[PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                    ________________________________

                               No. 96-3682
                    ________________________________
                    D.C. Docket No. 95-130-CIV-ORL-22



SOUTHERN CARD & NOVELTY, INC.,

                                        Plaintiff-Appellant,


     versus


LAWSON MARDON LABEL, INC. d.b.a.
Lawson Mardon Post Card, and
DANIEL J. SAUNDERS,

                                        Defendants-Appellees.

________________________________________________________________

                  Appeal from the United States District Court
                       for the Middle District of Florida
_________________________________________________________________

                              (April 7, 1998)

Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges.


HATCHETT, Chief Judge:
       The appellant, Southern Card & Novelty, Inc. (Southern Card), a postcard

distributor, challenges the district court’s grant of summary judgment for the appellees,

Lawson Mardon Label, Inc. (Lawson), a manufacturer of postcards and related products,

and Daniel Saunders, the vice-president in charge of Lawson’s postcard business, on its

federal and state antitrust tying claims. We affirm.

                                         I. FACTS

       Lawson manufactures postcards and sells them to distributors throughout North

America.1 Those distributors then sell the postcards to retail outlets, which in turn sell

them to consumers. Over a decade ago, Lawson’s predecessor-in-interest, H.S. Crocker

Company, Inc. (H.S. Crocker), secured a license agreement with the Walt Disney

Company (Disney Company) that permits Lawson to manufacture postcards bearing the

copyrighted images of Disney characters such as Mickey Mouse. Although the license

agreement is “non-exclusive,” the Disney Company has not granted similar rights to any

other postcard manufacturer. Thus, Lawson is the sole producer of postcards bearing

Disney images. Lawson also makes “local view” postcards, i.e., postcards depicting non-

licensed local images. In Florida, these postcards might present, for example, pictures of

beaches, palm trees or alligators. Local view postcards comprise over ninety percent of

Lawson’s total postcard production and accounted for over sixty percent of its sales in

Florida in 1995. The parties do not dispute that at least six other postcard manufacturers

produce postcards specific to areas in Florida.


       1
        Lawson has about an eleven percent market share of the North American
postcard business.
       Southern Card, located in Daytona Beach, distributes postcards to retailers --

primarily “chain stores” -- situated in central and northern Florida. Southern Card

purchases its postcards from large commercial printers such as Lawson, and acts as a rack

jobber in the stores it services.2 From 1986 -- the year Southern Card commenced

business dealings with H.S. Crocker -- to 1991, Southern Card retained complete control

over the quantity and types of postcards that it purchased from the manufacturer.3 During

the late 1980s and early 1990s, Southern Card bought a percentage of its local view

postcard stock from Lawson’s competitors, finding their products superior in terms of

price and quality.4


       2
        Southern Card asserts that “[t]here are approximately eight main line independent
postcard distributors in the state of Florida.”
       3
         It may well be that in the mid-to-late 1980s, Southern Card and Lawson entered
into an informal arrangement whereby Southern Card acted as Lawson’s exclusive vendor
to chain stores in exchange for Lawson’s promise not to sell Disney postcards to Southern
Card’s competitors. On November 22, 1989, John Nyberg, Southern Card’s president,
wrote to the chairman of the board of H.S. Crocker, detailing the “history of the
relationship” between the two companies. Nyberg wrote that he had “wanted exclusivity
on all H.S. Crocker postcard products, including all Walt Disney World items within
[Southern Card’s] territorial area,” and that “[w]ith the understanding that H.S. Crocker
would not manufacture for, or sell to any other distributor in the territory serviced by
Southern Card & Novelty, our companies began to do business.” Nyberg also
acknowledged the existence of this arrangement when deposed on April 18, 1996, stating,
“So de facto, I became -- Southern Card & Novelty became the exclusive vendor to the
chain stores. Although there was never any such agreement made between myself and
Lawson Mardon, it had indeed evolved that way.” However, in an affidavit dated July
30, 1996, Nyberg averred that while the parties had entered into an exclusivity agreement
concerning retailers in Daytona Beach, they “had no territorial exclusive agreement for
Orlando.” For purposes of this appeal, we accept this assertion as true.
       4
         About seventy percent of Southern Card’s revenue is attributable to its sale of
local view postcards.

                                             3
       In late 1991, Lawson introduced a “Disney Product Plan” in Florida. In a letter

dated December 12, 1991, Saunders put forth the terms of the agreement he hoped to

reach with Southern Card pursuant to this plan:

       d) Distributor will purchase Local View and General Florida post cards and
       allied products from [Lawson] equal to his purchases from [Lawson] of
       Disney products. [For example,] if distributor purchases $100,000 in 1992
       of Disney product from [Lawson], distributor agrees to purchase a
       minimum of $100,000 in 1992 of Local View or General Florida product
       from [Lawson].

       e) Failure to meet the minimum requirement agreed to in d) above, may
       result in [Lawson’s] decision to not sell any product to distributor in
       following year.

Because Southern Card feared losing its lone source of Disney postcards, it began buying

Lawson’s local view postcards in amounts equal to its purchases of Disney postcards.

       In October 1993, Saunders wrote to Nyberg expressing his concern that Southern

Card continued to buy a significant quantity of postcards from Lawson’s competitors.

The next month, Saunders wrote to Nyberg asking that Southern Card commit to having

Lawson postcards comprise one hundred percent of Southern Card’s business in the

Orlando area. Southern Card refused, asserting that Lawson already received about

seventy-five to eighty percent of its total business, and that it never committed to

purchasing one hundred percent of its requirements from Lawson.

       A few months later, in February 1994, Lawson began recruiting Southern Card’s

competitors to sell Lawson postcards to chain stores. The next month, Lawson limited

Southern Card’s purchases of Disney postcards to those that Southern Card had bought in



                                              4
1993.5 In the meantime, Lawson sold a number of Disney postcards that had been

developed in 1994 to those distributors that bought only Lawson local view postcards.

The district court found, and Southern Card does not dispute, that as a result of these

developments, Southern Card “has faced new competition” in retail stores in the Orlando

area.

                             II. PROCEDURAL HISTORY

        Southern Card instituted this lawsuit in February 1995, and its amended complaint

asserted federal and state claims of (1) illegal tying pursuant to section 1 of the Sherman

Act, 15 U.S.C. § 1, section 3 of the Clayton Act, 15 U.S.C. § 14, and Florida Statutes

section 542.18; and (2) monopolization and attempted monopolization under section 2 of

the Sherman Act, 15 U.S.C. § 2, and Florida Statutes section 542.19. In outlining its

tying claims, Southern Card stated that (1) Disney postcards constituted the “tying”

product, and local view postcards were the “tied” product; (2) the “greater Orlando area”

constituted the relevant geographic market or sub-market; and (3) the sale of local view

postcards to distributors comprised the relevant product market. The crux of the tying

claims was that Lawson “illegally compelled and coerced Southern Card and others to

agree to purchase [local view postcards] from Lawson . . . as a condition of obtaining and

retaining access to Disney Cards.” Southern Card sought treble damages, injunctive relief




       Since 1994, Southern Card has continued to purchase these Disney postcards
        5

from Lawson but has acquired its entire local view stock from other manufacturers.

                                             5
and attorneys’ fees.6

       After the parties conducted extensive discovery, Lawson filed a motion for

summary judgment that Southern Card vigorously opposed. In November 1996, the

district court granted Lawson’s motion. As to Southern Card’s federal tying claims, the

court first considered whether to deem Lawson’s practices unlawful per se or subject to

evaluation under the rule of reason. The court found that Lawson’s practices were

“unlike traditional tying arrangements” “because Southern Card does not allege that the

ultimate consumer must buy the tied product (a local view postcard) to buy the tying

product (a Disney postcard).” The court thus considered the challenged conduct to

represent “‘full’ or ‘representative’ line forcing,” that is, a vertical nonprice restraint

“undeserving of per se treatment.” Applying the rule of reason, the court held that

Southern Card failed to demonstrate that Lawson had unreasonably restrained

competition in the local view postcard market.

       Notwithstanding its conclusion regarding the applicability of the rule of reason, the

district court also went on to hold that even if it “were to use a per se analysis, Southern

Card’s tying claims would fail” because “the alleged ‘Disney’ and non-Disney


       6
         Southern Card’s expert witness, Dr. Bruce Seaman, subsequently opined that
Southern Card had suffered two types of injuries. According to Dr. Seaman, Southern
Card “suffered economic damages linked to the overcharge on the tied non-Disney post
cards.” Also, Lawson’s “refusal to allow Southern Card access to a full Disney array of
post card products and other types of products has affected and will continue to affect
Southern’s profits on existing chain store accounts as well as the likelihood that chain
store clients will continue to be lost due to the resulting weakening of Southern’s relative
competitive position.”

                                                6
classifications are not separate products such that there can be a ‘tie-in’ between them . . .

. Rather, all of Lawson Mardon’s postcards are sufficiently unitary to be considered a

single product.” Next, the court rejected Southern Card’s federal monopolization and

attempted monopolization claims on the grounds that Southern Card “failed to produce

any admissible evidence that creates triable issues of fact with respect to the existence of

a cognizable market or Lawson Mardon’s monopoly power in such a market.” Finally,

the court turned away Southern Card’s state claims, recognizing that “Florida antitrust

law mirrors federal law as applied to the tying, monopolization and attempted

monopolization claims in the instant case.” On appeal, Southern Card challenges the

district court’s grant of summary judgment only as to its federal and state tying claims.

                                     III. DISCUSSION

       We review the granting of summary judgment de novo, applying the same legal

standards that bound the district court. Uniforce Temporary Personnel, Inc. v. National

Council on Compensation Ins., Inc., 

, 1299 (11th Cir. 1996). “There is no

genuine issue for trial unless the non-moving party establishes, through the record

presented to the court, that it is able to prove evidence sufficient for a jury to return a

verdict in its favor.” Cohen v. United Am. Bank of Cent. Fla., 

, 1349 (11th

Cir. 1996).

                                               A.

       “A tying arrangement is ‘an agreement by a party to sell one product but only on

the condition that the buyer also purchases a different (or tied) product, or at least agrees

                                               7
that he will not purchase that product from any other supplier.’” Eastman Kodak Co. v.

Image Technical Servs., Inc., 

, 462 (1992) (quoting Northern Pac. Ry. Co. v.

United States, 

, 5-6 (1958)). Such arrangements can run afoul of the Sherman

Act’s prohibition against agreements “in restraint of trade,” 15 U.S.C.A. § 1 (West 1997),

and section 3 of the Clayton Act, 15 U.S.C.A. § 14 (West 1997). See Spartan Grain &

Mill Co. v. Ayers, 

, 428 (5th Cir. 1978) (“The Clayton Act, passed as a

response to what Congress considered grudging constructions of the Sherman Act by the

courts, specifically bans tying arrangements.”), cert. denied, 

(1979). As our

predecessor court made clear, the two statutory theories of liability are substantively

synonymous. Bob Maxfield, Inc. v. American Motors Corp., 

, 1037 (5th

Cir. Unit A Feb. 1981), cert. denied, 

(1981); see also IX Phillip E. Areeda,

Antitrust Law ¶ 1719b, at 254 (1991) (“Although their words differ, the two statutes

apply a single substantive standard.”).7

               Although the Sherman Act, by its terms, prohibits every agreement
       “in restraint of trade,” this Court has long recognized that Congress
       intended to outlaw only unreasonable restraints. As a consequence, most
       antitrust claims are analyzed under a “rule of reason,” according to which
       the finder of fact must decide whether the questioned practice imposes an
       unreasonable restraint on competition, taking into account a variety of
       factors, including specific information about the relevant business, its
       condition before and after the restraint was imposed, and the restraint’s

       7
          Because Southern Card does not discuss its state tying claim independently and
fails to cite any Florida case law, we assume that federal antitrust doctrine controls that
claim as well. See Fla. Stat. Ann. § 542.32 (West 1997); see also Parts Depot Co. v.
Florida Auto Supply, Inc., 

, 324 (Fla. 4th D.C.A. 1996) (“[T]he
Legislature has directed courts to rely on comparable federal antitrust statutes in
construing [Florida Statutes section 542.18].”).

                                              8
       history, nature, and effect.

              Some types of restraints, however, have such predictable and
       pernicious anticompetitive effect, and such limited potential for
       procompetitive benefit, that they are deemed unlawful per se. Per se
       treatment is appropriate once experience with a particular kind of restraint
       enables the Court to predict with confidence that the rule of reason will
       condemn it. Thus, we have expressed reluctance to adopt per se rules with
       regard to restraints imposed in the context of business relationships where
       the economic impact of certain practices is not immediately obvious.

State Oil Co. v. Khan, 

, 279 (1997) (internal quotation marks, citations and

brackets omitted). See also Levine v. Central Fla. Med. Affiliates, Inc., 

,

1549 (11th Cir.) (“The presumption in cases brought under section 1 of the Sherman Act

is that the rule-of-reason standard applies. We apply the per se rule only when history

and analysis have shown that in sufficiently similar circumstances the rule of reason

unequivocally results in a finding of liability, i.e., when the conduct involved always or

almost always tends to restrict competition and decrease output.”) (internal quotation

marks, citations and brackets omitted), cert. denied, 

(1996).

       “[C]ertain tying arrangements pose an unacceptable risk of stifling competition

and therefore are unreasonable ‘per se.’” Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 

, 9 (1984). “It is clear, however, that not every refusal to sell two products

separately can be said to restrain competition.” Jefferson 

. “Thus,

in a sense the question whether this case involves ‘tying’ is beside the point. The legality

of [Lawson’s] conduct depends on its competitive consequences, not whether it can be

labeled ‘tying.’” Jefferson 

n.34.



                                              9
       We believe that the terms that Lawson imposed on Southern Card pursuant to its

“Disney Product Plan” -- that Southern Card purchase local view postcards in amounts

equal to its purchases of Disney postcards -- are indicative of a manufacturer’s “line

force” upon a distributor.8 “Line forcing, be it full or representative, is a vertical nonprice

restraint -- an agreement between entities at different levels of distribution that does not

purport to affect prices charged for the goods.” Smith 

.9 As

the Supreme Court has made clear, “economic analysis supports the view, and no

precedent opposes it, that a vertical restraint is not illegal per se unless it includes some

agreement on price or price levels.” Business 

. This is so

because such restraints have the “real potential to stimulate interbrand competition, ‘the

primary concern of antitrust law.’” Business 

(quoting

Continental T.V., Inc. v. GTE Sylvania Inc., 

, 51 n.19 (1977)).10

       As Professor Areeda has written, “requiring dealers to purchase a tied product



       8
         “Full-line” or “representative-line” forcing occurs when “a manufacturer agrees
to license or franchise a dealer to sell its products, but only on condition that the dealer
sell a full or representative line of those products.” Smith Machinery Co. v. Hesston
Corp., 

, 1294 (10th Cir. 1989), cert. denied, 

(1990).
       9
         “Restraints imposed by agreement between competitors have traditionally been
denominated as horizontal restraints, and those imposed by agreement between firms at
different levels of distribution as vertical restraints.” Business Elecs. Corp. v. Sharp
Elecs. Corp., 

, 730 (1988).
       10
         “Interbrand competition is the competition among the manufacturers of the same
generic product . . . . In contrast, intrabrand competition is the competition between the
distributors -- wholesale or retail -- of the product of a particular manufacturer.” GTE

n.19.

                                              10
from the defendant need not impair consumers’ purchases from his rivals who sell

directly to consumers or who continue to reach them through an ample number of other

dealers.” IX Areeda, Antitrust Law ¶ 1725a, at 317. The Tenth Circuit has similarly

stated -- in a case involving a distributor’s claim that a manufacturer tied the sales of its

established, popular farm machinery to sales of its new, unestablished tractors -- that

       [i]n a line forcing situation, where a dealer is serving as an intermediate link
       in a distribution chain, if one manufacturer is foreclosed from selling to a
       dealer because of the arrangement, it is likely going to find another way to
       take its product to market, providing a profit potential continues to exist. In
       such a case, there is no ultimate foreclosure to the consumer of a choice of
       goods. In other more traditional tying arrangements there is an ultimate
       foreclosure of choice to the ultimate consumer. Thus, a foreclosure of
       choice to an ultimate consumer appears to be the principal key to a tie that
       is illegal per se. No such foreclosure occurs or is threatened in a typical line
       forcing situation such as that at bar.

Smith 

(citing Jefferson 

; United States

v. Loew’s Inc., 

, 40 (1962); Northern Pac. 

; and

International Salt Co. v. United States, 

, 393 (1947)). See also Roy B.

Taylor Sales, Inc. v. Hollymatic Corp., 

, 1383 (5th Cir. 1994) (“Ties that

constrain only dealers . . . create relatively little danger to competition, provided

consumers may purchase the two goods separately.”) (footnote omitted), cert. denied, 

(1995); Ransomes Am. Corp. v. Spartan Distribs., Inc., 

, 185

(W.D. Mich. 1996) (“Tying arrangements that constrain only dealers are not

presumptively illegal because they pose little danger to competition, as long as consumers

may purchase the two goods separately.”); Paul E. Volpp Tractor Parts, Inc. v.



                                              11
Caterpillar, Inc., 

, 1229 (W.D. Tenn. 1995) (“Because consumers are

not hurt by vertical non-price restraints between manufacturers and dealers, the type of

line-forcing/exclusive arrangement found in this case should not be subject to the same

per se treatment as traditional tying arrangements.”). Not surprisingly, then, “most courts

dealing with the full-line force have not applied the per se rule against tying but have

required proof in the particular case of a significant threat to competition.” IX Areeda,

Antitrust Law ¶ 1725c, at 323.

       Southern Card has made no showing that line-forcing arrangements like the one at

issue always or almost always tend to restrict competition and decrease output. This fact,

coupled with the strength of the authorities cited above, leads us to conclude that it would

be inappropriate to deem Lawson’s line-forcing practice unlawful per se. Thus, we will

review the restraint under rule-of-reason analysis.

       For the same reasons, Lawson’s (unsuccessful) attempt to compel Southern Card

to carry only Lawson-produced local view postcards does not require us to employ a

different standard.

       The claimed arrangement between [Lawson] and [Southern Card]
       constituted a vertical nonprice restraint between a manufacturer and a dealer
       on goods that the dealer offered to customers independently. It was in
       effect an exclusive-dealing arrangement in which [Lawson] required
       [Southern Card] to sell [Lawson], and only [Lawson], [local view
       postcards]. Such an arrangement is not the sort that would always or almost
       always tend to restrict competition and decrease output. It does not threaten
       competition to the same extent as tying arrangements that bind ultimate
       customers. Regardless of whether the restraint also constituted a tying
       arrangement, subjecting it to per se analysis would ignore our directive
       from the Court. The measure of legality of relationships between

                                             12
       manufacturers and independent distributors must not be allowed to turn on
       labels.

Taylor 

(internal quotation marks and footnotes omitted).

                                            B.

       Under the rule of reason, a plaintiff must prove an anticompetitive effect of the

defendant’s conduct on the relevant market, and that the conduct has no procompetitive

benefit or justification. 

. Southern Card argues that Lawson’s

behavior generated anticompetitive effects because it (1) foreclosed the market to

competitive manufacturers; (2) caused consumers to pay higher prices; and (3) resulted in

a dilution in product quality and service. Southern Card thus attempts to prove that

Lawson’s conduct had an actual detrimental effect on competition. 

. We address Southern Card’s contentions in turn.

                                             1.

       Southern Card asserts that the “record clearly supports the existence of market

preclusion of competitive manufacturers of local view cards in the Orlando area.” In

support of this contention, Southern Card first argues that Lawson’s “specific attack” on

the sales base of one of its competitors, John Hinde Curteich & Co. (Hinde), evidences an

anticompetitive effect. In making this argument, Southern Card relies primarily on the

affidavit of Hinde vice-president Don Moffet.

       Moffet’s affidavit, however, does little to advance Southern Card’s cause. Moffet

avers that Lawson’s practices caused Hinde to lose “some”of its share of the local view



                                            13
postcard market to Lawson. Moffet also states, however, that as Disney postcards

increased in popularity in the late 1980s and early 1990s, Hinde’s sales of local view

postcards “began to decrease.” We agree with Lawson that Moffet’s affidavit is woefully

deficient, as it fails to (1) state with any degree of specificity just how much business

Hinde lost to Lawson; (2) describe any competitive actions Hinde took in response to

Lawson’s practices; or (3) explain away other potential reasons for Hinde’s loss of

business.

       Unfortunately for Southern Card, none of the other evidence it proffers is even as

probative as Moffet’s affidavit.11 In short, Southern Card has failed to show that

Lawson’s dealings somehow either precluded other manufacturers from gaining access to

the local view postcard market or adversely impacted upon consumer choice. Thus, we

have little difficulty in turning away Southern Card’s contention here. As the Fifth

Circuit has stated, “[s]peculation about anticompetitive effects is not enough.” Taylor

.

                                              2.

       Southern Card next asserts that as a result of Lawson’s practices, “the average

price of local view postcards in the Orlando area was significantly higher than in any

other part of [Florida].” In support of this assertion, Southern Card relies on a survey that




       11
         We reach this conclusion after carefully reviewing the record citations put forth
at pages fourteen and forty-one through forty-four of Southern Card’s initial brief, and at
pages seven through twelve of its reply brief.

                                             14
its expert, Dr. Seaman, conducted.12 Dr. Seaman avers that “[t]he result of the survey was

that the average price of non-Disney local view cards in the Orlando area, as sold in gift

shops by Scenic Card[] [a distributor that purchased all of its local view postcards from

Lawson] is $.30, which is . . . higher than the average price of $.25 charged in retail

outlets served by Southern Card [and another distributor]. . . . The average price of local

view post cards in the non-Orlando locations is also approximately $.25 . . . .”

       Southern Card’s evidence is again lacking. As the district court correctly pointed

out, the cited price differential “is of little value” because it may result from “the biased

sample of local view postcard purchases from Orlando gift and souvenir shops, rather

than from lower-cost retail outlets served by Southern Card,” or from Dr. Seaman’s

failure “to factor in differentials in the cost of living (or cost of a vacation) in the various

parts of the state.” Moreover, Southern Card has not referenced any record evidence that

enables this court to assess whether Lawson charged disproportionately higher prices for

its local view postcards as compared to other manufacturers. In sum, Dr. Seaman’s

conclusion, standing alone, would not enable reasonable jurors to conclude that Lawson’s

practices caused consumers to pay more for local view postcards in the Orlando area.

Southern Card’s purported proof regarding anticompetitive effects thus remains overly

speculative.

                                               3.



       12
        Dr. Seaman surveyed postcard prices at over 200 retail stores located throughout
approximately forty different vacation areas in Florida.

                                               15
       Finally, Southern Card argues that Lawson’s practices caused a dilution in local

view postcard quality and service in the Orlando area. Southern Card, however, fails to

present any expert testimony or consumer survey evidence to support this subjective

assessment. Instead, Southern Card first refers to a number of internal memoranda from

Lawson describing various quality and service difficulties it experienced in its production

and delivery of certain postcards. These documents, however, do not address the relative

quality of Lawson’s local view postcards. Southern Card also cites to the deposition

testimony of Duncan Page, a president of both a postcard manufacturing company (i.e., a

Lawson competitor) and a postcard distribution company, who, not surprisingly, states

that he prefers to buy postcards from his own manufacturing company (even though

“[t]he pricing is exactly the same as Lawson Mardon”) because the “quality of our

postcard and our images are better.” Southern Card also references the affidavit of Joel

Mittelberg, the president of Scenic Florida Distributors, Inc., who states, after noting that

he purchases local view postcards from several manufacturers in addition to Lawson, that

Lawson’s delivery times on new work orders are “generally slower than is standard in the

post card industry.” The testimony of Page and Mittelberg, without more, certainly does

not rise to the level of an anticompetitive effect in the relevant local view postcard

market.13

                                   IV. CONCLUSION


       13
          Because we conclude that Southern Card has failed to establish a violation of the
antitrust laws, we have no occasion to consider Lawson’s challenge to Southern Card’s
standing to bring this lawsuit. See 

.

                                             16
       For the foregoing reasons, we hold that the district court was correct (1) in

evaluating Southern Card’s claims under the rule of reason, and (2) in concluding that

Southern Card’s evidence was insufficient for a reasonable jury to find that Lawson’s

sales practices generated an anticompetitive effect in the relevant market. Accordingly,

we affirm the judgment of the district court.

                                       AFFIRMED.




                                                17