasonable rate for the

repairs. This argument is based on a mistaken assumption that any dealing

between the body shops and the insurance companies was based on a valid

contract. See Dissent at 27–28 (“They were not threatened or tricked. They were

not coerced.”). Assuming the truth of the allegations and drawing inferences in

favor of the body shops, the insurance companies forced the shops to perform

repairs, and any dealing between the shops and the companies was based on an

invalid, unenforceable contract. “[A] liability in respect of benefits already

received [should not] be imposed (or measured) by the terms of an invalid

contract.” Restatement (Third) of Restitution and Unjust Enrichment § 33 cmt. d

29 Case: 15-14160 Date Filed: 09/07/2017 Page: 30 of 77

(2011); see also id. (“Liability in contract [is] distinguished from liability in

restitution.” (emphasis omitted)).

The district court dismissed the body shops’ claims for unjust enrichment by

faulting the shops for failing to bargain with the insurance companies. In imposing

this requirement to bargain, the court cited a comment in the Third Restatement of

Restitution and Unjust Enrichment entitled “Benefits voluntarily conferred”:

“Instead of proposing a bargain, the restitution claimant first confers a benefit, then

seeks payment for its value. When this manner of proceeding is unacceptable—as

it usually is, if the claimant neglects an opportunity to contract—a claim based on

unjust enrichment will be denied.” Id. § 2 cmt. d. However, the body shops

consistently allege that the insurance companies forced the shops to confer

benefits; that the shops involuntarily performed repairs at the low market rate.

Disputing the resolution of the unjust enrichment claims, the Dissent warns

of a world in which parties can renege on the terms of a contract by suing for

unjust enrichment. The Dissent offers an example of a painter who could contract

to paint a home for $10,000 and then recover $5,000 based on an argument that the

actual market rate was $15,000. The Dissent offers a second example of a

circumstance in which the result is the same despite less parity in bargaining

power. These analogies, designed to demonstrate an absurd result, derive from the

30 Case: 15-14160 Date Filed: 09/07/2017 Page: 31 of 77

Dissent’s assumption that the body shops’ claims are based on unsatisfactory

bargaining by the shops. However, the allegations, assumed as true, establish that

no bargaining occurred that could support the existence of an enforceable

agreement. Also, our ruling has no bearing on whether the body shops will later

successfully prove the invalidity of the contracts under which they repaired the

vehicles of the defendant companies’ insureds. Even if the parties did bargain and

the issue becomes whether the disparity in bargaining power was such that would

invalidate the contract, determining the extent of disparity compels, at the very

least, discovery.

B. Quantum Meruit

Generally, quantum meruit requires a showing that a plaintiff with a

reasonable expectation of compensation rendered valuable services to a defendant

who knew about the services but refused to pay reasonable value for the services.

See Quadrille Bus. Sys. v. Ky. Cattlemen’s Ass’n, Inc., 242 S.W.3d 359, 366

(Ky. Ct. App. 2007); Starkey, Kelly, Blaney & White v. Estate of Nicolaysen,

172 N.J. 60, 68 (2002); Raymond, Colesar, Glaspy & Huss, P.C. v. Allied Capital

Corp., 961 F.2d 489, 491 (4th Cir. 1992) (applying Virginia law). 10 The

allegations readily and plausibly establish the claims for quantum meruit. The

10 The Missouri complaint contains no claim for quantum meruit. 31 Case: 15-14160 Date Filed: 09/07/2017 Page: 32 of 77

body shops allege that they rendered repair services, expecting compensation; that

the services were in fact for the insurance companies, which were obligated to pay

the shops in accordance with the companies’ relationship with their insureds; and

that the companies paid an artificial price, below the reasonable value for the

services. Also, the body shops allege that the insurance companies demanded

discounts and concessions for the companies’ insureds; such additional services

were provided to the companies, who refused to pay any compensation for those

services. If we assume the truth of these allegations, the body shops have stated

claims for quantum meruit. We reverse the dismissal of the claims.

C. Tortious Interference

Generally, tortious interference requires a showing of a valid business

relationship or expectancy that would have occurred but for the defendant’s

improper or malicious interference, which resulted in damages. See Snow Pallet,

Inc. v. Monticello Banking Co., 367 S.W.3d 1, 6 (Ky. Ct. App. 2012); Clinch v.

Heartland Health, 187 S.W.3d 10, 14 (Mo. Ct. App. 2006); Lamorte Burns & Co.

v. Walters, 167 N.J. 285, 305–06 (2001); Dunlap v. Cottman Transmission Sys.,

LLC, 287 Va. 207, 216 (2014). The allegations readily and plausibly establish the

claims of tortious interference. The body shops allege (1) that the insurance

companies prevented insureds willing to use the shops from doing so with

misleading or false statements about the shops’ business integrity and quality and 32 Case: 15-14160 Date Filed: 09/07/2017 Page: 33 of 77

(2) that this prevention resulted in the loss of business. Also, the body shops allege

that the insurance companies forced the shops to perform incomplete or

substandard repairs, which prevented the shops from fulfilling obligations to

customers to return vehicles to their pre-accident conditions and which negatively

affected business. If we assume the truth of these allegations, the body shops have

stated claims for tortious interference.

In dismissing the body shops’ claims for tortious interference, the district

court faulted the shops for filing a so-called “group pleading,” which prevented the

shops from tailoring their allegations to the claim of tortious interference in each

state. Although the complaints are largely similar, the complaints as they stand

include sufficiently tailored allegations for us to conclude the plausibility of the

claim of tortious interference in each state. For example, the complaints specify

for each state the insurance companies that used State Farm’s market rate, the

market dominance of the defendant companies, and the percentage of revenue that

the defendant companies generated for a body shop—all of which establish the

companies’ command over a shop in each state. These individualized allegations

lend credence to the claims that the insurance companies exercised enough control

over insureds’ choice of body shops to affect the profitability of the shops.

33 Case: 15-14160 Date Filed: 09/07/2017 Page: 34 of 77

Also, in dismissing the tortious interference claims, the district court stated

that, “at a minimum, Plaintiffs should allege sufficient facts specific to each

Defendant, or at least each corporate family of Defendants, to tie that Defendant to

the wrongdoing alleged.” It is unclear why such allegations are necessary; in a

complaint alleging uniformity of the insurance companies’ price and practices,

requiring the body shops to include allegations about each company can only result

in needless repetition. Further, the complaints specified two insurance companies

as engaging in tortious interference: State Farm, for its role in determining the

market labor rate, and GEICO, for its delay in payment and re-inspection. 11 We

reverse the dismissal of the tortious interference claims.

VII. Conclusion

At no point did the body shops claim to know when, where, and how the

insurance companies agreed to fix a market rate and to boycott those who charged

more—nor did the shops have to. “Asking for plausible grounds to infer an

agreement . . . simply calls for enough fact to raise a reasonable expectation that

discovery will reveal evidence of illegal agreement.” Twombly, 550 U.S. at 556,

127 S. Ct. at 1965. The body shops have supplied enough allegations to raise such

a reasonable expectation. The body shops have consistently alleged the existence

11 As stated above, the allegations about GEICO appear only in the New Jersey complaints. 34 Case: 15-14160 Date Filed: 09/07/2017 Page: 35 of 77

of parallel conduct and of plus factors allowing a plausible inference of an illegal

agreement. And the allegations have sufficiently established the body shops’ state

tort claims of unjust enrichment, quantum meruit, and tortious interference. We

reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

35 Case: 15-14160 Date Filed: 09/07/2017 Page: 36 of 77

ANDERSON, Circuit Judge, concurring in part in the judgment and dissenting in part:

I concur with the majority in that I too would reverse the district court’s

dismissal of the tortious interference claim. However, because I have significant

concerns with the analysis of that claim, I join in that portion of the opinion only as

to the result. Additionally, because I am of the opinion that the body shops have

failed to plausibly allege the existence of the agreement required to state a federal

antitrust claim and have failed to adequately plead their other state law claims, I

would affirm the district court’s dismissal of those causes. Accordingly, I concur in

the judgment of the majority opinion with respect to Part VI.C. With regard to the

remainder, I respectfully dissent.

VIII. Introduction

I do not differ substantially from the majority in its framing of the relevant

facts of this case. Based on the allegations in the complaints,1 I accept that the

1 At the outset, I pause to address two issues regarding the complaints. The first is merely an observation of the time-worn principle that it is only the factual allegations contained therein which we must accept as true. In my opinion, the body shops’ appellate briefing takes undue liberties in construing the allegations that can be fairly read from their pleadings. The district court dismissed these claims without prejudice and, therefore, the body shops had an opportunity to amend their complaints to include any additional allegations that may have been omitted from their initial pleadings. Having chosen not to do so, they are not permitted to simply “insert” new allegations through their appellate briefing. These gaps—between the allegations of the complaints and the allegations of the appellate briefing—are discussed, where relevant, below. Secondly, I note that this appeal is a consolidation of five cases and, therefore, there are five complaints in the record. References in this opinion to the “complaints” can be considered a 36 Case: 15-14160 Date Filed: 09/07/2017 Page: 37 of 77

insurance companies have engaged in a series of actions that are designed to

depress the amounts they pay to body shops—including to those body shops that

are not signatories to a DRP agreement. I accept, for instance, that State Farm sets

a market labor rate, that other insurance companies advise the body shops that they

will pay no more than State Farm, and that, in setting this rate, State Farm: uses a

methodologically unsound “half-plus-one” technique; manipulates survey data;

threatens and effectuates removal of noncompliant shops from its “preferred

providers” list; and explicitly demands that shops lower their rates if they want to

be preferred providers. I also accept that the insurance companies refuse to pay for

new parts, that they require the use of aftermarket or salvaged parts, and that they:

utilize industry-standard databases only when financially advantageous to them;

refuse to reimburse the cost of certain procedures and materials; require the shops’

participation in their parts procurement processes; and insist on discount programs.

Lastly, I accept that the insurance companies engage in “steering,” that they

discourage insureds from patronizing noncompliant repair shops through

“misrepresentation, insinuation, and casting aspersions,” and that they erroneously

collective reference to all of them. References to a “complaint” and citations to “Compl. at ¶ X” are to the complaint in the New Jersey case filed by Quality Auto Painting Center of Roselle, Inc., which is, in relevant part, representative of the other four complaints. 37 Case: 15-14160 Date Filed: 09/07/2017 Page: 38 of 77

inform insureds that particular shops: are not on their preferred provider lists; have

had quality control issues; charge more than other shops; take longer than other

shops; and do not perform work that can be guaranteed.

My concern with the body shops’ complaints in this case—and with the

majority’s treatment of those complaints—is not that they have failed to adequately

describe a pattern of behavior that, taken as true, might be considered

objectionable. Indeed, as to one of the asserted causes of action—the tortious

interference claim—I am persuaded that these actions, if proven, are unlawful.

Rather, my concern is that conduct does not become unlawful by virtue of having

been deemed objectionable. Nor does it become unlawful in one context by virtue

of having been found so in another. Accordingly, when considering a motion to

dismiss, courts must carefully apply the well-pled allegations to the requirements

of each asserted claim. With regard to the antitrust claims, binding case law

indicates to me that the allegations of these complaints do not give rise to the

necessary reasonable inference of agreement or conspiracy and, therefore, fail to

state a claim. I also conclude that the allegations fall short of stating claims with

regard to quantum meruit and unjust enrichment. I discuss each in turn.

38 Case: 15-14160 Date Filed: 09/07/2017 Page: 39 of 77

IX. Federal Antitrust Claims

The body shops have repeatedly2 argued that the above-recited facts, if

proven, violate federal antitrust law. Thus we are tasked with answering, as the

Supreme Court has phrased it, “the antecedent question of what a plaintiff must

plead in order to state a claim under § 1 of the Sherman Act.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 554–55, 127 S. Ct. 1955, 1964 (2007). Section 1 of the

Sherman Act, under which both the price fixing and boycotting claims are brought,

provides that “[e]very contract, combination in the form of trust or otherwise, or

conspiracy, in restraint of trade or commerce among the several States, or with

foreign nations, is declared to be illegal.” 15 U.S.C. § 1. As that statutory language

suggests, the Act “does not prohibit [all] unreasonable restraints of trade . . . but

only [those] restraints effected by a contract, combination, or conspiracy.”

Twombly, 550 U.S. at 553, 127 S. Ct. at 1964 (first two alterations in original)

(quoting Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 775, 104 S. Ct.

2731, 2743 (1984)). The crucial consideration then “is whether the challenged

anticompetitive conduct ‘stem[s] from independent decision or from an agreement,

2 The instant appeal represents only a portion of more than twenty such cases filed on behalf of body shops around the country and consolidated in the Middle District of Florida. Notwithstanding this Court’s disagreement with its resolution of the present issues, I agree with the majority in expressing my gratitude to the district court for its efficient and thorough handling of this extraordinarily complex litigation. 39 Case: 15-14160 Date Filed: 09/07/2017 Page: 40 of 77

tacit or express.’ ” Id. at 553, 127 S. Ct. at 1964 (alteration in original) (quoting

Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 540, 74 S. Ct.

257, 259 (1954)). Accordingly, the answer to our antecedent question turns on

whether there is “a complaint with enough factual matter (taken as true) to suggest

that an agreement was made.” Id. at 556, 127 S. Ct. at 1965.

In plausibly establishing the existence of such an agreement, “an allegation

of parallel conduct and a bare assertion of conspiracy will not suffice.” Id. at 556,

127 S. Ct. at 1966. Indeed, long before Twombly:

It [was] well settled in this circuit that evidence of conscious parallelism alone does not permit an inference of conspiracy unless the plaintiff either establishes that, assuming there is no conspiracy, each defendant engaging in the parallel action acted contrary to its economic self-interest, or offers other “plus factors” tending to establish that the defendants were . . . in a collusive agreement to fix prices or otherwise restrain trade.

City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 570–71 (11th Cir. 1998)

(footnotes, citations, alterations, and quotations omitted). A showing of plus

factors is necessary because they “remove [a plaintiff’s] evidence from the realm

of equipoise and render that evidence more probative of conspiracy than of

conscious parallelism.” Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d

1287, 1301 (11th Cir. 2003). Thus the body shops were required to plausibly allege

40 Case: 15-14160 Date Filed: 09/07/2017 Page: 41 of 77

the existence of both (1) parallel conduct and (2) sufficient “plus factors” from

which we could infer an agreement. 3

The majority, in a conclusion to which I do not object, finds that the body

shops have established the existence of the necessary parallel conduct. Based on

this conduct, I—like the majority—searched the complaints for plus factors

suggesting the existence of the proscribed collusive agreement. As it detailed

above, the majority’s search revealed two plus factors 4 that in its opinion support a

plausible inference of an agreement to fix prices. Additionally, and although it

declines to label them as such, the majority also apparently found sufficient plus

factors to support an inference of an agreement to boycott. I am convinced that

none of the identified factors—whether considered individually or together—will

bear the weight attributed to them.

3 Of course, an antitrust plaintiff can also offer direct evidence of an agreement or evidence of parallel conduct that is contrary to the defendants’ self-interest. The body shops have not done so here and are, accordingly, left with an attempt at adducing evidence of relevant plus factors. 4 The body shops argued on appeal that their complaints established at least five plus factors. The majority has relied only on those it identified in its opinion and, therefore, I do not address the body shops’ additional plus factors in any depth. It bears mentioning, however, that I consider them to be wholly without merit. 41 Case: 15-14160 Date Filed: 09/07/2017 Page: 42 of 77

A. Price Fixing

Turning to the individual plus factors allegedly supporting horizontal price

fixing,5 the majority identifies two that it believes are suggestive of an agreement.

Broadly speaking, the first concerns uniformity of price and the second concerns

uniformity of action. I discuss each in turn.

1. Uniformity of Price The majority first suggests that the insurance companies’ conduct “probably

does not result from chance, coincidence, independent responses to common

stimuli, or mere interdependence unaided by an advance understanding among the

parties” because they have “adopt[ed] a uniform price despite variables that would

ordinarily result in divergent prices.” Maj. Op. at 15–16. As the majority’s

recitation suggests, this plus factor consists of two components. First, the

defendants must have adopted a uniform price. This component, however, is

suggestive only of parallel conduct and, without more, will not justify invoking the

plus factor. Accordingly, the uniform price must exist “despite variables that would

5 In considering each plus factor, I am cognizant of the Supreme Court’s admonition that antitrust plaintiffs receive “the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each.” Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S. Ct. 1404, 1410 (1962). At the same time, it is undoubtedly our responsibility “to evaluate the evidence proffered by the plaintiffs not to ascertain its credibility, but instead to determine whether that evidence, if credited, ‘tends to’ establish a conspiracy more than it indicates conscious parallelism.” Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287, 1301 (11th Cir. 2003). 42 Case: 15-14160 Date Filed: 09/07/2017 Page: 43 of 77

ordinarily result in divergent pricing.” The second component is the indicator of

the agreement that makes collusion more likely than conscious parallelism.

The sources on which the majority relies in introducing this plus factor make

clear the necessity of both components. Indeed, the majority observes that the

Supreme Court has inferred an agreement where “for many years, with rare

exceptions, cement has been offered for sale in every given locality at identical

prices and terms by all producers.” Maj. Op. at 16 (quoting FTC v. Cement Inst.,

333 U.S. 683, 713, 68 S. Ct. 793, 809 (1948)). But this is just the first component;

the majority fails to point out that the record evidence in that case—discussed in

the sentence immediately following the one that it quotes—established that

“[t]housands of secret sealed bids ha[d] been received by public agencies which

corresponded in prices of cement down to a fractional part of a penny.” Cement

Inst., 333 U.S. at 713, 68 S. Ct. at 809. Likewise, the majority quotes a leading

antitrust treatise for the idea that an agreement may be present if rivals establish

identical prices, but fails to grapple with the caveat that this is only true where

there are “simultaneous identical bids on a made-to-order product not readily

assembled from standard and conventionally priced items.” Maj. Op. at 16

(quoting Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1434b (3d ed.

2012)). Thus, while this so-called convergent pricing certainly is—or at least could

43 Case: 15-14160 Date Filed: 09/07/2017 Page: 44 of 77

be—a plus factor, it should only be invoked where we should otherwise expect

divergent pricing. Considered in the appropriate light, the differences between the

instant case and the sources on which the majority relies are substantial.

First, the focus on “secret,” “sealed,” and “simultaneous” bids is crucial

precisely because it excludes the possibility of conscious parallelism: competitors

cannot consciously parallel one another if they only learn of the other’s price after

they have established their own. Perhaps sensing this, the body shops’ brief on

appeal argues that “[a]ll of the [insurance companies] reach[] the same, identical

‘market rate’ . . . which State Farm refuses to [make] public.” Brief of Appellants

at 21. As an initial matter, alleging that State Farm does not publicly disclose the

market rate and arguing that it is a secret are two very different things. The sources

on which the majority relies do not focus on whether a certain party made the

information public but, rather, simply on whether or not it was public. Stated

differently, the fact that State Farm does not issue a press release with the market

rate does not foreclose the possibility that it is publicly known. This is a crucial

distinction.

However, giving the body shops the benefit of every inference in their favor

as required in this posture, their argument in brief—that State Farm does not

publish its market rate—could charitably be read to suggest that the market rate is

44 Case: 15-14160 Date Filed: 09/07/2017 Page: 45 of 77

a secret. This would be a fairly damning allegation, and one that strikes right to

heart of Cement Institute’s focus, if it were at all supported by the complaints.

Unfortunately, there are no factual allegations—to speak nothing of evidence—that

the market rate is a secret. Indeed, nowhere in the complaint do the body shops

suggest that the labor rate is a secret. Quite the opposite, the complaint reveals that

State Farm must necessarily tell the number to every repair shop in a given

geographic area.

Moreover—even if it were possible to share the market rate with the body

shops while, at the same time, keeping it a secret from the other insurance

companies—there are no allegations at all that the other insurance companies knew

what it was in advance. Indeed, rather than allege that all of the insurance

companies approached the body shops with an identical market rate (which might

possibly indicate that they had communicated in advance), the complaint alleges

twice that the other insurance companies simply conform to State Farm’s rate—

whatever that may be. Compl. at ¶ 62 (“Defendants . . . specifically advised the

Plaintiff they will pay no more than State Farm pays for labor.”); Compl. at ¶ 115

(“[D]efendants [state] that they will conform to State Farm’s payment structure.”).

Following the example set by a competitor, without agreeing to do so in advance,

45 Case: 15-14160 Date Filed: 09/07/2017 Page: 46 of 77

is textbook “price leadership” 6—a practice we have repeatedly stated is insufficient

to establish the existence of an agreement. See, e.g., Williamson Oil, 346 F.3d at

1301–03; City of Tuscaloosa, 158 F.3d at 571. Accordingly, even if State Farm’s

market rate were a secret—which, again, the body shops do not allege—such a fact

would be of no use when the other insurance companies are not also alleged to

have known the number in advance.

Further distinguishing our case from the examples on which the majority

relies is the fact that auto body repairs are not the type of “made-to-order product

not readily assembled from standard and conventionally priced items” where we

expect to see divergent pricing. Maj. Op. at 16 (quoting Areeda ¶ 1434b). On the

contrary, the “products” here—cars—are so readily assembled from standard parts

that their assembly-line manufacturing set the standard for other industries. That

the body shops are repairing those cars, rather than assembling them for the first

time, does not make the parts used to do so any less standard. And they are so

conventionally priced that, as discussed below, the body shops believe that the

insurance companies should not be allowed to deviate from third-party databases

6 The majority (Maj. Op. at 22-23) fails to recognize that the allegation—that the insurance companies told the body shops that they would pay no more than State Farm—gives rise to no inference of prior agreement; to the contrary, it is a straightforward assertion of following the price leader.

46 Case: 15-14160 Date Filed: 09/07/2017 Page: 47 of 77

that set standardized prices. Certainly, some parts—such as spark plugs,

windshield wipers, brakes, and tires—may be standard across many makes and

models of cars, while others—such as doors, windshields, headlights, and

fenders—may only fit a few. But for the overwhelming majority of cars, the

necessary parts are ubiquitous, interchangeable, and standardly priced. Thus, while

convergent pricing where it should otherwise not be expected can undoubtedly

serve as a plus factor, none of the indicators to which courts and commentators

have traditionally looked to support such a factor—or at least none to which the

body shops or the majority have pointed—are present here.

Neither the body shops nor the majority have pointed to any plausible reason

that one should expect that prices in this market—involving standardized

automobile parts and repairs—would be divergent. Quite the contrary, the body

shops argue that the insurance companies should comply with several databases

that exist for the sole purpose of establishing standardized pricing. That is, the fact

that the body shops insist that the insurance companies should comply with the

prices published in these three separate databases assumes that such prices are

standardized, and that one should expect convergent prices—not divergent prices.

In short, the instant case bears none of the traditional hallmarks of a situation

in which uniform pricing is present in an industry where we would otherwise not

47 Case: 15-14160 Date Filed: 09/07/2017 Page: 48 of 77

expect it. Nor are any of the other reasons offered by the body shops (or the

majority) suggestive of an environment in which we would expect to see divergent

pricing. The majority’s reliance on this plus factor is premised on an assumption

that there has been an “adoption of a uniform price despite variables that would

ordinarily lead to divergent prices;” yet I see no indication that I should expect to

see divergent pricing in this industry. And without an expectation of divergent

pricing all that remains is an allegation of uniform pricing, which is indicative only

of parallel conduct. Accordingly, I would reject this plus factor as an indicator of

the necessary agreement.

2. Uniformity of Tactics As to its second plus factor, the majority concludes that the insurance

companies have engaged inuniform practices suggestive of an agreement. Maj. Op.

at 17-18. True enough, several courts have found a plus factor where there is a

similarity of language, terms, or conditions used by the alleged co-conspirators that

would be improbable absent collusion. See, e.g., Apex Oil Co. v. DiMauro, 822

F.2d 246, 256–58 (2d Cir. 1987); De Jong Packing Co. v. U.S. Dep’t of Agric., 618

F.2d 1329, 1332–34 (9th Cir. 1980). And, true enough, the body shops’ appellate

briefing describes the insurance companies’ tactics as “the same,” “identical,” and

part of a “script[].” Brief of Appellants at 22. Thus, if I were required to accept the

48 Case: 15-14160 Date Filed: 09/07/2017 Page: 49 of 77

well-pled allegations of a brief as true I might be inclined to agree with the

majority.

Unfortunately, the body shops’ appellate briefing is once again betrayed by

their complaints, which introduce the relevant tactics as follows:

Through various methods, the [insurance companies] have, independently and in concert, instituted numerous methods of coercing the [body shops] into accepting less than actual and/or market costs for materials and supplies expended in completing repairs.

Compl. at ¶ 63. Whatever else can be said about that allegation, I see no reason to

conclude—as the majority obviously does—that the body shops even believe the

tactics were highly uniform. 7 Indeed, the complaint reflects nothing approaching

the level of conviction about the body shops’ allegations that the majority reads

into it.

Nonetheless, the majority concludes that the insurance companies have

engaged in uniform tactics because they have all required the body shops “to repair

a faulty part rather than install a replacement part; to install a used or recycled part;

and to offer discounts and concessions.” Maj. Op. at 18. Even if these tactics were

7 As for what else can be said about that allegation, the fact that the body shops concede that some of the alleged actions occurred “independently” is certainly noteworthy. How the majority was able to discern which of the allegedly nefarious activities were conducted “in concert”—a Sherman Act concern—and which were conducted “individually”—a decidedly non-Sherman Act concern—is left unspoken. 49 Case: 15-14160 Date Filed: 09/07/2017 Page: 50 of 77

highly uniform, they are suggestive of an agreement only when those tactics would

not plausibly arise from “independent responses to common stimuli.” See

Twombly, 550 U.S. at 556 n.4, 127 S. Ct. at 1965 n.4 (quoting Areeda ¶ 1425). Yet,

the majority fails to address the fact that all three of these “highly uniform” tactics

are easily explained by the most common of corporate stimuli: a desire to increase

profits. And while some methods of increasing profits could be so idiosyncratic as

to be unlikely to arise in the absence of an agreement, such is plainly not the case

here. None of these tactics could even be fairly described as novel, let alone as

sufficiently idiosyncratic to support an inference of an agreement. It can hardly be

denied that repairing (rather than replacing) damaged parts, installing recycled

(rather than new) parts, and requiring discounts are among the most common and

time-worn methods of increasing corporate profits in any industry, let alone in an

industry where parts and labor reimbursements are the primary business

expenditures. Cf. Maj. Op. at 14 (setting forth an established legal principle, which

I respectfully submit the majority then fails to apply: “But plaintiffs’ plus factors

are no more consistent with an illegal agreement than with rational and competitive

business strategies, independently adopted by firms acting within an

interdependent market.” (quoting In re Musical Instruments & Equip. Antitrust

Litig., 798 F.3d 1186, 1189 (9th Cir. 2015)). And yet, under the standard

50 Case: 15-14160 Date Filed: 09/07/2017 Page: 51 of 77

announced today, the mere existence of an industry-wide practice permits an

antitrust plaintiff to establish a plus factor.

I do not believe that a complaint merely alleging several common (and

obvious) industry practices should proceed directly past a motion to dismiss and

into the expensive and settlement-inducing quagmire of antitrust discovery. The

Supreme Court has described precisely this problem:

[E]ven if [defendants committed all the acts] in all the ways the plaintiffs allege, there is no reason to infer that the companies had agreed among themselves to do what was only natural anyway; so natural, in fact, that if alleging parallel decisions to resist competition were enough to imply an antitrust conspiracy, pleading a § 1 violation against almost any group of competing businesses would be a sure thing.

Twombly, 550 U.S. at 566, 127 S. Ct. at 1971 (citation omitted).

In short, the majority’s analysis of its second plus factor suggests that the

insurance companies’ tactics are highly uniform when even the complaint does not

seem to believe that; declines to explain how it divined which of the challenged

activities occurred “in concert” and which occurred “independently;” and relies

upon several alleged tactics which are clearly common, obvious, and mainstream.

In contrast to the majority, I do not believe an inference of prior agreement arises

from the mere fact that several insurance companies adopt policies favoring use of

cheaper parts and offering discounts to insurance companies. I respectfully submit

51 Case: 15-14160 Date Filed: 09/07/2017 Page: 52 of 77

that the majority’s analysis is inconsistent with Supreme Court and Eleventh

Circuit precedent. Accordingly, as with the first, I would reject the second plus

factor and affirm the dismissal of the price fixing claim.

Despite my substantial doubts about the existence of a price fixing

agreement, the allegations suggesting an agreement to boycott are even weaker. At

least in their price fixing allegations the body shops made passing reference to an

agreement. Not so with respect to a boycott agreement. While I do not consider it

dispositive, it is certainly noteworthy that the body shops never allege—even in a

conclusory fashion—an agreement to steer customers away from, or to boycott, the

body shops. 8 Neither the “steering” allegations nor the “boycott” section of the

complaint allege the existence of an agreement to do so. And even if we

incorporate the allegations of an agreement from the price fixing sections of the

complaint, I respectfully submit that the instant complaint would still fall short of

even the “few stray statements [that] speak directly of agreement” which the

Supreme Court has held are insufficient. Twombly, 550 U.S. at 564, 127 S. Ct. at

1970.

8 Although I do not consider this failure to be dispositive, treating it as such would not be outlandish. At a bare minimum, we should expect antitrust plaintiffs to state their belief that an agreement was reached before we go off in search of plus factors to support an inference of its existence. 52 Case: 15-14160 Date Filed: 09/07/2017 Page: 53 of 77

Undisturbed by the fact that the body shops do not even profess a belief in

the existence of an agreement to boycott, the majority concludes a brief reversal of

the boycotting claim with the following analysis:

Accepted as true, the body shops’ allegations readily and plausibly establish the per se violation of boycotting. The body shops allege that the insurance companies targeted non-compliant shops by keeping insureds away until those shops charged at or less than the market rate. And the body shops allege that, in accordance with the agreement, the insurance companies used identical tactics to keep insureds away.

Maj. Op. at 25 (alteration in original). Thus the majority offers two allegations—it

declines to call them plus factors—which it apparently believes support the

existence of an agreement to boycott: steering and the use of identical tactics in

that steering.

As an initial matter, an allegation of steering—standing alone—cannot be

indicative of an agreement. Steering is a decidedly unilateral activity; it involves

one insurance company steering one of its customers away from one of the body

shops. Accordingly, even if all of the insurance companies engage in it, steering

itself suggests only parallel conduct. Of course, as the tortious interference claims

suggest, it is potentially illegal parallel conduct. But it is only parallel conduct all

the same.

53 Case: 15-14160 Date Filed: 09/07/2017 Page: 54 of 77

That said, if there were allegations that “the insurance companies used

identical tactics to steer insureds away,” as the majority claims, the needle would

move toward an inference of the existence of an agreement if, but only if, such

similar or identical tactics would not plausibly arise from “independent responses

to common stimuli.” Twombly, 550 U.S. at 556 n.4, 127 S. Ct. at 1965 n.4. But

once more, the body shops have asserted in their appellate briefing—and the

majority has sanctioned—facts that are simply unsupportable on this record.

Indeed, although the body shops have argued on appeal that “[a]ll of the

Defendants utilize the same script containing identical false and misleading

steering statements,” Brief of Appellants at 30, neither they nor the majority

opinion suggest where I can find such an allegation. Both the word “script”—as

used by the body shops—and the word “identical”—as used by the majority—are

conspicuously absent from the complaints.

Almost as troubling as what the body shops have not pled and yet are given

credit for is what they have pled and yet are not held to account for. With regard to

steering, the body shops allege that:

Examples of this practice include telling insureds and/or claimants that a particular chosen shop is not on the preferred provider list, that quality issues have arisen with that particular shop, that complaints have been received about that particular shop from other consumers, that the shop charges more than any other shop in the area and these additional costs will have to be paid by the consumer, that repairs at 54 Case: 15-14160 Date Filed: 09/07/2017 Page: 55 of 77

the disfavored shop will take much longer than at other, preferred shops and the consumer will be responsible for rental car fees beyond a certain date, and that the Defendant cannot guarantee the work of that shop as it can at other shops.

Compl. at ¶ 83. From this, it is argued—and I am asked to conclude—that the body

shops have engaged in “identical” tactics. But even a basic illustration of the

pleading trick at work here reveals a fatal flaw. Assume that State Farms steers a

consumer using excuse X; 21st Century steers a consumer using excuse Y; and

GEICO steers a consumer using excuse Z. The body shops can (truthfully) make

the following allegation: “The insurance companies engage in steering. Examples

of these tactics include X, Y, and Z.” 9 In reality, tactics X, Y, and Z are in no way

identical. And yet—using this exact pleading formula—the majority here would

infer that the companies use identical tactics and allow a claim to lie for antitrust

boycotting. Put another way, the body shops’ allegations—and the conclusion the

majority draws from them—is akin to saying: (1) that a group of people “travel” to

get to work; (2) that “examples of this ‘travel’ include driving cars, riding bikes,

9 It is worth noting in my example—as in the instant case—the body shops have not alleged that the complained-of tactics are “identical.” 55 Case: 15-14160 Date Filed: 09/07/2017 Page: 56 of 77

boarding trains, and walking on sidewalks;” and (3) that these people, therefore,

use “identical tactics” to get to work. This simply cannot be the case.10

Put simply, the majority relies upon two asserted plus factors: one (steering)

is at best indicative of parallel conduct and the other (identical tactics) has no basis

in the complaint. Moreover, even if the insurance companies were alleged to have

used the same or similar reasons why their insureds should not use a particular

body shop, established case law would still require a court to then address whether

such similarity would be improbable absent collusion or, rather, whether it was

equally plausible as independent responses to common stimuli.11 For the forgoing

reasons, I conclude that the complaints fall short of alleging facts giving rise to an

inference of an agreement or conspiracy to boycott the body shops.

C. Conclusion

As the Supreme Court has observed, “it is only by taking care to require

allegations that reach the level suggesting conspiracy that we can hope to avoid the

potentially enormous expense of discovery in cases with no ‘reasonably founded

10 The body shops use, and the majority endorses, a similar pleading trick with respect to the “non-exhaustive list of procedures and processes the [d]efendants refuse to pay and/or pay in full.” Maj. Op. at 8 n.5 (alteration in original). 11 Even if the insurance companies were alleged to have used similar or identical reasons as to why their insureds should not use a particular body shop, the reasons suggested—that the body shop charges more or takes longer or does poor quality work—would seem to be obvious reasons an insurance company would not want its insureds to use that body shop. That is, such similarity would seem to be independent responses to common stimuli. 56 Case: 15-14160 Date Filed: 09/07/2017 Page: 57 of 77

hope that the [discovery] process will reveal relevant evidence’ to support a § 1

claim.” Twombly, 550 U.S. at 559, 127 S. Ct. at 1967 (alteration in original)

(quoting Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S. Ct. 1627, 1634

(2005)). The care required is, at a minimum, enough to ensure that the facts which

are used to justify invoking a plus factor are actually alleged, and that the plus

factors demonstrate parallel behavior plus something else sufficient to give rise to

a plausible inference of the existence of an agreement or conspiracy. Because the

body shops’ complaints reveal significant shortcomings on both of these basic

requirements, I would affirm the district court’s dismissal of both federal antitrust

claims. 12 Accordingly, I respectfully dissent from the majority’s decision with

regard to the antitrust claims.

X. State Tort Claims

The district court also dismissed, as relevant here, three state law claims

brought by the body shops. As does the majority, I would reverse the dismissal of

the body shops’ tortious interference claims. Unlike the majority, however, I would

affirm the dismissal of both the unjust enrichment and quantum meruit claims

because neither is justified by the allegations of the complaint.

12 See infra note 28 (suggesting my concern that the majority may have implicitly relied on the insurance companies’ market power, leading it to dilute the requirement that there must be— in addition to consciously parallel conduct—a plus factor giving rise to a plausible inference of an agreement or conspiracy). 57 Case: 15-14160 Date Filed: 09/07/2017 Page: 58 of 77

I respectfully dissent from the majority’s decision to reverse the district

court’s decision dismissing the body shops’ unjust enrichment claims. In all of the

complaints there is an allegation to the effect that each insurance company

specifically advised each body shop that they would pay no more than State Farm

pays. Compl. at ¶ 62 (“Defendants . . . specifically advised the Plaintiff they will

pay no more than State Farm pays for labor.”). Thus it is clear that the body shops

knew before undertaking the repair that they were to be paid certain amounts or in

certain ways. The body shops then undertook the repair anyway. Accordingly, it is

simply not unjust for the insurance companies to retain whatever “benefit” (if any)

that they might be deemed to have received.

Under the laws of the four states relevant here—Kentucky, Missouri, New

Jersey, and Virginia—one of the elements of an unjust enrichment claim is that it

would be unjust or inequitable for the defendant to retain the benefit allegedly

conferred upon it. 13 Because each complaint at issue here specifically alleges that

13 See Jones v. Sparks, 297 S.W.3d 73, 78 (Ky. Ct. App. 2009) (“For a party to prevail under the theory of unjust enrichment, they must prove three elements: (1) benefit conferred upon defendant at plaintiff’s expense; (2) a resulting appreciation of benefit by defendant; and (3) inequitable retention of benefit without payment for its value.”); Binkley v. Am. Equity Mortg., Inc., 447 S.W.3d 194, 199 (Mo. 2014) (“An unjust enrichment claim requires a showing that: (1) the plaintiff conferred a benefit on the defendant; (2) the defendant appreciated the benefit; and (3) the defendant accepted and retained the benefit under inequitable and/or unjust circumstances.” (quotation omitted)); VRG Corp. v. GKN Realty Corp., 641 A.2d 519, 526 (N.J. 58 Case: 15-14160 Date Filed: 09/07/2017 Page: 59 of 77

each insurance company advised the body shops that it would pay no more than

State Farm pays, it clearly was not unjust for each insurance company to pay only

that amount and no more.

Moreover, there is an indisputable principle of law set forth in the

Restatement (Third) that where the parties have an opportunity to arrive at a

contract and do not do so, the courts will generally not go behind them and

establish a valuation for their transaction. See Restatement (Third) of Restitution

and Unjust Enrichment § 2 cmt. d (2011) (“Instead of proposing a bargain, the

restitution claimant first confers a benefit, then seeks payment for its value. When

this manner of proceeding is unacceptable—as it usually is, if the claimant neglects

an opportunity to contract—a claim based on unjust enrichment will be denied.”

(emphasis added)). As the district court correctly held, the body shops’ unjust

enrichment claims fail because they had an opportunity to bargain for a deal they

1994) (“To establish unjust enrichment, a plaintiff must show both that defendant received a benefit and that retention of that benefit without payment would be unjust.”); Schmidt v. Household Fin. Corp., II, 661 S.E.2d 834, 838 (Va. 2008) (“To state a cause of action for unjust enrichment, [a plaintiff has] to allege that: (1) he conferred a benefit on [the defendant]; (2) [defendant] knew of the benefit and should reasonably have expected to repay [plaintiff]; and (3) [defendant] accepted or retained the benefit without paying for its value.”). Although the Virginia rule statement does not expressly require that retention of the benefit be unjust, such a requirement is routinely read into the elements by Virginia courts. See, e.g., R.M. Harrison Mech. Corp. v. Decker Indus., Inc., 75 Va. Cir. 404, 2008 WL 10669311, at *3 (2008) (“The circumstances of the acceptance or retention of the benefit must render it inequitable for the defendant not to compensate the plaintiff.”). 59 Case: 15-14160 Date Filed: 09/07/2017 Page: 60 of 77

considered to be fair and failed to do so.14 Forgoing their opportunity to bargain,

and notwithstanding the fact that the insurance companies had specifically advised

that they would pay no more than State Farm pays, the body shops nevertheless

undertook the repairs and are now seeking to require the insurance companies to

pay more than State Farm had said it would pay. In my judgment, the unjust

enrichment claims of the body shops are not only without merit, they border on

being frivolous claims. I would affirm the judgment of the district court with

regard to the unjust enrichment claims, and I respectfully dissent from the

majority’s decision to reverse.

I also briefly set forth two additional concerns with regard to the majority’s

analysis of the unjust enrichment claims. First, in service of a conclusion that the

insurance companies’ actions were somehow unjust, the majority stretches the

words “forced” and “involuntarily” until they cover basic participation in a free

market economy. Second, the majority implicitly resolves an open question of state

law without any analysis at all. Both are problematic.

14 The body shops have consistently argued that they did not have an opportunity to bargain because the insurance companies offered the market rate on a “take it or leave it” basis and that the insurance companies refused to negotiate. If this is all that is necessary to circumvent the rule that parties who are able to negotiate should be held to do so, the rule will quickly become extinct. 60 Case: 15-14160 Date Filed: 09/07/2017 Page: 61 of 77

My first concern with the majority’s analysis is its determination that it

would be unjust for the insurance companies to retain any benefit based on the

explanation that “the body shops consistently allege that the insurance companies

forced the shops to confer benefits; that the shops involuntarily performed repairs

at the low market rate.” Maj. Op. at 28 (first emphasis added). While it is not

possible here to raise all of the secondary consequences of the majority’s

conclusion that the body shops were “forced” into “involuntarily” performing

repairs, I find it worthwhile to highlight just a few of my more serious concerns.

As an initial matter, the majority’s analysis calls into question the principle,

discussed above, that parties who have an opportunity to contract in advance

should do so and, if they do not, the courts should generally refrain from

establishing a value in quasi-contract after the fact. Accord Restatement (Third) of

Restitution and Unjust Enrichment § 2 cmt. d (2011) (quoted above). As the

Seventh Circuit has recognized, “[b]etter that the [plaintiff] should negotiate with

the defendant rather than thrusting on the court the difficult task of constructing a

hypothetical bargain.” Nadalin v. Auto. Recovery Bureau, Inc., 169 F.3d 1084,

1086 (7th Cir. 1999). The majority turns this traditional conception on its head and

places those who forgo a contract in a better legal position than those who contract

in advance. This is evident from that fact that the body shops in the instant

61 Case: 15-14160 Date Filed: 09/07/2017 Page: 62 of 77

appeal—who did not negotiate a DRP agreement—are permitted to bring

otherwise unavailable state law claims while those shops who (as the law

encourages) contracted in advance through a DRP are limited to suing on their

contracts. As the majority notes, none of the body shops in the instant appeal are a

part of a DRP. This is not an accident. The body shops are well aware that if they

are signatories to a DRP agreement, their remedy lies in contract rather than in the

unjust enrichment actions they bring here.

Nonetheless, the majority apparently concludes that the body shops’ failure

to strike an acceptable bargain for their services prior to performing the repairs is

excusable because the insurance companies allegedly “forced” them to

“involuntarily” perform the repairs at State Farm’s market rate. I respectfully

submit that the majority has—in its attempt bring the body shops’ allegations

within the scope of unjust enrichment—expanded the definition of those two words

beyond their accepted meaning. The majority’s use of the term “forced” in the

instant context is inconsistent with the facts actually pled by the body shops. The

body shops were under no obligation, legal or otherwise. They were not threatened

or tricked. They were not coerced. 15 They simply made themselves available to

15 I submit that the body shops’ allegation of force should be disregarded as a conclusory allegation. No concrete facts have been alleged from which might arise a reasonable inference of force. 62 Case: 15-14160 Date Filed: 09/07/2017 Page: 63 of 77

perform a service for compensation, the amount of which they were advised before

undertaking the repair. They are now dissatisfied with that amount of

compensation and are suing for more. Like any other service provider, they have—

or at least had—three options: (1) perform their service for the price that someone

else was willing to pay; (2) negotiate for a higher fee; or (3) decline to perform the

service. Every company in America recognizes that finding the proper mix of those

three basic choices is a crucial part of achieving—or maximizing—profitability.

What the body shops now seek is a fourth option: run to the federal courts and

complain of being “forced” into performing their service.16

It is no exaggeration to say that the majority’s apparent holding threatens

some basic tenets of our economic system. As just one example, consider a

homeowner who makes known that she will pay $10,000 to have her house painted,

claiming (truthfully or not) that this is the going rate. A painter, believing that the

actual market rate (again, truthfully or not) is $15,000, paints the house and the

owner writes him a check for $10,000. If the failure to contract is no longer a

16 For that matter, I see no reason why the majority’s logic cannot just as readily be employed as a weapon by consumers against the body shops. Suppose a consumer’s car is badly damaged and cannot be driven. Not wanting his insurance rates to increase, he decides to pay for the repairs out of pocket. If one of the body shops charges him an amount in excess of what he thinks he should pay, has he been “forced” to pay that amount? Is it “involuntary”? Is he permitted to sue the body shop and have a court determine the reasonable price of the repair? Is this really what federal courts should be doing? These questions, and many more, are left unanswered in the majority’s opinion. 63 Case: 15-14160 Date Filed: 09/07/2017 Page: 64 of 77

barrier in this Circuit—as would seem to be the case under the majority

opinion17—the painter then sues for unjust enrichment of $5,000 on the theory that

the market rate established by the owner was too low. Has she “forced [him] to

confer benefits?” Has he “involuntarily performed [the painting] at the low market

rate?” Has she been unjustly enriched? Surely these questions must be

resoundingly answered in the negative. And if that must be so, there is no

principled reason why the answer to our present question should be any different.

Nor does this example become any more unjust by virtue of a shift in the

parties’ relative bargaining power.18 Suppose that, rather than a singular

homeowner, a real estate developer desires to have an entire subdivision of homes

painted at a rate of $9,000 each. This amount consists of the $10,000 “market rate”

and a 10% “volume discount.” The painter is faced with the same options as our

body shops: conform to the rate and accept the discount, negotiate with the

17 Notably, both parties in this example agree that the painter is entitled to some amount ($10,000) just as both parties in our instant case agree that body shops are entitled to some amount (the State Farm “market rate”). The failure to contract then in both cases is for an amount beyond what was agreed to. 18 The majority suggests that a mere disparity in bargaining power can invalidate a contract. Maj. Op. at 29. However, the majority cites no case law or other authority to support the novel proposition that mere bargaining power or mere market power is sufficient to invalidate a contract. Moreover, the body shops have not even argued on appeal that a disparity in bargaining power could invalidate a contract, or that it could render unjust the insurance companies’ retention of the benefits conferred. Thus, any such argument, not being fairly raised on appeal, is abandoned. See, e.g., Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-83 (11th Cir. 2014). 64 Case: 15-14160 Date Filed: 09/07/2017 Page: 65 of 77

developer, or forgo the business. The fact that this is a large chunk of the painter’s

business notwithstanding, it cannot be seriously argued that he is being forced to

paint the houses. Nonetheless the painter—if the majority’s opinion and its logical

consequences are to be taken at face value—can now undertake the job, collect the

discounted rate ($9,000 per house), and then sue the company for the remaining

amount it feels it is owed. 19 I am troubled by this possibility.

My second concern is the majority’s implicit decision on an open question

of state law. Both on appeal and in the district court, the insurance companies

argued that, because the body shops repaired cars belonging to the insureds, any

benefits were rendered to them and not to the insurance companies. This argument

was sufficiently persuasive that the district court had previously dismissed another

action in this litigation because, under Florida law, the benefits were conferred not

on the defendant insurance companies but rather on their insureds.20 However, in

the instant case, the district court recognized that outside of Florida the courts are

divided on the issue of whether, in the insurance context, the benefit is bestowed

19 This is, of course, on top of the fact that if a couple of other developers all independently decide to pay no more than our hypothetical price leader, the entire group can now be hit with antitrust violations if the majority opinion and its logical consequences are to be the law of this Circuit. 20 See A&E Auto Body, Inc. v. 21st Century Centennial Ins. Co., 2015 WL 12867010, at *5 (M.D. Fla. Jan. 22, 2015) (“[I]n unjust enrichment case, . . . ‘a third party providing services to an insured confers nothing on the insurer except a ripe claim for reimbursement.’” (quoting Adventist Health Sys./Sunbelt Inc. v. Med. Sav. Ins. Co., 2004 WL 6225293, at *6 (M.D. Fla. Mar. 8, 2004))). 65 Case: 15-14160 Date Filed: 09/07/2017 Page: 66 of 77

on the insured or the insurance company. For that reason, the district court

dismissed the instant unjust enrichment claims on alternative grounds. 21 Although

it was not a basis for the decision below, this question—on whom the benefit was

conferred—was discussed in the magistrate’s report and recommendation, in the

district court’s order, and in the appellate briefing.

Implicitly deciding this open issue of state law, the majority simply holds,

twice, that the body shops stated a valid claim for unjust enrichment. Maj. Op. at

27 (“The allegations readily and plausibly establish the claims of unjust

enrichment.”); Maj. Op. at 33 (“[T]he allegations have sufficiently established the

body shops’ state tort claims of unjust enrichment . . . .”). In doing so, the majority

has necessarily decided that all of the elements have been satisfied. Thus the

majority has implicitly decided that, under the laws of all four states, the benefit is

to be deemed conferred on the insurance company, not the insured.

The majority’s implicit decision might be understood if the case law so

clearly supported one side or the other as to not be worthy of lengthy discussion.

Unfortunately, the opposite is true. In many states—including, as far as I can tell,

each of the four that are relevant here—the proper resolution of this issue remains

21 These alternative grounds largely mirror the basis on which I would affirm the district court’s decision to dismiss the unjust enrichment claims—namely that the retention of a benefit (if any) would not be unjust where the body shops knew how much the insurance companies would pay before undertaking the repair and where they also forwent an opportunity to bargain. 66 Case: 15-14160 Date Filed: 09/07/2017 Page: 67 of 77

an open question. 22 And, in addition to its being an open question in the relevant

states, the states that have decided the question differ widely in their approach.23

In implicitly deciding this issue, the majority opinion has the effect of

foreclosing the insurance companies from raising the argument on remand. Even

if the majority must reverse the district court and hold that the body shops have

adequately pled that the insurance companies’ retention of benefits was unjust, I

respectfully submit that the majority should have remanded this issue of first

impression to the district court to resolve in the first instance on remand.

For the reasons discussed above, I would affirm the judgment of the district

court with respect to the unjust enrichment claims, and I respectfully dissent from

the majority’s decision in this regard.

I must also register my dissent from the majority’s decision to reverse the

district court’s dismissal of the quantum meruit claims arising under the state laws

22 New Jersey has found a benefit to a prison where a private hospital treated an inmate on its behalf. Saint Barnabas Med. Ctr. v. Essex County, 543 A.2d 34 (N.J. 1988). While certainly analogous, that case is factually distinguishable based, among other things, on the legal duty a jailer owes to inmates. A federal district court in Kentucky has addressed a similar question in the health insurance context. See Appalachian Reg’l Healthcare v. Coventry Health & Life Ins. Co., 2013 WL 1314154 (E.D. Ky. Mar. 28, 2013). Any conclusions that are drawn therein are obviously not binding on us or the Kentucky state courts. I have not seen any indication that the Virginia or Missouri courts have addressed this question. 23 Compare Myrtle Beach Hosp., Inc. v. City of Myrtle Beach, 532 S.E.2d 868 (S.C. 2000), with Emergency Physicians Integrated Care v. Salt Lake County, 167 P.3d 1080 (Utah 2007). 67 Case: 15-14160 Date Filed: 09/07/2017 Page: 68 of 77

of Kentucky, New Jersey, and Virginia. 24 I would have affirmed the judgment of

the district court because, under the laws of the three states relevant here, the body

shops were required to allege, among other elements, that the circumstances

reasonably notified the insurance companies that they expected to get paid

(Virginia and Kentucky) or that they reasonably expected to be compensated (New

Jersey). 25 They cannot do so here.

As I have discussed above, the body shops specifically alleged that each of

the insurance companies informed them that they would pay no more than State

Farm. The body shops then undertook the repairs. Having fully informed the body

shops of what they were willing to pay, the circumstances could have only

reasonably informed the insurance companies that the body shops expected to be

paid the market rate. This is fatal to the Virginia and Kentucky claims. Likewise,

having been fully informed that the insurance companies would only pay the

market rate, the body shops could not have reasonably expected to receive more

than that amount. This is fatal to the New Jersey claim.

Respectfully, I think that the majority’s analysis contains two flaws that

have resulted in our differing views on the resolution of this issue. The first is the

24 The Missouri complaint does not include a cause of action for quantum meruit. 25 See Raymond, Colesar, Glaspy & Huss, P. C. v. Allied Capital Corp., 961 F.2d 489, 491 (4th Cir. 1992); JP White, LLC v. Poe Cos., LLC, 2011 WL 1706751, at *5 (Ky. Ct. App. May 6, 2011); Weichert Co. Realtors v. Ryan, 608 A.2d 280, 285 (N.J. 1992). 68 Case: 15-14160 Date Filed: 09/07/2017 Page: 69 of 77

majority’s conclusion that, because the body shops had a reasonable expectation of

some compensation, they need not demonstrate a reasonable expectation as to the

amount they are now requesting. Maj. Op. at 30 (“The body shops allege that they

rendered repair services, expecting compensation . . . and that the companies paid

an artificial price, below the reasonable value for the services.”). Undoubtedly, the

body shops could reasonably have expected some compensation. Equally

undoubtedly, they could not—at least not reasonably—have expected to receive

more than the market rate when, by their own pleadings, every insurance company

informed them that they intended to pay no more than that rate. Unconcerned with

this distinction, the majority apparently concludes that because they expected some

compensation, they are entitled to have a court determine not just what they could

reasonably have expected, but—regardless of their expectations—the reasonable

value of the services they provided.

The body shops have not cited, and independent research has not uncovered,

any controlling authority in the three relevant states to such an effect. Thus,

without any explanation as to why, the majority appears to have decided an open

question of state law on a state cause of action. As I have mentioned previously,

deciding open state law questions with no explanation might be understandable if

other authority overwhelmingly pointed in a single direction. Such is not the case.

69 Case: 15-14160 Date Filed: 09/07/2017 Page: 70 of 77

The only analogous case law suggests the exact opposite result of that reached by

the majority: when a plaintiff has a reasonable expectation of some amount, they

cannot reasonably expect to receive additional compensation and therefore cannot

bring suit to recover it. 26

It is not at all surprising to me that the courts to consider this issue have

resolved it differently than the majority given that it is indistinguishable from the

house painting example in the previous section. True enough, the painter could

have expected some compensation ($10,000) for performing a service (painting the

house). But—having already received what he could have reasonably expected in

compensation—surely he is not now entitled to file a lawsuit for quantum meruit,

allege that the reasonable value of his services is $15,000, and have a court

determine what should be paid him. And yet as surely as such a conclusion is

implausible, it would logically follow from today’s decision. It simply cannot be

the law that a plaintiff, knowing full and well that it has no reasonable expectation

of receiving what it considers the fair market value of its services, can nonetheless

perform a service and then survive a motion to dismiss in its subsequent suit to

26 See, e.g., Hindsight Sols., LLC v. Citigroup Inc., 53 F. Supp. 3d 747, 776 (S.D.N.Y. 2014) (unjust enrichment claim failed because plaintiff could not have reasonably expected to receive additional compensation); Rodriguez v. Ready Pac Produce, 2014 WL 1875261, at *3 (D.N.J. May 9, 2014) (dismissing unjust enrichment claim where plaintiff “would have no reasonable expectation to receive additional compensation for hours worked in excess of a particular amount per week”). 70 Case: 15-14160 Date Filed: 09/07/2017 Page: 71 of 77

recover that “full” value. This is unworkable for the business community and

unsustainable for the judicial community.

My second concern is that the majority, again in the quantum meruit context,

has implicitly decided the same open question of state law referred to above in my

discussion of unjust enrichment. Again, the majority has implicitly decided that,

under the laws of the three relevant states, the quantum meruit law contemplates in

the insurance context that the car repairs constitute a service to the insurance

company rather than (or in addition to) the insured. However, as in the unjust

enrichment context, this is an open question of state law that was not addressed by

the district court and has decisively split the jurisdictions to confront it. In so

doing, the majority tackles a substantial and unresolved question of state law,

without any analysis. I respectfully submit that the more appropriate resolution for

the majority would have been to remand the issue to the district court for resolution

in the first instance.

For the reasons stated in the first two paragraphs of this section, it is clear to

me that the allegations of these complaints fall far short of stating any claim for

quantum meruit. Accordingly, I would affirm the judgment of the district court in

this regard. I respectfully dissent from the majority’s decision with respect to the

quantum meruit claims.

71 Case: 15-14160 Date Filed: 09/07/2017 Page: 72 of 77

Lastly, although I agree with the majority that the dismissal of the tortious

interference claims was in error and is due to be reversed, I disagree with the

reasoning employed by the majority in reaching that decision. As an initial matter,

I would have reversed the district court’s decision to dismiss the tortious

interference claims for allegedly impermissible group pleading. The concerns

raised by the district court stem not from the fact that the insurance companies are

unable to ascertain which aspects of the alleged conduct apply to them but, rather,

from the fact that it was not clear to the district court how that conduct amounts to

a viable claim. This is a pleading problem to be sure, but it is not a group pleading

problem. Accordingly, the dismissal was due to be reversed on that basis alone.

I would also have found that the body shops adequately stated a claim under

the laws of each of the four states. Although the elements of the claim are not

identical, there are three requirements of tortious interference that are both

common to all four of the relevant states and which could reasonably be contested

by the parties: (1) the body shops must have had a valid business expectancy; (2)

the insurance companies must have had knowledge of that valid business

72 Case: 15-14160 Date Filed: 09/07/2017 Page: 73 of 77

expectancy; and (3) any interference must have been improper.27 All are satisfied

by the steering allegations. The first requirement is met because the body shops

allege that the insureds had chosen a particular body shop, Compl. at ¶ 83

(“Examples of this practice include telling insureds and/or claimants that a

particular chosen shop is not on the preferred provider list . . . .” (emphasis

added)), thereby raising the shop’s prospective economic interest above a purely

speculative level. Secondly, the steering allegations also make clear that the

insurance companies had knowledge of the prospective economic advantage—if

they did not know that an insured had chosen a shop they would not have been able

to steer them away from it. Lastly, the allegations of the complaint suggest, among

27 See Snow Pallet, Inc. v. Monticello Banking Co., 367 S.W.3d 1, 6 (Ky. Ct. App. 2012) (“[Plaintiff] must prove: (1) the existence of a valid business relationship or expectancy; (2) that [defendant] was aware of this relationship or expectancy; (3) that [defendant] intentionally interfered; (4) that the motive behind the interference was improper; (5) causation; and (6) special damages.”); Clinch v. Heartland Health, 187 S.W.3d 10, 14 (Mo. Ct. App. 2006) (“The elements of tortious interference with a business relationship are: (1) The plaintiff was involved in a valid business relationship; (2) the defendant was aware of the relationship; (3) the defendant intentionally interfered with the relationship, inducing its termination; (4) the defendant acted without justification; and (5) the plaintiff suffered damages as a direct result of defendant’s conduct.”); Lamorte Burns & Co., Inc. v. Walters, 770 A.2d 1158, 1170 (N.J. 2001) (“To prove its claim, plaintiff must show that it had a reasonable expectation of economic advantage that was lost as a direct result of defendants’ malicious interference, and that it suffered losses thereby.”); Dunlap v. Cottman Transmission Sys., LLC, 754 S.E.2d 313, 318 (Va. 2014) (“The necessary elements to establish a prima facie case are: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. . . . [A] plaintiff, in order to present a prima facie case of tortious interference, must allege and prove not only an intentional interference, but also that the defendant employed improper methods.” (alterations and quotations omitted)). 73 Case: 15-14160 Date Filed: 09/07/2017 Page: 74 of 77

other things, that steering is done to “punish” noncompliant shops, that it is

accomplished through “misrepresentation of facts,” and that it is “malicious.”

Compl. at ¶¶ 36, 82, & 107. Taken as true, such behavior is sufficiently improper

to survive a motion to dismiss. Accordingly, in addition to reversing the district

court’s group pleading analysis, I would also have remanded with a determination

that the complaints state a valid claim for tortious interference.

Although I agree with its outcome, I have two significant concerns with the

majority’s analysis of the claims that prevent me from concurring in the opinion.

My first concern with the majority’s analysis of the tortious interference claims is

that it makes explicit a sentiment that I fear may have implicitly influenced the

majority’s disposition of other claims: namely that “the market dominance of the

defendant companies and the percentage of revenue that the defendant companies

generated for a body shop . . . establish the companies’ command over a body shop

in each state.” Maj. Op. at 31-32. However, whether or not the insurance

companies, collectively, have a large market share is plainly not relevant to an

inquiry into whether an insurance company tortiously interfered with a customer of

a particular body shop. I have previously outlined the three elements of a tortious

interference claim that both are common to all four relevant states and are also

contested here. Market power is plainly irrelevant to both the first—the existence

74 Case: 15-14160 Date Filed: 09/07/2017 Page: 75 of 77

of a valid business expectancy—and the second—the insurance companies’

knowledge of that business expectancy. And as to the third element—

improper intentional interference—neither the body shops nor the majority cite any

authority suggesting that mere market power can transform otherwise appropriate

conduct into improper interference for purposes of a tortious interference claim.

Accordingly, I respectfully submit that the majority’s reliance on the market power

of the insurance companies is inappropriate. 28

Lastly, I write to express my concern with the majority’s brief analysis of

group pleading, a doctrine that has plagued this case from the beginning.

Specifically, the majority notes that the district court concluded that “at a

minimum, Plaintiffs should allege sufficient facts specific to each Defendant, or at

28 The majority’s explicit reliance on market power in the contexts of both tortious interference and unjust enrichment (see supra, note 18), and the prominence of the majority’s recitation in its Part II.A of the facts relating to market dominance, lead me to fear that the majority may have implicitly relied on market power in its resolution of other claims. In the price-fixing context for example, I fear that this concern may have lured the majority into holding that market power, coupled only with consciously parallel conduct, is sufficient to warrant an inference of agreement or conspiracy to fix prices notwithstanding the absence of any plausible factual allegations giving rise to such inference, and notwithstanding that the actual facts indicate that convergent pricing (especially in light of the price leadership) would be the expected course of events. If the majority is implicitly holding that market power—coupled only with consciously parallel conduct in the form of price leadership—is a sufficient plus factor to warrant an inference of agreement or conspiracy for antitrust purposes, I respectfully submit that such a complex and novel holding should be explored only after thorough briefing and full analysis. In any event, I would disagree with any such holding for at least two reasons: first, that argument has not been fairly raised in the body shops’ appellate briefing, and therefore has been abandoned, see, e.g., Sapuppo v. Allstate Floridian Ins. Co, 739 F.3d 678, 681–83 (11th Cir. 2014) (“A party fails to adequately ‘brief’ a claim when he does not ‘plainly and prominently’ raise it . . . .”); and second, even if market power could in an appropriate case be considered to have any relevance in the “plus factor” analysis—an issue which I need not address—it would not warrant an inference of agreement or conspiracy in the instant case where convergent pricing is so clearly to be expected. 75 Case: 15-14160 Date Filed: 09/07/2017 Page: 76 of 77

least each corporate family of Defendants, to tie that Defendant to the wrongdoing

alleged.” Maj. Op. at 32. It then rejects this premise because “[i]t is unclear why

such allegations are necessary.” Maj. Op. at32. I do not find it at all unclear. They

are necessary because the purpose of Rule 8 pleading is to provide a “defendant

fair notice of what the [plaintiff’s] claim is and the grounds upon which it rests.”

Twombly, 550 U.S. at 55, 127 S. Ct. at 1964 (quoting Conley v. Gibson, 355 U.S.

41, 47, 78 S. Ct. 99, 103 (1957)). And whatever else such “fair notice” requires, I

think, as the district court clearly did, that “at a minimum, [it requires that]

Plaintiffs should allege sufficient facts specific to each Defendant, or at least each

corporate family of Defendants, to tie that Defendant to the wrongdoing alleged.”

It is, to put it plainly, necessary because a defendant cannot be fairly asked to

defend a claim if the alleged facts do not tie that defendant to the wrongdoing.

The problem with the district court’s group pleading analysis in this case is

not—as the majority believes—that it unnecessarily required the body shops to tie

the insurance companies to the alleged wrongdoing. The problem with the district

court’s analysis—and the reason that I join the majority in reversing with respect to

this claim—is that the body shops have in fact done so. Each corporate defendant

could read the complaint and fairly discern what it is they are alleged to have done.

This—at least in this context—is all that Rule 8 requires and, accordingly, it was

76 Case: 15-14160 Date Filed: 09/07/2017 Page: 77 of 77

error to dismiss the complaints for group pleading. But to suggest that such

pleadings are not “necessary” is plainly not true.

Accordingly, although I agree with the majority’s decision to ultimately

reverse the dismissal of the tortious interference claims for the reasons I detailed in

the opening paragraphs of this section, because of the concerns that I raise about

the majority’s reasoning for doing so, I concur only in the judgment.

XI. Conclusion

With regard to the majority’s reversal of the district court order dismissing the

tortious interference claims, I concur in the result only. With regard to the

remainder of the majority’s opinion, I respectfully dissent.