[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10231

____________________

INTERNATIONAL CONSTRUCTION PRODUCTS, LLC, 

Plaintiff-Appellant,

versus

RING POWER CORPORATION, 

ZIEGLER INC., 

THOMPSON TRACTOR COMPANY, INC., 

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 5:20-cv-00226-TKW-MJF

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2 Opinion of the Court 22-10231

____________________

Before BRANCH and GRANT, Circuit Judges, and SCHLESINGER,

∗

District Judge.

PER CURIAM:

This antitrust case involves dealers of heavy construction 

equipment and their relationship with industry auction platforms. 

Plaintiff-Appellant International Construction Products, LLC 

(“ICP”) sued Defendant-Appellees Ring Power Corporation (“Ring 

Power”), Thompson Tractor Company (“Thompson”), and 

Ziegler Inc. (“Ziegler”) (collectively “Defendants”) for alleged 

violations of § 1 of the Sherman Act and for tortious interference 

with contract. In essence, ICP alleged that Defendants conspired 

to thwart ICP’s relationship with IronPlanet, a heavy construction 

equipment auction site, by conspiring to boycott IronPlanet if it did 

not cut ties with ICP. The district court granted Defendants 

summary judgment on each of ICP’s claims. After review, and 

with the benefit of oral argument, we affirm. 

I. Factual Background 

ICP was a distributor of new (as opposed to used) heavy 

construction equipment that sold its products online directly to 

consumers. This business model was unusual in the heavy 

∗ Honorable Harvey E. Schlesinger, United States District Judge for the Middle 

District of Florida, sitting by designation.

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22-10231 Opinion of the Court 3

construction equipment marketplace because such equipment is 

typically sold through an intermediary dealer network. 

Defendants are dealers of heavy construction equipment 

manufactured by Caterpillar, Inc. They often sell their used 

equipment through online auction websites, such as IronPlanet, or 

through auction companies, such as Cat Auction Services (“CAS”)1

and Ritchie Bros. Auctioneers (“Ritchie Bros”).

2

 Importantly, 

Defendants had ownership interests—some overlapping—in the 

auction market: Ring Power was a minority shareholder of 

IronPlanet; Ziegler was a minority shareholder of CAS; and 

Ziegler’s president and CEO, Bill Hoeft, was a founding member 

and chairman of the board of directors of CAS. 

The industry auction companies began to consolidate. In 

January 2014, IronPlanet and CAS began merger negotiations that 

were consummated in 2015. Then, the newly-merged entity

merged again—this time with Ritchie Bros, consolidating the three 

1

Caterpillar held a 29.8% stake in CAS. 

2

Typically, buyers of heavy construction equipment rely upon dealer 

networks to connect them with distributors. Distributors, such as ICP, 

considered the development of a traditional dealer network a steep barrier to 

entry into the heavy equipment market, requiring them to connect with 

middlemen who would in turn connect them to buyers. Buyers also had the 

option of buying equipment through online auction sites, like IronPlanet, that 

permit them to place bids on pieces of equipment at online auctions, sealedbid auctions (in which buyers simultaneously submit sealed bids to the seller), 

and on-site auctions. See How to buy, IronPlanet, 

https://www.ironplanet.com/how-to-buy?kwtag=footer. 

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companies into one. Hoeft, a member of the CAS merger team,

was in regular contact with IronPlanet during these mergers. 

While the IronPlanet-CAS merger negotiations were 

ongoing, in March 2014, ICP struck a deal with IronPlanet to have

IronPlanet sell ICP’s new heavy construction equipment on its 

website through a dedicated IronPlanet-ICP online storefront. ICP 

and IronPlanet announced the deal at a trade expo and made 

waves, as the new venture represented a shift in the longstanding 

business model of the heavy construction equipment industry.3

 

The following month, IronPlanet abruptly terminated its 

relationship with ICP. According to deposition testimony of 

IronPlanet employees, the deal with ICP consumed extensive 

technological resources, distracted from the “top priority” (the 

IronPlanet-CAS merger), and was not as lucrative as originally 

anticipated.4

The Defendants for their part made their own concerns 

about the ICP partnership known to IronPlanet. Two weeks after 

the announcement of the IronPlanet-ICP deal, CAS CEO Gary 

3

The record demonstrates that various stakeholders were concerned about 

the IronPlanet-ICP deal due to the possibility of IronPlanet shifting from an 

auction site that was manufacturer-neutral to one that promoted one 

manufacturer over another. Not only was Caterpillar (as the manufacturer) 

concerned about the IronPlanet-ICP deal, but the dealers (as exclusive 

Caterpillar dealers) were also concerned with the possibility of having their 

used equipment listed next to new equipment and potentially selling for less. 

4

In fact, only a single sale was made through the new ICP storefront. 

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Trettel emailed Hoeft (Ziegler Chairman and CAS board member): 

“[CAS] is greatly concerned over this development [i.e., the 

IronPlanet-ICP deal] and we will need to have discussions on how 

to proceed with the [merger] negotiations. [Caterpillar] has 

indicated this would kill the” IronPlanet-CAS merger. 

Hoeft then sent an email to IronPlanet CEO Greg Owens on 

March 18, 2014. Hoeft’s email, sent in response to IronPlanet’s 

most recent merger offer, was signed with his name and one of his 

titles: “Chairman, President & CEO, Ziegler Inc.” The email 

stated, in relevant part:

We and Caterpillar, noted the recent article in 

Equipment World, which highlighted Iron Planet’s 

new relationship with [ICP]. We would like to better 

understand that relationship, as we are concerned 

that Caterpillar and the CAT dealers would have 

significant concerns about any arrangement where 

Iron Planet is providing auction services for new 

equipment for a Caterpillar competitor.

5

5 An investment banker for CAS drafted a proposed email to be sent by Hoeft 

to IronPlanet that stated, in relevant part:

We and Caterpillar noted . . . Iron Planet’s new relationship 

with [ICP]. Without more full understanding, I have a strong 

suspicion that such a relationship would kill any hope of a 

transaction between Iron Planet and [CAS] from Caterpillar’s 

perspective.

This proposed email was not sent.

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In April 2014, executives from Ring Power and Thompson 

discussed the IronPlanet-ICP deal with each other. On April 1,

following a Ring Power board meeting, Ring Power’s Senior VP 

Richard Fowler commented in an email to other Ring Power 

executives that Caterpillar was “not happy” with the prospect of 

the IronPlanet-ICP deal. Over a period of two days that month, 

Fowler also had several phone calls with two Thompson officials 

(Billy Seals and Richard Lindley),6 IronPlanet CEO Owens, and

Caterpillar’s merger liaison. 

On April 3, 2014, IronPlanet scrubbed ICP’s products from 

its website—supposedly without informing ICP beforehand. On 

April 4, IronPlanet President Jeff Jeter called ICP founder and 

chairman Tim Frank to inform him the deal was off because of 

“concerns over” the relationship. Jeter told Frank that Caterpillar 

and at least one other manufacturer were “putting pressure” on 

IronPlanet to terminate the ICP deal and told him that they would 

“stop doing business with [IronPlanet] on the equipment side” if 

the deal was not terminated.7

 Jeter wrote in an email to Owens 

6

Lindley testified that these calls with Fowler did not concern IronPlanet or 

ICP, relating instead to a piece of used equipment. 

7

Specifically, Jeter told Frank that Caterpillar and at least one other 

manufacturer were “putting pressure” on IronPlanet to terminate the ICP deal 

and told him that they would “stop doing business with [IronPlanet] on the 

equipment side” if the deal was not terminated. The district court, in its 

summary judgment order, ruled that, to the extent ICP offered this evidence 

to prove the truth of the matter asserted (i.e., that IronPlanet terminated its 

relationship with ICP because of pressure it received from Caterpillar and 

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that same day summarizing his conversation with Frank, stating

that Frank “underst[ood their] pressure and said he suspect[ed it

would] be hard to brush off if they are serious.”

8

Thompson’s Lindley, while negotiating a consignment of a 

six-machine package between Thompson and IronPlanet, heard 

about the ICP deal and had asked IronPlanet’s Bob Winnette “what 

does this mean?” On April 4, Winnette informed Lindley that ICP 

products had been removed from the IronPlanet website. Three 

days later, Winnette sent an internal email stating that they 

“need[ed] a statement from Owens, Jeter, or [another IronPlanet 

VP] with [IronPlanet’s] status and where we are headed if 

anywhere with ICP.” He warned that, “[u]ntil [they] have a 

statement . . . Thompson is in the holding pattern with us.” Jeter, 

in response, stated, “Our deal with ICP has been terminated and 

removed from the IronPlanet website.” Jeter’s email was then 

other entities), it was hearsay. The district court also ruled that it did not 

qualify as non-hearsay under Federal Rule of Evidence 801(d)(2)(E) as a coconspirator statement because IronPlanet was not alleged to be a coconspirator. The district court further ruled that the statements were not 

admissible under the exception for unavailable witnesses under Rule 

804(b)(3)(A). During his deposition, Jeter testified that he did not recall the 

substance of his conversation with Frank but did not testify that he forgot 

having the conversation at all; thus, he was not unavailable under Rule 

804(a)(3). Regardless of its ruling, the district court chose to consider Jeter’s 

statements as part of the summary judgment record and concluded that they 

were not direct evidence of a conspiracy and did not tie any specific Defendant 

to the supposed “pressure” on IronPlanet. 

8

Jeter later testified that “they” referred to manufacturers and dealers.

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forwarded to Thompson officials by Frank Langham of IronPlanet. 

Lindley requested “a [W]ord document on IronPlanet letterhead 

with [that] statement” with Jeter’s “name and title at the end.” 

IronPlanet complied. 

Several days later, on April 14, 2014, after exchanging emails 

regarding the termination, Jeter and Frank spoke on the phone. 

Jeter told Frank that “the pressure they were under was very 

strong,” and when Frank asked from whom the pressure was 

coming, Jeter responded “you know who our investors are.” In 

June 2014, Thompson VP Kenny Bishop wrote in an email to a 

Caterpillar official that IronPlanet’s deal with ICP caused an 

“uproar” from Caterpillar dealers, causing IronPlanet to remove 

ICP from its website. 

On January 29, 2015, ICP sued Caterpillar, CAS, and various 

other manufacturers in federal court in Delaware seeking 

compensatory damages and injunctive relief under federal 

antitrust laws, as well as compensatory damages, punitive 

damages, and injunctive relief under state law. The Delaware court 

granted ICP leave to amend to add the three dealer Defendants in 

this appeal. The court initially dismissed the claims against the 

dealers for lack of personal jurisdiction, but then reconsidered and 

transferred the claims to the Northern District of Florida. The 

claims against Caterpillar remained in Delaware. 

Following transfer, the Florida district court granted ICP 

leave to file an amended complaint focusing on the claims against 

the dealer Defendants. The amended complaint advances four 

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causes of action: two claims under Section 1 of the Sherman AntiTrust Act, 15 U.S.C. § 1 (Counts 1 and 2), and two claims for 

tortious interference under state law (Counts 3 and 4).9

 ICP alleged 

that Defendants, in conjunction with Caterpillar and another 

manufacturer, illegally conspired to cause IronPlanet to terminate 

its contract with ICP by boycotting and pressuring IronPlanet. 

Defendants each denied ICP’s allegations and asserted various 

affirmative defenses, including that their conduct was lawful, 

justified, and pro-competitive. 

The district court established a two-phase discovery 

schedule, limiting Phase 1 to fact discovery on the issue of whether 

a conspiracy existed to boycott IronPlanet. At the close of Phase 1, 

the court would entertain summary judgment motions before 

moving on to Phase 2, which would focus on expert discovery and 

the “issues of market definition, antitrust injury, and damages.” 

Phase 1 of discovery ended in July 2021, at which time Defendants 

each filed motions for summary judgment. 

The district court granted Defendants’ motions for 

summary judgment on all counts. First, as to the Sherman Act § 1 

antitrust claims, the district court found that “no reasonable jury 

could find that Defendants individually threatened to boycott 

IronPlanet if it did not terminate its relationship with [ICP].

Accordingly, there is no parallel conduct from which the jury could 

9

The complaint alleged that the relevant state law was that of Illinois or, in 

the alternative, Florida. 

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possibly infer the existence of a conspiracy.” The district court 

concluded that “the summary judgment evidence d[id] not tend to 

exclude the possibility that Defendants acted independently and 

[the evidence was] as consistent with permissible competition as 

with illegal conspiracy.” 

Second, as to ICP’s state law claims, the district court, 

applying Florida law,10 held that “there [was] no evidence from 

which a jury could find that [Defendants] intentionally and 

unjustifiably interfered with the business relationship between 

IronPlanet and [ICP] or induced IronPlanet to breach its agreement 

with [ICP.]” The district court ultimately concluded, as to both 

claims, that while 

a reasonable jury could find that IronPlanet was 

“pressured” into terminating its relationship with 

[ICP], there is simply no evidence (direct or 

circumstantial) from which a jury could find that the 

dealer [D]efendants named in this case were 

responsible for exerting that pressure, much less that 

they unlawfully entered into an agreement to do so.

Additionally, the district court determined that, as to Thompson 

and Ziegler specifically, even if they had threatened to boycott 

IronPlanet because of the ICP deal, those Defendants were justified 

(or “privileged”) under the Restatement (Second) of Torts § 766 

10 The district court recognized that, while the parties disagreed as to which 

state law applied (North Carolina, Illinois, or Florida), they agreed that there 

were no material differences in the applicable law of those states. 

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cmt. l and Florida law in refusing to deal with IronPlanet out of 

concern for their own respective business interests. The district 

court entered final judgment for Defendants, and ICP timely 

appealed. 

II. Discussion 

A. Sherman Act claims

Under § 1 of the Sherman Act, “[e]very contract, 

combination . . . or conspiracy, in restraint of trade . . . among the 

several States, or with foreign nations or commerce among the 

several States, or with foreign nations” is illegal. 15 U.S.C. § 1. 

Notably, “the Supreme Court has long concluded that Congress 

intended only to prohibit ‘unreasonable’ restraints on trade.” 

Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917 

F.3d 1249, 1260 (11th Cir. 2019) (en banc) (citing Arizona v. Maricopa 

Cnty. Med. Soc’y, 457 U.S. 332, 343 (1982)). Section 1, therefore,

“prohibits (1) conspiracies that (2) unreasonably (3) restrain 

interstate or foreign trade.” Id. 

The “first inquiry” of a Sherman Act claim is whether 

defendants made an “agreement that restrains trade.” Tidmore Oil 

Co. v. BP Oil Co./Gulf Prod. Div., 932 F.2d 1384, 1388 (11th Cir. 1991). 

Importantly, “the Sherman Act ‘does not restrict the long

recognized right of [a] trader or manufacturer engaged in an 

entirely private business, freely to exercise his own independent 

discretion as to parties with whom he will deal’”; only “collusion,” 

rather than independent action, is proscribed. Verizon Commc’ns 

Inc. v. L. Offs. of Curtis v. Trinko, LLP, 540 U.S. 398, 408 (2004) 

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(quoting United States v. Colgate & Co., 250 U.S. 300, 307 (1919)). An 

illegal conspiracy under § 1 can be demonstrated in two ways: 

direct or circumstantial evidence. 

A plaintiff can present “direct . . . evidence that reasonably 

tends to prove that the parties ‘had a conscious commitment to a 

common scheme designed to achieve an unlawful objective.’” 

Dinnivant v. Bi-State Auto Parts, 851 F.2d 1575, 1579 (11th Cir. 1988) 

(quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 

(1984)). That being said, “it is only in rare cases that a plaintiff can 

establish the existence of a conspiracy by showing an explicit 

agreement.” Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 

1573–74 (11th Cir. 1991). “Direct evidence is evidence which, if 

believed, resolves a matter in issue.” City of Tuscaloosa v. Harcros 

Chems., Inc., 158 F.3d 548, 565 (11th Cir. 1998) (quoting 

parenthetically 1 John W. Strong et al., McCormick on Evidence 

§ 185, at 777 (4th ed. 1992)). It is evidence that “is based on personal 

knowledge or observation and that, if true, proves a fact without 

inference or presumption.” Evidence, Black’s Law Dictionary (11th ed. 

2019) (emphasis added). 

“[M]ost conspiracies are proved by inferences drawn from 

the behavior of the alleged conspirators.” Todorov v. DCH Healthcare 

Auth., 921 F.2d 1438, 1456 (11th Cir. 1991). To survive summary 

judgment on the basis of circumstantial evidence, a “plaintiff must 

present ‘evidence that tends to exclude the possibility that the 

[defendants] were acting independently.’” Am. Contractors Supply, 

LLC v. HD Supply Constr. Supply, Inc., 989 F.3d at 1233 (quoting 

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Monsanto, 465 U.S. at 761). “[C]onduct as consistent with 

permissible competition as with illegal conspiracy does not, 

standing alone, support an inference of antitrust conspiracy.” 

Harcros, 158 F.3d at 570 (quoting Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 586 (1986)). The plaintiff, “in other words, 

must show that the inference of conspiracy is reasonable in light of 

the competing inference[ ] of independent action.” Id. (quoting 

Matsushita, 475 U.S. at 588 (alterations in original)).11 The evidence 

“need not be such that only an inference of conspiracy may be 

derived from it,” but the evidence must “tend to exclude the 

inference of independent action.” Am. Contractors, 989 F.3d at 1234 

(quoting DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 

1499, 1509 (11th Cir. 1989)). “Mere equipoise of the evidence does 

not establish an agreement.” Id. at 1233.

While “parallel business behavior” or “conscious 

parallelism” can be circumstantial evidence of a conspiracy, the fact 

that defendants engaged in parallel conduct does not, on its own, 

establish a conspiracy for purposes of § 1. Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 561 n.7 (2007). Rather, the plaintiff must demonstrate 

that “each defendant engaging in the parallel action acted contrary 

to its economic self-interest, or [show] other ‘plus factors’ tending 

11 We have stated that “courts must be mindful that,” while “‘on summary 

judgment the inferences to be drawn from the underlying facts must be 

viewed in the light most favorable to the party opposing the motion[,] . . . 

antitrust law limits the range of permissible inferences from ambiguous 

evidence in a § 1 case.’” Harcros, 158 F.3d at 569–70 (quoting Matsushita, 475 

U.S. at 586) (alteration adopted).

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to establish that the defendants were . . . in a collusive agreement 

to . . . restrain trade.” Harcros, 158 F.3d at 570–71 (internal 

quotation omitted). Neither our Court nor the Supreme Court has 

established a definitive list of “plus factors”; instead, any evidence 

that “tends to exclude the possibility of independent action” could 

operate as a “plus factor” sufficient to enhance circumstantial 

evidence beyond “the realm of equipoise.” Williamson Oil Co. v. 

Philip Morris USA, 346 F.3d 1287, 1301 (11th Cir. 2003) (quoting 

Harcros, 158 F.3d at 571 n.35). “[A]n agreement is properly inferred 

from conscious parallelism only when ‘plus factors’ exist.” Todorov, 

921 F.2d at 1456 n.30.12

 

1. Direct Evidence

In its opening brief, while not clearly articulated, ICP 

appears to argue that there is direct evidence of a conspiracy 

among Defendants. But contrary to ICP’s arguments on appeal, 

the summary judgment record does not contain any direct evidence 

of an agreement between Defendants to boycott IronPlanet. In 

other words, there is no evidence that shows that Defendants 

explicitly agreed to boycott IronPlanet so that IronPlanet would 

terminate its relationship with ICP. We examine each piece of 

12 While we have not set forth an exhaustive list of plus factors in our prior 

case law, we have recognized that “a showing that the defendants’ behavior 

would not be reasonable or explicable (i.e., not in their legitimate economic 

self-interest) if they were not conspiring to fix prices or otherwise restrain 

trade,” could constitute a plus factor. Harcros, 158 F.3d at 572.

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evidence that ICP contends constitutes direct evidence and how it 

falls short. 

First, ICP points to internal emails among Caterpillar 

executives discussing the IronPlanet-ICP relationship, including an 

email in which the Caterpillar official recounts that IronPlanet’s 

Owens, during merger negotiations, said “if we [CAS and 

IronPlanet] can come to some for[m] of agreement, then the ICP 

initiative would go away.” As an initial matter, neither Caterpillar 

nor IronPlanet are not defendants in this lawsuit. Accordingly, an 

internal corporate discussion with one non-party about another 

non-party is not in any way direct evidence of a conspiracy among 

the Defendants. 

Second, ICP points to IronPlanet President Jeter’s April 4 call

with ICP founder and chairman Tim Frank to inform him the deal 

was off because of “concerns over” the relationship.13

 During that 

call, Jeter told Frank that Caterpillar and at least one other 

13 ICP argues that the district court erred in ruling that comments made by 

IronPlanet’s Jeter to ICP’s Frank during the April 4, 2014, phone call were 

inadmissible hearsay. “We review a district court’s evidentiary rulings for 

abuse of discretion.” Great Lakes Ins. SE v. Wave Cruiser LLC, 36 F.4th 1346, 

1353 (11th Cir. 2022). “[E]ven a clearly erroneous evidentiary ruling will be 

affirmed if harmless.” Id. (quotation omitted). An error is harmless unless “it 

affects the substantial rights of the parties.” Furcron v. Mail Ctrs. Plus, LLC, 843 

F.3d 1295, 1304 (11th Cir. 2016) (quotation omitted). Even assuming the 

district court incorrectly determined that the statement was admissible, the 

error was harmless because the district court considered the statement as 

supposed direct evidence of a conspiracy; therefore, ICP’s substantial rights 

were not affected. 

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manufacturer were “putting pressure” on IronPlanet to terminate 

the ICP deal and told him that manufacturers and dealers would 

“stop doing business with [IronPlanet] on the equipment side” if 

the deal was not terminated. Direct evidence, by definition, does 

not require inferences to prove what it is offered to prove. This

phone call is not direct evidence of a conspiracy among the 

Defendants because it requires several inferences: just because 

Frank understood that some dealers were putting pressure on 

IronPlanet does not mean (a) the dealers were the Defendants in 

this case or (b) the dealers agreed to put this pressure on IronPlanet 

as part of an illegal concerted effort. The telephone conversation 

cannot be direct evidence of an agreement on the part of 

Defendants due to the necessary inferences its consideration 

requires.

Third, ICP contends that Jeter’s email to Owens on April 4 

summarizing his conversation with Frank, in which he stated that 

Frank “underst[ood IronPlanet’s] pressure and said he suspect[ed it 

would] be hard to brush off if they are serious,” constitutes direct 

evidence. This email is not direct evidence of a conspiracy because, 

despite the fact that Jeter testified that those entities referenced in 

his email were manufacturers and dealers, the email does not 

indicate which specific entities were exerting pressure on 

IronPlanet, or whether those entities were doing so by virtue of an 

anticompetitive agreement. To conclude that the email and 

preceding conversation concerned the Defendants requires the 

drawing of multiple inferences. 

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Fourth, ICP points to Frank’s testimony that when he asked 

Jeter “who besides Caterpillar was putting pressure on” IronPlanet, 

Jeter replied, “you know who our investors are.” ICP argues that 

this is direct evidence of a conspiracy, given that Ring Power was a 

minority shareholder of IronPlanet. However, ICP gives away the 

game by arguing that there are “reasonable inferences [to be] 

drawn from Jeter’s admission[.]” Direct evidence of a conspiracy 

does not require any inferences to be drawn and a mere reference 

to “investors” does not constitute proof of any unlawful conduct 

by Ring Power, much less a conspiracy between Ring Power and 

any other Defendant. 

Fifth, ICP relies on a June 2014 email from Thompson VP 

Kenny Bishop to a Caterpillar official referring to “uproar from Cat 

dealers” prompting termination of the deal with ICP. But, by its

own words, ICP necessarily concedes that this email is not direct 

evidence of a conspiracy when admitting that the desired 

conclusion is permitted only by an inference from consideration of 

the evidence. 

Sixth, ICP points to an email from CAS CEO Gary Trettel to 

Ziegler’s Hoeft stating that “[CAS] is greatly concerned over this 

development [i.e., the IronPlanet-ICP deal] and we will need to 

have discussions on how to proceed with the [merger] negotiations. 

[Caterpillar] has indicated this would kill the” IronPlanet-CAS 

merger. This email is not direct evidence of a conspiracy because, 

on its face, it contains no mention of any agreement between 

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18 Opinion of the Court 22-10231

Defendants to boycott IronPlanet but rather speaks to CAS’s 

opinion of the IronPlanet-ICP deal. 

Seventh, ICP points to an email sent by Hoeft to IronPlanet’s 

Owens stating, “We would like to better understand that 

relationship [with ICP], as we are concerned that Caterpillar and 

the CAT dealers would have significant concerns about any 

arrangement where IronPlanet is providing auction services for 

new equipment for a Caterpillar competitor.” In ICP’s view, the 

email “reflects Ziegler’s coordination with others[,] speak[ing] on 

behalf of Caterpillar and a group of ‘dealers.’” ICP contends that 

these emails “directly establish that Ziegler executives used the Cat 

Auction merger negotiations to pressure IronPlanet into severing 

its relationship with ICP.” ICP is incorrect. The parties make much 

of the question as to what “hat” Hoeft was wearing when he sent 

this email—in other words, was he acting on behalf of Ziegler or 

the CAS merger team?14 But even if we were to accept ICP’s 

14 ICP raises as an enumeration of error the district court’s apparent decision 

not to consider any events related to the CAS-IronPlanet merger because the 

Delaware district court previously ruled that the merger did not restrain trade. 

Accordingly, the district court did not permit ICP to rely upon the merger 

agreement to establish concerted action. However, the district court explicitly 

addressed the merger negotiations, including the email from Hoeft to Owens 

during negotiations expressing concern about the ICP-IronPlanet relationship. 

The district court also considered the context of the merger when analyzing 

the speed at which IronPlanet switched from building up the website featuring 

ICP’s products to taking it down. The district court directly engaged with 

evidence from the merger negotiations and found it not to be probative 

evidence tending to show Defendants acted in concert in boycotting 

IronPlanet. To the extent that ICP argues that the district court was wrong in 

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argument that Hoeft sent the email in his capacity as a Ziegler 

representative rather than as a CAS representative, it is still 

insufficient direct evidence that Ziegler entered a conspiracy with 

the other Defendants to boycott IronPlanet. On its face, Hoeft’s 

email simply asks for information about IronPlanet’s relationship 

with ICP. To reach the conclusion that Ziegler entered into a 

conspiracy with the other Defendants, we would have to make 

several inferences—e.g., that Hoeft was, in fact, acting on behalf of 

Ziegler rather than CAS, that Hoeft inquired after the IronPlanetICP deal at the behest of at least one other Defendant, and that an 

inquiry into the deal was intended to be and was received as a veiled 

threat to boycott IronPlanet—thus disqualifying this evidence as 

direct evidence of a conspiracy. 

Eighth, ICP points to the emails between Thompson 

officials and IronPlanet in which Thompson sought confirmation 

that the deal with ICP had been terminated and the ICP products 

were removed from the IronPlanet website. These 

communications consisted of the following: IronPlanet’s Winnette 

informed Lindley that ICP products had been removed from the 

IronPlanet website. Three days later, Winnette sent an internal 

email stating that they “need[ed] a statement from Owens, Jeter, or 

[another IronPlanet VP] with [IronPlanet’s] status and where we 

concluding that this information was not probative of concerted action, we 

agree with the district court. Communications between non-parties are not 

probative of the Defendants actions in this case (even granting ICP’s argument 

that Hoeft wore his Ziegler “hat” for purposes of his communications with 

IronPlanet). Thus, ICP’s enumeration is meritless.

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20 Opinion of the Court 22-10231

are headed if anywhere with ICP.” He warned that, “[u]ntil [they] 

have a statement . . . Thompson is in the holding pattern with us.” 

Jeter, in response, stated, “Our deal with ICP has been terminated 

and removed from the IronPlanet website.” Jeter’s email was then 

forwarded to Thompson officials by Frank Langham of IronPlanet. 

Lindley requested “a [W]ord document on IronPlanet letterhead 

with [that] statement” with Jeter’s “name and title at the end.” 

IronPlanet complied. Nothing in those communications, or the 

resulting statement from IronPlanet, constitutes direct evidence of 

a conspiracy among the Defendants. There is not even a single 

mention of another dealer or entity in those communications, and

the communications simply do not establish that Thompson 

unlawfully conspired with anyone to restrain trade. Additionally, 

these emails are simply requests for information about an arguably 

industry-changing event that do not support the existence of the 

alleged conspiracy. 

As to Ring Power,15 ICP points to the following: (1) internal 

Ring Power emails regarding the “concerns” about the IronPlanetICP deal harbored by Ring Power executives and the 

15 ICP seemingly concedes that there is no direct evidence tying Ring Power 

to the conspiracy, stating in its opening brief that “[b]ased on record evidence, 

a reasonable jury could also conclude that Ring Power played a key role in 

coordinating and leading the conspiracy,” and that there is “more than enough 

evidence from [which] a jury could reasonably infer Ring Power’s involvement 

in the conspiracy.” Irrespective of ICP’s concession, however, we will 

consider whether the proffered evidence implicating Ring Power constitutes 

direct evidence of a conspiracy. 

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22-10231 Opinion of the Court 21

communication of those concerns to Caterpillar; and (2) “a flurry 

of phone calls” between Ring Power’s Fowler and officials at 

Caterpillar, Thompson, and IronPlanet following Fowler’s email to 

Ring Power’s CEO informing him of the IronPlanet-ICP deal. 

Neither of these pieces of evidence is direct evidence of a 

conspiracy. Emails internal to Ring Power containing no mention 

of any other Defendant (much less an agreement between them to 

boycott IronPlanet) do not show the existence of an illegal 

conspiracy to restrain trade. Nor does a series of phone calls: a

factfinder would be required to make an inference that the phone 

calls were, indeed, concerning not only the IronPlanet-ICP deal,

but also an agreement between Ring Power and Thompson, in 

order to conclude that there was a conspiracy between those 

Defendants. The phone calls are therefore plainly not direct 

evidence of such a conspiracy. 

Accordingly, ICP has failed to put forth any direct evidence 

proving that Defendants conspired to boycott IronPlanet until it 

terminated its relationship with ICP. 

2. Circumstantial Evidence with Plus Factors

In its reply brief, ICP asserts for the first time that the 

evidence it initially argued was direct evidence of a conspiracy is 

also circumstantial evidence of such. Thus, ICP also needs to show 

the existence of plus factors. But ICP tacitly admits that it has not 

done so. Instead, ICP argues that, under DeLong, it is not limited to 

a “two-track” requirement of either direct evidence or 

circumstantial evidence and plus factors; it contends that “antitrust 

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22 Opinion of the Court 22-10231

plaintiffs may rely on the cumulative weight of various kinds of 

evidence, including that which requires interpretation or 

inferences, even without a showing of ‘parallel conduct.’” 

DeLong, however, does not hold that the cumulative weight 

of the evidence (without plus factors) can get a plaintiff past 

summary judgment in an antitrust case. In DeLong, we considered 

a plaintiff’s claims of vertical price conspiracy and concluded that 

by “[v]iewing the totality of the evidence . . . , a jury reasonably 

could conclude that [the defendants] worked together to develop” 

a competing product “and agreed to sell it at an inflated price,” i.e., 

the evidence “all reasonably tend[ed] to support [the plaintiff’s] 

conspiracy allegation.” 887 F.2d at 1511–12. While it is true that 

we did not explicitly consider any “plus factors,” we did state that 

evidence of parallel conduct “need not be such that only an 

inference of conspiracy may be derived from it,” but instead, “[i]t 

must . . . tend to exclude the inference of independent action.” Id.

at 1509. This holding—which plainly states that inferences are not 

enough at summary judgment—is not inconsistent with our 

requirement of plus factors discussed in other cases. Indeed, prior 

to our decision in DeLong, we held in Dunnivant v. Bi-State Auto Parts

that “[i]n order to avoid a motion for summary judgment, a plaintiff 

must come forward with significant probative evidence supporting 

its theory of conscious parallelism with some ‘plus’ factor which 

tends to indicate the absence of independent action.” 851 F.2d 

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22-10231 Opinion of the Court 23

1575, 1583 (11th Cir. 1988).16

 And after DeLong, we have confirmed 

the need for plus factors in a circumstantial evidence case: “To 

ensure that we do not punish unilateral conduct, . . . we require 

more than mere evidence of parallel conduct by competitors to 

support an inference of a conspiracy; an agreement is properly 

inferred from conscious parallelism only when ‘plus factors’ exist.” 

Todorov, 921 F.2d at 1456 n.30. DeLong does not require otherwise 

or hold to the contrary. ICP cannot preclude summary judgment 

by reliance on circumstantial evidence alone, without any 

discussion or argument of plus factors because “[m]ere equipoise 

of the evidence does not establish an agreement.” Am. Contractors, 

989 F.3d at 1234. 

Even considering all of the purported direct evidence as 

circumstantial evidence, nothing permits the inference that 

Defendants illegally conspired to boycott IronPlanet in an effort to 

thwart the IronPlanet-ICP deal. And even if the circumstantial 

evidence permitted such an inference, ICP has failed to put forth 

any plus factors that bring its evidence out of the realm of 

equipoise. ICP has only made the conclusory argument that the 

alleged conspiracy was economically rational for Defendants. At 

most, ICP has put forth evidence tending to show that Defendants 

16 Under our “prior panel precedent rule,” we are required to follow the 

precedent of the first panel to address the relevant issue, “unless and until the 

first panel’s holding is overruled by the Court sitting en banc or by the 

Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001). 

Thus, if any conflict did exist between DeLong and Dunnivant, our holding and 

reasoning in Dunnivant would win the day. 

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24 Opinion of the Court 22-10231

independently harbored concerns about the effects the IronPlanetICP deal would have on the heavy construction equipment 

industry and their own respective businesses, and communicated 

those concerns to IronPlanet in the form of requests for additional 

information. That conduct is not illegal under the Sherman Act. 

Because ICP has not pointed to direct evidence of a 

conspiracy or to circumstantial evidence with additional plus 

factors that would permit the inference that Defendants acted in 

concert rather than independently, its Sherman Act claims fail. The 

district court did not err in granting Defendants summary 

judgment on these claims. 

B. Tortious interference with contract

ICP advanced two causes of action for tortious interference 

with contract under state law for (1) lost profits and (2) damaged 

equity and goodwill. The district court granted Defendants 

summary judgment on those claims because it concluded that 

there was no evidence from which a jury could find that 

Defendants intentionally and unjustifiably interfered with “the 

business relationship between” ICP and IronPlanet or induced 

IronPlanet to breach its agreement with ICP.

17

 

First, as to Ring Power, the district court found that “the 

summary judgment evidence fail[ed] to show that Ring Power 

17 The district court used the phrase “business relationship” twice in its 

summary judgment order but analyzed ICP’s claims under the correct 

framework for tortious interference with contract. 

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22-10231 Opinion of the Court 25

threatened to boycott IronPlanet,” because it issued “nothing more 

than inquiries” into the IronPlanet-ICP relationship. It concluded 

that the record evidence showed that Ring Power’s inquiries did not 

contain or imply any threat of a boycott, nor did IronPlanet 

perceive any of the inquiries as a threat of a boycott. 

Second, the district court found that the same was true for 

Thompson, determining that even if Thompson’s request for 

confirmation from IronPlanet that it had terminated the deal with 

ICP was a “veiled threat,” such a “threat would not be actionable

because Thompson was justified in not dealing (or threatening not 

to deal) with IronPlanet under the circumstances” according to the 

commentary to § 766 of the Restatement (Second) of Torts. It also 

held that Thompson “was motivated by its legitimate business 

interests,” i.e., “that its used equipment would sell for less,” and 

thus was entitled to summary judgment. 

Lastly, as to Ziegler, the district court concluded that even 

assuming that Hoeft’s email to IronPlanet inquiring about the ICP 

relationship was sent on behalf of Ziegler rather than CAS, and 

further assuming that the email contained or implied a threat to

boycott IronPlanet, the claims would still not be actionable because

“Ziegler, like Thompson, was free to independently decide who to 

deal with based on its own business interests.” 

ICP argues that the district court erroneously determined 

that no Defendant threatened to boycott IronPlanet because “there 

is evidence from which a reasonable jury could find that IronPlanet 

terminated its ICP contract under pressure from dealers, and 

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26 Opinion of the Court 22-10231

specifically in response to threats to its merger plans and its 

equipment consignments.” It also argues that § 766 to the 

Restatement “draws a contrast between a refusal to deal motivated 

by an ‘aversion’ to a third party, and a refusal to deal (or threat of

such refusal) that is accompanied by statements or signals actively 

seeking the cancellation of a contract with a third party.” Because 

Defendants “moved beyond refraining from business based on an 

‘aversion,’” their purported threats constituted unjustifiable 

interference. 

ICP also contends that the district court erroneously relied 

on Florida law’s “privilege to interfere” which protects actions 

taken to promote one’s own economic self-interest; ICP argues that 

the privilege does not apply where improper means are employed, 

such as threats and intimidation. ICP contends that Defendants’ 

“concerted pressure campaign” qualifies as improper means. 

Lastly, ICP argues that “[t]he district court usurped the jury’s role” 

in determining whether Defendants’ alleged interference was 

improper. 

Under Florida law,

18 “[t]he tort of contractual interference 

occurs when: [1] a contract exists; [2] the third-party has knowledge 

of the contract; [3] the third party intentionally interferes with a 

party’s rights under the contract; [4] there is no justification or 

18 The parties do not agree on which state’s laws apply in this case—North 

Carolina, Illinois, or Florida. However, the parties have agreed that there is 

no meaningful difference between the three states’ tortious interference laws. 

The district court applied Florida law, so we will do the same here.

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22-10231 Opinion of the Court 27

privilege for the interference; and [5] there are damages.” Mariscotti 

v. Merco Grp. At Akoya, Inc., 917 So. 2d 890, 892 (Fla. 3d DCA 2005). 

We focus on the third and fourth elements here: whether there was 

an unjustifiable interference by Defendants into ICP’s agreement 

with IronPlanet. See, e.g., Cedar Hills Properties Corp. v. E. Fed. Corp., 

575 So. 2d 673, 676 (Fla. 1st DCA 1991) (“In order to maintain an 

action for tortious interference with contractual rights, a plaintiff 

must prove that a third party interfered with a contract by 

influencing, inducing or coercing one of the parties to breach the 

contract, thereby causing injury to the other party.” (quotation 

omitted and alteration adopted)); Stutzke v. D.G.C. Liquidation Co., 

533 So. 2d 897, 899 (Fla. 4th DCA 1988) (“A cause of action for 

tortious interference requires that there be direct, intentional 

interference.”).

The Restatement (Second) of Torts § 76619 explains that, 

with respect to the “means of interference,” “[t]here is no technical 

requirement as to the kind of conduct that may result in 

interference,” but notes that “[t]he interference is often by 

19 Section 766 provides: 

One who intentionally and improperly interferes with the 

performance of a contract (except a contract to marry) 

between another and a third person by inducing or otherwise 

causing the third person not to perform the contract, is subject 

to liability to the other for the pecuniary loss resulting to the 

other from the failure of the third person to perform the 

contract.

Restatement (Second) of Torts § 766. 

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28 Opinion of the Court 22-10231

inducement . . . conveying to the third person the actor’s desire to 

influence him not to deal with the other.” Restatement (Second) 

of Torts § 766 cmt. k. 

However, there are certain justifications for interference, 

including refusing to deal. Again, the commentary to § 766 

provides guidance on when an individual or entity’s refusal to deal 

with a third party constitutes an unjustifiable interference with the 

third party’s business relationship with the plaintiff: 

A refusal to deal is one means by which a person may 

induce another to commit a breach of his contract 

with a third person. Thus A may induce B to break 

his contract with C by threatening not to enter into, 

or to sever, business relations with B unless B does 

break the contract. This situation frequently presents 

a nice question of fact. While, under the rule stated in 

this Section, A may not, without some justification induce 

B to break his contract with C, A is ordinarily free to refuse 

to deal with B for any reason or no reason. The difficult 

question of fact presented in this situation is whether 

A is merely exercising his freedom to select the 

persons with whom he will do business or is inducing 

B not to perform his contract with C. That freedom 

is not restricted by the relationship between B and C; 

and A’s aversion to C is as legitimate a reason for his refusal 

to deal with B as his aversion to B. If he is merely 

exercising that freedom, he is not liable to C for the 

harm caused by B’s choice not to lose A’s business for 

the sake of getting C’s.

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22-10231 Opinion of the Court 29

On the other hand, if A, instead of merely refusing to 

deal with B and leaving B to make his own decision 

on what to do about it, goes further and uses his own 

refusal to deal or the threat of it as a means of 

affirmative inducement, compulsion or pressure to 

make B break his contract with C, he may be acting 

improperly and subject to liability under the rule 

stated in this Section.

Restatement (Second) of Torts § 766 cmt. l (emphasis added). 

Under Florida law, “there can be no claim [for tortious 

interference] where the action complained of is undertaken to 

safeguard or promote one’s financial or economic interest.” Genet 

Co. v. Annheuser-Busch, Inc., 498 So. 2d 683, 684 (Fla. 3d DCA 1986). 

Further, “[i]f a defendant interferes with a contract in order to 

safeguard a preexisting economic interest of his own, the 

defendant’s right to protect his own established economic interest 

outweighs the plaintiff’s right to be free of interference, and his 

actions are usually recognized as privileged and nonactionable.” 

Heavener, Ogier Servs., Inc. v. R. W. Fla. Region, Inc., 418 So. 2d 1074, 

1076 (Fla. 5th DCA 1982); see also id. (“Even if the contract is 

terminable at will, the interferer’s actions are tortious and 

actionable if the motive is purely malicious and not coupled with 

any legitimate competitive economic interest.”). Moreover, a 

defendant may not utilize improper means, such as threats, 

intimidation, or conspiratorial conduct, and still enjoy the privilege 

of business competition. See Int’l Sales & Serv., Inc. v. Austral 

Insulated Prod., Inc., 262 F.3d 1152, 1159 (11th Cir. 2001) (collecting 

cases); see also Sec. Title Guarantee Corp. of Baltimore v. McDill 

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30 Opinion of the Court 22-10231

Columbus Corp., 543 So. 2d 852, 855 (Fla. 2d DCA 1989) (“[S]o long 

as improper means are not employed, activities taken to safeguard 

or promote one’s own financial interests are entirely nonactionable.”). 

1. Ring Power

We turn first to ICP’s argument that Ring Power threatened 

to boycott IronPlanet and thus intentionally interfered with ICP’s 

relationship with IronPlanet. ICP, however, has not cited to any 

evidence from which a jury could reasonably infer that Ring Power 

interfered with its IronPlanet deal, either in its opening brief or in 

its reply brief. Rather, it rests its arguments on evidence that, at 

most, indicates that Ring Power was concerned about the 

IronPlanet-ICP deal and that Ring Power’s Fowler “engaged in a 

flurry of phone calls with officials at Caterpillar, Thompson, and 

IronPlanet.” ICP has not pointed to any evidence that Ring Power 

took any action to threaten or pressure IronPlanet to terminate its 

deal with ICP and thus has not created a genuine issue of material 

fact on the third element of tortious interference with contract 

under Florida law. Tamiami Trail, 463 So.2d at 1127. Therefore, 

Ring Power is entitled to summary judgment on the tortious 

interference with contract claims. 

2. Thompson

We turn next to Thompson. ICP relies upon the 

communications between Thompson’s Lindley and IronPlanet as 

evidence of intentional interference in which IronPlanet expressed 

concern internally that it would be in a “holding pattern” with 

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22-10231 Opinion of the Court 31

Thompson while the ICP deal remained intact and in which 

Thompson requested a formal statement on IronPlanet letterhead 

that the ICP deal had been terminated. We agree with the district 

court that nothing in those communications could be reasonably 

construed as a threat of boycott and thus cannot satisfy the third 

element of tortious interference under Florida law. Id.

However, even if they could be so construed, Thompson’s 

actions would be justified under § 766 cmt. l to the Restatement 

(Second) of Torts, which provides: 

A may induce B to break his contract with C by 

threatening not to enter into, or to sever, business

relations with B unless B does break the contract

[with C]. . . . A may not, without some justification 

induce B to break his contract with C, [but] A is 

ordinarily free to refuse to deal with B for any reason 

or no reason[, and] A’s aversion to C is as legitimate a 

reason for his refusal to deal with B as his aversion to 

B. 

Restatement (Second) of Torts § 766 cmt. l. In other words, we are 

presented with the precise scenario contemplated by the 

Restatement: Thompson’s aversion to ICP is “a legitimate reason 

for [its] refusal to deal” with IronPlanet. Id.; Heavener, 418 So.2d at

1076; Genet, 498 So.2d at 684. While ICP contends that Thompson 

went “beyond” a mere refusal to deal by “actively seeking 

cancellation of a contract with a third party,” i.e., affirmatively 

inducing a breach of contract, the communications did no such 

thing, as evidenced by the fact that they did not take place until 

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32 Opinion of the Court 22-10231

several days after ICP’s products had been removed from 

IronPlanet’s website and IronPlanet officials informed ICP of the 

termination. We agree with the district court that the evidence 

showed that Thompson acted primarily to protect its business 

interests, and thus any interference was justified. Because 

Thompson’s refusal to deal was justified, it is entitled to summary 

judgment on these claims. 

3. Ziegler

Lastly, with respect to Ziegler, even assuming that Hoeft’s 

email to IronPlanet was sent on behalf of Ziegler rather than CAS, 

we agree with the district court that the email did not contain any 

threat of boycott, it could not have been construed as a threat to 

boycott, and it was not received or understood by IronPlanet to be 

a threat of boycott, evidenced by Jeter’s testimony that he did not 

receive any threats from Defendants. And even if Hoeft’s email 

were to be construed as a threat, it would not be actionable as 

interference because Ziegler, like Thompson, was entitled to refuse 

to deal with IronPlanet while IronPlanet was engaged with ICP

based upon its own business interests. Restatement (Second) of 

Torts § 766 cmt. l; Heavener, 418 So. 2d at 1076; Genet, 498 So. 2d at

684. For that reason, Ziegler is also entitled to summary judgment 

on ICP’s tortious interference claims. 

III. Conclusion 

ICP has failed to carry its burden on summary judgment on 

its claims arising under § 1 of the Sherman Act as well as its statelaw claims for tortious interference with contract. ICP has not put 

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22-10231 Opinion of the Court 33

forth sufficient evidence to permit a reasonable jury to infer that 

Defendants acted in concert in conspiring to boycott IronPlanet if 

it did not terminate its relationship with ICP and therefore its § 1 

claims must fail. ICP has also failed to put forth sufficient evidence 

to preclude summary judgment on its state-law tortious 

interference claims. Accordingly, we affirm the judgment of the 

district court. 

AFFIRMED. 

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