HONEY BUM, LLC, a California limited liability company v. FASHION NOVA, INC., a California corporation; RICHARD D. SAGHIAN
No. 22-55150
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
March 22, 2023
D.C. No. 2:20-cv-11233-RGK-AS
Opinion by Judge Milan D. Smith, Jr.
FOR PUBLICATION
Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding
Argued and Submitted December 6, 2022 Pasadena, California
Filed March 22, 2023
Before: PAUL J.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY**
Antitrust
The panel affirmed the district court‘s summary judgment in favor of Fashion Nova, Inc., et al. in an antitrust action brought by Honey Bum, LLC.
Honey Bum, a rival fast-fashion retailer, alleged that Fashion Nova organized a per se unlawful group boycott by threatening to stop purchasing from certain clothing vendors unless they, in turn, stopped selling to Honey Bum. The district court granted summary judgment on Honey Bum‘s Sherman Act § 1 group boycott claim, concluding that Honey Bum failed to create a material dispute as to the existence of a horizontal agreement, between the vendors themselves, to boycott Honey Bum. The district court also granted summary judgment on Honey Bum‘s California business tort claims.
The panel held that Sherman Act § 1 prohibits contracts, combinations, and conspiracies that unreasonably restrain trade. In determining the reasonableness of a restraint, two different kinds of liability standards are considered. Some restraints are unreasonable per se because they always or almost always tend to restrict competition and decrease output. Most restraints, however, are subject to the so-called Rule of Reason, a multi-step, burden-shifting framework. The panel held that a group boycott is an agreement among multiple firms not to deal with another firm (the target). Some group boycotts are per se unlawful, while others are not.
Honey Bum asserted a Klor‘s-style per se group boycott, or “naked” group boycott, under which competitors enter into a horizontal agreement to boycott a firm and the boycott‘s initiator had no purpose other than disadvantaging the target. Honey Bum alleged that Fashion Nova (the hub) pressured clothing vendors (the spokes) to boycott Honey Bum and then those vendors agreed among themselves to do so. The panel held that a horizontal agreement among the spokes was required to prevail, and the district court correctly concluded that Honey Bum failed to establish a material dispute as to whether the clothing vendors agreed among themselves to boycott Honey Bum.
The panel affirmed the district court‘s grant of summary judgment on Honey Bum‘s claim for tortious interference with prospective economic relations because that claim required a showing of independent unlawfulness. Accordingly, summary judgment on the Sherman Act claim necessarily required summary judgment on that claim as well. The panel rejected the theory that
The panel affirmed the district court‘s grant of summary judgment on Honey Bum‘s claim for tortious interference with contract because Honey Bum did not show interference with a preexisting valid contract.
COUNSEL
Jeffery D. McFarland (argued) and Grant Maxwell, McKool Smith Hennigan PC, Los Angeles, California, for Plaintiff-Appellant.
Jonathan E. Nuechterlein (argued), C. Frederick Beckner III, and Alexandra T. Mushka, Sidley Austin LLP, Washington, D.C.; Chad S. Hummel, David R. Carpenter, and Anna Tutundjian, Sidley Austin LLP, Los Angeles, California; for Defendants-Appellees.
OPINION
M. SMITH, Circuit Judge:
Fashion Nova, Inc., a major retailer in the fast-fashion industry, threatened to stop purchasing from certain clothing vendors unless they, in turn, stopped selling to Honey Bum, LLC—one of Fashion Nova‘s rival retailers. After over thirty vendors acceded to Fashion Nova‘s demands, Honey Bum sued Fashion Nova alleging that it had organized a group boycott that is per se unlawful pursuant to the Sherman Act,
FACTUAL AND PROCEDURAL BACKGROUND
Honey Bum and Fashion Nova are retailers in the fast-fashion industry, which quickly produces inexpensive clothing to accommodate consumers’ desire for products in line with ever-changing fashion trends.1 Honey Bum is a newcomer to the industry, while Fashion Nova is one of the industry‘s “biggest player[s].” Fashion Nova came to believe that Honey Bum had intentionally copied its business model: Honey Bum hired the same website designer, entered into deals with some of the same models and social-media influencers, hired a former Fashion Nova employee, and purchased some of the same styles from the same clothing vendors. To stop what it perceived to be free-riding, Fashion Nova organized a group boycott of Honey Bum. It informed vendors that, to retain Fashion Nova‘s business, they must stop doing business with Honey Bum. Over thirty vendors agreed to Fashion Nova‘s terms and stopped doing business with Honey Bum entirely.
Honey Bum filed suit, alleging that Fashion Nova had violated federal antitrust law and committed two California business torts. Specifically, Honey Bum‘s original complaint alleged four causes of action: (1) a group boycott in violation of
Fashion Nova later moved for summary judgment on Honey Bum‘s
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to
ANALYSIS
I. Sherman Act: Per Se Unlawful Group Boycott
Summary judgment was proper on Honey Bum‘s Sherman Act group-boycott claim. Section 1 of the Sherman Act prohibits “[e]very contract, combination . . . , or conspiracy, in restraint of trade.”
“A small group of restraints are unreasonable per se because they ‘always or almost always tend to restrict competition and decrease output.‘” Id. (quoting Amex, 138 S. Ct. at 2283). When a per se prohibition applies, we deem the restraint unlawful without any “elaborate study of the industry” in which it occurs. Id. (quoting Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006)). For example, courts categorically condemn, without inquiring into their effect or purpose, horizontal price-fixing agreements in
Most restraints, however, are subject to the so-called Rule of Reason. This multi-step, burden-shifting framework “requires courts to conduct a fact-specific assessment” to determine a particular restraint‘s “actual effect” on competition. Amex, 138 S. Ct. at 2284 (quoting Corp. v. Indep. Tube Corp.” cite=“467 U.S. 752” pinpoint=“768” court=“U.S.” date=“1984“>Corp. v. Indep. Tube Corp., 467 U.S. 752, 768 (1984)). Rule of Reason litigation generally, but not always, requires parties to define a relevant market and assess whether the defendant has market power within that market. See Amex, 138 S. Ct. at 2285 & n.7. Though the Rule of Reason is not a “rote checklist,” it also generally requires the parties to produce, and the court to evaluate, evidence regarding a restraint‘s anticompetitive effects, its procompetitive benefits, and whether there are less restrictive means of accomplishing those benefits. NCAA v. Alston, 141 S. Ct. 2141, 2160 (2021) (citing Amex, 138 S. Ct. at 2284).
A group boycott, as its name suggests, is an agreement among multiple firms not to deal with another firm (the target). Unlike price-fixing, where a plaintiff need only prove it occurred to establish a violation, we employ a multi-track analysis when considering group boycotts. Some group boycotts “are per se unlawful, while others are not.” Flaa, 55 F.4th at 689; cf. FTC v. Ind. Fed‘n of Dentists, 476 U.S. 447, 458 (1986) (“the category of restraints classed as group boycotts is not to be expanded indiscriminately“). While determining “which group boycotts qualify as per se violations . . . has been a source of confusion for decades,” some general principles have emerged in our precedents. Flaa, 55 F.4th at 689 (quotation omitted).
First, a per se prohibition applies where competitors enter into a horizontal agreement to boycott a firm and the boycott‘s initiator had no purpose other than disadvantaging the target—i.e., “naked” group boycotts. See Charley‘s Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 877 (9th Cir. 1987) (per se prohibition applies to group boycotts “designed to stifle competition” (quoting Assoc. Press v. United States, 326 U.S. 1, 19 (1945))); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 76 (9th Cir. 1969) (per se rule applies to group boycotts that are “naked restraints of trade with no purpose except stifling competition” (quoting White Motor Co v. United States, 372 U.S. 253 (1963))); see also Herbert Hovenkamp & Phillip E. Areeda, Antitrust Law ¶ 2203 (4th ed. 2022) (per se rule limited to boycotts “that on brief inspection are unlikely to have any purpose other than the reduction of market output and attendant price increases“); Julian von Kalinowski, Peter Sullivan, and Maureen McGuirl, Antitrust Laws and Trade Regulation § 12.03[2][d] (2d ed. 2022) (“boycotts between competitors are per se illegal when they are nothing more than naked restraints of trade“). For example, the Supreme Court condemned as per se unlawful an agreement among several fashion designers to pressure their retailers into boycotting rival designers to drive them out of the market. Fashion Originators’ Guild of Am. v. FTC, 312 U.S. 457, 460–63 (1941). Similarly, the Court applied the per se prohibition where a dominant retailer
Importantly, “[a]ntitrust law does not permit the application” of this Klor‘s-style per se rule “in the absence of a horizontal agreement.” NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 138 (1998) (emphasis added). The horizontal agreement can exist either among the initiators of the boycott (as in Fashion Originators’) or those pressured into joining (as in Klor‘s). We call this latter type—where one dominant firm pressures other firms at a different level of the supply chain—a hub-and-spoke group boycott. See In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186, 1192 (9th Cir. 2015). In such a boycott, the initiating firm acts as a hub to which all the pressured firms, or spokes, are connected. Id. Given the horizontal-agreement requirement, plaintiffs can successfully invoke the per se rule in a hub-and-spoke conspiracy only if they prove “horizontal agreements among the spokes.” Id. at 1192 & n.3. Without an agreement among the spokes, there is simply a “collection of purely vertical agreements” subject to Rule of Reason scrutiny. Id.
Second, a modified per se prohibition applies where “some or all,” Flaa, 55 F.4th at 689, of the following characteristics are met: (1) the defendant‘s restriction “cut[s] off access to a supply, facility, or market necessary to enable the boycotted firm to compete“; (2) the defendant “possesse[s] a dominant position in the relevant market“; and (3) the defendant‘s restriction is “not justified by plausible arguments that [it is] intended to enhance overall efficiency and make markets more competitive.” Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 294 (1985). Northwest Wholesale involved a joint buying venture‘s expulsion of a member after a rule violation. Id. at 285–86. And its modified per se prohibition lends itself most readily to boycotts facilitated by a joint venture, trade association, or other professional organization. See PLS.com, LLC v. Nat‘l Ass‘n of Realtors, 32 F.4th 824, 835–37 (9th Cir. 2022).
Third, where a group boycott falls neither within the Klor‘s-style per se prohibition nor the Northwest Wholesale modified per se prohibition, we apply the Rule of Reason. Flaa, 55 F.4th at 693–95; Hahn v. Oregon Physicians’ Serv., 868 F.2d 1022, 1031 (9th Cir. 1988). These theories are not always exclusive and a plaintiff can assert more than one of them. See Flaa, 55 F.4th at 680–91, 693–95 (applying both Northwest Wholesale analysis and the Rule of Reason).
Turning to the facts of this case, Honey Bum asserts only a Klor‘s-style per se group boycott: that Fashion Nova (the hub) pressured clothing vendors (the spokes) to boycott Honey Bum and then those vendors agreed among themselves to do so. Indeed, Honey Bum structured its litigation such that it lacks the kind of evidence required to prevail pursuant to Northwest Wholesale or the Rule of Reason.3 Honey Bum did not attempt to define a relevant market in which Fashion Nova possesses market power; nor did it do any “analysis of [the] impact” of the group
Below, the district court granted summary judgment because no reasonable jury could find that the spokes in the alleged conspiracy (the clothing vendors) had agreed among themselves to boycott Honey Bum. On appeal, Honey Bum makes two arguments: (1) that an agreement among the spokes is not required to prevail; and (2) even if it is, the district court misconstrued the factual record. We are not persuaded by either argument.
A. Necessity of a Horizontal Agreement
The district court correctly held that Honey Bum, to survive summary judgment on its hub-and-spoke group-boycott claim, must create a material dispute regarding an agreement among the spokes. As explained, that requirement flows directly from Supreme Court and our precedents. NYNEX, 525 U.S. at 138 (“[a]ntitrust law does not permit the application” of the Klor‘s-style per se rule “in the absence of a horizontal agreement“); Musical Instruments, 798 F.3d at 1192 (plaintiff must establish “horizontal agreements among the spokes.“).4
B. Honey Bum‘s Proof Failure
Moreover, the district court correctly held that Honey Bum failed to prove such a material dispute. A plaintiff can establish a conspiracy through direct evidence, circumstantial evidence, or both. See In re Citric Acid Litig., 191 F.3d 1090, 1093 (9th Cir. 1999). Direct evidence is smoking-gun evidence that “establishes, without requiring any inferences” the existence of a conspiracy. Id. When it comes to circumstantial evidence, “parallel conduct—even consciously parallel conduct—[is] insufficient” to establish a conspiracy. Musical Instruments, 798 F.3d at 1193. In addition to parallel conduct, a plaintiff relying on circumstantial evidence must show “plus factors,” id., that “tend[] to exclude the possibility that the alleged conspirators acted independently.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (cleaned up). Here, Honey Bum asserts that it produced both direct and indirect evidence, but upon examination, each showing falls short.
1. Direct Evidence
Honey Bum relies on three batches of purported direct evidence. None of Honey Bum‘s evidence “establishes, without requiring any inferences” the existence of a conspiracy because it suggests nothing more than conscious parallelism. Citric Acid Litig., 191 F.3d at 1093.
First, Honey Bum points to evidence relating to the vendors Rehab and Honey Punch, noting that an employee who worked at Rehab, which participated in the boycott of Honey Bum, switched jobs and started working for Honey
Second, Honey Bum emphasizes a communication from another vendor showing that vendor “understood that the boycott in which [it was] participating was not comprised of [sic] a simple vertical arrangement.” By Honey Bum‘s own framing, this communication establishes only “conscious parallelism“—that the vendor “understood” Fashion Nova imposed the same vertical restraints on other vendors.
Third, Honey Bum relies on an entry in Fashion Nova‘s “vendors to block” spreadsheet, which lists the same contact person for two different vendors. Again, this evidence does not, “without requiring any inferences,” establish a conspiracy. Undisputed evidence shows that the listed contact person worked sequentially for the two listed vendors, and so, like the first batch, this evidence is consistent with employee movement within an industry.
2. Circumstantial Evidence
Turning to circumstantial evidence, Honey Bum failed to present plus-factor evidence from which a jury could reasonably infer a horizontal agreement among the spokes (i.e., the clothing vendors Fashion Nova pressured).
a. Acts Against Self-Interest
Where the conduct of an alleged co-conspirator is in its own economic self-interest only if the other alleged co-conspirators follow suit, there is strong circumstantial evidence of a conspiracy. See Stanislaus Food Prod. Co. v. USS-POSCO Indus., 803 F.3d 1084, 1092 (9th Cir. 2015); Citric Acid, 191 F.3d at 1095. Here by contrast, acceding to Fashion Nova‘s demands was in the economic self-interest of each vendor regardless of what other vendors chose to do. Fashion Nova is a well-established, high-volume purchaser whereas Honey Bum is an upstart, low-volume purchaser. If a vendor believed Fashion Nova‘s threats, it would rationally choose to retain Fashion Nova‘s business. Honey Bum survived a motion to dismiss on a narrow theory that the economic benefit of accepting Fashion Nova‘s demands depended on other vendors doing so. After discovery failed to bear out that theory, Honey Bum abandoned it and failed to advance any other argument that an individual vendor acted against its self-interest by accepting Fashion Nova‘s terms.
b. Opportunities to Collude
Atypical communications between alleged coconspirators can constitute a plus factor because such communications provide the opportunity for parties to come to (and enforce) an illicit agreement. But to qualify as a plus factor, such communications must go beyond the “standard fare” of business and trade-association practice. Citric Acid, 191 F.3d at 1098. Here, Honey Bum makes only the generalized, commonplace contention that some fast-fashion vendors are “close colleagues” and “friends” who often attend the same trade shows. If that showing were enough to preclude summary judgment, then “we would have to allow an inference of conspiracy whenever a trade association” exists in a given industry. Id. Such a result would run counter to the Supreme Court‘s instruction that “trade associations often serve legitimate functions, such as providing information to industry members, conducting research to further the goals of the industry, and promoting demand for products and services.” Id. (citing Maple Flooring Mfs. Ass‘n v. United States, 268 U.S. 563, 567 (1925)).
II. Tortious Interference with Prospective Economic Relations
Summary judgment was also proper concerning Honey Bum‘s claim for tortious interference with prospective economic relations (TIPER). This California business tort requires a plaintiff to establish: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant‘s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc., 913 F.2d 676, 689 (9th Cir. 1990) (quoting Youst v. Longo, 43 Cal. 3d 64, 71 n.6 (1987)). The plaintiff must also show that the defendant‘s conduct was independently wrongful—i.e., that it is “wrongful by some legal measure other than the fact of interference itself.” Ixchel Pharma, LLC v. Biogen, Inc., 9 Cal. 5th 1130, 1142 (2020); see also Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1159 (2003) (the interference must be unlawful pursuant to “some constitutional, statutory, regulatory, [or] common law” prohibition).
Here, the parties dispute only whether this latter independent-wrongfulness requirement is satisfied. Honey Bum primarily asserted Section 1 of the Sherman Act as a source of independent unlawfulness. Because we hold that Honey Bum‘s Section 1 claim fails, that statutory provision cannot provide a source of independent unlawfulness for Honey Bum‘s TIPER claim.
Honey Bum alternatively asserted—for the first time in its opposition to summary judgment—that
III. Tortious Interference with Contract
Finally, summary judgment was proper concerning Honey Bum‘s claim for tortious interference with contract (TIC). This California business tort is closely related to the one addressed in the previous section—applying, as its name suggests, to business relationships that have already culminated in a contract. Ixchel, 9 Cal. 5th at 1141. As such, it requires a plaintiff to establish: “(1) a valid contract between plaintiff and a third party; (2) defendant‘s knowledge of this contract; (3) defendant‘s intentional acts designed to induce a breach or disruption of
Because Fashion Nova allegedly interfered with contracts for the sale of goods (i.e., clothing items), we determine whether a valid contract existed pursuant to California‘s Uniform Commercial Code—Sales (UCC). See
Below, the district court entered summary judgment on Honey Bum‘s TIC claim after concluding that “a reasonable jury [could not] find that Defendants knew about or intended to disrupt any contractual relationship.” On appeal, Honey Bum argues that two purported contracts warrant reversal. We are not persuaded.
First, Honey Bum relies on an email exchange to assert a contract with the vendor Bear Dance. In the cited exchange, Honey Bum informed Bear Dance, “We place[d] an order today with two styles, can you tell me if this will be fulfilled or cancelled?” To which Bear Dance responded: “We will go ahead and cancel it from our side.” As explained, a purchase order is simply an offer.
Second, Honey Bum points to a purported contract with Viva USA. Even assuming that there was a valid contract between Viva USA and Honey Bum, the existence of a contract is just one element of a TIC claim. As relevant here, Honey Bum also needed to create a material dispute that Fashion Nova took “intentional acts designed to induce a breach or disruption of the contractual relationship.” United Nat. Maint., 766 F.3d at 1006. But Honey Bum cited no evidence—either in its opposition to summary judgment or in its briefs before this court—that creates a material dispute regarding this requirement. Honey Bum cites an email exchange in which a vendor noted that Honey Bum “pre-ordered” some goods and a Fashion Nova employee requested that someone “call and ask” the vendor to not “ship.” To begin, this email exchange does not relate to either of the two purported contracts Honey Bum put forward. In any event, all this exchange shows is that Fashion Nova intentionally acted to prevent a vendor from entering into a prospective contract by shipping the requested goods, see
CONCLUSION
For the foregoing reasons, the district court‘s grant of summary judgment on all of Honey Bum‘s claims is AFFIRMED.
MILAN D. SMITH, JR.
UNITED STATES CIRCUIT JUDGE