United States Court of Appeals

Fifth Circuit

FILED

December 5, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 02-31084

_______________________

INFUSION RESOURCES, INC. AND

DIABETES RESOURCES, INC., 

d/b/a INSULIN INFUSION SPECIALTIES,

Plaintiffs-Appellants,

versus

MINIMED, INC.,

 Defendant-Appellee.

_________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

 

Before HIGGINBOTHAM, STEWART, and PRADO Circuit Judges.

CARL E. STEWART, Circuit Judge:

Appellants Infusion Resources, Inc. and Diabetes Resources, Inc., d/b/a Insulin Infusion

Specialties (“IIS”) appeal the decision of the district court granting Appellee Minimed, Inc.’s

(“Minimed”) motion for summary judgment dismissing IIS’s following causes of action: price

discrimination claims under the Robinson-Patman Act (“RPA”), 15 U.S.C. § 13(a)/§ 2(a) Clayton

Act, and the Louisiana Price Discrimination Act (“LPDA”), La. R.S. § 51:331; a claimfor lack offair

dealing under the Louisiana Unfair Trade Practices Act (“LUTPA”), La. § 51:1409; and claims for

breach ofthe implied dutyof good faith, breach of contract, defamation and violation oftrade secrets.
1

 This exception provided:

To the extent customers of IIS requested infusion sets not manufactured or

distributed by Minimed, IIS may carry such infusion sets to fill orders expressly

requested by customers; provided however, that all such infusion sets other than

those manufactured by or for MiniMed which are distributed by IIS shall not

exceed an aggregate of 20% of all such sets (determined by retail sale price)

distributed by IIS in any calender year. 

2

IIS also appeals the district court’s denial of its Fed. R. Civ. P. 59(e) motion for reconsideration.

For the reasons that follow, we affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Minimed is the world’s largest manufacturer of insulin infusion pumps. MiniMed’s United

States pump therapymarket share is approximately 80%. According to MiniMed, between the years

1996 to 2001, users of insulin pumps increased from about 6,000 to about 54,000 nationwide.

MiniMed pumps have a list price of $4,995, and a patient may expect to expend over $2,000 per year

for the complementary disposable items associated with the pump. 

IIS conducted business as an insulin pump distributor and related supplies to end-users for

at least two of MiniMed’s competitors. In the Fall of 1994, IIS informally became a distributor of

MiniMed’s pumps. In July 1997, the two parties entered into a formal written Distribution

Agreement (the “Agreement”), which provided that California law would govern, granting IIS a nonexclusive right to sell and distribute MiniMed products. The Agreement also bestowed upon IIS the

ability to purchase the pumpsfrom MiniMed at the highest available discount, up to 29%, depending

on IIS’s overall purchase volumes. Additionally, IIS agreed to promote MiniMed and its products

and maintain adequate facilities and personnel to do so, as well as provide training to pump

purchasers and pay all costs to deliver products to end users. IIS also agreed, with one exception1,

to market MiniMed’s products exclusively and that it would not directly or indirectly manufacture,
2

IIS’s contractual distribution territory per the Agreement included Louisiana, Texas, Arkansas, Ohio,

Pennsylvania, New York, Connecticut, New Jersey, Utah, Virginia, North Carolina and Mississippi. 

3

distribute or market products which compete directly or indirectly with products manufactured by

MiniMed. The Agreement did not grant IIS an exclusive distributorship and MiniMed was expressly

allowed both to sell its productsin the territoriesserved by IIS, and to utilize other distributors. The

Agreement contained an annualrenewal clause, which allowed either party to decline renewal of the

Agreement, with or without cause, on thirty days written notice prior to the end of the current

calendar year.2 

The parties operated under the Agreement fromJuly17, 1997 untilDecember 31, 1998 during

which time IIS received a 29% discount off of the list price on MiniMed pumps. On November 23,

1998, MiniMed sent IIS written notice that it was not going to renew the Agreement for the 1999

calender year, and the Agreement terminated on December 31, 1998. MiniMed indicated to IIS that

it was willing to continue selling pumps to IIS at the full list price. On January 29, 1999, IIS

purchased a single MiniMed pump at the full list price of $4,995 which was shipped from California

to Louisiana. IIS submitted unrebutted evidence that between January 1, 1999 and February 4, 1999

MiniMed sold, across state lines, other distributors the same type of pump for $3,996. IIS also

submitted an invoice which showed that one of these distributors was a company named “Secure

Care”, which the district court assumed was Secure Care Medical, an entity named by IIS as a

MiniMed distributor in the South. 

IIS initiated an action in November, 1998, in which it claimed that MiniMed breached the

Agreement by both wrongfully passing IIS confidential and proprietary information to MiniMed

salespersons and by making intentional and material misrepresentations to IIS’s customers in order
3

 IIS submitted MiniMed’s 1999 10-K report filed with Securities and Exchange Commission which stated

that in 1998 MiniMed had acquired two distributors named HMS and DSS. In the report MiniMed allegedlystated “By

increasing our ability to satisfy more of our customers’ needs and continuing our extensive customer service efforts,

we believe we can maximize our revenues over the long term and create barriers to entry for competitors.” IIS,

however, did not offer any evidence as to what specific geographic areas these two distributors operated in. 

4

to divert sales from IIS to MiniMed. IIS also complained that MiniMed acquired IIS’s two main

distribution competitors and unfairly manipulated the wholesale prices at which it sold its products

to IIS, in order to hinder IIS’s ability to compete with MiniMed or MiniMed-owned distributors.3

IIS sought damages pursuant to MiniMed’s alleged price discrimination, unfair trade practices,

breach of contract and implied obligation of good faith , trade secrets violations, defamation, and

detrimentalreliance. On March 8, 1999, MiniMed timely removed the case and filed a cross motion

for summary judgment to dismiss all of IIS’s claims, which the district court granted.

IIS now appeals and argues that the district court erred in: (1) dismissing IIS’s price

discrimination claims by finding that there were no disputed facts regarding whether IIS engaged in

actual competition with any favored resellers of MiniMed; (2) dismissing IIS’s LUTPA claim; (3)

excluding IIS’s expert evidence regarding the damagesit suffered as a result of MiniMed’s conduct;

(4) dismissing IIS’s breach of contract and implied duty of good faith, defamation and fair dealing

claims; (5) denying IIS’s 59(e) motion for reconsideration of its order granting MiniMed summary

judgment dismissing of all of IIS’s claims; and (6) dismissing IIS’s price discrimination claims by

finding that IIS failed to present evidence of actual injury.

DISCUSSION

I. Standard of Review

This Court reviews a district court’s grant of summary judgment de novo. Am. States Ins.

Co. v. Synod of the Russian Orthodox Church Outside of Russia, 335 F.3d 493 (5th Cir. 2003).
4

 Section 2(a) of the Clayton Act, as amended by RPA, 15 U.S.C. § 13(a) provides in pertinent part:

It shall be unlawful for any person engaged in commerce, in the course of such

commerce, either directly or indirectly, to discriminate in price between different

purchasers of commodities of like grade and quality, where either or any of the

purchases involved in such discrimination are in commerce, where such

commodities are sold for use, consumption, or resalewithin theUnited States...and

where the effect ofsuch discrimination may be substantially to lessen competition

or tend to create a monopoly in any line of commerce, or to injure, destroy, or

prevent competition with any person who either grants or knowingly receives the

benefit of such discrimination, or with customers of either of them... 

5

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56

©); Tango Transp. v. Healthcare Fin. Servs. LLC, 322 F.3d 888, 890 (5th Cir. 2003). A genuine

issue of material fact exists if the record, taken as a whole, could lead a rational trier of fact to find

for the non-moving party. Id. Questions of law are reviewed de novo. Id. 

II. Price Discrimination Robinson-Patman Act, 15 U.S.C. § 13(a)/§ 2(a) Clayton Act4

In order to recover damages for a claim under §13(a) of the Robinson-Patman Act

(RPA)/§2(a) Clayton Act claim, a plaintiff must prove four facts: one, sales made in interstate

commerce; two, the commodities sold to IIS were of the same grade and quality as those sold to

other purchasers; three, MiniMed discriminated in price between IIS and other purchasers; and four,

that the discrimination had a prohibited effect on competition. Lycon Inc. v. Juenke, 250 F.3d 285,

288 (5th Cir.), cert. denied, 122 S. Ct. 209 (2001). RPA §13(a) includes two basic types of injury,

primary line and secondary line. Eximco, Inc. v. Trane Co., 737 F.2d 505, 515 (5th Cir.), reh’g

granted in part, amended in part on other grounds, 748 F.2d 287 (5th Cir. 1984). Secondary-line

injury, which IIS claims to have incurred, results from price discrimination between favored and

disfavored buyers. Texaco, Inc. v. Hasbrouck, 496 U.S. 543, 558 n. 15 (1990). 
6

The district court held that while IIS met its burden on elements one and two, it failed to show

element three, that MiniMed discriminated in price between IIS and other purchasers, and dismissed

IIS’s claim at that point. The district court did not reach element four.

 Under element three a plaintiff “must first prove that as the disfavored purchaser, it was

engaged in actual competition with the favored purchaser(s) as of the time of the price differential”

and that this “competitive nexus requirement is satisfied when t here is a showing of ‘competitive

contact’ between the recipients of the price differential.” Best Brands Beverage, Inc. v. Falstaff

Brewing Co., 842 F.2d 578, 584 (2d Cir. 1987). In other words it “must therefore be shown that

as of the time the price differential was imposed, the favored and disfavored purchasers competed at

the same functional level, i.e., allwholesalers or allretailers, and within the same geographicmarket.”

Id. at 585. This Court has explained that “competition is determined by careful analysis of each

party’s customers. Only if they are each directly after the same dollar are they competing.” M.C.

Mfg. Co. v. Texas Foundries, Inc., 517 F.2d 1059, 1065 (5th Cir. 1975). 

In concluding that IIS failed to satisfy element three, the district court noted that IIS’s claim

that it was one of MiniMed’s top three distributors in the United States and that it was competing

nationwide with MiniMed’s other distributors, even if true, does not necessarily indicate that the

markets of these distributors overlapped. The district court found that IIS did not specifically

demonstrate anyevidence showing that it directly competed with anyofMiniMed’s other distributors

for “the same dollar” nationwide. The district court noted that while IIS did proffer some evidence

that prior to the alleged price discrimination it competed with at least one reseller, Secure Care

Medical, in the South, and that an entity named National Diabetes Pharmacy distributed MiniMed

products in Virginia, it had not specifically pointed to any evidence that at the time of the alleged
7

price discrimination that it was competing with these entities or any other entity in a particular

market.

 IIS asserts that the evidence it presented - that before and after January 1, 1999, it

competed with other MiniMed distributors for customers - was sufficient to meet its “competitive

nexus burden” and preclude the district court’s granting of MiniMed’s motion to dismiss for IIS’s

failure to meet element three of its §13(a) RPA claim. IIS also asserts that the district court

acknowledged that it submitted evidence that IIS competed with at least one other reseller, Secure

Care Medical, in the South. Furthermore, IIS submitted evidence that another entity, National

Diabetes Pharmacy, distributed MiniMed pumps IIS’s territory of Virginia. 

After reviewing the facts on the record and their application to the law, we hold that the

district court was correct in its conclusion in regards to element three. The competitive nexus is

established if the disfavored purchaser and favored purchaser compete at the same functional level

and within the same geographic market at the time of the price discrimination. Best Brands, 842 F.2d

at 585. IIS has established that both Secure Care Medical and National Diabetes Pharmacy compete

at the same functional level as IIS, i.e., they are all retail sellers of MiniMed’s pumps. Additionally,

IIS established, at least in respect to National Diabetes Pharmacy, a MiniMed distributor in Virginia,

that it operated in the same geographic market because Virginia was one of IIS’s contractual

territories. IIS, however, has not submitted evidence that either Secure Care Medical or National

Diabetes Pharmacy qualified as “favored purchasers” at the time of the alleged price discrimination,

when the Agreement with MiniMed was no longer in effect. See M.C. Mfg., 517 F.2d at 1065.

Thus, IIS has not shown actual competition with a favored purchaser at the time of the alleged price

discrimination and has failed to meet its burden on this element.
8

III. Price Discrimination, Louisiana Price Discrimination Act, La. R.S. § 51:331

The district court also dismissed IIS’s price discrimination claim under the LPDS, La. R.S.

§ 51:331 for the same reasons it dismissed the RPA claim, because IIS failed to show actual

competition with a favored purchaser at the time of the alleged price discrimination, and thus failed

to meet its burden. The district court also noted that the language of the statute clearly indicated that

the Louisiana legislature intended to address discriminatory pricing “in the state” and IIS failed to

show any favored distributors it competed with in Louisiana. 

IIS’sfederalism argument in which it contends that even if its federal RPA claim is dismissed

it is still entitled to a state claim under the LPDS, La. R.S. § 51:331 is incorrect. IIS bases this

argument on its assertion that the district court dismissed IIS’s claim under LPDS simply because it

found that IIS’s federal antitrust claim under the RPA failed. 

Thisis not a correct understanding ofthe district court’sreasoning for dismissing IIS’s LPDS

claim. The district court clearly stated that it analyzed IIS’s claim under LPDS, and whether IIS

established the elements for such claim. The district court found that the Louisiana legislature

intended the statute to address discriminatory pricing “in the state” and IIS failed to set forth specific

evidence that MiniMed had charged IIS a different price than it charged any other pump distributor

in Louisiana, at the time of the alleged price discrimination. Therefore, the district court held that

IIS’s claim failed. Our review of the record finds no evidence of IIS competing with any other pump

distributor in Louisiana at the time ofthe alleged price discrimination, and therefore the district court

was correct in dismissing IIS price discrimination claim under the LPDS. 

IV. Louisiana Unfair Trade Practices Act, La. § 51:1409 
5

IIS points to the record to show that MiniMed made the following statements in memoranda such as: “pull

trigger”; “put IIS on a leash”; and “weaken or destroy them”. 

6

 In Turner, 989 F.2d at 1420, the plaintiff was a Purina dealer whose agreement was terminated by Purina

pursuant to a non-renewal provision after hissalesfell. The dealer then brought suit under the LUTPA and introduced

into evidence an internal Purina memoranda which stated that Purina planned to eliminate his business as a major

competitor in the relevant markets. Id. at 1420-21. This Court held that Purina did not violate the LUTPA since its

termination of the contract was valid, and “an intent to eliminate the competition does not by itself violate LUTPA.

Rather, the statute forbids businessesto destroy each other through improper means.” Id. at 1423. Finally, this Court

held that the LUTPA does not provide an alternative remedy for simple breaches of contract. Id. at 1422. 

9

The district court found that because MiniMed validly effectuated the non-renewal of the

Agreement pursuant to the non-renewal clause, evidence submitted by IIS relating to damages from

non-renewal of the Agreement would be excluded. The district court also held that MiniMed was

not liable for damages under the LUTPA, La. R.S. § 51:1409, which precludes entitlement to

damagesfor non-renewal of an agreement as well as price discounts, and therefore any such evidence

presented by IIS for damages under the LUTPA was irrelevant and must be excluded. Turner v.

Purina Mills, Inc., 989 F.2d 1419, 1423-24 (5th Cir. 1993). The district court therefore dismissed

IIS’s LUTPA claim.

IIS argues that it submitted sufficient evidence in the form of MiniMed memoranda showing

that MiniMed violated the LUTPA. These memoranda allegedly contain statements made by

MiniMed showing it intended to do harm to IIS in violation of the LUTPA.5 The district court held

that Turner precluded damages pursuant to a LUTPA claim when the damages were tied to either a

non-renewal of an agreement or price discounts, as was the case here. See 989 F.2d at 1423-24.6

IIS argues that its case is distinguishable from Turner and is more analogous with Chemical

Distribs., Inc. v. Exxon Corp., 1 F.3d 1478 (5th Cir. 1993), and notes that this Court distinguished

Purina because unlike the claimant in that case, in Exxon, the jury found that Exxon had breached its

contract in bad faith, therewassufficient evidence offraud, misrepresentation, or deception, and there
7 These remaining claims were (1) detrimental reliance, (2) breach of contract and the implied obligation of

good faith and fair dealing under California law, (3) defamation under Louisiana law, and (4) unfair trade practices.

10

were internal memoranda prepared before the contracts was terminated. Id. at 1485-86. 

This Court in Exxon, however, stated that Exxon differed from Turner in that the latter dealt

with a suit between a dealer and a supplier, and part of the decision in that case rested on its analysis

of the relationship between the two. Id. at 1485. Exxon, in contrast, dealt with a supplier (the

plaintiff) - customer (Exxon) relationship and outlined conduct allegedly perpetrated by Exxon that

IIS does not allege of MiniMed in this case. Id. Such conduct by Exxon included: conspiring with

the plaintiff’s supplier to eliminate the plaintiff, refusing in bad faith to pay plaintiff’s invoices, and

unlawfully seizing the plaintiff’s equipment. Id. This Court in Exxon did not indicate that any part

of Turner had been invalidated. Because IIS’s case significantly resembles Turner more than it does

Exxon, the district court’s holding that there were no actionable LUTPA claims was correct. 

V. IIS’s damage report and remaining non-antitrust claims

Once the district court found that IIS had failed to establish the required elements for any of

its antitrust claims, and dismissed those claims, it held that the February 5, 2002 damage report

submitted byIIS became defective assupportforitsremaining non-antitrust claims because the report

failed to segregate between Minimed’s allegedly wrongful antitrust and non-antitrust conduct, and

the specific damages that flowed from each.7 The district court then granted IIS leave to file an

amended damage report which listed only those damages caused by the non-antitrust conduct. IIS

submitted an amended damage report dated May 19, 2002. The district court reviewed the amended

report and granted Minimed’s motion to strike the report because it held that IIS simply repackaged

its originalreport, which claimed its damagesflowed fromMinimed’s antitrust conduct, to assert that
8

IIS’s February 5, 2002 expert damage report used a projection of future earnings model to calculate its

damages resulting from the change in commercial relationship between MiniMed and IIS. When IIS subsequently

submitted its May 19, 2002 amended damage report, it again used the projection of future earnings model, but then

attributed the same damages to its remaining non-antitrust claims. 

9

 To support this argument IIS cites Spray-Rite Serv. Corp. v. Monsato Co., 684 F.2d 1226, 1243 (7th Cir.

1982), aff’d, 465 U.S. 752 (1984); ILC Peripherals Leasing Corp. v. IBM Corp., 458 F. Supp. 423, 434 (N.D. Cal.

1978), aff’d sub nom. Memorex Corp. v. IBM Corp., 636 F.2d 1188 (9th Cir. 1980), cert. denied, 452 U.S. 972 (1981).

However, while these cases do hold that disaggregation generally applies to antitrust claims, none of them held that

disaggregation is only required in antitrust cases. Furthermore, Minimed cites to non-antitrust cases held that

disaggregation ofdamages does applytoother than antitrust claims. Fleet Nat’l Bank v. Anchor MediaTelevision,Inc.,

45 F.3d 546, 560 (1st Cir. 1995) (“The law...requires that a party prove, as an element of its case, the extent to which

it was damaged by the fraud or breach”); Doe v. United States, 976 F.2d 1071, 1085-1086 (7th Cir. 1993)(“the trial

court did not abuse its discretion in finding that a causal relationship was insufficiently established”). 

11

essentially the same damages now flowed fromthe remaining non-antitrust claims.8 Upon striking the

amended damage report the district court also granted Minimed’s summary judgment motion to

dismiss IIS’s remaining non-antitrust claims.

 The district court was correct to strike the amended report because it did not properly reflect

the true amount of estimated damages which flowed fromthe remaining non-antitrust claims, making

the report seriously flawed and inadmissible. City of Vernon v. S. Cal. Edison Co., 955 F.2d 1361,

1371-73 (9th Cir.), cert. denied, 506 U.S. 908 (1992) (affirming summary judgment for defendant

because of, inter alia, plaintiff’sfailure to properly prove damages where plaintiff did not attempt to

or offer to correct the only possibly admissible damages study). 

Furthermore, IIS’s argument that the disaggregation rule is only required in antitrust cases,

and thus became non-applicable once its antitrust claims were dismissed, is incorrect.9 This Court

has not limited the concept of disaggregationmerelyto antitrust actions. See, e.g. Perrone v. General

Motors Acceptance Corp., 232 F.3d 433 (5th Cir. 2000) (actual damages for violation of the Truth

in Lending Act requires direct causal relationship between the amount of damages and injury or

harm); National Papaya Co. v. Domain Industries, Inc., 592 F.2d 813, 818 (5th Cir. 1979) (in a
12

breach of warranty claim the plaintiff has the burden to show that it’s lost profit damages flowed as

the natural and proximate result of the defendant’s wrongful conduct).

Because IIS merely repackaged its original damages report, and submitted it as an amended

report to support itsremaining non-antitrust claims, the district court was correct to exclude it. Once

the amended damages report was excluded, IIS could not show any damages resulting from its

remaining non-antitrust claims. Therefore, the district court was correct in dismissing these remaining

claims because IIS had failed to submit proper proof of damages. 

VI. Treble damages under § 4 of the Clayton Act

The district court concluded that because IIS had failed to carry its burden against MiniMed’s

summary judgment motion under element three, it need not address alternative arguments for

dismissal. MiniMed argued alternatively that IIS failed to show element four of its § 13(a) RPA

claim, that the alleged discrimination prohibitively effected competition, by causing harm to IIS, or

that IIS had suffered actual injury under § 2(a) of the Clayton Act for the purpose of establishing

entitlement to treble damages pursuant to § 4 of the Clayton Act, 15 U.S.C. § 15. 

IIS’s argues that all that is necessary to show harm under § 2(a) of the Clayton Act for the

purpose of establishing entitlement to treble damages pursuant to § 4 of the Clayton Act is the

presence of price discrimination. This is incorrect. The Supreme Court in J. Truett Payne Co. v.

Chrysler Motors Corp., 451 U.S. 557, 561 (1981) stated that a showing of price discrimination is

sufficient when seeking an injunction under § 2(a), but not when damages are sought. Because IIS

has failed to show actual injury, it failed to satisfy element four of its § 13(a) RPA claim, as well as

failing to show that it is entitled to treble damages under § 4 of the Clayton Act. 
13

VII. 59(e) Motion to Reconsider

This Court has held that a 59(e) motion to reconsider should not be granted unless: (1) the

facts discovered are of such a nature that they would probably change the outcome; (2) the facts

alleged are actually newly discovered and could not have been discovered earlier by proper diligence;

and (3) the facts are not merely cumulative or impeaching. See English v. Mattson, 214 F.2d 406, 409

(5th Cir. 1954). The district court held that IIS failed to meet these requirements.

IIS argues that its 59(e) motion for reconsideration of the district court’s decision to grant

MinMed summary judgment should not have been denied because it satisfied the requirements for

reconsideration. Specifically, IIS asserts that it submitted new evidence not available to it at the time

the district court granted summary judgment. The alleged new evidence concernsthe names of other

MiniMed distributors who sold MiniMed pumps throughout the United States and specifically in

certain markets that IIS asserted that it was also competing in. IIS argues that this information was

not available to it in a timely manner through no fault of its own but through MiniMed’s refusal to

provide such information during discovery until after its summary judgment motions were granted.

IIS argues that this new evidence would have satisfied element three of its § 13(a) RPA claim.

While the new evidence submitted by IIS may not have been discoverable prior to the district

courts granting of MiniMed’s summary judgment motions, the district court found that it would not

have changed the outcome. The district court reasoned that it did not base its summary judgment

decision on IIS’s failure to show that other distributors competed in certain markets at the time of

the alleged price discrimination. Rather, the district court based its decision on IIS’s failure to submit

sufficient evidence that it also competed in those particular markets during the relevant period, when

its agreement with MiniMed to service particular markets had been terminated as of December 31,
14

1998. Because we have found that IIS failed to submit proof of competition with a favored purchaser

during the time of the alleged price discrimination, the district court’s denial of IIS’s 59(e) motion

for reconsideration was correct. 

CONCLUSION

Because IIS failed to submit proof that it competed with favored purchasers in its

geographicalarea at the time of the alleged price discrimination committed by Minimed, failed to

submit proper proof of damages, and failed to submit evidence sufficient for a reconsideration of the

district court’s grant of summary judgment dismissing all of IIS’s claims, we affirm the decision of

the district court granting Minimed’s motion for summary judgment which dismissed all of IIS’s

claims.

AFFIRM.