Loren Data Corporation v. GXS Incorporated

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 8:10-cv-03474-DKC. Copies to all parties and the district court/agency. [999010012].. [11-2062]

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 1 of 26

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2062

LOREN DATA CORPORATION,
Plaintiff - Appellant,
v.
GXS, INC.,
Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District
Judge. (8:10-cv-03474-DKC)

Argued:

September 20, 2012

Decided:

December 26, 2012

Before NIEMEYER and KEENAN, Circuit Judges, and Michael F.
URBANSKI, United States District Judge for the Western District
of Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Urbanski wrote
opinion, in which Judge Niemeyer and Judge Keenan joined.

the

ARGUED: Glenn B. Manishin, TROUTMAN SANDERS, LLP, Washington,
D.C., for Appellant.
Robert A. Schwinger, CHADBOURNE & PARKE,
LLP, New York, New York, for Appellee.
ON BRIEF: David H.
Evans, CHADBOURNE & PARKE, LLP, Washington, D.C.; Benjamin D.
Bleiberg, CHADBOURNE & PARKE, LLP, New York, New York, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 2 of 26

URBANSKI, District Judge:
Loren
complaint

Data

against

GXS,

Corporation
Inc.

(“Loren

(“GXS”)

Data”)

alleging

filed

a

violations

of

Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1,
2, the Maryland antitrust statute, as well as common law claims
of tortious interference and breach of contract.

The district

court granted GXS’s motion to dismiss Loren Data’s antitrust
claims.

Because the district court correctly recognized that

Loren Data failed to allege a plausible conspiracy in restraint
of trade in violation of Section 1 of the Sherman Act or facts
sufficient to state a plausible Section 2 claim, we affirm.

I.
Loren Data and GXS are engaged in the Electronic Data
Interchange industry.

Electronic Data Interchange (“EDI”) is

the transfer and exchange of business data from one computer
system to another using a standard digital format.

EDI messages

are generated, sent, and received by business computing systems
for parties engaged in commercial trading, and often include the
transmission

of

purchase orders.

business

information

such

as

invoices

and

EDI messages travel over secure, private data

networks called Value Added Networks (“Networks”).
Loren Data operate such Networks.

Both GXS and

Loren Data alleges that the

GXS Network is the market leader, and this case concerns GXS’s
2

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 3 of 26

refusal to allow Loren Data to connect to the GXS Network in the
manner sought by Loren Data.
Networks
referred

to

interconnect

transfer

in

the

(“peer

business

industry

information

as

interconnect”)

and

a

two

ways,

non-settlement

a

in

peer

commercial

mailbox.

When data is transmitted over a peer interconnect, each Network
bears its own costs associated with the transfer of data, and
neither Network charges the other for the data transmission.

In

contrast, Networks communicating via a commercial mailbox charge
each other based on the volume of data transferred.

Loren Data

alleges that a peer interconnect is the industry standard and
that

a

commercial

expensive.

mailbox

is

cumbersome,

inefficient,

and

While Loren Data has had access to the GXS Network

by means of a commercial mailbox, it charges a violation of the
antitrust

laws

because

GXS

has

refused

to

grant

it

a

peer

interconnect.
Loren

Data’s

efforts

to

from GXS span the last decade.

obtain

a

peer

interconnect

The amended complaint alleges

that Loren Data began negotiations with GXS to secure a peer
interconnect

in

November

2000.

While

negotiations

were

underway, GXS made a commercial mailbox available to Loren Data
as an interim solution.

In August 2001, GXS declined Loren

Data’s request for a peer interconnect and notified Loren Data
that it would terminate the commercial mailbox if $30,000.00 in
3

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 4 of 26

overdue fees owed by Loren Data were not paid.
did

not

pay

mailbox.

the

overdue

fees,

GXS

terminated

When Loren Data
the

commercial

Loren Data approached GXS again in 2002 to establish a

peer interconnect, but that request too was denied.
In August 2003, Loren Data again approached GXS about
a peer interconnect, this time because a potential customer,
Covisint, required routing to commercial trading partners on the
GXS Network.

Although Loren Data had, by this time, settled its

outstanding accounts with GXS, GXS declined to provide a peer
interconnect, again offering a commercial mailbox.
fact

that

Loren

Data

could

only

offer

Covisint

Despite the
a

commercial

mailbox connection to the GXS Network, Covisint contracted with
Loren Data. 1
Matters came to a head in 2010.

In a letter dated

September 3, 2010, GXS addressed the terms under which it was
willing to do business with Loren Data.

1

This letter, attached

While the commercial mailbox relationship between Loren
Data and GXS has been the norm over the last decade, there have
been exceptions.
From 2005 to 2009, GXS allowed Loren Data a
peer interconnect for traffic pursuant to an outsourcing
contract between Loren Data and IBM. In 2009, Loren Data signed
a transit agreement with Inovis, Inc. which gave Loren Data
indirect access to the GXS Network through the InovisWorks
Network.
Loren Data alleges that GXS indicated that it would
not renew or extend the InovisWorks transit agreement upon its
expiration in May 2011.

4

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 5 of 26

as an exhibit to the amended complaint, forms the core of Loren
Data’s Sherman Act Section 1 conspiracy allegation.
In the September 3, 2010 letter, GXS explained that it
could

not

offer

Loren

Data

anything

more

than

a

commercial

mailbox because it believed Loren Data’s business model to be
incompatible

with

its

own.

GXS

characterized

business model as a “service bureau.”

Loren

Data’s

As a “service bureau,”

GXS asserted that Loren Data was focused exclusively on selling
a connection to the GXS Network and did not provide the value
associated with other Networks, which GXS contended are focused
on growing the overall EDI market.
GXS
interconnect
problems.
model

also
to

expressed

Loren

Data

concern
would

that

result

providing
in

service

a

peer

quality

GXS stated that the core of Loren Data’s business

involves

message

“daisy

chaining.”

GXS

distinguished

daisy chaining from the “one-hop” approach employed by GXS in
which “messages traverse one network and stop.”

In contrast,

daisy chaining allows a message to hop from Network to Network.
According to GXS, “[a] proliferation of daisy chaining increases
GXS[’s]

risks

in

its

ability

to

manage

availability, and overall service quality.”
2010

letter

stated

that

GXS’s

current

latency,

The September 3,

Network

agreements expressly prohibit daisy chaining.

5

service

interconnect

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 6 of 26

The amended complaint alleges that both GXS and Loren
Data have peer interconnect agreements with all of the 36 other
EDI

Networks.

interconnect

Regardless,
access

to

the

Loren

Data

alleges

GXS

Network

is

that

peer

essential

to

competition because that Network controls over 50 percent of the
market.

Although

Loren

Data

alleges

a

concerted

refusal

to

deal, the amended complaint states that “[c]urrently about 55%
of Loren Data’s business travels on GXS [Networks].”

II.
Loren

Data

filed

a

complaint

on

December

13,

2010

alleging that GXS’s refusal to provide it a peer interconnect to
the GXS Network violated Sections 1 and 2 of the Sherman Act,
the Maryland antitrust statute, and the common law.

GXS moved

to

of

dismiss

the

complaint

Procedure 12(b)(6).

pursuant

to

Federal

Rule

Civil

In response to GXS’s motion to dismiss,

Loren Data filed an amended complaint, which incorporated the
original complaint, introduced supplemental facts, and attached
the September 3, 2010 letter, which it believed evidenced the
agreement to restrain trade.
On August 9, 2011, the district court dismissed the
action.

The district court reasoned that Loren Data failed to

allege specific facts in support of a Section 1 conspiracy, and,
in fact, the facts alleged suggest the absence of an agreement
6

Appeal: 11-2062

in

Doc: 39

restraint

Filed: 12/26/2012

of

trade.

As

Pg: 7 of 26

to

the

Section

2

monopolization

claim, the district court held that Loren Data did not properly
allege

a

alleged

plausible
refusal

conduct.

The

essential

to

deal

district

facilities

constituted
court

also

claim

or

unlawful

held

that

the

exclusionary

that

Loren

Data’s

attempted monopolization claim did not sufficiently allege the
specific

intent

to

monopolize

or

a

dangerous

probability

of

successful monopolization.
Loren Data filed two post-judgment motions that the
district court construed as motions to alter judgment pursuant
to Federal Rule of Civil Procedure 59(e).
Loren

Data

sought

clarification

as

to

In those motions,

whether

the

case

was

dismissed with or without prejudice and reconsideration of the
dismissal.

The court denied the motions and ordered that the

case be dismissed with prejudice.

This appeal followed. 2

III.
An

order

reviewed de novo.

granting

dismissal

under

Rule

12(b)(6)

is

See E.I. du Pont de Nemours & Co. v. Kolon

2

Loren Data did not appeal the district court’s rulings as
to its Maryland common law claims and those portions of its
Maryland antitrust claims that do not parallel its Sherman Act
claims.
As such, these claims are not addressed herein.
Likewise, there is no need to undertake separate analysis of the
parallel Maryland antitrust claims, as resolution of those
claims is subsumed in the Sherman Act analysis.

7

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 8 of 26

Indus., 637 F.3d 435, 440 (4th Cir. 2011).

The Supreme Court

in

U.S.

Bell

Atlantic

Corp.

v.

Twombly,

550

544

(2007),

articulated a two-pronged approach to assessing the sufficiency
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

of a complaint.

First, the complaint must allege facts sufficient to support the
legal conclusions in the complaint, as Federal Rule of Civil
Procedure 8 requires “more than labels and conclusions,” and
admonishes against “a formulaic recitation of the elements of a
Twombly, 550 U.S. at 555.

cause.”

Second, “[t]o survive a

motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible

on

its

Iqbal,

face.’”

(quoting Twombly, 550 U.S. at 557).

556

U.S.

at

678

Plausibility requires that

the factual allegations “be enough to raise a right to relief
above the speculative level . . . on the assumption that all the
allegations in the complaint are true.”

Twombly, 550 U.S. at

555; see, e.g., Robertson v. Sea Pines Real Estate Companies,
Inc., 679 F.3d 278, 288 (4th Cir. 2012).
In
trade,

the

Twombly

context

teaches

that

of

an

a

court

conclusory allegations of conspiracy.
the

court

conclusory

must
factual

determine

whether

allegations

suggestion of conspiracy.”

give

agreement
may

not

restrain

simply

550 U.S. at 555.
the

credit
Rather,

well-pleaded,

rise

Id. at 565-66.
8

to

to

a

non-

“plausible

As the district

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 9 of 26

court correctly concluded, the factual allegations in this case
fail to reach that level.

IV.
A.
Count I of Loren Data's amended complaint alleges a
violation of Section 1 of the Sherman Act.

Section 1 of the

Sherman Act states that: “Every 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.”
Section

1

violation,

a

15 U.S.C. § 1.

plaintiff

must

To establish a

prove,

and

therefore

plead, “(1) a contract, combination, or conspiracy; (2) that
imposed

an

unreasonable

restraint

of

Dickson

trade.”

v.

Microsoft Corp., 309 F.3d 193, 202 (4th Cir. 2002).
“Not every instance of cooperation between two people
is a potential ‘contract, combination . . . or conspiracy, in
restraint
League,

of

130

trade.’”
S. Ct.

2201,

Am.

Needle,

2208

Inc.

(2010).

v.
The

Nat’l
term

Football

“contract,

combination . . . or conspiracy” in Section 1 applies only to
concerted

action,

and

not

unilateral

activity.

Id.

(citing Copperweld Corp. v. Independence Tube Corp., 467 U.S.
752, 761 (1984)).

The Sherman Act proscribes concerted action

because it is “fraught with anticompetitive risk” and “deprives
9

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 10 of 26

the marketplace of the independent centers of decision-making
that competition assumes and demands.”

Robertson, 679 F.3d at

284

The

(internal

citations

omitted).

purpose

of

the

distinction “between concerted and independent action [is] to
deter

anticompetitive

conduct

and

compensate

its

victims,

without chilling vigorous competition through ordinary business
Id.

operations.”

More particularly, concerted activity is prohibited by
Section 1 when “multiple parties join their resources, rights,
and economic power together in order to achieve an outcome that,
but

for

concert,

would

naturally

be

frustrated

by

competing interests (by way of profit maximizing choices).”

their
Va.

Vermiculite, Ltd. v. Historic Green Springs, Inc., 307 F.3d 277,
282 (4th Cir. 2002).

Thus, Section 1 does not include “the

entire body of private contract,” and a business generally has
“the right to deal or not deal with whomever it likes, as long
Laurel Sand & Gravel, Inc. v. CSX

as it does so independently.”

Transp., Inc., 924 F.2d 539, 542 (4th Cir. 1991).
To

adequately

plead

a

Section

1

conspiracy,

the

complaint must allege a factual basis plausibly suggesting that
concerted
trade.

activity
See

Twombly,

led
550

to

an

U.S.

at

agreement
556.

to

restrain

Specifically,

when

concerted conduct is a matter of inference, a plaintiff must
include evidence that places the parallel conduct in “context
10

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 11 of 26

that raises a suggestion of a preceding agreement” as “distinct
from

identical,

independent

action.”

Id.

at

549,

556; see also Robertson, 679 F.3d at 289.
“Conspiracies
effort

to

escape

circumstantial
place.”

evidence

of

in

often

detection,

evidence

Robertson,

allegations

are

this

to

679
case

conspiracy.

tacit

thus

that

at

an

of

Loren

in

an

resort

to

agreement

289-90.

suggestive
Rather,

unwritten

necessitating

suggest
F.3d

or

There

such
Data

are

took
no

circumstantial
relies

on

the

reference in the September 3, 2010 letter to the prohibition on
daisy chaining in the GXS Network interconnect agreements to
meet Section 1’s concerted action requirement.
the

daisy

chaining

ban

contained

in

the

Loren Data reads
GXS

interconnect

agreements as evidence of collusion between GXS and each of the
other 36 Networks to boycott Loren Data.
Merely pleading or pointing to an express contract is
not enough to show that an actual conspiracy to restrain trade
is afoot, however.

A reviewing court must “take account of the

absence of a plausible motive to enter into the alleged . . .
conspiracy.”

Matsushita Electric Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 595 (1986).

“[C]ourts should not

permit factfinders to infer conspiracies when such inferences
are implausible, because the effect of such practices is often
to deter procompetitive conduct.”
11

Id. at 593 (citing Monsanto

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 12 of 26

Co. v. Spray-Rite Service Corp., 465 U.S. 752, 762-64 (1984).
If the alleged co-conspirators “had no rational economic motive
to

conspire,

and

if

their

conduct

is

consistent

with

other,

equally plausible explanations, the conduct does not give rise
to an inference of conspiracy.”

Matsushita, 475 U.S. at 596-97

(citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253,

278-80

(1968).

possibility

that

The
the

evidence

must

alleged

tend

to

exclude

co-conspirators

the

acted

independently, and the alleged conspiracy must make practical,
economic

sense.

Matsushita,

475

U.S.

at

597-98

(citing Monsanto, 465 U.S. at 764).
Here, the allegations do not meet this standard.

The

September 3, 2010 letter does not provide any indication that
other

Networks

have

acquiesced

or

joined

in

any

kind

of

conspiracy to boycott Loren Data, much less taken any action
against Loren Data.

The letter merely suggests that GXS was

unwilling to contract with Loren Data on the terms it sought and
provides no evidence that others agreed to boycott Loren Data.
Indeed, it is difficult, if not impossible, to reconcile Loren
Data’s allegation that the September 3, 2010 letter is direct
evidence

of

a

conspiracy

against

Loren

examination of the terms of that letter.
entirety,

the

business

model

letter
raises

explains

that

service

Loren

quality

12

Data

with

a

full

When read in its
Data’s

concerns

daisy
for

chain

the

GXS

Appeal: 11-2062

Doc: 39

Network.

Filed: 12/26/2012

Pg: 13 of 26

To address the service quality problems posed by daisy

chaining, GXS proposed a new commercial relationship with Loren
Data.

As

such,

the

September

3,

2010

letter

is

hardly

suggestive of an unlawful conspiracy or an agreement to boycott
Loren Data.

Rather, it simply explains the terms on which GXS

was willing to contract with Loren Data.
Moreover, as the district court recognized, the facts
alleged by Loren Data contradict any inference of conspiracy.
Loren Data simultaneously alleges: (1) that GXS contracted with
all other Networks to exclude Loren Data from obtaining a peer
interconnect with GXS; yet (2) Loren Data was able to obtain
peer

interconnects

Networks.

with

all

of

these

allegedly

boycotting

The fact that Loren Data was able to interconnect

with all of these other Networks negates any suggestion that
these Networks conspired with GXS to boycott Loren Data.

These

facts do not support an allegation of a Section 1 conspiracy;
rather, they are consistent with unilateral conduct by GXS to
protect its Network from the service quality perils it perceived
to be associated with daisy chaining.
Given

the

fact

that

Loren

Data

was

able

to

interconnect freely with so many other Networks, the letter of
September

3,

2010

concerted action.

cannot

plausibly

be

read

as

evidence

of

Rather, it reflects GXS’s unilateral business

judgment as to the parameters under which it was willing to deal
13

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 14 of 26

with Loren Data, an entity it viewed as having an incompatible
business model.

Monsanto, 465 U.S. at 761 (“A manufacturer of

course generally has a right to deal, or refuse to deal, with
whomever it likes, as long as it does so independently . . . .
And a distributor is free to acquiesce in the manufacturer's
demand

in

alleged

order

in

the

to

avoid

amended

termination.”).

complaint,

the

Given

conspiracy

the

facts

posited

Loren Data simply makes no practical or economic sense.

by
As

such, the district court correctly concluded that the Sherman
Act Section 1 claim fails as a matter of law.

V.
Counts II and III of Loren Data’s amended complaint
allege violations of Section 2 of the Sherman Act, 15 U.S.C.
§ 2,

which

monopolize,

make
or

it

illegal

combine

or

to

“monopolize,

conspire

with

any

or
other

attempt

to

person

or

persons, to monopolize any part of the trade or commerce among
the

several

States,

or

with

foreign

nations.”

Loren

Data

challenges the district court’s decision to dismiss both its
monopolization and attempted monopolization claims.

A.
To

state

a

monopolization

claim

under

Section

2,

two

elements must be demonstrated: (1) the possession of monopoly
14

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 15 of 26

power in the relevant market 3 and (2) the willful acquisition or
maintenance

of

that

power

as

distinguished

from

growth

or

development as a consequence of a superior product, business
acumen, or historic accident.
384

U.S.

Offices

563,

570-571

of

Curtis

(“Trinko”).

The

V.

United States v. Grinnell Corp.,

(1966);
Trinko,

Supreme

Verizon
LLP,

Court

540
in

Commc’ns
U.S.

Trinko

Inc.

398,

407

noted

v.

Law

(2004)

that

the

possession of monopoly power is only unlawful when it is coupled
with anticompetitive conduct.

540 U.S. at 407.

To violate

Section 2 of the Sherman Act, a defendant must engage in conduct
“to foreclose competition, gain a competitive advantage, or to
destroy a competitor.”

E.I. DuPont de Nemours, 637 F.3d at 450

(citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504
U.S.

451,

482-83

(1992)).

The

3

anticompetitive

conduct

Monopoly power is defined as “the power to control prices
or exclude competition.”
United States v. E.I. du Pont de
Nemours & Co., 351 U.S. 377, 391 (1956).
“Proof of a relevant
market is the threshold for a Sherman Act § 2 claim.
The
plaintiff must establish the geographic and product market that
was monopolized.” Consul, Ltd. v. Transco Energy Co., 805 F.2d
490, 493 (4th Cir. 1986). The district court questioned whether
Loren Data’s “inconclusive statements as to geographic market
are adequate to state a claim,” Loren Data Corp. v. GXS, Inc.,
No. DKC 10-3474, 2011 WL 3511003, at *6 (D. Md. Aug. 9, 2011),
but noted that it need not reach that issue “because Loren
Data’s claim has other failings.”
Id. at *7.
As to the
relevant product market alleged by Loren Data, the EDI industry,
the district court concluded that “it cannot be said that Loren
Data has failed to plead a relevant product market in terms
sufficient to state a claim.” Id.

15

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 16 of 26

requirement reflects the essence of an antitrust violation, that
of

harm

to

competitor.
Commc’ns,

competition,

rather

than

to

an

individual

Spanish Broad. Sys. of Fla., Inc. v. Clear Channel

Inc.,

376

F.3d

1065,

1075

(11th

Cir.

2004).

The

Supreme Court has explained that “[e]ven an act of pure malice
by one business competitor against another does not, without
Brooke

more, state a claim under the federal antitrust laws.”

Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209,
225 (1993).
is

“The [Act] directs itself not against conduct which

competitive,

even

severely

so,

but

against

unfairly tends to destroy competition itself.”
Inc. v. McQuillan, 506 U.S. 447, 458 (1993).

conduct

Spectrum Sports
“That is, it must

harm the competitive process and thereby harm consumers.
to

one

or

more

which

competitors

will

In

contrast,

harm

not

suffice.”

United States v. Microsoft Corp., 253 F.3d 34, 70-71

(D.C. Cir. 2001) (en banc) (emphasis in original).
Loren Data alleges that GXS’s anticompetitive behavior
is evidenced by its refusal to provide it a peer interconnect
and this refusal is a denial of access to an essential facility.

i.
The Sherman Act “does not restrict the long recognized
right

of

private

[a]

trader

business,

or

freely

manufacturer
to

engaged

exercise
16

his

in
own

an

entirely

independent

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 17 of 26

discretion as to parties with whom he will deal.”

United States

v.

Nevertheless,

Colgate

&

Co.,

250

U.S.

300,

307

(1919).

“[t]he high value that we have placed on the right to refuse to
deal

with

other

unqualified.”

firms

does

not

mean

that

the

right

is

Trinko, 540 U.S. at 408 (citing Aspen Skiing Co.

v. Aspen Highlands Skiing Corp., 472 U.S. 585, 601 (1985)).
In Trinko, the Court observed that exceptions to the
right to refuse to deal should be recognized with caution due to
the “uncertain virtue of forced sharing and the difficulty of
indentifying and remedying anticompetitive conduct by a single
Id.

firm.”

Specifically, the Court noted that Aspen Skiing

represented an exception to this rule and is situated “at or
near the outer boundary of § 2 liability.”

Id.

The Aspen

Skiing exception applies when “[t]he unilateral termination of a
voluntary

(and

thus

presumably

profitable)

course

of

dealing

suggested a willingness to forsake short-term profits to achieve
an anticompetitive end.”

Id.

Loren Data’s attempt to analogize this case to Aspen
Skiing is unpersuasive.
Data.

GXS has not refused to deal with Loren

Indeed, in the September 3, 2010 letter, GXS proposed

terms for a commercial relationship with Loren Data.

There is

no suggestion, and the amended complaint does not allege, that
this offer of a new commercial agreement was some sort of sham

17

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 18 of 26

or that GXS would renege on its proposal; rather, Loren Data was
not satisfied with its terms.
Loren

Data

counters

that

a

commercial

mailbox

arrangement is not a viable alternative to a peer interconnect.
But simply because GXS does not offer Loren Data the terms and
conditions it desires does not mean that GXS has violated the
antitrust

laws.

Indeed,

GXS

provides

legitimate

justifications for the terms it offers Loren Data.
Sand

&

Gravel,

924

F.2d

at

544

(noting

that

business

Cf. Laurel

anticompetitive

exclusionary conduct may be shown if “there was no legitimate
business reason for its conduct.”).
its

September

3,

2010

letter,

Plainly, as GXS explains in
there

are

ample

business

justifications for its decision not to deal with Loren Data on
the terms Loren Data wants.
Nor does the alleged failure of GXS to contract with
Loren Data on those terms work to deprive the market of vigorous
competition.
Network,

large

GXS

granted

peer

or

small,

and

interconnects
the

district

to

every

court

other

correctly

concluded that “GXS is not likely to gain monopoly control over
the industry if it refuses to deal with only one of 36 available
VAN networks.”

Loren Data Corp., 2011 WL 3511003, at *11.

Not

only does GXS interconnect with the 36 other Networks, Loren
Data was able to do so as well.
was

not

able

to

obtain

a

Further, even though Loren Data

peer
18

interconnect

with

GXS,

its

Appeal: 11-2062

Doc: 39

allegations
traveled

Filed: 12/26/2012

acknowledge

on

the

GXS

that

Pg: 19 of 26

more

than

Network.

half

Simply

of

put,

its
Loren

business
Data’s

allegations that it is able to access 36 other Networks and that
more than half of its business traversed the GXS Network negates
any plausible inference of anticompetitive exclusionary conduct
by GXS.

Loren Data argues that smaller EDI consumers are harmed

by GXS’s exclusionary conduct because accessing the GXS Network
through

another

Network

is

more

expensive.

But

Loren

Data

offers no facts to support its conclusory assertion that smaller
EDI consumers have been denied access or are otherwise unable to
obtain EDI services because of cost.

In short, Loren Data has

failed

of

to

allege

a

plausible

claim

exclusionary

conduct

directed to competition as a whole.

ii.
Loren Data also alleges that the GXS Network is an
essential

facility,

Section 2.

the

denial

of

access

to

which

violates

The Supreme Court has not adopted the essential

facilities doctrine.

Trinko, 540 U.S. at 411 (“We have never

recognized such a doctrine . . . and we find no need either to
recognize

it

or

repudiate

it

here.”).

Nevertheless,

considered such a claim in Laurel Sand & Gravel.
544.

19

we

924 F.2d at

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 20 of 26

Under such a theory, a refusal by a monopolist to deal
“may be unlawful because a monopolist’s control of an essential
facility (sometimes called a ‘bottleneck’) can extend monopoly
power from one stage of production to another, and from one
market into another.

Thus, the antitrust laws have imposed on

firms controlling an essential facility the obligation to make
the

facility

available

on

non-discriminatory

MCI

terms.”

Commc’ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1132 (7th
Cir.),

cert.

denied,

464

U.S.

891

(1983).

“[T]he

central

concern in an essential facilities claim is whether market power
in one market is being used to create or further a monopoly in
Advanced Health-Care Servs., Inc. v. Radford

another market.”

Cmty. Hosp., 910 F.2d 139, 150 (4th Cir. 1990).
In order to proceed on an essential facilities claim,
four elements must be proven: “(1) control by the monopolist of
the

essential

seeking

access

facility;
to

(2)

the

practically

inability
or

of

the

reasonably

competitor

duplicate

the

facility; (3) the denial of the facility to the competitor; and
(4)

the

facility.”

feasibility

of

the

monopolist

to

provide

the

Laurel Sand & Gravel, 924 F.2d at 544 (citing MCI

Commc’ns Corp., 708 F.2d at 1132).

The owner of an essential

facility is not obligated to make it available under whatever
terms the competitor wishes; the owner need only offer access
under

reasonable

terms.

Id.
20

Moreover,

terms

are

not

Appeal: 11-2062

Doc: 39

unreasonable
profits.

Filed: 12/26/2012

simply

because

Pg: 21 of 26

they

will

reduce

a

competitor's

Id.
The

amended

complaint

does

that GXS is an essential facility.
plausibly
essential.

maintain

that

Although

a

peer

Loren

not

sufficiently

allege

First, Loren Data cannot
interconnect

Data

complains

with
that

GXS
GXS

is
has

repeatedly denied it a peer interconnect, it alleges that more
than half of its EDI business travels over the GXS Network.
Moreover,

Loren

Data

has

established

peer

interconnects

with

three dozen other Networks.

The fact that the majority of Loren

Data’s

the

business

traversed

GXS

Network

without

a

peer

interconnect demonstrates the fallacy of the claim that a peer
interconnect is essential to competition.

Second, there is no

indication that the new commercial agreement offered to Loren
Data by GXS in the September 3, 2010 letter is an unreasonable
alternative to the terms Loren Data seeks.

Loren Data’s history

with Covisint further illustrates this point.

Covisint required

Loren Data to have access to the GXS Network as part of its
prospective contract agreement.

Even though Loren Data was able

to connect to the GXS Network only through a commercial mailbox,
Covisint still decided to contract with Loren Data.

While a

peer interconnect with GXS may suit Loren Data better, it is
plainly not essential.

21

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 22 of 26

At its core, Loren Data’s amended complaint does not
plausibly allege the denial of access to an essential facility.
Loren Data has functioned for a decade without unfettered peer
interconnect
essential.

access

to

the

GXS

Network

it

now

claims

is

Even were access to the GXS Network essential for

Loren Data to compete, GXS offered Loren Data access to its
Network on terms acceptable to GXS as set forth in the September
3, 2010 letter.

For both of these reasons, this case does not

present a plausible essential facilities claim.

B.
Loren Data also argues that the district court erred
in dismissing its attempted monopolization claim.
claim

for

attempted

monopolization,

a

To state a

plaintiff

must

demonstrate: (1) a specific intent to monopolize the relevant
market; (2) predatory or anticompetitive acts in furtherance of
the

intent;

success.

and

(3)

a

dangerous

probability

Spectrum Sports, Inc., 506 U.S. at 456.

of

The district

court held that Loren Data failed to allege facts demonstrating
a specific intent to monopolize or a dangerous probability that
GXS would succeed in establishing a monopoly.

We agree.

Loren Data has not sufficiently alleged that GXS had a
specific intent to monopolize.

Indeed, Loren Data alleges just

the opposite - that GXS grants peer interconnects to every other
22

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 23 of 26

Network, both large and small – which is entirely inconsistent
with an intent to monopolize.
dangerous

probability

of

Nor does Loren Data allege a

successful

monopolization

by

GXS.

Loren Data characterizes two acquisitions by GXS over a ten year
period

as

an

aggressive

campaign

to

monopolize.

Loren

Data

cites M & M Medical Supplies & Service, Inc. v. Pleasant Valley
Hospital,

Inc.,

981

F.2d

160,

168

(4th

Cir.

1992),

for

the

proposition that a rising market share is sufficient to show a
dangerous
in

M

&

probability
M

Medical,

of
we

achieving
held

monopoly

that

“[o]ther

power.
factors

However,
must

be

considered, such as ease of entry, which heralds slight chance
of

success

[of

achieving

monopoly

power],

or

exclusionary

conduct without the justification of efficiency, which enhances
the likelihood of success [of achieving monopoly power].”

Id.

Loren Data’s complaint and amended complaint are devoid of any
factual allegation suggesting that GXS’s rising market share was
coupled with any exclusionary conduct.
Data’s

theory

is

its

allegation

that

Inconsistent with Loren
GXS

established

peer

interconnects with 36 other Networks, conduct which is hardly
suggestive of an attempt to monopolize the EDI market.

In sum,

the fact that GXS has contracted with every other Network in the
market suggests that its refusal to deal with Loren Data on the
terms Loren Data desires will not have any negative effects on
competition as a whole.
23

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 24 of 26

VI.
Finally,

Loren

Data

argues

that

the

erred in denying its post-judgment motions.

district

court

Loren Data filed a

“motion for clarification” asking the district court to issue a
revised or supplemental order stating whether its claims were
dismissed with or without prejudice.

Before this motion was

ruled on, Loren Data filed another motion asking the district
court to reconsider its order granting GXS’s motion to dismiss.
The district court construed both of these motions as motions to
alter

judgment

pursuant

to

Federal

Rule

of

Civil

Procedure

59(e).
The reconsideration of a judgment after its entry is
an extraordinary remedy which should be used sparingly.

Pac.

Ins. Co. v. Am. Nat’l Ins. Co., 148 F.3d 396 (4th Cir. 1998).
We

review

the

denial

of

a

Rule

59(e)

deferential abuse of discretion standard.

motion

under

the

Ingle ex rel. Estate

of Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006).

Rule

59(e) provides that a court may alter or amend the judgment if
the movant shows (1) an intervening change in the controlling
law,

(2)

new

evidence

that

was

not

available

at

trial,

or

(3) that there has been a clear error of law or a manifest
injustice.

Id.; see e.g., Robinson v. Wix Filtration Corp. LLC,

599 F.3d 403 (4th Cir. 2010).

It is the moving party’s burden

24

Appeal: 11-2062

to

Doc: 39

establish

Filed: 12/26/2012

one

of

these

Pg: 25 of 26

three

grounds

in

order

to

obtain

relief under Rule 59(e).
The district court did not abuse its discretion in
denying Loren Data’s motions.

As there was no suggestion of a

change in intervening law or new facts, Loren Data was left to
argue that a clear error of law or manifest injustice occurred.
As the foregoing analysis of Loren Data’s claims makes plain,
the dismissal of Loren Data’s antitrust claims was neither.

Nor

was it a clear error of law for the district court to dismiss
the

case

without

first

making

a

specific

finding

that

an

additional opportunity to amend the complaint would be futile.
In ruling on the post-judgment motions, the district court made
it abundantly clear that any amendment to the complaint would be
futile for two reasons.
the

complaint

would

be

once

futile.

First, Loren Data had already amended

before,
Second,

suggesting
Loren

that

Data

further

provided

amendment

nothing

of

additional substance to the district court to demonstrate that a
dismissal without prejudice would be fruitful.

Plainly, the

district court did not abuse its discretion in denying Loren
Data’s post-judgment motions.

25

Appeal: 11-2062

Doc: 39

Filed: 12/26/2012

Pg: 26 of 26

VII.
For these reasons, the judgment of the district court
is affirmed.

AFFIRMED

26