*

The Honorable David M. Lawson, United States District Judge for

the Eastern District of Michigan, sitting by designation. 

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0417P (6th Cir.)

File Name: 03a0417p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

HIGHLAND CAPITAL, INC.,

Plaintiff-Appellant,

v.

FRANKLIN NATIONAL BANK,

Defendant-Appellee.

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No. 02-5505

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 00-00832—William J. Haynes, Jr., District Judge.

Argued: September 9, 2003

Decided and Filed: November 25, 2003 

Before: GUY and DAUGHTREY, Circuit Judges;

LAWSON, District Judge.*

_________________

COUNSEL

ARGUED: Jeffrey Alan Greene, Nashville, Tennessee, for

Appellant. Joseph A. Woodruff, WALLER, LANSDEN,

2 Highland Capital v. Franklin Nat’l Bank No. 02-5505

DORTCH & DAVIS, Nashville, Tennessee, for Appellee.

ON BRIEF: Jeffrey Alan Greene, Nashville, Tennessee, for

Appellant. Joseph A. Woodruff, W. Travis Parham,

WALLER, LANSDEN, DORTCH & DAVIS, Nashville,

Tennessee, for Appellee.

_________________

OPINION

_________________

DAVID M. LAWSON, District Judge. The plaintiff,

Highland Capital, Inc. (Highland), appeals from a summary

judgment dismissing its complaint against Franklin National

Bank (the Bank) that was brought under the anti-tying

provisions of the Bank Holding Company Act (BCHA), 12

U.S.C. § 1972. Highland asserted that the Bank required

Highland to purchase stock in the Bank’s holding company as

a prerequisite for obtaining a loan. The lower court found

that there was insufficient evidence of the connection required

by Section 1972 between the loan and the stock purchase.

We find that a claim under Section 1972 requires proof that

the extension of credit was actually conditioned on the bank’s

customer obtaining some other product or service from the

bank or one of its subsidiaries, and that Highland did not offer

evidence on this element sufficient to avoid summary

judgment. We therefore affirm the judgment of the district

court.

I.

At the time of the loan and the stock purchase, Highland

was controlled by its principal shareholder, Steve Morriss. In

an ongoing dispute with his erstwhile business partners,

Morriss lost control of Highland. None of the individuals

who succeeded to control of the company were involved in

the loan transactions at issue here, and all of the personnel

who were involved, including bank representatives and

Morriss, aver that no tying condition was imposed as a
No. 02-5505 Highland Capital v. Franklin Nat’l Bank 3

requirement for obtaining the loan. Highland, under new

ownership, believes that it offered circumstantial evidence

sufficient to contradict the direct denials of the defendant’s

witnesses and to create a material fact question that precludes

summary judgment.

Morriss controlled Highland in 1998. In the later part of

that year, Highland obtained a substantial sum of money from

a commercial transaction. It subsequently deposited $1

million of those funds into its account at the Bank. Morriss

then approached Charles Lanier, the Bank’s Executive VicePresident, and told him that Highland was interested in

purchasing the stock of the Bank’s holding company,

Franklin Financial Corporation (FFC). Lanier sent Morriss to

see James Rinker, a broker with Franklin Financial Securities,

Inc. (FFS), who helped the plaintiff open a securities account.

Shortly thereafter, Highland sought a loan from the Bank

for $610,000 to refinance an existing loan on a 42-acre parcel

of real estate located in Williamson County, Tennessee,

referred to as the Hollis Tract. Morriss averred that he alone

made the decision to seek this loan on behalf of Highland.

Highland received loan approval from the Bank on

November 10, 1998. In making its decision, the Bank waived

its otherwise applicable policy of requiring a written loan

application and submission of the borrower’s financial

statement. The Bank also did not require Morriss to

personally guarantee the loan. The Bank’s decision is

reflected on a pre-printed form entitled “Lending Officer’s

Report” dated November 10, 1998. This report states:

“Customer has wired $1,000,000 into cash management

account. Customer has also put in a buy order for 70,000

shares of Franklin Financial Stock.” Joint Appendix (J.A.) at

667. The loan collateral is described as 46 acres of real estate

containing a 2,500-square-foot home valued at $800,000,

apparently referring to the Hollis Tract, and a $90,000 escrow

assignment. The form also notes that the financial statement

requirement was waived, and contained the explanation that

4 Highland Capital v. Franklin Nat’l Bank No. 02-5505

the Bank had “dealt with customer on several deal [sic] over

the past years. Satisfactory. Will update appraisal.” Ibid.

The Report, however, was later amended to correct errors and

to remove the reference to the stock purchase. 

On the same day that the loan was approved, Highland

deposited $499,777 into a securities fund account with FFS.

These were the funds used to purchase 69,400 shares of stock

in the Bank’s holding company, FFC. Morriss claims that he

bought the stock “because [he] believed it was a good

investment.” Aff. of Steve Morriss at ¶ 2, J.A. at 79. Prior to

this time, neither Highland nor Morriss owned any FFC stock,

nor did Morriss or Highland ever purchase additional stock.

The loan closed on December 7, 1998, and was secured by

the Hollis Tract and a portion of the plaintiff’s FFC stock.

In the months that followed, the Bank made several

additional loans to Highland at Morriss’ request. There is no

contention by the plaintiff that these loans were conditioned

upon Highland’s purchase of FFC stock. Rather, the plaintiff

claims that these other loans provide circumstantial evidence

that the original loan was the product of an illegal tying

arrangement between the plaintiff and the Bank. The Bank

lent the plaintiff $157,000 in February 1999 to fund litigation

in which Morriss was embroiled with his ex-partners. Then

in April 1999, the Bank lent the plaintiff an additional

$85,000, which was also secured by the Hollis Tract. The

Bank additionally approved a renewal of the original

$610,000 note for $607,000 in January 2000, and a renewal

of the $157,000 note on May 31, 2000. 

Morriss lost control of Highland in July 2000. A closely

held company called Tareco Properties, Inc. (Tareco)

purchased a Texas court judgment that was entered sometime

prior to 2000, for which Morris was somehow liable. In

partial satisfaction of that judgment, Mr. Morriss gave Tareco

his Highland stock. However, Tareco is owned and

controlled by Kevin McShane, who is affiliated with two of
No. 02-5505 Highland Capital v. Franklin Nat’l Bank 5

Morriss’ former business partners, Jerrold Pressman and

Robert Geringer. Pressman is the plaintiff in a lawsuit

pending in the federal district court in Tennessee that alleges

that Morriss, with the aid of the Bank and its Chairman,

conspired to defraud Pressman and Morriss’ other business

partners in a limited partnership known as Inglehame Farm,

LP. The purpose of this limited partnership was to develop

400 acres of Tennessee property. The property, however,

lacked access to major streets. The suit alleges that Morriss,

who was supposed to investigate acquiring the Hollis Tract

for that purpose for the partnership, told his partners that the

property could not be purchased and, unbeknownst to them,

proceeded to purchase it for himself. 

Highland, under its new ownership, filed suit against the

Bank asserting that the $610,000 loan was conditioned on the

purchase of stock in the Bank’s holding company, and thus

the Bank violated the anti-tying provisions of 12 U.S.C.

§ 1972. The Bank moved for summary judgment. In support

of the motion, the Bank filed affidavits from the seven

members of its loan committee, who each averred that the

loan was not conditioned on the purchase of the holding

company stock; the affidavits of Morriss and Bank officer

Charles Lanier, who attested that Morriss initiated the inquiry

regarding the purchase of the stock and that Lanier did not

solicit the transaction; and the deposition of McShane, in

which he acknowledged that he was aware of no document,

statement or conversation that established the tying of the

loan to the stock purchase. In response, Highland offered

deposition evidence that tended to prove that most of the

Bank’s stock that Highland purchased came from the private

holdings of Gordon Inman, the Bank’s Chairman, who stood

to profit personally from the transaction. The plaintiff points

out that James Rinker of FFS was Inman’s son-in-law and

that he facilitated the stock transaction. Highland also filed

an affidavit from an individual who contended that Inman

engaged in private loan transactions with him when the Bank

could not do so, and that one of those loans was conditioned

on the purchase of Bank holding company stock. A former

6 Highland Capital v. Franklin Nat’l Bank No. 02-5505

Bank employee averred that Inman caused the Bank to renege

on a loan commitment, thereby depriving the Bank of a

profitable business opportunity available at a very low risk,

and then offered to make the loan privately. Finally,

Highland submitted the opinion of Frank De Lisi, who was

offered as a banking expert, that the $610,000 loan “should

not have been made.” Dep. of Frank DeLisi at 152, 170-71,

J.A. at 846-850. Highland argued that the irregularities in

processing the loan, the lack of solid information about the

creditworthiness of the borrower, and other evidence that the

loan otherwise would not have been made in the normal

course of banking practice, coupled with the nefarious

conduct of Gordon Inman who conspired with Morriss to

cheat Morriss’ business partners, proved that another, illegal

motivation must have prompted the Bank to lend $610,000 to

Highland; and that the “other motivation” must have been the

prior purchase of the holding company stock.

The motion was referred to the magistrate judge, who filed

a report recommending that the motion be granted. The

magistrate judge first rejected the plaintiff’s premise that its

statutory claim under the BHCA was analogous to an antitrust

cause of action. He then found nothing illogical about a bank

making a loan to an established customer with $1 million in

the bank and securing the loan with property valued at more

than the loan value. The magistrate judge noted that the

plaintiff was required to show that it was coerced to purchase

bank stock as a condition of the loan to avoid summary

judgment. After reviewing the circumstantial evidence,

including evidence that the loan was not made pursuant to

normal banking procedures, that the loan and stock purchase

occurred at relatively the same time, and that the loan was

part of a larger scheme between Morriss and the Bank, the

magistrate concluded that the evidence did not create a

genuine issue of material fact. 

Following an order requesting further findings, the

magistrate judge supplemented his report and

recommendation. The plaintiff filed timely objections to the
No. 02-5505 Highland Capital v. Franklin Nat’l Bank 7

recommendation. The district court subsequently granted the

defendant’s motion for summary judgment and dismissed the

complaint on March 22, 2002. The court adopted the

magistrate judge’s description of the factual record, and then

concluded that there was no evidence that the Bank coerced

the plaintiff to purchase stock as a condition of obtaining the

loan, and no proof that the Bank “possessed the ‘appreciable

economic’ power in the loan market to impose [the] tying

arrangement.” Dist. Ct. Judgment at 2, J.A. at 13. Judgment

was entered for the defendant, and the plaintiff then filed its

notice of appeal.

II.

We review an order granting summary judgment de novo

and use the same standard employed by the district court. See

Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir.

1993). That test, of course, is set forth in Federal Rule of

Civil Procedure 56(c), which states that summary judgment

is allowed where the moving party establishes through

pleadings,depositions, answersto interrogatories, admissions,

and affidavits that “there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). A

moving party can meet its burden under Rule 56(c) by

“‘showing’ – that is, pointing out to the district court – that

there is an absence of evidence to support the nonmoving

party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986). See Estate of Mauro By and Through Mauro v.

Borgess Med. Ctr., 137 F.3d 398, 401 (6th Cir. 1998). Once

the moving party has made that showing, the nonmoving

party cannot rest on its pleadings, but must identify specific

facts that can be established by admissible evidence that

demonstrate a genuine issue for trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex, 477 U.S.

at 324; Hall v. Tollett, 128 F.3d 418, 421-22 (6th Cir. 1997).

We review the evidence in the light most favorable to the

nonmoving party. However, the party opposing the summary

8 Highland Capital v. Franklin Nat’l Bank No. 02-5505

judgment motion must “do more than simply show that there

is some ‘metaphysical doubt as to the material facts.’” Pierce

v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.

1994) (quoting Matsushita Elec. Ind. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986)). Thus, “[t]he mere

existence of a scintilla of evidence in support of the plaintiff's

position will be insufficient; there must be evidence on which

the jury could reasonably find for the plaintiff.” Anderson,

477 U.S. at 251-52.

As noted above, the statute upon which the plaintiff’s claim

is based comes from the BHCA, and states in relevant part:

(1) A bank shall not in any manner extend credit, lease

or sell property of any kind, or furnish any service, or fix

or vary the consideration for any of the foregoing, on the

condition or requirement--

. . . 

(B) that the customer shall obtain some additional credit,

property, or service from a bank holding company of

such bank, or from any other subsidiary of such bank

holding company; [or]

. . .

(D) that the customer shall provide some additional

credit, property, or service to a bank holding company of

such bank, or to any other subsidiary of such bank

holding company.

12 U.S.C. § 1972 (emphasis added). Congress enacted this

provision “to apply the general principles of the Sherman

Antitrust Act prohibiting anticompetitive tying arrangements

specifically to the field of commercial banking.” Kenty v.

Bank One, N.A., 92 F.3d 384, 394 (6th Cir. 1996) (quoting

Parsons Steel, Inc. v. First Alabama Bank of Montgomery,
No. 02-5505 Highland Capital v. Franklin Nat’l Bank 9

N.A., 679 F.2d 242, 245 (11th Cir.1982), rev’d on other

grounds, 474 U.S. 518 (1986)).

The Sherman Act does not explicitly prohibit tying

arrangements. However, such arrangements can violate both

Section 1 of the Sherman Act (15 U.S.C. § 1) and Section 3

of the Clayton Act (15 U.S.C. § 4) when they produce an

anticompetitive effect. A tying arrangement may also support

a claim for monopolization under Section 2 (15 U.S.C. § 45)

of the Sherman Act. See Davis v. Marathon Oil Co., 528

F.2d 395, 398 (6th Cir. 1975). A tying arrangement is

defined “as an agreement by a party to sell one product but

only on the condition that the buyer also purchases a different

(or tied) product, or at least agrees that he will not purchase

that product from any other supplier.” Northern Pac. Ry. Co.

v. United States, 356 U.S. 1, 5-6 (1958). Most tying cases

involve a seller’s attempt to exploit its economic power over

one product or in one market to force a less desirable, tied

product on a buyer. Thus, tying arrangements have been

found to be “unreasonable in and of themselves whenever a

party has sufficient economic power with respect to the tying

product to appreciably restrain free competition in the market

for the tied product and a ‘not insubstantial’ amount of

interstate commerce is affected.” Id. at 6.

A tying claim under the Sherman Act requires that the

plaintiff prove that a seller had substantial economic power in

the tying product’s market, see Jefferson Parish Hosp. Dist.

No. 2 v. Hyde, 466 U.S. 2, 12-13, 26-31 (1984) (noting that

“the essential characteristic of an invalid tying arrangement

lies in the seller’s exploitation of its control over the tying

product to force the buyer into the purchase of a tied product

that the buyer either did not want at all, or might have

preferred to purchase elsewhere on different terms”), and an

anticompetitive effect in the tied-product market. See PSI

Repair Servs. V. Honeywell, Inc., 104 F.3d 811, 821-22 (6th

Cir. 1997).

10 Highland Capital v. Franklin Nat’l Bank No. 02-5505

However, a plaintiff need not establish a bank’s economic

power or an anti-competitive effect to make out a claim under

12 U.S.C. § 1972. “The language of the [Act] makes clear

that the availability to a potential customer of any credit,

property, or service of a bank may not be conditioned upon

that customer’s use of any other credit, property, or service

offered by the bank . . . . The purpose of this provision is to

prohibit anti-competitive practices [that] require bank

customers to accept or provide some other service or product

or refrain from dealing with other parties in order to obtain

the bank product or service they desire.” S. Rep. 91-1084

(1970), reprinted in 1970 U.S.C.C.A.N. 5519, 5535.

Nonetheless, Section 1972 “was not intended to interfere with

the conduct of appropriate traditional banking practices,”

McCoy v. Franklin Sav. Ass’n 636 F.2d 172, 175 (7th Cir.

1980) (quoting Clark v. United Bank of Denver Nat’l Assoc.,

480 F.2d 235, 238 (10th Cir.), cert. denied, 414 U.S. 1004

(1973)), or to prohibit banks from protecting their

investments. Parsons Steel, Inc., 679 F.2d at 245.

To make out a claim under Section 1972, therefore, the

plaintiff must prove that (1) the bank imposed an anticompetitive tying arrangement, that is, it conditioned the

extension of credit upon the borrower’s obtaining or offering

additional credit, property or services to or from the bank or

its holding company; (2) the arrangement was not usual or

traditional in the banking industry; and (3) the practice

conferred a benefit on the bank. See Kenty, 92 F.3d at 394

(quoting Sanders v. First Nat’l Bank & Trust Co., 936 F.2d

273, 278 (6th Cir. 1991)).

The district court based its summary judgment for the

defendant in part on the ground that the plaintiff failed to

offer evidence of the Bank’s “‘appreciable economic’ power

in the loan market to impose [the] tying arrangement.” Dist.

Ct. Judgment at 2, J.A. at 13. This was error. The plaintiff

was not required to prove that the Bank had sufficient

strength in the credit market to enable it to impose the tying

arrangement. See Costner v. Blount Nat’l. Bank, 578 F.2d
No. 02-5505 Highland Capital v. Franklin Nat’l Bank 11

1192, 1196 (6th Cir. 1978) (observing that “[t]he bank was

also sued under the Bank Holding Company Act, which

establishes a Per se [sic] rule and provides the same penalties

for tying arrangements as the Sherman Act, but without the

necessity of proving any economic power in the market for

the tying product”). The plaintiff could satisfy the first

element required of a claim under Section 1972 merely by

showing that the Bank demanded that Highland obtain other

property (the bank holding company stock) or furnish other

property (the payment for the stock) as a condition or

requirement of obtaining the $610,000 loan.

We agree with the district court, however, that the plaintiff

failed to establish a factual issue on the existence of a tying

arrangement. In its motion for summary judgment, the

defendant pointed out the absence of evidence on this

element, and came forward with direct evidence to prove the

contrary proposition, in the form of affidavits from everyone

involved in seeking and making the loan, who each said that

the stock purchase was not a condition or requirement for the

extension of credit. See Celotex, 477 U.S. at 325. Under our

summary judgment jurisprudence, the plaintiff was obligated

at that point to come forward with facts that proved, or from

which a fact finder reasonably could infer, that the Bank

required Highland to buy its holding company stock as a

condition of receiving the loan. See Anderson, 477 U.S. at

247-48. To meet that burden, the plaintiff imported the

allegations from the lawsuit by Pressman against the Bank

and others that Morriss and Inman were engaged in a

conspiracy to cheat Morriss’ partners in a real estate

development venture, testimony that the stock purchase was

filled from Inman’s personal holdings through Inman’s sonin-law, proof that the loan did not adhere to the Bank’s

normal lending policies, and the opinion of a banking expert

that the loan should not have been made in the normal course

of banking business. This offering falls considerably short of

the proof that this Circuit requires to establish a successful

Section 1972 claim.

12 Highland Capital v. Franklin Nat’l Bank No. 02-5505

The plaintiff argues that the circumstantial evidence points

to the conclusion that Morriss caused Highland to buy the

Bank’s holding company stock specifically in order to

influence the Bank’s decision on Highland’s loan request.

That argument suggests that a statutory claim can be

established without actually proving “coercion” on the part of

the Bank. Indeed, in Dibidale of La., Inc., v. American Bank

& Trust Co., 916 F.2d 300 (5th Cir. 1990), the court held that

the anti-tying provision of the BHCA “does not include a

coercion element.” Id. at 302. In that case, the plaintiff

sought a construction loan from the defendant bank and

agreed to hire the bank’s preferred choice as construction

manager. The loan was made, but the construction manager

turned out to be incompetent and caused considerable loss to

the plaintiff. The plaintiff admitted that hiring the

construction manager was never an explicit condition of

receiving the loan, although the bank had made it clear that it

would feel “comfortable” with that choice, and that he went

along with it out of deference to the bank. In reversing the

lower court’s dismissal of the Section 1972 claim, the Fifth

Circuit construed the “condition or requirement” language of

the statute quite broadly, reasoning that “[t]o restrict the scope

of those words to tying arrangements in which a seller is

literally forced to purchase or provide a tied product or

service in order to obtain credit would vitiate that section’s

intended role, for as Congress recognized, a tying

arrangement may squelch competition whether coercive or

not.” Id. at 306.

Likewise, in S & N Equip. Co. v. Casa Grande Cotton Fin.

Co., 97 F.3d 337 (9th Cir. 1996), the Ninth Circuit rejected

the argument that Section 1972 requires a claimant to show

“some modicum of coercion” and, instead, held that

“[a]lthough some showing of coercion may be required under

the Clayton Act and the Sherman Act, . . . it is not a

requirement under the Bank Holding Company Act.” Id. at

346 n.18. A contrary view, however, was expressed by the

Eleventh Circuit in Integon Life Ins. Corp. v. Browning, 989

F.2d 1143, 1150-51 (11th Cir. 1993), construing the identical
No. 02-5505 Highland Capital v. Franklin Nat’l Bank 13

language found in the Home Owners’ Loan Act, 12 U.S.C.

§ 1464(q). That court held that “to establish a tying in

violation of HOLA, a plaintiff must prove that the thrift

forced or coerced the plaintiff into purchasing the tied

product.” Id. at 1151. 

Although we do not subscribe to the view set forth by the

Fifth Circuit, because it disregards the plain language of the

statute, we likewise believe that emphasizing the notion of

“coercion” creates a requirement that is not contained in the

statute. Section 1972 does not require proof of “force or

coercion,” particularly as those terms are used in the

economic sense in antitrust jurisprudence. The terms

employed in the statute are “condition or requirement.” A

“condition” is “[s]omething demanded or required as a

prerequisite to the granting or performance of something

else.” OXFORD ENGLISH DICTIONARY 309 (2d ed. 1989). A

“requirement” is “that which is called for or demanded; a

condition which must be complied with.” Id. at 1565. Giving

those terms their ordinary meanings as used in Section 1972,

we conclude that a statutory violation is established by proof

that a bank conveyed an intention to withhold credit unless

the borrower fulfilled a “prerequisite” of purchasing or

furnishing some other product or service. The borrower may

readily agree with the tying condition demanded by the bank;

that is, the whole notion of force or involuntary submission

may be absent. Nonetheless, proof of a statutory violation

will be made out by evidence that taking or furnishing another

service or product is a condition that must be fulfilled before

the bank will agree to extend credit.

In this case, Morriss agreed to purchase the Bank’s holding

company stock on behalf of Highland, and the buy order was

reported to the loan committee in the first version of the Loan

Officer’s Report. This evidence may establish that the Bank

looked more favorably upon Highland because of the stock

purchase. It is not enough, however, merely to bring forth

evidence that the borrower purchased another bank product or

service to curry favor with the lender, or that the lender was

14 Highland Capital v. Franklin Nat’l Bank No. 02-5505

positively impressed by such conduct, or even that the other

transaction was a factor in the bank’s decision to extend

credit. According to the plain language of the statute, a

claimant must prove that the purchase of the tied product or

service was a mandatory condition or requirement of

obtaining a loan from the lender. The borrower must be

prevailed upon to agree to the additional product or service,

lest credit be denied.

This element of a Section 1972 claim may be established by

circumstantial evidence. However, the plaintiff in this case

failed to offer admissible evidence from which an inference

of a tying arrangement could be drawn. The procedure that

led to the loan’s approval, although perhaps out of the

ordinary, did not demonstrate that a tying condition was

imposed. A reasonable person would not conclude that a

bank’s decision to lend $610,000 to an established bank

customer, without a loan application or personal guarantee,

when the loan was secured by property appraised at $800,000

plus additional property valued at $90,000, was unusual or

prompted by an ulterior motive. The evidence of the shadowy

dealings between Morriss and Bank Chairman Inman may be

relevant to the other litigation involving Morriss’ former

business partners, but it has little to do with any connection

between the loan and the stock purchase. To the contrary, the

inference that emerges from this evidence is that the original

and subsequent loans were made to further another

conspiratorial objective allowing Morriss to usurp a business

opportunity from his real estate venture, not as consideration

for the purchase of FFC stock. Inman’s private dealings with

other Bank customers does nothing to further the inference of

a tying arrangement involving the Bank, Morriss, and the

plaintiff. Finally, the plaintiff’s banking expert, who testified

that “[t]here is no direct evidence, whatsoever, that there is –

there was a requirement, as a condition of the loan, that he

buy the stock,” Dep. of Frank DeLisi at 152, J.A. at 847, does

not furnish the necessary link that supports an inference of a

tying arrangement.
No. 02-5505 Highland Capital v. Franklin Nat’l Bank 15

III.

The plaintiff’s argument that the Bank’s $610,000 loan was

illegally tied to Highland’s purchase of FFC stock does not

rise above the level of speculation or conjecture.

Constructing a circumstantial case in the face of

overwhelming, contrary, direct evidence was a daunting

burden that, we believe, ultimately proved insurmountable for

the plaintiff. The plaintiff failed to establish a genuine issue

for trial on an essential element of its claim. We therefore

affirm the district court’s summary judgment in favor of the

defendant.