NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-1833 _____________

BANXCORP, Appellant v.

BANKRATE, INC., a Delaware Corporation ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-07-cv-03398) District Judge: Honorable Claire C. Cecchi ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1 on January 20, 2021

Before: SMITH, Chief Judge, HARDIMAN, and ROTH, Circuit Judges.

(Filed: February 25, 2021)

___________

OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

In 2007, Appellant BanxCorp filed this antitrust action against Bankrate. The

District Court, in a thorough and well-reasoned opinion, ruled in favor of Bankrate on the

parties’ cross-motions for summary judgment, finding BanxCorp failed to marshal any

evidence of a factual dispute or meritorious legal claim. We will affirm.

I

Between 1996 and 2010, BanxCorp and Bankrate competed in the online financial

information publication market. They published online interactive tables compiling

mortgage and lending rates offered by various financial service providers (FSPs). When

visitors to their websites entered search parameters—for example, a limited geographic

area—the website generated a table providing rates that matched the user’s inquiry. Many

of the interest rates in the tables were hyperlinked to the individual FSP’s website,

allowing the user to interact directly with the chosen FSP. For inclusion in the

companies’ tables, FSPs entered into individual agreements with, and paid fees to,

BanxCorp and Bankrate.

In 2012—more than five years after filing its initial complaint—BanxCorp filed its

110-page, 321-paragraph Seventh Amended Complaint, arguing Bankrate’s rate table

operations violated section 2 of the Sherman Act, section 7 of the Clayton Act, and

parallel provisions under New Jersey’s antitrust laws. 1 The parties later filed cross-

1 The relevant portions of New Jersey’s antitrust act, which largely mirror the language of the Sherman Act, “shall be construed in harmony with the ruling judicial interpretations of comparable [f]ederal antitrust statutes.” N.J. STAT. ANN. § 56:9-18 (West 2020). See

2 motions for summary judgment, and in 2015, the District Court heard oral argument on

the matter. In March 2019, BanxCorp filed a petition for a writ of mandamus with this

Court, seeking an order directing the District Court to decide the pending summary

judgment motions. Before this Court acted on the writ of mandamus, the District Court

granted Bankrate’s motion for summary judgment and denied BanxCorp’s cross-motion.

BanxCorp filed a motion for reconsideration, which the District Court denied. BanxCorp

timely appealed. 2

II

On appeal, BanxCorp raises a congeries of arguments, none of which we find

persuasive.

A

BanxCorp’s first two arguments address the District Court’s summary judgment

analysis. BanxCorp claims “[t]he District Court erred in systematically construing all

evidence in the light most favorable to Bankrate, the summary judgment moving party.”

BanxCorp Br. 15. It also contends the Seventh Amended Complaint raised “issue[s] as to

numerous material facts,” such that summary judgment was inappropriate. BanxCorp Br.

17. We disagree.

Ideal Dairy Farms, Inc. v. John Labatt, Ltd.,

(3d Cir. 1996) (dismissal of New Jersey state antitrust claim proper after parallel federal antitrust claims failed). 2 The District Court exercised jurisdiction over the Sherman Act and Clayton Act claims under

, 1337, and over the state law claims under

(a). We exercise jurisdiction under

.

3 Far from showing any systematic error, BanxCorp fails to identify even a single

example of either the District Court’s construing evidence in the light most favorable to

Bankrate where it was the movant, or any disputed material fact preventing summary

judgment against BanxCorp. Instead, its entire analysis is just a recitation of summary

judgment rule statements, followed by a conclusory claim the District Court erred. See

BanxCorp Br. 15–18. Apart from BanxCorp’s inability to cite individual instances of

error, our independent review of the District Court’s comprehensive opinion yielded no

errors in this regard.

B

BanxCorp next advances numerous overlapping arguments related to the

sufficiency of the evidence offered in support of its antitrust allegations. The District

Court held that BanxCorp failed to provide sufficient economic evidence to support its

claims under both the Sherman Act and the Clayton Act. BanxCorp v. Bankrate, Inc.,

, at *4–11 (D.N.J. Mar. 21, 2019). The District Court erred, BanxCorp

argues, because “the record is replete with such evidence.” BanxCorp Br. 39–40. Once

again, we disagree.

1

BanxCorp first asserts the District Court erred in ignoring its “incontrovertible

direct proof of Bankrate’s monopoly power.” BanxCorp Br. 33. However, BanxCorp’s

claimed “incontrovertible direct proof”—a single citation, without explanation, to a

34-paragraph section of its Statement of Material Facts—fails to establish Bankrate

charged “supracompetitive prices and restricted output.” See Broadcom Corp. v.

4 Qualcomm Inc.,

(3d Cir. 2007). Although BanxCorp does offer

evidence Bankrate increased its prices, see, e.g., Dist Ct. Dkt. No. 410-1 ¶¶ 32–34

[hereinafter PSMF], we agree with the District Court that price increases, without more,

do not constitute supracompetitive pricing. See Harrison Aire, Inc. v. Aerostar Int’l, Inc.,

(3d Cir. 2005) (“[A] firm’s comparatively high price may simply

reflect a superior product.”). Even assuming the prices were supracompetitive, BanxCorp

admits Bankrate did not restrict output during the challenged period—it increased it. See

PSMF ¶ 35 (“Bankrate’s Internet rate table listing customers nearly tripled within less

than three years.”). Because BanxCorp’s “evidence does not support a reasonable

inference that Bankrate charged supracompetitive prices and restricted output,”

BanxCorp,

, at *4, it did not offer sufficient evidence to find monopoly

power through direct evidence.

2

BanxCorp also claims the District Court erred in rejecting its attempts to prove

monopoly power through circumstantial evidence. As a threshold matter, the District

Court found BanxCorp failed to meet its burden of defining the relevant market in terms

of required “reasonable interchangeability of use or the cross-elasticity of demand

between the product itself and substitutes for it,” Queen City Pizza, Inc. v. Domino’s

Pizza, Inc.,

(3d Cir. 1997) (quoting Brown Shoe Co. v. United States,

(1962)), thereby dooming any attempts to prove monopolization

circumstantially. BanxCorp,

, at *5–6. It did not err in doing so.

5 BanxCorp defines the market as “fee-based aggregated bank rate table listings

with interactive functionalities on the Internet.” PSMF ¶ 1. On appeal, BanxCorp points

to two pieces of evidence in support of its proposed market definition. First, it notes

Bankrate’s “rate increases” with “no decline in the number of advertisers wanting to

participate.” BanxCorp Br. 42; see also BanxCorp Br. 43 (“[T]here was virtually no

demand for substitute products in response to Bankrate’s significant consecutive price

changes.”). But like BanxCorp’s attempt to use price increases as direct evidence of

monopoly power, we agree with the District Court that such increases, without more,

“cannot establish cross-elasticity of demand.” BanxCorp,

, at *6. As

observed by the District Court, this evidence “lacks necessary information about the

prices of potentially substitutable products and the demand for such products.”

Second, BanxCorp argues the testimonial evidence of Bankrate’s former Chief

Executive Officer, Thomas Evans, supports its definition of the relevant market.

Specifically, it points to Evans’s statements that “Bankrate does not have direct

competitors,” and that even in light of repeated rate increases, lenders “don’t vote with

their feet. They don’t leave. They are not canceling. They are not finding alternatives.”

BanxCorp Br. 37, 45. The District Court rejected reliance on those statements for

defining the relevant market, noting that “Mr. Evans’s anecdotal statements that Bankrate

was able to raise prices without driving away FSPs do not substitute for quantitative data

showing interchangeability or cross-elasticity.” BanxCorp,

, at *6. We

agree.

6 Even if BanxCorp adequately defined the relevant market in terms of

interchangeability of use and cross-elasticity of demand, we concur with the District

Court that its monopolization claims still fail because it has not offered sufficient

evidence to show that Bankrate controlled a “dominant share of that market,” and that the

market was protected by “high barriers to entry.” BanxCorp,

, at *6–7;

accord Harrison Aire,

. Because BanxCorp failed as a matter of law to

establish its proposed relevant market, its monopolization claim must fail.

3

BanxCorp’s inability to define the relevant market also proved fatal to both its

attempted monopolization and Clayton Act claims. Absent a proper market definition,

BanxCorp could not prove Bankrate had “a dangerous probability of achieving monopoly

power” within the relevant market, and its attempted monopolization claim fails. See

Broadcom,

(quotation omitted). Similarly, because “determination of the

relevant product and geographic markets is a necessary predicate to deciding whether a

merger contravenes the Clayton Act,” United States v. Marine Bancorporation, Inc.,

(1974) (cleaned up), BanxCorp’s allegations of unlawful acquisition in

violation of the Clayton Act are equally unavailing. 3

3 BanxCorp also argues in conclusory fashion that the District Court “erroneously considered each aspect of . . . Bankrate’s conduct in isolation, rather than looking to Bankrate’s conduct taken as a whole.” BanxCorp. Br. 31. But BanxCorp points to no example in support of this contention, simply labeling the District Court’s analysis “clear error.”

That BanxCorp disapproves the District Court’s assessment of the sufficiency of its evidence to withstand summary judgment does not mean the District Court failed to consider the evidence as a whole or that BanxCorp’s evidence was sufficient to prevent summary judgment in favor of Bankrate.

7 C

BanxCorp’s next set of arguments rely on the doctrine of unclean hands. It claims

the District Court erred by failing to apply the doctrine against Bankrate in light of two

separate facts: (1) that Bankrate’s former Chief Financial Officer Edward DeMaria

pleaded guilty in 2018 to charges of securities fraud; and (2) that Bankrate utilized an

expert report prepared by an individual who allegedly falsified his credentials. We are

unpersuaded.

The doctrine of unclean hands applies “when a party seeking relief has committed

an unconscionable act immediately related to the equity the party seeks in respect to the

litigation.” Highmark, Inc. v. UPMC Health Plan, Inc.,

(3d Cir. 2001).

Here, DeMaria’s fraud and the alleged violations of antitrust law have nothing to do with

each other. Because “[t]he nexus between the misconduct and the claim must be close,”

BanxCorp’s first claim—that the District Court erred in failing to apply the doctrine

in light of DeMaria’s conviction—fails.

BanxCorp’s second claim—that submission of an expert report prepared by an

individual with allegedly falsified records necessitates application of the doctrine—also

fails. The District Court found “no evidence to show that [Bankrate] had any knowledge

of the alleged issues surrounding” the expert at the time it relied on him. BanxCorp,

, at *2 n.4. Moreover, as pointed out by the District Court, on Bankrate’s

request, the Court disregarded the few citations to the expert’s report in Bankrate’s

filings. So the District Court did not abuse its discretion when it declined to apply the

doctrine of unclean hands.

8 D

BanxCorp next argues the District Court “erroneously ignored the law of the case

and key rulings previously made by . . . the first two district judges who presided over

this case.” BanxCorp Br. 27. BanxCorp points to language in Judge Salas’s opinion at the

motion to dismiss stage in which she rejected Bankrate’s attempt to terminate the suit

prior to discovery. Judge Salas held BanxCorp’s allegations, “taken together, when

accepted as true, plausibly support a showing of . . . monopoly power.” BanxCorp v.

Bankrate, Inc.,

, at *20 (D.N.J. Dec. 30, 2011) (emphasis added).

Citing this motion to dismiss holding, BanxCorp now argues “it was a clear error for the

District Court to . . . reach the opposite conclusion with respect to the sufficiency of

BanxCorp’s antitrust claims” at summary judgment. BanxCorp Br. 29.

As the District Court explained, BanxCorp “ignores the fact that Judge Salas’

holdings came in a decision on [Bankrate’s] motion to dismiss . . . where Judge Salas was

required to accept the facts in the . . . complaint as true.” BanxCorp v. Bankrate, Inc.,

, at *3 (D.N.J. May 29, 2020). In contrast, “[t]o survive a motion for

summary judgment, an antitrust plaintiff must produce economically plausible evidence

supporting the elements of its claim.” Harrison Aire,

. BanxCorp’s failure

to produce the necessary evidence to support viable antitrust claims, see infra Section II-

B, requires summary judgment in favor of Bankrate—even when the same claims

sufficed to survive a motion to dismiss. 4

4 BanxCorp also argues that Judge Cecchi erred by failing to recuse herself from this case based on her husband’s employment as an attorney with a law firm that handles, among

9 * * *

For the foregoing reasons, we will affirm the District Court’s summary judgment

for Bankrate.

other things, antitrust matters. While at first blush these attacks on Judge Cecchi appear baseless and unwarranted, because the issues were not raised before the District Court (and no justification was offered for failing to do so), we decline to address them. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist.,

(3d Cir. 2017).

10