RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0245p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

C OURTNEY C ATES ; B RIAN S TOVER ; J ASON M ILLER , on behalf of themselves and all others similarly situated, Plaintiffs-Appellants ,

v

.

C RYSTAL C LEAR T ECHNOLOGIES , LLC; C ARBINE & A SSOCIATES , LLC; T OLLGATE V ILLAGE A SSOCIATION I NC .; B RIDGEMORE V ILLAGE O WNERS ’ A SSOCIATION I NC .; B RIDGEMORE D EVELOPMENT G ROUP , LLC; T OLLGATE F ARMS , LLC, Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 16-6714

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:16-cv-00008—Aleta Arthur Trauger, District Judge. Argued: July 26, 2017
Decided and Filed: October 30, 2017
Before: COLE, Chief Judge; BATCHE LDER and MOORE, Circuit Judges.

_________________ COUNSEL

ARGUED: Benjamin Andrew Gastel, BRANSTETTER STRANCH & JENNINGS, PLLC, Nashville, Tennessee, for Appellant s. D. Alexander Fardon, RILEY WARNOCK & JACOBSON, PLC, Nashville, Tennessee, fo r Appellees Crystal Cl ear Technologies and Carbine & Associates. Valerie Diden Moore, BUTLER SNOW LLP, Nas hville, Tennessee, for Appellees Tollgate Village Asso ciation and Bridgemore Vill age Owners’ Association. ON BRIEF: Benjamin Andrew Gastel, BRANSTETTER STRANCH & JENNINGS, PLLC, Nashville, Tennessee, for Appellant s. D. Alexander Fardon, RILEY WARNOCK & JACOBSON, PLC, Nashville, Tennessee, Cr aig V. Gabbert, Jr., BASS, BERRY & SIMS PLC, Nashville, Tennessee, for Appellees Crysta l Clear Technologies and Carbine & Associates. 

### >No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 2

Valerie Diden Moore, BUTLER SNOW LLP, Nas hville, Tennessee, for Appellees Tollgate Village Association and Bridgemore Village Owners’ Association.
COLE, C.J., delivered the opinion of the cour t in which BATCHELER, J., joined in all but Part II.B., and MOORE, J., joined in a ll but Part II.C. BATCHELDER, J. (pp. 11–14), delivered a separate opinion conc urring in part and dissenting from Part II.B. MOORE, J. (pp. 15–20), delivered a separate opi nion concurring in part and dissenting from Part II.C.

_________________ OPINION

_________________ COLE, Chief Judge. The three named plain tiffs brought a purporte d class action alleging that the developers of their ne ighborhoods created agreements that violated both state and federal law by requiring the neighborhoods’ homeowners to pay for basic telecommunicatio ns services provided by Crystal Clear Technologies, LLC (“Cr ystal Clear”), an entity owned and controlled by the developers. The district c ourt dismissed the plaintiffs’ federal claims for failure to state a claim and subsequently denied as futile the plai ntiffs’ motion seeking leave to file an amended complaint. We affirm in part and reverse in pa rt the district court’s de nial of the plaintiffs’ motion seeking leave to file an amended complaint.

I. FACTS AND PROCEDURAL HISTORY
The plaintiffs are homeowners in three cen trally-planned neighborhoods in Thompson’s Station, a small town in Williamson County, Tennessee. The three neighborhoods, Canterbury, Bridgemore, and Tollgate, have hundreds of houses and over a thousand homeowners.
Carbine & Associates, LLC, developed the neighborhoods through affiliated companies, Bridgemore Development Group, LLC, Tollgate Farms, LLC, and Hood Development, LLC. The developers also es tablished and controlled owners’ associations for the neighborhoods. However, the developers have since transferred c ontrol of the owners’ associations to third-party entities not controlled by either th e developers or homeowners.
From 2006 to 2007, while under the developers’ control, the owners ’ associations each entered into communications services agreements (the “Agreements”) with Crystal Clear. The Agreements grant Crystal Clear the right to provide telecommunications services to theNo. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 3

neighborhoods for twenty-five years, with an option for Crystal Clea r to unilaterally renew for an additional twenty-five years. In addition, the Agreements authorize Crystal Clear to be the exclusive agent for homeowners in procuring se rvices from any outside providers and grant Crystal Clear the exclusive right to market services within the neighborhoods. Under the Agreements, homeowners must pay the owners’ associations a monthly assessment fee, which the associations then use to pay Crystal Clear for basic telecommunications services. Homeowners must pay the fee whether they use Crystal Clear’s services or not. In addition, homeowners must make a one-time payment of $1,500 to Crystal Clear for the cost of constructing the telecommunications infrastructu re in the neighborhoods. To facilitate the infrastructure’s construction, Crystal Clear al so obtained a non-exclusiv e franchise agreement with Thompson’s Station that permitted Crystal Clear to use the service easements within the neighborhoods.
Prior to executing the Agreements, Crystal Clear had no experience in the
telecommunications-services industr y. To provide services to the neighborhoods, Crystal Clear contracts with another provider, DirecTV, and charges a premium to hom eowners in addition to the rate negotiated with DirecTV. Further, Crystal Clear does not provide services outside of the neighborhoods at issue in this case.
The plaintiffs brought this su it and subsequently filed their first amended complaint, alleging both state and federal claims. The plaint iffs claimed that the Agreements constituted self-dealing, unjust enrichment, unconscionab ility, unlawful tying, market allocation, and unlawful exclusivity.
The defendants moved to dismiss, arguing th at the first amended complaint failed to assert allegations necessary for the federal claims and that the plaintiffs lack standing to bring
claims on behalf of the owners’ associations. The district c ourt dismissed the first amended complaint under Federal Rule of Civil Proce dure 12(b)(6) without a ddressing the standing argument and declined to exercise supplemental jurisdiction over the rema ining state-law claims.
The plaintiffs then moved under Federal Rule of Civil Procedure 59 to alter or amend the judgment and under Rule 15 for leave to file a se cond amended complaint that asserted the sameNo. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 4

federal claims. The district court denied the plaintiffs’ motion after determining that the second amended complaint would fail to survive a motion to dismiss and was thus futile. The plaintiffs timely appealed from both the district court’s dismissal and its refusal to allow the second amended complaint. However, the plaintiffs ag ree that the second amended complaint reflects the plaintiffs’ most recent and developed pleading for purposes of this appeal. Accordingly, we consider only whether the district court erred in refusing to allow the second amended complaint under Rule 59 and Rule 15. Furthermore, the plai ntiffs challenge only the district court’s decisions regarding their tying and exclusivit y claims. Therefore, we do not address the
dismissal of the market allocation claim.

II. ANALYSIS

A. Standard of Review

We review de novo the denial of a motion seeking to amend a complaint where the denial
is based on the determination that the amended complaint is futile because it would fail under a
motion to dismiss. Winget v. JP Morgan Chase Bank, N.A. , 537 F.3d 565, 572 (6th Cir. 2008).

“To survive a motion to dismiss, a plaintiff must allege fact s that state a claim to relief that is plausible on its face and that, if accepted as true, are sufficient to raise a right to relief above the speculative level.” Bickerstaff v. Lucarelli , 830 F.3d 388, 396 (6th Cir. 2016) (citation and internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)). “This standa rd ‘does not impose a probability requirement at the pleading stage; it simply calls for enough fact[s] to raise a reasonable expectation that discovery will re veal evidence of illegal [conduct.]’” Ohio Pub. Emps. Ret. Sys. v. Fed. Home Loan Mortg. Corp. , 830 F.3d 376, 383 (6th Cir. 2016) (quoting Twombly , 550 U.S. at 556). This court must “construe the complaint in the light most favorab le to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Bickerstaff , 830 F.3d at 396 (citation omitted).No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 5

B. Unlawful Tying Under the Sherman Act
“A tying arrangement is defined as an agre ement by a party to sell one product [a tying product] . . . only on the condition that the buyer also purchases a different (or tied) product . . . .” Mich. Division-Monument Builders of N. Am. v. Mich. Cemetery Ass’n , 524 F.3d 726, 732 (6th Cir. 2008) (quoting N. Pac. Ry. Co. v. United States , 356 U.S. 1, 5–6 (1958)). “The typical tying case involve[s] a seller’s attempt to exploit its economic power over one product or in one market to force a le ss desirable, tied product on a buyer.” Id. (internal quotation marks omitted). “Illegal tying therefor e occurs only if the seller has appreciable economic power in the tying product market and if the arrangement aff ects a substantial volume
of commerce in the tied market.” Id. (internal quotation marks omitte d). With regard to the impact on the tied market, “the controlling cons ideration is simply whether a total amount of business, substantial enough . . . so as not to be me rely de minimis, is foreclosed to competitors by the tie . . . .” Fortner Enter., Inc. v. U.S. Steel Corp. , 394 U.S. 495, 501 (1969). This latter requirement “makes no reference to the scope of a ny particular market or to the share of that market foreclosed by the tie.” Id.
Under their tying claim, the plaintiffs allege that the developers used their market power over the sale of homes in these neighborhoods to force the homeowners to purchase telecommunications services from Crystal Clear, thereby harming compe tition for the provision
of telecommunications services an d violating the Sherman Act, 15 U.S.C. § 1. The district court found that the first amended complaint failed to state a tying claim because it did not define the tying product market in alleging th e defendants’ market power in the sale of homes. The second amended complaint addressed this by defining the tying product market as centrally-planned communities within Thompson’s Station. The dist rict court then determined that the second amended complaint alleges market power in a define d market, but that it is futile because it fails to allege a substa ntial impact on the relevant tied market.
On appeal, the plaintiffs contest this, argui ng that the second amended complaint pleads a substantial impact on the tied market by alleging that the defendants harmed competition for the provision of telecommunications services. Th e defendants contend that the plaintiffs only pleaded a substantial impact on “telecommunications services in the Neighborhoods” rather thanNo. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 6

“commerce in the general market within which [telecommunications services] [are] sold.” (Crystal Clear Br. 19–20.)

This court must therefore determine whether the plaintiffs pleaded a substantial impact
within the relevant market for telecommunications services. In doing so, this court is mindful that it must “construe the complaint in the light most favorable to the plaintiff . . . and draw all reasonable inferences in favor of the plaintiff.” See Bickerstaff , 830 F.3d at 396. While the plaintiffs allege that the arrangement “substantia l[ly]” affected “the sa le of telecommunications in the Neighborhood[s],” the plaint iffs also allege more broadl y that the arrangement “ha[s] harmed competition for the provision of tel ecommunications.” (R. 99-1, ¶¶ 90, 94.) The exact amount of commerce impacted by the tying arrangement is unclear at this stage, but the plaintiffs have alleged that the neighborhoods , and thus the list of potential plaintiffs, include hundreds of houses and over 1,000 homeowners subject to the arrangement.
We can reasonably infer that alleging harm to particular neighborhoods equates to alleging harm to the general market that c overs those neighborhoods. By alleging that the Agreements forced each household to pay one-tim e infrastructure fees of at least $1,500 and monthly assessment fees for Crystal Clear’s servi ces, the plaintiffs have pleaded an amount of
commerce that would be substantial in bot h the neighborhoods and the telecommunications services market that covers those neighborhoods in Thompson’s Station, Williamson County, or beyond. See Fortner , 394 U.S. at 502 (“[W]e cannot agr ee with respondents that a sum of almost $200,000 is paltry or ‘insubstantial.’”); Bell v. Cherokee Aviation Corp. , 660 F.2d 1123, 1130 & n.8 (6th Cir. 1981) (holding that $140,000 ove r three years, “amount[ing] to little more than $40,000 a year,” is not insubstantial); Thompson v. Metro. Multi-List, Inc. , 934 F.2d 1566, 1578 (11th Cir. 1991) (holding that $30,000 to $70,000 is “clearly subs tantial”). We therefore conclude that the plaintiffs ha ve pleaded a substantial impact on the relevant tied market.
The defendants argue that, even if the plaintiffs sufficientl y pleaded substantial harm on the relevant tied market, the district court erred in concluding that the plaintiffs’ defined market for the tying product (the sale of homes) is proper. The proper definition of a tying product market and whether a defendant has market power w ithin that market are fact-intensive questions best addressed following discovery. Mich. Division-Monument , 524 F.3d at 733. This isNo. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 7

because the inquiry requires considering both th e attributes of the product that make it unique from others and the geographic market within which consumers may seek comparable products.
See id. The plaintiffs allege that the neighborhoods represent th e majority of centrally-planned neighborhoods that are located in a small-town se tting in a county that is otherwise filled with more densely populated communities. The plainti ffs further allege that the neighborhoods are unique from others because they provide the ho meowners with access to superior area schools
and local covenants that restrict home construc tion to houses typically purchased by middle to upper-middle income households. As the district c ourt correctly noted, the plaintiffs’ allegations on the tying product market ar e plausible on their face.
C. Exclusivity Under the Federal Telecommunications Act
The Federal Communications Commission (“ FCC”) has explicit authority to impose regulations specifying exclusive conduct that the Federal Telecomm unications Act prohibits.
See 47 U.S.C. § 548(c)(1); see also Nat. Cable & Telecomm. Ass’n v. FCC , 567 F.3d 659, 664– 65 (D.C. Cir. 2009). Pursuant to this authorit y, the FCC issued the 2007 “Exclusivity Order” barring any cable distributor from “enforc[ing] or execu t[ing] any provision in a contract that grants it the exclusive right to provide any vi deo programming service (alone or in combination with other services) . . . .” In the Matter of Exclusive Service Contracts For Provision of Video Services in Multiple Dwelling Units and Other Real Estate Developments , 22 FCC Rcd. 20235, 20251 (2007) (codified by 47 C.F.R. § 76.2000(a)) (h ereinafter “Exclusi vity Order”).
The plaintiffs allege that the Agreements vi olate the Exclusivity Or der by making Crystal Clear the exclusive provid er of services for the neighborhoods. The district court dismissed this claim, as alleged in the first amended complaint, noting that both the Agreements and the allegations contradicted the plaintiffs’ claim th at the Agreements were exclusive contracts.
As evidence of the arrangement’s exclusivity, the plaintiffs submitted with their proposed second amended complaint the Agreements and a letter sent by MBSC, the new owner of the Bridgemore development, stating that Crystal Clear re fused “to give up its exclusive easements that enable it to be the only provider in Brid gemore.” (Letter from MBSC, R. 99-7, PageID 1626.) The district cour t concluded that the second amended complaint reiterated the allegationsNo. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 8

from the previous complaint and would therefore fail under a motion to dismiss. In addition, the
district court found that the second amended co mplaint and the plain text of the Agreements contradicted the letter submitted by the plaintiffs.
“The law is clear that [courts] may consider [a document] which was attached to the [c]omplaint . . . in determining whether dismissal is proper.” Williams v. CitiMortgage, Inc. , 498 F. App’x 532, 536 (6th Cir. 2012) (per curiam); see also In re Omnicare, Inc. Sec. Litig. , 769 F.3d 455, 466 (6th Cir. 2014). Further, “[w]he n a written instrument contradicts allegations in the complaint to which it is attache d, the exhibit trumps the allegations.” Williams , 498 F. App’x at 536 (quoting N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend , 163 F.3d 449, 454 (7th Cir. 1998) (stating that th is rule is “well-settled”)).
The plaintiffs allege that the Agreements make Crystal Clear the exclusive provider by creating unlawful and unreasonable barriers to entry, such as re quiring homeowners to pay for services regardless of usage, referencing Cr ystal Clear’s easements, and by granting Crystal Clear the exclusive right to negotiate with pr oviders about access to deliver services to the neighborhoods. According to the plaintiffs, the cumulative effect of the barriers makes it both economically and practically unfeasible for any other provider to offer its services. The plaintiffs point to both the Agreements’ terms, which state that Crystal Clear will operate on an exclusive basis, and the MBSC letter, which de scribes Crystal Clear’s easements as exclusive and barring other providers.

As the district court noted, there are seve ral contradictions amongst the plaintiffs’ allegations and the Agreements’ terms. The plai ntiffs allege both that the Agreements make Crystal Clear the exclusive provide r and that Crystal Clear is not truly a provide r, contracting with DirecTV to be the actual provider. The pl aintiffs note the Agreements’ terms describing the arrangement as “exclusive,” but the Agreements ’ terms mandate that homeowners must have access to other providers. The plaintiffs’ alle ge both that Crystal Clear’s easements are “exclusive” and that they are pa rt of a non-exclusive franchise ag reement. We conclude that
these contradictions foreclose th e plaintiffs’ exclusivity claim.No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 9

The plaintiffs claim more than explicit exclusiv ity; they also claim that the structure and cumulative effect of the arrange ment creates an exclusive provi der relationship. But such allegations are insufficient to state an exclusivity claim. The prohibition imposed by the Exclusivity Order is limited by its terms to “bu ilding exclusivity clauses.” Exclusivity Order, 22 F.C.C. Rcd. at 20236 n.2. Such clauses “appear in contracts between [multichannel video programming distributors (“MVPDs”)] and [mu ltiple dwelling unit (“MDU”)] owners or other real estate developments” and “prohibit any other MVPD from any access whatsoever to the premises of the MDU building or real estate development.” Id. Assuming Crystal Clear is an MVPD, the plaintiffs do not allege facts suffici ent to show that the Agreements prohibit any other MVPD from “any access whatsoever” to the neighborhoods. Indeed, the Agreements specifically mandate that al ternative providers be give n access to the neighborhoods.
The plaintiffs rely on a Fourth Circuit deci sion holding a defendant liable for violating the Exclusivity Order, but that decision is inapposite. Lansdowne on the Potomac Homeowners Ass'n, Inc. v. OpenBand at Lansdowne, LLC , 713 F.3d 187, 205–06 (4th Cir. 2013). As the Fourth Circuit found, th e relevant contract in th at case contained explic it exclusivity clauses. Id. Those clauses were contained in an easement that, unlike here, expressly granted the cable provider the sole right to develop telecommunications infrastructure. Id. at 205. And applicable state law required the court to c onstrue the easement, along with a series of related agreements, as a “single, intertwining contract” subject to the Exclusivity Order, notwithstanding the defendant’s argument that easements are no t “contracts” subject to the order. Id. Interpreting the easement as part of a cont ract, the Fourth Circuit had “no difficulty” concluding that the contract contained explicit exclusivity clause s in violation of the Exclusivity Order. Id. In this case, by contrast, the plaintiffs do not allege fact s sufficient to show that either the Agreements or easements at issue contain explicit exclusivit y clauses. We theref ore conclude that the plaintiffs have not sufficientl y pleaded an exclusivity claim.

III. CONCLUSION
For the foregoing reasons, we reverse the distri ct court’s denial of the plaintiffs’ motion seeking leave to file the second amended compla int on plaintiffs’ tying claim; we affirm the
district court’s denial of th e plaintiffs’ motion seeking leav e to file the second amendedNo. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 10

complaint on plaintiffs’ exclusivity claim; and we remand this action to the district court for further proceedings consis tent with this opinion.No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 11

_________________________________________________________ CONCURRING IN PART A ND DISSENTING IN PART

_________________________________________________________ ALICE M. BATCHELDER, Circuit Judge, concu rring in part and dissenting in part. I concur with the majority’s opinion regarding Plain tiffs’ exclusivity claim. Plaintiffs have failed to allege that the communications services agre ements (the “Agreements”) grant Crystal Clear an improper “exclusive right to provide” telecomm unication services to the developments. However, in my view, despite multiple opportunities to do so, Plaintiffs have failed to articulate a suitable market in which the purported antitrust violation took place. Ther efore, with respect to Plaintiffs’ antitrust tying claim, I respectfully dissent from Part II.B of the majority’s opinion and
would hold that Plaintiffs have failed to state a claim upon which relief can be granted. 1

I would find that Plaintiffs have failed to st ate an antitrust tying claim because they do not allege that the purported ty ing arrangement “affects a substant ial volume of commerce in the
tied market.” Mich. Div.-Monument Builders of N. Am. v. Mich. Cemetery Ass’n , 524 F.3d 726, 732 (6th Cir. 2008) [hereinafter Monument Builders ] (citation omitted). With respect to the tied market, Plaintiffs allege only th at “[t]he amount of interstate commerce affected in the market for the sale of lots in the Neighborhood and/ or the sale of tele communications in the Neighborhood is substantial.” While the majority infers “that alleging harm to particular neighborhoods equates to alleging harm to the ge neral market that covers those neighborhoods,” it cites no case, and I have found none, to support that conclusion. 2 Plaintiffs must “defin[e] the

1 As an initial matter, the antitrust and exclusivity clai ms come to us, in part, as an appeal of a postjudgment motion to amend. “When a party seeks to amend a complaint after an adverse judgment, it thus must shoulder a heavier burden. Instead of meeting only the modest requirements of Rule 15, the claimant must meet the requirements for reopening a case established by Rules 59 or 60.” Leisure Caviar , LLC v. U.S. Fish & Wildlife Serv. , 616 F.3d 612, 616 (6th Cir. 2010) (citations omitted). Because I would find that the district court did not err by dismissing Plaintiffs’ antitrust and exclusivity claims, I would also find that the district court did not abuse its discretion by denying Plaintiffs’ motion to set aside judgment and amend the complaint.
2 The Tenth Circuit recently rejected a similar argument as “an outdated view of the law,” while reviewing a Federal Rule of Civil Procedure 50(b) motion in In re: Cox Enterprises, Inc. , 871 F.3d 1093, 1098 (10th Cir. 2017). Specifically, the Cox plaintiffs argued that “because Cox makes a substantial amount of money on [the tied product], the tie necessarily has the requisite potential for anticompetitive effects in the [tied] market.” Id. The Tenth Circuit disagreed, explaining that “making money from a tying arrangement doesn’t violate § 1 of the Sherman Act unless the defendant, by doing so, has actually or potentially foreclosed or injured competition in the tied-product market.” Id. at 1106. “Because tying claims often pr esent little or no potential to harm competition—No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 12

relevant product market and demonstrat[e] the defendant ’s power in that market,” and they
“must also define the relevant geographic market and demonstrate that the defendant’s actions produced anticompetitive effects in that defined area.” Id. at 733 (citing Found. for Interior Design Educ. Research v. Savannah Coll. of Art & Design , 244 F.3d 521, 531 (6th Cir. 2001)). “The selected geographic market must ‘both correspond to the commercial realities of the industry and be economically significant.’” Id. (quoting Brown Shoe Co. v. United States , 370 U.S. 294, 336–37 (1962)).
“[T]he Neighborhood” is not a relevant geographic market. As the district court explained, the relevant geographic market cannot be the area in which Crystal Clear allegedly has exclusive control; it is se lf-evident that the purported ty ing arrangement would have a substantial effect in the location where all purch asers of both the tying and tied product reside,
i.e. the neighborhoods . This is a facile “pleading maneuver[]” that artificially narrows the broader economic and geographic market for teleco mmunication services to create a “fictitious
market” in which any sales by Crystal Clear would cause a substantial effect. Apani Sw., Inc. v. Coca-Cola Enters., Inc. , 300 F.3d 620, 633 (5th Cir. 2002). A geographic market must reflect
the commercial realities of the telecommuni cation-services industry and be economically significant. Plaintiffs do not allege that th e neighborhoods—three residential developments in Thompson’s Station, a suburb of Nashville—correspond to the co mmercial realities of the telecommunication-services market, which exists at least in Thompson’s Station if not in the larger geographic area around Nashville. Nor have Plaintiffs alleged fa cts showing that the
telecommunication-services sales in those thr ee residential developments are economically significant in relation to the broader telecommunication-services market in Thompson’s Station or nearby Nashville. See Monument Builders , 524 F.3d at 736; see also Wampler v. Sw. Bell Tel.
Co. , 597 F.3d 741, 745 (5th Cir. 2010).
Many cases illustrate this rule. For example, in Monument Builders , 524 F.3d at 737, we rejected a tying claim because the plaintiffs’ defi nition of the relevant geographic market was too
narrow. The Monument Builders plaintiffs alleged that the defendant cemeteries improperly

and thus, no antitrust concerns—plaintiffs alleging per se unlawful tying arrangements must do more to meet the foreclosure element than point to a dollar amount.” Id. at 1106–07 (citing Jefferson Parish Hosp. Dist. No. 2 v. Hyde , 466 U.S. 2, 15–16 (1984)).No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 13

required consumers to purchase a burial memorial from the cemeteries, once they had purchased a burial plot. We rejected the plaintiffs’ allega tion that the relevant geographic market was “each individual cemetery,” id. at 734, because the “uniqueness of lo cation is not in itself adequate to establish market power,” id. at 733 (quoting Baxley-DeLamar Monuments, Inc. v. Am. Cemetery
Ass’n , 938 F.2d 846, 852 (8th Cir. 1991)). Moreover, we found that such a definition improperly merged the geographic-market analysis and the product-market analysis into one determination and made proof of a substantial effect on the relevant market unnecessary, holding that: “There can be no competition for the sale of burial lots within a market that contains only one provider of burial lots. Market power under thes e circumstances would be unavoidable.” Id. at 734–35; see also Brokerage Concepts, Inc. v. U.S. Healthcare, Inc. , 140 F.3d 494, 515 (3d Cir. 1998) (finding that “non-contiguous, gerrymandered geogra phic market consisting solely of the areas surrounding [certain] pharmacies in suburban Ph iladelphia,” without reference to a market perceived by consumers and suppliers, failed as a matter of law (citing Tunis Bros. Co. v. Ford
Motor Co. , 952 F.2d 715, 727 (3d Cir. 1991)).
In support of its holding, the Monument Builders court relied on Apani Southwest , 300 F.3d at 626–27, which addressed a plaintiff’s defi nition of a geographic market as twentyseven City-owned facilities in Lubbock, Texas, where Coca-Cola was the exclusive provider of nonalcoholic beverages. The Apani court characterized the plaintiff’s allegations as an attempt “to artificially narrow a broader economic mark et” and rejected the tying claim because the alleged geographic market “did not correspond to the commercial realities of the industry and was not economically significant.” Id. at 633; see also Double D Spotting Serv., Inc. v. Supervalu, Inc. , 136 F.3d 554, 560–61 (8th Cir. 1998) (rejec ting the trucker plai ntiffs’ allegation that the relevant geog raphic market for “unloading services ” was “the Supervalu warehouse in Urbandale, Iowa, which is a suburb of Des Moines ,” because the “stated geographic market is too narrow to support a claim of an antitrust violation”).
Finally, in the more recent case of Wampler v. Southwest Bell Telephone Co. , 597 F.3d 741 (5th Cir. 2010), the Fifth Circuit rejected a Sherman Act conspiracy claim in which the resident plaintiffs alleged that the relevant geographic market was a single multi-unit dwelling (“MDU”) where AT&T had exclusive access to th e communications infrastructure entering theNo. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 14

building. Id. at 743. The Wampler court held that an MDU was not a relevant geographic market, because “given the competition that exis ts between MDU owners, the competition that exists between service providers, and given the hi ghly mobile nature of today’s society, . . . a single MDU is [not] so segregated as to be economically significant and thus represent[] a plausible geographic market.” Id. at 746; cf. E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc. , 637 F.3d 435, 444–47 (4th Cir. 2011) (finding su fficient Kolon’s allegation that “the relevant geographic market wa s ‘worldwide supply of para-a ramid fiber to commercial purchasers in the United States,’” because Kolon “pled plausible reasons for limiting the geographic market to the United States”).
Similarly, “the Neighborhood” is not a releva nt geographic market for the tied product (telecommunication services) at is sue here. Plaintiffs do not alle ge that “the Neighborhood” has any relationship to the commercial realities of the telecommunication-serv ices industry or is economically significant in the telecommunication-se rvices market. Plaintiffs, therefore, have failed to allege a relevant geographic market for the sa le of telecommunica tion services, and their allegations are insufficien t to make out a tying claim.
For the foregoing reasons, I concur in part and dissent in part.No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 15

_________________________________________________________ CONCURRING IN PART A ND DISSENTING IN PART

_________________________________________________________ KAREN NELSON MOORE, Circu it Judge, concurring in part and dissenting in part. Because I believe that the plaintiffs have suffi ciently pleaded an exclusivity claim, I would
reverse the district court’s deni al of the plaintiffs’ motion s eeking leave to file the second amended complaint on this claim as well as on the plaintiffs’ tying claim. Therefore, I respectfully dissent from Part II.C of the majority’s opinion.

I.
In its 2007 “Exclusivity Order” the Fede ral Communications Co mmission (“FCC”) found that “the greatest harm that exclusivity clau ses cause residents of MDUs [multiple dwelling units] is that they deny those residents another choice of MVPD [multichannel video programming distributor] service and thus deny them the benefits of increased competition.”
In the Matter of Exclusive Service Contracts for Provision of Video Services in Multiple Dwelling Units and Other Real Estate Developments, 22 FCC Rcd. 20235, 20244 (2007) (codified at 47 C.F.R. § 76.2000) (h ereinafter “Exclusivity Order” ). The FCC found that cable operators protected by exclusivity clauses faced no pressure to hold down their prices, to provide desired programming, or to offer low-cost bundles of video, voice, and Inte rnet access services.
Id. at 20244–45. Furthermore, the FCC found that excl usivity clauses had the potential to act as deterrents to competitors seeking to enter the marketplace. Id. at 20245. The FCC concluded that these clauses are proscribed by 47 U.S.C. § 548 because “[t]hat Se ction prohibits unfair methods of competition that have the purpose or e ffect of hindering significantly or preventing MPVDs from providing ‘satellite ca ble’ and/or ‘satellite broadcas t’ programming to subscribers
and consumers.” Id. at 20236. The FCC, therefore, prohib ited cable operators or MVPDs from “enforce[ing] or execut[ing] any provision in a contract that grants it the exclusive right to provide any video programming se rvice (alone or in combinati on with other services) to a
MDU.” Id. at 20251 (emphasis added). The situation inthis case presents exactly the problems the FCC sought to prevent in its Exclusivity Order.No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 16

II.
The plaintiffs argue that their factual allegatio ns show that the cumulative effect of the Communications Service Agreements’ (“CSAs”) provi sions is to create a de facto exclusivity arrangement in violation of the Exclusivity Order. Appellant Reply Br. at 7. The majority rejects the plaintiffs’ premise that the Exclusivit y Order can be violated by a de facto contractual arrangement, and instead reads the prohibition as applying only to specific clauses that explicitly create exclusivity standing alone. This interpreta tion of the regula tion ignores the purpose of the Exclusivity Order and the principl es of Tennessee contract law th at govern our interpretation of
the CSAs.
The CSAs are interpreted pursuant to Tennessee law. Cf. Ferro Corp. v. Garrison Indus.,
Inc. , 142 F.3d 926, 935 (6th Cir. 1998). “Under Tennessee law . . . the ‘cardinal rule [in interpreting contracts] . . . is to ascertain the inte ntion of the part ies and to give effect to that intention, consistent with legal principles.’” Frizzell Constr. Co. v. Gatlinburg, L.L.C. , 9 S.W.3d 79, 85 (Tenn. 1999) (second and third alteration in original) (quoting Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc. , 521 S.W.2d 578, 580 (Tenn. 1975)). “In addition, a contract’s provisions must be interpreted in the context of the entire contract, ‘viewed from beginning to end and all its terms must pass in review, for one clause may modify, limit or il lustrate another.’” D&E Constr. Co. v. Robert J. Denley Co. , 38 S.W.3d 513, 519 (T enn. 2001) (quoting Frizzell
Constr. Co. , 9 S.W.3d at 85).
The CSAs both contain an explicit exclusivity clause. R. 99-3 (Tollgate CSA at 1) (Page ID #1492) (“Association has chosen Crystal Clear Technologies to oper ate and maintain the System, and to provide Basic Services (as furthe r defined below) to each home and multi-family dwelling unit in Tollgate Village (‘Home’) on an exclusive basis consistent with the terms of this Agreement and applicable law.” (emphasis added )); R. 99-4 (Bridgemore CSA at 1) (Page ID #1527) (“Association has chosen Crystal Clear T echnologies, LLC to operate and maintain the System, and to provide Basic Services (as furthe r defined below) to each home and multi-family dwelling unit in Bridgemore Village (‘Home’) on an exclusive basis consistent with the terms of this Agreement and applicable law.” (emphasi s added)). The defendants argue that these exclusivity clauses are “one-off phrase[s]” and the remaining provisions “mandate a non-No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 17

exclusive arrangement and homeowner access to ot her providers.” Corrected Br. of Appellees Crystal Clear Techs., LLC and Carbine & Assocs ., LLC, adopted by Appe llees Tollgate Farms, LLC and Bridgemore Dev. Grp., LLC at 14 n.6. The defendants are correct that the exclusivity clauses must be interpreted in light of the other contract provisions, D&E Constr. Co. , 38 S.W.3d at 519, and that some of these provisions do co ntemplate the theoretical provision of MVPD services by alternative providers, R. 99-3 (Tollgate CSA at 7) (Page ID #1498); R. 99-4 (Bridgemore CSA at 7) (Page ID #1533). In the cont ext of the entire cont ract, however, these exclusivity clauses are clearly designed to “prohibit any other MVPD from any access whatsoever to the premises of the MDU building or real estate development.” 1 Exclusivity
Order at 20236 n.2.

First, the CSAs refer to easements that Cr ystal Clear Technologies obtained in each MDU. R. 99-3 (Tollgate CSA at 1) (Page ID # 1492); R. 99-4 (Bridgemore CSA at 7) (Page ID #1527). The plaintiffs allege that these easemen ts are exclusive and prevent any alternative provider from distributing services in the MDUs. R. 99-1 (Proposed Second Amended Complaint at 27) (Page ID #1467). To support this factua l allegation, the plaintiffs have proffered a letter from the current owners of the Bridgemore development discussing the exclusive easements. R. 99-7 (Gluck Letter at 3) (Page ID #1626). Under Tennessee law, documents referred to in a written contract “may be properly considered in the construction of
the contract.” Lasco Inc. v. Inman Constr. Corp. , 467 S.W.3d 467, 473 (Tenn. Ct. App. 2015) (internal quotation marks omitted) (quoting McCall v. Towne Square Inc. , 503 S.W.2d 180, 183 (Tenn. 1973)). Thus, the references to these ex clusive easements support the plaintiffs’ claim that the CSAs violate the Exclusivity Order.

1 The majority relies on a footnote in the Exclusiv ity Order to construe narrowly the prohibition on exclusivity clauses. It is true that the Exclusivity Order is limited to “building exclusivity clauses.” Exclusivity Order at 20236 n.2. The FCC has defined building exclusivity clauses as clauses that “prohibit any other MVPD from any access whatsoever to the premises of the MDU building or real estate development.” Id. Here, the provisions in the CSAs create this outcome de facto and th erefore must fall within the parameters of the Exclusivity Order. In other words, the FCC has defined building exclusivity clauses as clauses creating outcome X. The clauses here also produce outcome X . Therefore, these clauses must be subj ect to the Exclusivity Order because the underlying purpose of 47 U.S.C. § 548 and the Exclusivity Order would be eviscerated if parties could avoid the prohibition on exclusivity clauses by creating an exclusivity arrangement via the interaction of multiple contractual clauses as opposed to one clause standing on its own.No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 18

Second, other contractual provisions limit the ability of homeowners to communicate directly with alternate service providers, and vi ce-versa, and instead re quire communications to be funneled through Crystal Clear Technologies. 2 R. 99-3 (Tollgate CS A at 8) (Page ID #1499); R. 99-4 (Bridgemore CSA at 8) (Page ID # 1534). Third, the CSAs allow Crystal Clear Technologies to charge alternative providers fees in order to offer services to homeowners. R. 99-3 (Tollgate CSA at 8) (Page ID #1499); R. 99-4 (Bridgemore CSA at 8) (Page ID #1534). Lastly, the CSAs bind the homeowners for tw enty-five years and automatically renew for another twenty-five years; the homeowners cannot terminate the agreements until after the first twenty-five year period and must provide at least one year’s noti ce to do so. R. 99-3 (Tollgate CSA at 16) (Page ID #1507); R. 99-4 (Bridgemore CSA at 17) (Page ID #1543). Collectively, these provisions, coupled with the explicit exclus ivity clauses, demonstr ate that the cumulative purpose and effect of the CSAs is to cr eate a prohibited excl usivity arrangement. 3

When viewing the CSAs as a whole, it is clear that “the purpose and effect of the agreement is to bar competing cable video provide rs from delivering service to the development by preventing them from ever building the infras tructure necessary to reach [the MDUs] in the first place.” Lansdowne on the Potomac Homeowners Ass’n v. OpenBand at Lansdowne, LLC , 713 F.3d 187, 205–06 (4th Cir. 2013). The majority s eeks to distinguish the facts alleged in this
case from the Fourth Circuit’s decision in Lansdowne in which our sister circuit concluded that a contract very similar to the one in this case vi olated the Exclusivity Order. 713 F.3d at 207. The majority points to differences that create no meaningful distinctions. Like the contested

2 This is different from the exclusive marketing arrang ements created by the CSAs , R. 99-3 (Tollgate CSA at 6) (Page ID #1497); R. 99-4 (Bridg emore CSA at 6) (Page ID #1532), whic h are permitted by the FCC. In the Matter of Exclusive Service Contracts for Provision of Video Services in Multiple Dwelling Units and Other Real Estate Developments: Second Report and Order, 25 FCC Rcd. 2460, 2471–73 (2010) (hereinafter “Bulk Billing and Exclusive Marketing Arrangements Order”).
3 The plaintiffs also point to the provision in each CSA that requires them to pay Crystal Clear Technologies regardless of whether they actually use the comp any’s services. Appellants Br . at 8; R. 99-3 (Tollgate CSA at 10) (Page ID #1501); R. 99-4 (Bridgemore CSA at 10) (Page ID #153 6). The FCC allows such mandatory fees as part of acceptable bulk billing arrangements. Bulk Billing and Exclus ive Marketing Arrangements Order at 2465. Thus, this provision on its own does not support the plaintiffs’ argument. The existence of a bulk billing arrangement, however, does not immuni ze the CSAs from the Exclusivity Order. Bulk billing arrangements must comply with the prohibitions articul ated in the Exclusivity Order. Id. at 2465 & n.15. The FCC distinguished acceptable bulk billing arrangements fro m prohibited exclusiv ity clauses because acceptable bulk billing arrangements do not prevent alternative providers from providing services to homeowners nor do they stop homeowners from purchasing services from other providers. Id. at 2468.No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 19

agreements at issue in Lansdowne , the CSAs here have explicit exclusivity clauses. Furthermore, as in Lansdowne , when the CSAs are interpreted pursuant to applicable state law the clear conclusion is that they create a prohi bited exclusivity arrangement notwithstanding some of the language in the CSAs to the contrar y. When interpreted as a whole, the agreement produces “precisely the type of anti-competitiv e monopoly that the FCC sought to prohibit.”
Lansdowne , 713 F.3d at 205.

III.
Defendants Tollgate Village Association Inc. and Bridgemore Village Owners’ Association Inc.—the respective homeowners’ associations of the MDUs—argue that the plaintiffs lack standing to assert a derivative claim against them. Br. of Tollgate Vill. Ass’n Inc. & Bridgemore Vill. Owners’ Ass’n In c. at 29. The majority did not need to reach this argument. I do, and conclude that the plai ntiffs are bringing a direct cl aim—not a derivative claim—and therefore this argument is inapposite.

Under Tennessee law, the difference between a direct and a derivative claim is premised on “the nature of the wrong and to whom the relief should go.” Keller v. Estate of McRedmond , 495 S.W.3d 852, 876 (Tenn. 2016) (quoting Tooley v. Donaldson, Lufkin & Jenrett, Inc. , 845 A.2d 1037, 1039 (Del. 2004)). In a derivative su it, the wrong is suffered by the corporation and the harm to the shareholder is “merely in cidental to the wrong suffered by the corporation
and affects all stockholders alike.” Id. at 867 (internal quotation mark s omitted). In contrast, in a direct action, the shareholder is the one who suffered the injury and any recovery would go to that injured shareholder. Id. at 868–69.
Here, the plaintiffs are asserting a direct act ion. They allege that they have directly suffered injuries, as opposed to the homeowners’ associations. See, e.g., R. 99-1 (Proposed Second Amended Complaint at 14) (Page ID #1454). Any recovery that the plaintiffs would win
would inure to their benefit and not to the benefit of the homeown ers’ associations. Consequently, this is a direct claim under Tenne ssee law, and the argument of the homeowners’ associations about the plaintiffs ’ lack of standing to assert a derivative claim is misplaced.No. 16-6714 Cates, et al. v. Crystal Clear Tech., et al. Page 20

IV.
For the foregoing reasons, I respectfully dissen t from Part II.C of the majority’s opinion,
and I would reverse the district c ourt’s denial of the plaintiffs’ motion seeking leave to file the second amended complaint on the plaintiffs’ exclus ivity claim as well as on the plaintiffs’ tying
claim.