ELAINE E. BUCKLO, District Judge.
Currently pending in this now familiar case are the summary judgment motions of the only remaining defendants: Dickerson Realtors, Michael Dunn, Frank Wehrstein, Lori Reavis, and Frank Sheley, five real estate brokers or agents alleged to have engaged in an anti-competitive scheme to drive plaintiffs out of the Rockford, Illinois real estate market. I have issued three previous opinions in this case,
Plaintiffs (sometimes referred to collectively as "Hackman") assert that defendants engaged in concerted, anticompetitive behavior beginning sometime in 1999 and continuing through the filing of Hackman's second amended complaint on September 25, 2008. Hackman's premise is that defendants were disgruntled over advertisements plaintiffs began running in 1999, which offered to charge commission rates in the five percent range to prospective sellers, since the advertised rates were lower than the "going rates" charged by defendants of six or seven percent. Hackman claims that in 1999, defendants formed an illegal agreement to punish Hackman for offering these lower commission rates and undertook joint efforts to put Hackman out of business. These efforts included: threats by defendant Dickerson to pay a one percent commission "split" to Hackman in any transaction in which Hackman represented the buyer of a Dickerson-listed property, regardless of the "split" advertised for that property;
Summary judgment should be granted "if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Chaklos v. Stevens, 560 F.3d 705, 710 (7th Cir.2009) (quoting Fed.R.Civ.P. 56(c)). Under Rule 56(c), the moving party bears the initial burden of pointing to the portions of the record that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant carries this burden, the non-movant must then identify specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586, 106 S.Ct. 1348. One commonsense formulation of the ultimate question on summary judgment is this: "[i]f a sensible jury could
Hackman's antitrust claims assert violations of Sections 1 and 2 of the Sherman Act and the corresponding sections of the Illinois Antitrust Act.
But it now appears from plaintiffs' undeveloped citation to Endsley v. City of Chicago, 230 F.3d 276 (7th Cir.2000),
Proceeding to Hackman's Section 1 claim, I have previously noted that a successful claim under this provision "requires proof of three elements: (1) a contract, combination, or conspiracy; (2) a resultant unreasonable restraint of trade in the relevant market; and (3) an accompanying injury." Hackman III, 595 F.Supp.2d at 878 (internal quotations and citations omitted). The precise contours of Hackman's Section 1 claim are not clear. While defendants characterize the claim as a "conspiracy to boycott," and indeed, plaintiffs have at times used these terms to describe the alleged conspiracy, Hackman insists that the conspiracy was broader than merely an agreement to boycott Hackman. Hackman argues that defendants' agreement was to "ruin" Hackman, and that the illegal boycott—though itself a per se violation of the statute—was only one of several means to this end.
Whether the alleged boycott is the alpha and omega of plaintiffs' claim, or merely one act among others in a broader anticompetitive scheme, the "group boycott" is clearly central to Hackman's theory of liability. It is problematic, then, that the undisputed facts reveal sales by Hackman of properties listed by defendant Dickerson in every year of the alleged boycott, as well as sales by defendants of Hackman-listed properties in every year through 2006. Indeed, Hackman acknowledges that Dickerson sold 5% of Hackman's total listings in 2004, 7% of Hackman's total listings in 2005, and 9% of Hackman's total listings in 2006. These statistics are flatly inconsistent with plaintiffs' claim that defendants refused to deal with them during this period. Unable to dispute these figures, Hackman lamely speculates that a single, rogue Dickerson agent "did not get or listen to the policy" of refusing to deal with Hackman. Notably, however, Hackman points to nothing in the record to support this interpretation. No sensible jury could conclude that defendants engaged in a "group boycott" spanning the 1999-2008 period.
But Hackman also alleges a specific "boycott" from March 5-8, 2004. While it is undisputed that Hackman's agents were unable to show any properties listed by Dickerson during that time, defendants offer evidence that defendant Dunn—pursuant to whose orders Hackman was excluded from Dickerson's listings—acted independently in Dickerson's own interest.
So there was no group boycott, either general or specific. If this conclusion is not the nail in the coffin of plaintiffs' conspiracy claim, there are plenty of others. Hackman's only direct evidence of an agreement among defendants is Gregory Hackman's testimony that defendant Wehrstein told him, in the company of other local realtors at a RAAR event in 1999, "[l]ook, we have been talking, and you're going to stop taking listings at 5%... [otherwise] we're going to boycott you," and that five years later, Wehrstein told him, "[w]e're going to put the full court press on now ... I'm going to have you expelled from the Rockford Area Association of Realtors, we're going to have you expelled." Yet, as discussed above, no boycott ever materialized, and Hackman does not identify a single anticompetitive act allegedly taken by Wehrstein or any other defendant between 1999 and 2004. Indeed, Hackman admits that his business flourished during this period, when even his transactions with the alleged co-conspirators increased. Whatever Wehrstein might have meant by the statement he allegedly made in 2004, Hackman points to no evidence that Wehrstein or any other co-conspirator took any action in furtherance of any agreement to have Hackman "expelled" from RAAR.
On Hackman's history of consummated transactions with defendants, Hackman appears to be of two minds. Hackman first insists that "the numbers speak for themselves," but then accuses defendants, in the very next breath, of "spinning the numbers" to obscure their unlawful conduct. In particular, Hackman points to a drop-off in business between Hackman and Dickerson after 2006 as proof that "once Hackman started getting too successful," defendants' illegal efforts began "in earnest." But this argument deserves no serious consideration. No sensible jury could believe, based on these statistics, that a boycott that allegedly began in 1999, then lay entirely dormant until 2004 (the year in which essentially all of the acts claimed to be in furtherance of the conspiracy occurred, but in which Hackman's business with defendants nevertheless reached its peak), somehow caused plaintiffs' business to plummet only in 2007, despite the conspiracy's apparent return to dormancy for all of 2005 and 2006. In addition, the evidence on which Hackman relies to implicate defendants Dunn and Reavis in the putative conspiracy is plainly insufficient to withstand summary judgment. As evidence of defendant Dunn's participation in the alleged scheme, Hackman
With respect to Reavis, Hackman relies on the ethics complaint and on evidence that Reavis discussed entering into a listing agreement with a client of Hackman's as evidence of her agreement in the alleged conspiracy. But these facts cannot support the weight of the inference with which Hackman freight them. Hackman acknowledges that the transaction giving rise to Reavis's ethics complaint was fraught with antagonism on both sides, and the evidence is that her complaint against Hackman was in good faith, and, indeed, at least partially meritorious. And Hackman offers nothing to counter evidence that Reavis's contact with Hackman's client was motivated by her own professional interests.
In short, there was no boycott, there was no anticompetitive agreement involving Dunn or Reavis, and any agreement Wehrstein may have made was without consequence, as he took no acts to further the scheme to which Hackman claims he admitted,
Hackman's defamation claim is pending only against defendants Dickerson, Sheley and Reavis. Little analysis is required to conclude that these defendants are entitled to summary judgment on this
Also in putative support of Hackman's defamation claim against Dickerson, Hackman cites a statement imputed to a Dickerson agent not a party to this suit
Finally, Hackman claims that Reavis's filing of a "frivolous" ethics complaint constitutes defamation. As previously discussed, the evidence is that the complaint was brought in good faith and was not frivolous. Moreover, Hackman's opposition brief does not identify a single specific statement in the ethics complaint that Hackman claims is untrue. The opaque references to evidence that Hackman agent Jeff DeWitt's had a "dual agency disclosure" and that "the Marquezes" were DeWitt's clients are plainly insufficient in this regard. For at least these reasons, Hackman's defamation claim against Reavis does not withstand summary judgment.
Defendants Dickerson, Sheley and Reavis are entitled to summary judgment on count V.
As I have previously held, "a claim for tortious interference with prospective economic advantage requires that plaintiffs show (1) their reasonable expectation of entering into a valid business relationship; (2) defendants' knowledge of that expectancy; (3) purposeful interference by the defendants preventing that expectancy from being fulfilled; and (4)
Hackman's current theory of liability based on the one-percent letter does not withstand analysis. Plaintiffs' original theory, advanced at the motion to dismiss stage, was that the one-percent letter interfered with Hackman's business expectations vis-à-vis Hackman's agents, who Hackman claimed defected once they learned that they stood to earn only a one-percent commission in any transaction with Dickerson. But the evidence revealed during discovery cut this theory off at the knees, since both agents alleged to have abandoned Hackman's employ for this reason testified that their departure was not prompted by the one-percent letter. Rather than drop the argument that the one-percent letter supports this claim, Hackman now offers the convoluted theory that the one-percent letter caused Hackman's agents to lose their "motivation" (or somehow their "ability") to show Dickerson properties, which impaired Hackman's clients' ability to see the properties they wanted to see, which ultimately caused the clients to stop working with Hackman. Even if plaintiffs could find support in the law for such a tangled theory (for which they cite no authority), a more fundamental flaw plagues their claim: to support a tortious interference claim, defendants' actions would have to have been directed toward the third parties with whom Hackman claims a business expectancy. Du Page Aviation Corp. v. Du Page Airport Authority, 594 N.S.3d 1334, 1341 (Ill.App. Ct.1992). Actions directed towards plaintiffs, even if they allegedly "interfered with plaintiffs' ability to continue dealing with their own customers" cannot support a claim for tortious interference. Id. The one-percent letter was plainly directed to Hackman, not to any third parties.
The events of March 5-8, 2004 cannot support plaintiffs' claim for similar reasons. As noted previously, plaintiffs offers no competent evidence that they lost any clients as a result of the events of March 5-8, 2004. And the actions Hackman impute to defendants were directed toward plaintiffs, not toward any specific third parties.
For the foregoing reasons, defendants Dickerson, Dunn, and Wehrstein are entitled to summary judgment on this claim.
Defendant Reavis is also entitled to summary judgment but for different reasons. Hackman argues that Reavis's conduct toward "the Reimers"—clients of Hackman's who became clients of Reavis's after the expiration of their agreement with Hackman—unlawfully interfered with Hackman's reasonable business expectancy with them. But "[c]ompetition is one of the numerous privileges that serve as a complete defense to a claim for tortious interference." BlueStar Management v. The Annex Club, LLC, No. 09 C 4540, 2010 WL 2802213 at *8 (N.D.Ill. July 12, 2010) (Gettleman, J.) "In Illinois, the competition defense is recognized so long as competitive conduct is not motivated solely by spite or ill will." Id. (Citing International Mktg., Ltd. v. Archer-Daniels-Midland Co., Inc., 192 F.3d 724, 731 (7th Cir. 1999)). The undisputed fact that Reavis signed her own contract with the Reimers
For the foregoing reasons, the summary judgment motions of defendants Dickerson, Dunn, Wehrstein, Reavis and Sheley are granted in their entirety.