IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 98-21007 _____________________

UNIVERSAL COMPUTER SYSTEMS, INC.; UNIVERSAL COMPUTER SERVICES, INC.; UNIVERSAL COMPUTER NETWORK, INC.; UNIVERSAL COMPUTER FORMS, LTD; UNIVERSAL COMPUTER CONSULTING,

Plaintiffs-Appellants,

versus

VOLVO CARS OF NORTH AMERICA, INC.,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (H-96-CV-2389) _________________________________________________________________

January 6, 2000

Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

The plaintiffs sued the defendant for violations of sections

I and II of the Sherman Act and for tortious interference with

existing contracts and with prospective business relations under

Texas law. The defendant filed a summary judgment motion on all

claims, which the district court granted. The defendants have

appealed the dismissal of their claims. We have reviewed the

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. record, studied the briefs, and considered the arguments made by

counsel. For the reasons stated herein, we affirm.

I

In the United States, most automobile dealerships are separate

and independent from automobile manufacturers. Dealerships usually

rely on a computerized Dealer Management System (“DMS”) to help

track inventory, manage warranty and parts records, and perform

accounting functions. A DMS consists of both hardware, software,

and often technical support. The three largest sellers of DMSs are

Universal Computer Systems (“Universal”), Automatic Data Processing

(“ADP”), and The Reynolds & Reynolds Company (“R&R”). These

companies sell the DMSs directly to the individual auto

dealerships. The systems sold to the dealerships are similar to

one another regardless of what make of cars that dealership

carries. There are, however, minor alterations made to ensure

compatibility with different manufacturers’ computer systems and to

account for idiosyncracies of individual dealerships.

Volvo Cars of North America has 365 dealerships in the United

States. In 1994, Universal had contracts with twelve of those

dealers to provide them with DMSs. In the spring of 1994, Volvo

began looking for ways to improve its information systems, leading

it to form the Dealer Systems Steering Committee in September 1994.

Volvo selected ten representative dealers to participate along with

five of its own employees. Two main concerns were raised during

the committee’s meetings. The first, which was primarily that of

2 the dealers, was a general concern about the level of, and

differences in, prices dealers were having to pay for DMSs. The

second concern, which was exclusively Volvo’s, was that there were

too many suppliers of DMSs, which made it more costly for Volvo to

maintain compatibility with its dealers’ different systems. As a

result of these meetings, the committee asked Universal, ADP, and

R&R to prepare presentations on their services, including pricing

information. Universal’s presentation failed to provide

information on prices, while its competitors complied with the

committee’s request.

In February 1995, the committee met to discuss the DMS

providers. It later recommended that Volvo approve ADP and R&R,

but not Universal, as approved DMS providers. Volvo followed this

recommendation and approved Universal’s two competitors. Although

Volvo did not require its dealers to use DMSs from approved

vendors, the dealers would have to do so to participate in Volvo’s

“Partnering For Excellence” program, which provided monetary

benefits to participating dealers.

Universal filed suit in 1996, charging Volvo with violations

of Sections I and II of the Sherman Act and tortious interference

with existing contracts and with prospective business relations

under Texas law. The district court first dismissed the Section II

claim on summary judgment at the magistrate judge’s recommendation.

The magistrate judge concluded that Universal had failed to

establish a relevant market that Volvo had monopolized or attempted

3 to monopolize, and that Universal had not alleged harm with

sufficient particularity. However, the court offered Universal an

opportunity to amend its pleading to specify the harm. Universal

did amend its pleading. The magistrate judge later recommended,

and the district court agreed, that the Section I and tortious

interference claims be dismissed as well. The magistrate judge’s

opinion rejected the contention that Volvo’s actions constituted a

per se violation; the magistrate judge concluded that Volvo’s

decision to recommend two vendors was not an agreement to fix

prices. With respect to the rule of reason, the magistrate judge

concluded that Universal had again failed to establish a relevant

market, and in addition, that Universal had not demonstrated an

injury to competition. Because Volvo’s actions did not constitute

Sherman Act violations, according to the magistrate judge, they

were not unlawful, so Volvo’s actions were privileged with respect

to the tortious interference claims. The district court adopted

the magistrate judge’s recommendations and entered judgment

dismissing the complaint.

II

We first turn to the question of jurisdiction. Volvo argues

that Universal does not have standing, because establishing

antitrust standing requires allegation and proof of more than just

an injury-in-fact to the individual defendant. Volvo cites to a

Second Circuit case for the proposition that Universal must allege

an “antitrust injury”--an actual adverse effect on competition in

4 the relevant market. See George Haug v. Rolls Royce Motor Cars,

(2d Cir. 1998)(requiring an allegation that

elimination from the marketplace harmed competition).

We are, however, governed by the precedent of our own circuit.

Since 1983, we have distinguished between “antitrust injuries” and

“injuries to competition,” the latter of which is often a component

of substantive liability. Multiflex, Inc. v. Samuel Moore & Co.,

, 986 n.6 (5th Cir. 1983). And in 1984, we explained

that the antitrust laws do not require a plaintiff to establish an

injury to competition as an element of standing:

In this circuit, an antitrust injury for standing purposes should be viewed from the perspective of the plaintiff's position in the marketplace, not from the merits-related perspective of the impact of a defendant’s conduct on overall competition. So viewed, any alleged losses and competitive disadvantage fall easily within the conceptual bounds of antitrust injury, whatever the ultimate merits of its case.

Walker v. U-Haul Co.,

(5th Cir.), modifying,

(5th Cir. 1984). Universal has alleged an injury to

its position in the marketplace and therefore has standing to

pursue this suit.

III

One of the first hurdles any plaintiff must overcome in

bringing claims under either section I or II of the Sherman Act is

to define the relevant market. See Doctor’s Hospital of Jefferson,

Inc. v. Southeast Medical Alliance, Inc.,

(5th

Cir. 1997)(must establish relevant market in Section II conspiracy

5 to monopolize case); R.D. Imports Ryno Industries, Inc. v. Mazda

Distributors (Gulf), Inc.,

(5th Cir. 1987)(must

establish relevant market in Section I claims); Seidenstein v.

National Medical Enterprises, Inc.,

(5th Cir.

1985)(must establish the relevant market for Section II claims

generally). Because the district court granted Volvo’s motion for

summary judgment, we review this issue de novo. Cabrol v. Town of

Youngsville,

(5th Cir. 1997).1

Universal has attempted to define the relevant market as

American Volvo dealerships, as opposed to all automobile

dealerships nationwide. In support, Universal cites to Heatransfer

Corp. v. Volkswagenwerk, A.G.,

(5th Cir. 1977). But

that case suggests otherwise.

In Heatransfer,

, the plaintiff manufactured

air conditioning equipment for Volkswagen automobiles. The market

in that case consisted of manufacturers making specialized

equipment that could only be sold to Volkswagen.

Moreover,

most of the individual manufacturers did not make air conditioning

equipment for any other automaker.

The court held that

Volkswagen’s purchases of air conditioning equipment did constitute

1 Universal makes the unconvincing argument that defining the relevant market is fact-based and therefore inappropriate for summary judgment. Universal is correct that defining the relevant market is a fact-based question. The question is whether Universal has presented a genuine issue of material fact with respect to this issue. We think not.

6 a market. In doing so, however, the court used a test that favors

Volvo in the present case:

The Supreme Court has stated that “[t]he outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and the substitutes for it.

In this case, the following characteristics all cut against

Universal:

(1) The DMSs for Volvo are reasonably interchangeable--they can be sold to other automobile dealerships with little or no modification.

(2) The marketwide elasticity of demand for Universal’s products is not altered dramatically by Volvo’s decision not to approve Universal’s DMSs.

(3) Universal manufactures DMSs for a wide variety of automobile dealerships.

(4) Companies in the DMS industry generally sell to a wide variety of dealerships.

Thus, Universal has not defined a relevant market under

Heatransfer.2

In Seidenstein,

, we considered whether a

single hospital’s cardiac facility could constitute a distinct

market when there were similar facilities in the city’s other

hospitals. We held that barring “unique services or facilities,”

that was not a legitimate Sherman Act market.

There is

2 Universal’s contention, that a market is defined by the ability of a company to affect prices, can lead to an irrational result. Most companies have the ability to negotiate the price of non-commodity goods and services up or down with customers and suppliers. But that does not mean that these are all relevant markets for antitrust purposes.

7 nothing cognizably unique in the antitrust sense about the Volvo

dealer market here.

In Domed Stadium, 732, F.2d at 487-88, however, we conceded

that sub-markets may exist in a larger market of interchangeable

goods. But for there to be such a sub-market, we required:

practical indicia [such] as industry or public recognition of the sub-market as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.

Only one of these many criteria of a relevant sub-market

exists in this case--distinct customers. Thus, Universal has also

failed to establish a relevant sub-market under Domed Stadium.

Because Universal has failed to define a relevant market, we

need not address the company’s other arguments related to the

Sherman Act.

IV

As Universal conceded during oral argument, its tortious

interference claims are based on the alleged antitrust contentions.

Because we have held that Universal’s Section I and II claims fail,

so do its tort claims.

V

For these reasons, the district court’s dismissal of

Universal’s various claims is

A F F I R M E D.

8