Antitrust Law Daily Wrap Up, ANTITRUST—8th Cir: Missouri highway patrol officers had qualified immunity against Sherman Act claims, (Jul 28, 2015)

By Edward L. Puzzo, J.D.

Owners of a truck towing company were unable to show that Missouri State Highway Patrol officers were not entitled to qualified immunity against charges they engaged in an antitrust conspiracy with competitors to exclude the business from a rotating list of towing companies eligible to assist vehicles disabled on highways, the U.S. Court of Appeals in St. Louis has ruled (Robbins v. Becker, July 27, 2015, Riley, W.).

Mark and Gail Robbins, owners of the I-44 Truck Center and Wrecker Service, brought claims against 14 individual Missouri State Highway Patrol (MSHP) officers and supervisors, alleging that they had violated antitrust law by conspiring with each other and with third parties to exclude their business from a “rotation list” the highway patrol used in selecting towing and wrecker services for disabled vehicles on highways.

Remand ordered. The MSHP officers moved for summary judgment based on qualified immunity. Initially, the trial court denied the motion on the grounds that genuine issue of material fact remained in dispute. The MSHP officers appealed, and on May 22, 2013, the Eighth Circuit remanded the case, ordering the trial court to elaborate on its reasons for rejecting the qualified immunity defense.

Qualified immunity found. Upon remand, the trial court ruled on January 21, 2014 that the Robbinses claims were barred by the doctrine of qualified immunity. To establish a claim under Section 1 of the Sherman Act, the court explained, a plaintiff must show: (1) the existence of a conspiracy; (2) the agreement unreasonably restrained trade under either a per se rule of illegality or rule of reason analysis; and (3) the restraint affected interstate commerce. In this case, there was no liability for an alleged conspiracy, since the officers were members with the same entity and could not conspire among themselves. Regarding the claim under Section 2, the alleged anti-competitive conduct must lack a legitimate business purpose and does not extend to the exercise of business judgment. The Robbinses failed to show that the officers acted with the requisite intent in view of the officers’ evidence that the decision to call a certain towing company was based on numerous legitimate purposes, such as the nature and location of the accident and the need to quickly clear blocked roadways. Since the Robbinses established no violation of a constitutional or statutory right, the officers were entitled to qualified immunity on their federal claims, the court concluded. The Robbinses appealed.

Conspiracy and monopolization. To prevail on the Sherman Act conspiracy claim, the appellate court explained, plaintiffs must prove at that the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds to engage in prohibited conduct. Their monopolization claim required a showing that the alleged conspirators shared a specific intent to create a monopoly or to unreasonably exclude the Robbinses.

The Robbinses allegedly were removed from the MSHP’s “rotation list” for towing service calls after Mark Robbins was criminally charged with shooting at a competitor’s truck in 1999. He alleged that a competitor used his friendship with one of the defendant officers to initiate a “sham investigation” in order to hurt the Robbinses’ business. Mark Robbins was acquitted of the criminal charges in 2003, but the Robbinses were not restored to the “rotation list.”

The Robbinses allege that there was a tangible conspiracy by the officers to disparage their company, interfere with their relationships with potential and other customers, and drive the Robbinses out of business. In their defense, the officers alleged that they acted in the exercise of their discretionary authority to control and clear accident scenes. Absent mitigating circumstances, the officers left the choice of towing and wrecker services to the vehicle owner. If the owner has no preference, the officer at the scene determines which company to call “based primarily on location of the accident and towing service availability.”

Allegations conclusory. The appeals court concluded that plaintiffs failed to produce competent direct or circumstantial evidence to support their conclusory allegations that the officers conspired with third parties to restrain or monopolize trade in interstate commerce. The Robbinses’ unsubstantiated belief that the officers illegally conspired against them was insufficient to sustain their Sherman Act claims. The appellate court therefore found that the district court did not err in granting summary judgment on these claims.

The case is Civil Action No. 14-1435.

Attorneys: Brandy B. Barth (Newton & Wright) for Mark Robbins, I-44 Truck Center and Wrecker Service, LLC, and I-44 Wrecker Service, LLC. Emily Ann Dodge, Attorney General's Office, for Randy Becker, Sr.

Companies: I-44 Truck Center and Wrecker Service, LLC; I-44 Wrecker Service, LLC

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