Rehearing and Suggestion for Rehearing En Banc Denied July 7, 1995.
KENNEDY, Circuit Judge.
Plaintiffs brought this action against nine banks doing business in Tennessee (the "Banks")
Plaintiffs admit that they do not have any direct evidence of any agreement or conspiracy among the Banks to set prices but contend that the uniformity of these fees shows there is tacit collusion. The District Court granted summary judgment in favor of defendants. Plaintiffs appeal, arguing that the District Court erred in determining that they failed to present sufficient evidence to exclude the possibility that the Banks were pursuing legitimate independent business interests. For the following reasons, we affirm.
I.
We review a district court's grant of summary judgment de novo, Hanover Ins. Co. v. American Eng'g Co., 33 F.3d 727, 730 (6th Cir.1994), "view[ing] all facts and inferences drawn therefrom in the light most favorable to the nonmoving party." Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir. 1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992). Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary judgment where there is "no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Summary judgment is appropriate if plaintiffs failed to make a showing sufficient to establish any element essential to their claims and on which they bear the burden of proof. Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993).
Summary judgment may be granted even in a complex antitrust case because "antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case." Matsushita Electric. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In Riverview Investments, Inc. v. Ottawa Community Improvement Corp., 899 F.2d 474 (6th Cir.), cert. denied, 498 U.S. 855, 111 S.Ct. 151, 112 L.Ed.2d 117 (1990), we established a two-part inquiry for evaluating a summary judgment motion in an antitrust conspiracy case:
Id. at 483 (citation omitted). We held that a plaintiff cannot demonstrate a conspiracy "if, using ambiguous evidence, the inference of a conspiracy is less than or equal to an inference of independent action." Id.
II.
It is not necessary for an antitrust plaintiff to introduce any direct evidence of a conspiracy. Rather, a conspiracy can be inferred from business behavior which evidences "a unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful arrangement." Nurse Midwifery Associates v. Hibbett, 918 F.2d 605, 616 (6th Cir.1990) (citation omitted), cert. denied, 502 U.S. 952, 112 S.Ct. 406, 116 L.Ed.2d 355 (1991).
However, parallel pricing, without more, does not itself establish a violation of the Sherman Act. Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 541, 74 S.Ct. 257, 259-60, 98 L.Ed. 273 (1954); General Business Sys. v. North Am. Philips Corp., 699 F.2d 965, 976 (9th Cir. 1983). Courts require additional evidence which they have described as "plus factors." Examples of these "plus factors" include actions contrary to a defendant's economic self-interest, Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1456 (11th Cir.1991), product uniformity, exchange of price information and opportunity to meet, Wilcox v. First Interstate Bank, N.A., 815 F.2d 522, 525-26 (9th Cir.1987), and a common motive to conspire or a large number of communications, Apex Oil Co. v. DiMauro, 822 F.2d 246, 253-54 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987).
Plaintiffs first contend that because the Banks all charge essentially the same fee for NSF checks, they have conspired to fix the level of fees. In addition, plaintiffs argue that the public disclosure of the fees and the alleged failure of the Banks to set NSF fees relative to cost are the plus factors which, in addition to the alleged parallel pricing, show a violation of section 1. Plaintiffs also rely on the affidavits of two experts stating that defendants would not be able to charge high NSF fees without collusion.
The Banks assert that the prices are not sufficiently similar to constitute parallel pricing. The District Court examined the record, however, and concluded that, when the inferences from the evidence were construed in favor of plaintiffs, "the variances between the fees are not as drastic as the Banks contend."
Plaintiffs mainly rely on the fact that the Banks do not set NSF fees relative to the cost of processing NSF checks as evidence of a conspiracy beyond parallel pricing. In support of their argument, plaintiffs cite 12 C.F.R. § 7.8000 (1995) which provides that:
Plaintiffs contend that under this regulation, the Banks must take into account the costs of processing NSF and DIR checks and that their failure to do so is evidence of a conspiracy.
Defendants concede that they do not price NSF charges in relation to cost. They note that although section 7.8000 states that the Banks may consider costs, it does not require costs to be taken into account. We agree with the District Court that "[t]he failure of the banks to consider one factor does not require the conclusion that the banks conspired to set the level of NSF fees."
It is clear from the affidavits submitted by the Banks that they do in fact take many legitimate factors into account besides costs. Several of the Banks submitted affidavits stating that they established high prices for NSF checks because they did not want to attract customers who write these checks and wanted to deter customers from this behavior.
Plaintiffs also argue that the manner in which NSF fees are publicized allows the banks to collude in setting prices. However, the Banks' publication of prices is at least as consistent with their independent interests as it is with collusion.
First, the Banks certainly have a legitimate interest in providing customers relevant information regarding the fees associated with their checking accounts. The Banks also have an interest in publishing prices to attract or deter consumers from opening accounts. "[P]ermitting an inference of conspiracy [based on the dissemination or advertising of retail prices] would make it more difficult for retail consumers to get the information they need to make efficient market decisions." In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 906 F.2d 432, 448 n. 14 (9th Cir.1990), cert. denied, 500 U.S. 959, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991).
Most of the Banks admit they evaluate the fees charged by other banks when they set fees. "The exchange of price information among competitors is not a per se violation of the antitrust laws." Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1505 (11th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); United States v. United States Gypsum Co., 438 U.S. 422, 441 n. 16, 98 S.Ct. 2864, 2875 n. 16, 57 L.Ed.2d 854 (1978). The Banks naturally are interested in surveying the market to determine what other banks are charging in order to make strategic competitive decisions. All of the affidavits submitted by the Banks contained statements to the effect that there was no agreement or collusion between them, tacit or otherwise. Although publication and evaluation of prices can serve as a means to violate section 1,
The Banks contend that this affidavit fails to raise a genuine issue of material fact because the expert offers no additional facts or evidence and relies on conclusory allegations.
Buckalew's affidavit is not sufficient to defeat the Banks' motion for summary judgment. In Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., ___ U.S. ___, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993), the Supreme Court held that an economist's expert testimony which was based on insufficient facts could not be relied on to support a jury verdict. Id. at ___, 113 S.Ct. at 2598. The Court stated that "[e]xpert testimony is useful as a guide to interpreting market facts, but is not a substitute for them." Id. Buckalew's conclusions are based on nothing more than facts which, as we have already stated, are equally consistent with independent actions by the Banks. For instance, the Banks readily admit that they have "totally failed to openly compete" because they do not want to attract customers who write checks with insufficient funds to cover them.
Plaintiffs submitted another affidavit from Antonio L. Zate, a certified public accountant with a masters degree in economics who has worked as a bank examiner for the Federal Reserve Bank.
Finally, plaintiffs assert that they have not been able to produce evidence to respond to defendants' summary judgment motion because defendants denied them access to any discovery. However, at a status conference held on February 2, 1994, plaintiff's counsel agreed with the court that "there [was] a consensus that the summary judgment motion can be resolved, and [it was] not dependent on [plaintiffs] obtaining anything else." Furthermore, the information plaintiffs sought apparently had to do with the actual costs to the Banks of processing NSF checks, and defendants stated that they were not challenging plaintiffs' assumptions concerning costs for the purposes of the summary judgment motion. Thus, the District Court properly granted summary judgment in favor of defendants.
III.
For the foregoing reasons, we AFFIRM the District Court's grant of summary judgment.
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