[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-14160

________________________

D.C. Docket Nos. 6:14-md-02557-GAP-TBS,

6:14-cv-06012-GAP-TBS

QUALITY AUTO PAINTING CENTER OF ROSELLE, INC., 

Traded as Prestige Auto Body,

Plaintiff-Appellant,

versus

STATE FARM INDEMNITY COMPANY, 

STATE FARM GUARANTY INSURANCE COMPANY, et al.,

Defendants-Appellees.

________________________

No. 15-14162

________________________

D.C. Docket Nos. 6:14-md-02557-GAP-TBS,

6:14-cv-06013-GAP-TBS

ULTIMATE COLLISION REPAIR, INC.,

Plaintiff-Appellant,

versus

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2

STATE FARM INDEMNITY COMPANY, 

STATE FARM GUARANTY INSURANCE COMPANY, et al.,

Defendants-Appellees.

________________________

No. 15-14178

________________________

D.C. Docket Nos. 6:14-md-02557-GAP-TBS,

6:14-cv-06018-GAP-TBS

CAMPBELL COUNTY AUTO BODY, INC.,

 Plaintiff-Appellant,

versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

STATE FARM FIRE & CASUALTY COMPANY, et al., 

Defendants-Appellees.

________________________

No. 15-14179

________________________

D.C. Docket Nos. 6:14-md-02557-GAP-TBS,

6:14-cv-06019-GAP-TBS

LEE PAPPAS BODY SHOP, INC.,

DAVID C. BROSIUS, 

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d.b.a. Martins Auto Body Works, Inc.,

ART WALKER AUTO SERVICES, INC.,

WHITEFORD COLLISION AND REFINISHING, INC.,

Plaintiffs-Appellants,

versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

STATE FARM FIRE & CASUALTY COMPANY, et al,

Defendants-Appellees.

________________________

No. 15-14180

________________________

D.C. Docket Nos. 6:14-md-02557-GAP-TBS,

6:15-cv-06022-GAP-TBS

CONCORD AUTO BODY, INC.,

Plaintiff – Appellant,

versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

STATE FARM FIRE & CASUALTY COMPANY, et al,

Defendants-Appellees.

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________________________

Appeals from the United States District Court

for the Middle District of Florida

________________________

(September 7, 2017)

Before WILSON and ANDERSON, Circuit Judges, and ROTHSTEIN,* District 

Judge.

WILSON, Circuit Judge:

Automobile body shops filed five complaints, each asserting federal antitrust 

and state tort claims against insurance companies. The body shops appeal the 

dismissal of their complaints for failure to state a claim.

The automobile insurance and repair industries have customs and practices 

that the public frequently encounter and endorse. The public’s level of familiarity, 

however, has no bearing on whether such customs and practices have been 

employed for the benefit of a long-term scheme designed to thwart antitrust and 

tort laws. Wary of the prejudicial effect of preconceptions about these industries, 

assuming as true only those facts within the four corners of the complaints, and 

drawing inferences from those facts only in favor of the body shops, we determine 

 

* Honorable Barbara Jacobs Rothstein, United States District Judge for the Western District of 

Washington, sitting by designation.

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that the shops pleaded enough facts to plausibly support their federal antitrust and 

state tort claims. We reverse the dismissal of those claims.

I. Introduction

In their complaints, the body shops argue that the insurance companies 

engaged in two lines of tactics in pursuit of a single goal: to depress the shops’ 

rates for automobile repair. The first line of tactics was designed to set a “market 

rate,” which reflected not the forces of the market but an artificial rate that would 

benefit only the insurance companies. The second line of tactics was designed to 

pressure the body shops into accepting the market rate by steering insureds away 

from the non-compliant shops that charged more than the rate. The body shops 

argue that the insurance companies’ concurrent lines of tactics violated both 

federal antitrust and state tort laws.

The body shops argue two types of antitrust violations. First, the body shops 

argue that the insurance companies engaged in horizontal price fixing, an illegal 

agreement among competitors to fix prices. Instead of pleading facts that directly 

support the existence of an agreement, the body shops plead facts supporting 

circumstances—such as parallel conduct, adoption of a uniform price despite 

variables that would ordinarily result in divergent prices, and uniform practices—

from which the shops infer the existence of an agreement. Second, the body shops 

argue that the insurance companies boycotted the non-compliant shops that 

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charged more than the fixed prices by enlisting unwitting insureds into their 

scheme. Specifically, the body shops argue that the insurance companies steered 

insureds away from the non-compliant shops with misleading or false statements 

about the shops’ business integrity and quality.

Arguing the commission of three state torts, the body shops assert that the 

insurance companies were unjustly enriched, deprived the shops of quantum 

meruit, and tortiously interfered with potential business of the shops.

Because the body shops plead enough facts to plausibly support their federal 

antitrust and state tort claims, we reverse the dismissal of those claims.

II. Factual Allegations1

A. The insurance companies generate a significant portion of the body 

shops’ revenues.

The body shops operate in Kentucky, Missouri, New Jersey, and Virginia. 

The insurance companies offer policies in these states and collectively control 

approximately 65% of the private passenger automobile insurance market in 

Kentucky, 85% in Missouri, 72% in New Jersey, and 100% in Virginia. Of the 

insurance companies, the State Farm companies have the largest market share: they 

 

1 Reviewing a dismissal for failure to state a claim, we accept the factual allegations as true and 

draw all reasonable inferences in favor of the claimant. Spanish Broad. Sys. of Fla., Inc. v. Clear 

Channel Commc’ns, Inc., 376 F.3d 1065, 1070 (11th Cir. 2004). The facts as pleaded in the 

complaints, and viewed in the light most favorable to the plaintiffs, are as follows.

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control approximately 22.3% of the private passenger automobile insurance market 

in Kentucky, 22.88% in Missouri, and 14.85% in Virginia.

2 The insurance 

companies’ insureds generate 60% of the Kentucky body shop’s revenue and

between 70% and 95% of the revenue of each of the remaining body shops. Most 

of the insurance companies are subsidiaries or affiliates, or are otherwise related.

B. First line of tactics: The insurance companies select the “market rate” 

at which they reimburse the body shops.

The insurance companies refuse to reimburse the body shops at more than 

the “market rate,” which is a term that appears in direct repair program (DRP) 

agreements between the companies and certain body shops. Under a DRP

agreement, an insurance company lists a body shop as a “preferred provider” in 

exchange for the company’s paying the shop no more than the “going rate in the 

market area.” However, even if a body shop does not participate in an insurance 

company’s DRP, the company refuses to reimburse the shop at more than the 

market rate. None of the plaintiff body shops participates in a defendant insurance 

company’s DRP.

3

 

2 The New Jersey complaints do not allege State Farm’s control of that state’s private passenger 

automobile insurance market.

3 The Missouri body shop participated in State Farm’s DRP for ten years; State Farm eliminated 

the shop from the program in 2013 after the shop refused to implement the company’s parts 

procurement program.

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The market rate comprises the market labor rate and the market materials 

costs, both of which the insurance companies select. The insurance companies use 

the market labor rate that one company, State Farm, determines by using a method 

that is unverified and the results of which State Farm manipulates. Also, the 

insurance companies depress the market material costs by pressuring body shops 

into using inferior parts and into offering discounts and concessions.

1. The insurance companies use the market labor rate that one company 

determines and manipulates.

In determining the market labor rate that all of the insurance companies use, 

State Farm uses an unverified “half plus one” method of calculation and 

manipulates the result.4

 The half plus one method (1) calculates half plus one—an 

amount we designate as “n”—of the total number of employees or work bays 

(whichever is fewer in each body shop) in the market area; (2) lists the shops in a 

market area from the shop with the fewest employees or work bays to the shop 

with the most; and (3) declares the market labor rate as the labor rate of the shop 

that employs the n-th employee or work bay. It is unclear how the method 

designates a market area. No insurance company other than State Farm has 

attempted to independently verify the results of this method.

 

4 In addition to using the market labor rate, the other insurance companies have specifically 

advised the body shops that the companies “will pay no more than State Farm pays for labor.”

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In addition to using an unverified method of calculating the market labor 

rate, State Farm manipulates the results of the method by affecting the inputs. 

First, State Farm affects the labor rate that a body shop submits through an online 

survey compiling information used in the half plus one method. A body shop that 

enters a DRP agreement with State Farm can fill out a survey about the shop’s 

labor rate through an electronic forum, State Farm’s Business to Business portal. 

State Farm can and does manipulate a body shop’s survey submission. Second, 

State Farm affects the inputs used in the half plus one method by removing a body 

shop that charges a higher labor rate from the DRP. If a DRP body shop tries to 

charge more than the market labor rate, State Farm first tells the shop that it is the 

only shop that is attempting to raise its labor rate—when in fact several shops have

done the same. If the DRP body shop continues to charge a higher labor rate, State 

Farm threatens to and does remove the shop from the DRP. Thus the labor rate of 

the body shop no longer contributes, even facially, to the calculation of the market 

labor rate.

By using an unverified method of calculating the market labor rate and by 

manipulating the results, State Farm achieves a wholly artificial market labor rate.

2. The insurance companies lower the market materials costs by 

pressuring the body shops into using inferior parts and into offering

discounts and concessions.

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The insurance companies depress the market material costs. They use 

tactics such as requiring a body shop to repair a faulty part rather than installing a 

replacement part, even when the shop strongly recommends against continued use

of the faulty part; requiring a shop to install a used or recycled part, even when a

new part is available and would be best; and requiring a shop to offer discounts and

concessions, even if doing so will force the shop to operate at a loss.

3. The resulting market rate is arbitrary and inconsistent with leading 

collision repair estimating databases.

The resulting market rate is arbitrary and inconsistent with three leading 

collision repair estimating databases, ADP, CCC, and Mitchell, on which the 

insurance companies selectively rely. For example, insurance companies strictly 

adhere to the labor time estimated by a database, yet they argue that materials costs 

are included in a repair estimate (the amount that the companies would have to 

pay) although the databases state that the costs are not included in an estimate. 

The Kentucky and Missouri complaints include allegations about an employee of 

Safeco Insurance Company who stated that “the corporate direction given was” for 

the employee to pay a body shop in accordance with the databases only “when it 

was financially advantageous to the insurer to do so.” This practice of creating 

arbitrary rates forces a body shop either to perform an incomplete or substandard 

repair—which prevents the shop from fulfilling an obligation to a customer to 

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return a vehicle to its pre-accident condition—or to accumulate costs without 

compensation—which jeopardizes the shop’s business.

5

C. Second line of tactics: The insurance companies force compliance with 

their artificial market rate.

The insurance companies force the body shops to charge at or less than the 

market rate with misleading or false statements to insureds about a non-compliant 

shop’s business integrity and quality. For example, the insurance companies tell

an insured that the body shop takes longer to repair (and that the company would 

not pay for a rental car after a certain number of days); that the company cannot 

guarantee the shop’s work as it does for other shops; that the shop offers lower 

quality services; and that previous customers had complained about the shop. The 

statement that a body shop takes longer is misleading because any delay by a shop 

is caused by an insurance company’s delay in sending an appraiser to inspect an 

insured’s vehicle.

6

 Also, the statement that an insurance company cannot 

guarantee the body shop’s work is misleading because the company does not 

guarantee the work of any shop. Finally, the insurance companies make the 

 

5 The body shops attached as an exhibit to each complaint a “non-exhaustive list of procedures 

and processes the [d]efendants refuse to pay and/or pay in full.”

6 The New Jersey body shops allege that the GEICO companies in particular delay supplemental 

payments and delay re-inspecting vehicles. After finally inspecting a vehicle, a GEICO 

inspector would refuse to pay a body shop because the bill is “too old.” If the insured also 

refuses to pay the bill, the body shop must absorb the unpaid cost.

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remaining statements without ascertaining the truth of the statements and with the 

intent to disparage a non-compliant body shop’s business integrity and quality.

III. Procedural History

Initially, the body shops sued in the states in which they are located. 

Because the actions involved similar antitrust and tort claims, the Judicial Panel on 

Multidistrict Litigation transferred the actions to the Middle District of Florida for 

consolidated pretrial proceedings. This appeal is by body shops in five of fourteen 

actions that were dismissed. Although the district court granted the body shops an 

opportunity to amend their complaints, the shops in the five actions chose to appeal 

instead.7

IV. Standard of Review

We review de novo a dismissal for failure to state a claim. Spanish Broad. 

Sys., 376 F.3d at 1070. We must reverse the dismissal if the complaint “state[s] a 

claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 

129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 

127 S. Ct. 1955, 1974 (2007)), after we accept the factual allegations as true and 

 

7 “Generally, an order dismissing a complaint is not final and appealable unless the order holds 

that it dismisses the entire action or that the complaint cannot be saved by amendment. . . . 

However, [in this circuit] the plaintiff need not wait until the time for amendment expires; he can 

waive the right to later amend, treat the dismissal as final, and file a notice of appeal before the 

expiration of the amendment period.” Van Poyck v. Singletary, 11 F.3d 146, 148 (11th Cir. 

1994) (per curiam).

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draw all reasonable inferences in favor of the claimant, see Spanish Broad. Sys.,

376 F.3d at 1070.

An antitrust complaint must include allegations “plausibly suggesting (not 

merely consistent with)” an illegal agreement among the defendants. Jacobs v. 

Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1332 (11th Cir. 2010) (citing Twombly, 

550 U.S. at 557, 127 S. Ct. at 1966). This requirement “reflects”—and does not 

exceed—“the threshold requirement of Rule 8(a)(2) [of the Federal Rules of Civil 

Procedure] that the [complaint’s] plain statement [of a claim] possess enough heft 

to show that the pleader is entitled to relief.” Twombly, 550 U.S. at 557, 127 S. Ct. 

at 1966 (internal quotation marks omitted); see also id. at 570, 127 S. Ct. at 1974

(clarifying that an antitrust claim is not subject to a “heightened” pleading 

standard).

V. Federal Antitrust Claims

A. Horizontal Price Fixing

1. A price fixing agreement can be inferred in the absence of direct 

evidence of an agreement.

Under 15 U.S.C. § 1 of the Sherman Antitrust Act, any unreasonable 

contract, combination, or conspiracy in the restraint of interstate trade or commerce 

is illegal. See Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723, 

108 S. Ct. 1515, 1519 (1988) (interpreting § 1 “to prohibit only unreasonable 

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restraints of trade”). Generally, a plaintiff must demonstrate that such a contract, 

combination, or conspiracy is “unreasonable and anticompetitive”; in other words,

we ordinarily apply the “rule of reason.” See Texaco Inc. v. Dagher, 547 U.S. 1, 5, 

126 S. Ct. 1276, 1279 (2006). Certain classes of conduct, however, are deemed

“per se” violations, which are “conclusively presumed to be unreasonable and 

therefore illegal without elaborate inquiry as to the precise harm they have caused 

or the business excuse for their use.” See Nw. Wholesale Stationers, Inc. v. Pac. 

Stationery & Printing Co., 472 U.S. 284, 289, 105 S. Ct. 2613, 2617 (1985).

An example of a per se violation is horizontal price fixing, Jacobs, 626 F.3d 

at 1334, which must involve an agreement among competitors, “tacit or express,” 

see Twombly, 550 U.S. at 553, 127 S. Ct. at 1964 (internal quotation marks 

omitted). If the existence of the agreement is in doubt, the agreement can be 

inferred. See id. Necessary for this inference is “parallel conduct or 

interdependence,” ideas that are often used interchangeably. See id. at 554, 

127 S. Ct. at 1964; Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1411 

(3d ed. 2012). An example of parallel conduct is “conscious parallelism,” which is:

the process, not in itself unlawful, by which firms in a 

concentrated market might in effect share monopoly 

power, setting their prices at a profit-maximizing, 

supracompetitive level by recognizing their shared 

economic interests and their interdependence with 

respect to price and output decisions.

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Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227, 

113 S. Ct. 2578, 2590 (1993); see also Williamson Oil Co. v. Philip Morris USA, 

346 F.3d 1287, 1291 (11th Cir. 2003). Interdependence, also known as 

“interdependent parallelism,” “means that the profitability of [a company’s] 

decision depends upon rivals’ reactions.” Areeda ¶¶ 1434a, 1434c.

However, a party claiming horizontal price fixing based on an inferred 

agreement must show more than parallel conduct, which on its own “falls short of 

conclusively establishing agreement or . . . constituting a Sherman Act offense.” 

Twombly, 550 U.S. at 553, 127 S. Ct. at 1964 (internal quotation marks omitted); 

see also id. at 554, 127 S. Ct. at 1964 (finding that parallel conduct appears in “a 

wide swath of rational and competitive business strategy unilaterally prompted by 

common perceptions of the market”). Thus, in the absence of direct evidence of an 

agreement, an antitrust claimant must show not only “parallel conduct” but also 

“further factual enhancement.” Id. at 557, 127 S. Ct. at 1966; see also Almanza v. 

United Airlines, Inc., 851 F.3d 1060, 1069 (11th Cir. 2017). 

Often labeled “parallel plus” or “plus factors,” see, e.g., Twombly, 550 U.S. 

at 553, 127 S. Ct. at 1963 (discussing the practice in the Second Circuit); 

Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 45 (1st Cir. 2013), 

these factual enhancements “serve as proxies for direct evidence of an agreement,”

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In re Flat Glass Antitrust Litig., 385 F.3d 350, 360 (3d Cir. 2004). This circuit has 

never prescribed factors or a combination of factors that may be sufficient to tip 

parallel conduct into the domain of per se violation. Compare Williamson Oil, 

346 F.3d at 1301, with In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 

907 (6th Cir. 2009) (prescribing which “‘plus factors’ [a]re important when 

evaluating circumstantial evidence of concerted action”). Instead, this circuit has 

determined that “any showing by [a plaintiff] that tends to exclude the possibility 

of independent action can qualify as a plus factor.” Williamson Oil, 346 F.3d 

at 1301 (internal quotation marks omitted); see also Almanza, 851 F.3d at 1069 

(reproducing and refuting the plaintiffs’ list of “further factual enhancement[s]

needed to support a plausible inference of an agreement”).

Because we do not prescribe plus factors, we do not assign a predetermined 

weight to a factor; we decide a factor’s importance only after reviewing it in the 

context of the facts of the case and determining its tendency “to exclude the 

possibility of independent action.” See Williamson Oil, 346 F.3d at 1301 (internal 

quotation marks omitted); In re Musical Instruments & Equip. Antitrust Litig., 

798 F.3d 1186, 1189 (9th Cir. 2015) (“But plaintiffs’ plus factors are no more 

consistent with an illegal agreement than with rational and competitive business 

strategies, independently adopted by firms acting within an interdependent 

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market.”). In the same vein, we do not prescribe how many plus factors would be 

necessary to establish an illegal agreement; the number of factors present has no 

bearing on whether an antitrust claimant has established an illegal agreement.

2. The body shops’ allegations readily and plausibly establish an inferred 

agreement.

The body shops’ allegations, accepted as true, readily and plausibly establish 

both parallel conduct and the “further factual enhancement needed to support a 

plausible inference of an agreement.” See Almanza, 851 F.3d at 1069. The body 

shops plausibly establish parallel conduct; they allege that the insurance companies

adopted the same labor rate and materials costs and employed the same line of 

tactics to depress the rate and costs. See Williamson Oil, 346 F.3d at 1304 (“As 

evidenced by the repeated, synchronous pricing decisions that occurred within the 

tobacco industry between 1993 and 2000, appellees plainly priced their products in 

parallel.”).

Also, the body shops plausibly establish further factual enhancement. The 

body shops identify two plus factors that together support a plausible inference of 

an illegal agreement:

[1] Conduct that probably does not result from chance, 

coincidence, independent responses to common 

stimuli, or mere interdependence unaided by an 

advance understanding among the parties[; and] . . .

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[2] whether the defendants have been uniform in their 

actions[.]

The first is a well-recognized plus factor—the presence of “[c]ustomary 

indications of traditional conspiracy”—and supports an inference of an illegal 

agreement here. See Areeda ¶ 1434b; id. ¶ 1434b n.20 (listing “unnatural 

parallelism” as an example of a customary indication of traditional conspiracy); 

id. ¶ 1425 (defining unnatural parallelism as “parallel behavior that would 

probably not result from chance, coincidence, independent responses to common 

stimuli, or mere interdependence unaided by an advance understanding among the 

parties”); Twombly, 550 U.S. at 556 n.4, 127 S. Ct. at 1965 n.4 (citing the Areeda 

treatise for the proposition that unnatural parallelism is an illegal agreement). One 

customary indication of traditional conspiracy is a group’s adoption of a uniform

price despite variables that would ordinarily result in divergent prices. See, e.g., 

Fed. Trade Comm’n v. Cement Inst., 333 U.S. 683, 713, 68 S. Ct. 793, 809 (1948)

(“The use of the multiple basing point delivered price system by the cement 

producers has been coincident with a situation whereby for many years, with rare 

exceptions, cement has been offered for sale in every given locality at identical 

prices and terms by all producers.”); Areeda ¶ 1434b (stating that customary 

indications of traditional conspiracy are present if rivals place “simultaneous 

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identical bids on a made-to-order product not readily assembled from standard and 

conventionally priced items”). 

According to the body shops, the insurance companies “specifically advised 

the [shops] they will pay no more than State Farm pays” despite variables that 

would ordinarily contribute to divergent amounts of reimbursement. For example, 

the insurance companies utilized State Farm’s market rate although the rate

necessarily depends on how each company defines a market. This definition can 

depend on factors such as the geographic area that an insurance company offers 

services, the locations that the company has physical offices, and the company’s 

relationship with the body shops in certain areas. Also, the insurance companies 

utilized State Farm’s market rate although the companies have the ability to 

differentiate themselves by offering reimbursement for repairs using high quality 

parts (e.g., only “replacement parts” from original manufacturers rather than 

repaired faulty parts from insureds’ cars and “used or recycled parts” from other 

cars) and highly skilled labor. Finally, the insurance companies utilized State 

Farm’s market rate although the companies conduct business with different body

shops, which would charge different labor prices. A customary indication of 

traditional conspiracy is present here and contributes to a plausible inference of an 

illegal agreement.

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The second plus factor—uniform practices—also favors finding an illegal 

agreement. The body shops allege that the insurance companies all engaged in the 

first line of tactics, which included requiring a shop to repair a faulty part rather 

than install a replacement part; to install a used or recycled part; and to offer 

discounts and concessions, even to the detriment of the shops offering such 

discounts and concessions. Also, the body shops allege that the insurance 

companies all engaged in the second line of tactics. Although this line of tactics 

primarily aims to force the body shops into compliance with the market rate, the

tactics aid also in creating an artificial market rate. The tactics include stating to 

an insured that a body shop takes longer to repair (and that the insurance company 

would not pay for a rental car after a certain number of days); that the company 

cannot guarantee the shop’s work as it does for other shops; that the shop offers 

lower quality services; and that previous customers had complained about the 

shop. Each statement is either misleading or false. Each insurance company’s use 

of this same collection of tactics contributes to a plausible inference of an illegal 

agreement.

The body shops’ allegations readily and plausibly establish the existence of 

parallel conduct, adoption of a uniform price despite variables that would 

ordinarily result in divergent prices, and uniform practices, all from which we can 

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infer the existence of an illegal agreement. See Twombly, 550 U.S. at 572, 

127 S. Ct. at 1975. We reverse the dismissal of the price fixing claims.

3. The arguments against the plausible inference of an illegal agreement 

fail.

Dismissing the price fixing claims, the district court states—and the 

insurance companies recite on appeal—that, “aside from conclusory allegations 

that it exists, the Plaintiffs offer no details at all in the Amended Complaint about 

the alleged agreement, such as how the Defendants entered into it, or when.” 

However, allegations directly supporting the existence of an agreement, such as 

form (written or oral) and date of entry, are unnecessary for a plausible claim of 

horizontal price fixing. In the absence of direct evidence of an agreement, the 

allegations necessary are those that plausibly establish parallel conduct and further 

factual enhancement. “Asking for plausible grounds to infer an agreement . . . 

simply calls for enough fact to raise a reasonable expectation that discovery will 

reveal evidence of illegal agreement.” Twombly, 550 U.S. at 556, 127 S. Ct. 

at 1965 (emphasis added).

8

The insurance companies argue that the body shops fail to allege an 

agreement to fix a price because the “market rate” is a mere “ceiling” on what the 

 

8 Notwithstanding our disagreement with the district court’s analysis, we would like to recognize 

the tremendous effort that the district court expended in handling a multidistrict litigation of this 

scale.

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companies are willing to pay. However, whether the market rate in fact functions 

as a ceiling or as the rate at which the insurance companies reimburse the body 

shops is inapposite. “[A]greements to fix maximum prices” are likewise per se 

violations that “cripple the freedom of traders and thereby restrain their ability to 

sell in accordance with their own judgment.” See State Oil Co. v. Khan, 522 U.S. 

3, 11, 118 S. Ct. 275, 280 (1997) (internal quotation marks omitted). 

Also, the insurance companies argue that the body shops’ plus factors are 

not properly before us because the shops argued their existence for the first time on 

appeal. Although the body shops have not used the phrase “plus factors,” the 

shops have consistently argued that their allegations support the inference of an 

illegal agreement. And use of the phrase “plus factors” is not necessary for the use 

of these factors on appeal. As we have explained, “any showing by appellants that 

tends to exclude the possibility of independent action can qualify as a plus factor.” 

Williamson Oil, 346 F.3d at 1301 (internal quotation marks omitted). Even this 

circuit’s precedent has not always used the phrase to characterize “further factual 

enhancement needed to support a plausible inference of an agreement.” See 

Almanza, 851 F.3d at 1069; Jacobs, 626 F.3d at 1343. The body shops’ recent use 

of the phrase “plus factors” does not change the fact that they have consistently 

argued that the allegations support the inference of an illegal agreement. 

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The Dissent, although agreeing with the existence of parallel conduct, argues

that the proposed plus factors fail to “bear the weight attributed to them.” Dissent 

at 6. Challenging the first plus factor—the insurance companies’ adoption of a 

uniform price despite variables that would ordinarily result in divergent prices—

the Dissent disputes that “auto body repairs” are “the type of made-to-order

product not readily assembled from standard and conventionally priced items.” 

Dissent at 11. In support, the Dissent substitutes allegations in the complaint with 

an external knowledge of auto repair: 

Certainly, some parts—such as spark plugs, windshield 

wipers, brakes, and tires—may be standard across many 

makes and models of cars, while others—such as doors, 

windshields, headlights, and fenders—may only fit a few. 

But for the overwhelming majority of cars, the necessary 

parts are ubiquitous, interchangeable, and standardly 

priced.

See Dissent at 12. Although Iqbal instructs us to “draw on [our] judicial 

experience and common sense,” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950, what

automobile parts are necessary for repairs and whether those parts are “ubiquitous, 

interchangeable, and standardly priced” are hardly “judicial experience” or 

“common sense.” The Dissent’s substitution based on external knowledge belies 

the “the tenet that a court must accept as true all of the allegations contained in a 

complaint.” Id. at 678, 129 S. Ct. at 1949. And the substitution is not an inference 

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24

in favor of the claimants, the body shops. See Spanish Broad. Sys., 376 F.3d 

at 1070. Rather, it is the opposite. Review of the body shops’ allegations does 

indeed reveal variables that would ordinarily result in divergent prices: the shops 

allege that they use parts from different sources (e.g., “replacement parts” from 

original manufacturers, repaired faulty parts from insureds’ cars, and “used or 

recycled parts” from other cars) and charge different prices for the labor required 

to install the parts.

Also, challenging the first factor, the Dissent compares the allegations of this 

case to the facts in Cement Institute, which involved sealed bids to supply cement 

for the same price per barrel. See 333 U.S. at 713, 68 S. Ct. 809. The Dissent 

compares first the secrecy of the bids in Cement Institute with the brazenness of 

the insurance companies’ declaration that “they will pay no more than State Farm 

pays.” See Dissent at 9–10. However, secrecy is not necessary for the first plus 

factor—adoption of a uniform price despite variables that would ordinarily result 

in divergent prices—“to raise a reasonable expectation that discovery will reveal 

evidence of illegal agreement.” Twombly, 550 U.S. at 556, 127 S. Ct. at 1965. 

Also, the Dissent compares the fact that the cement companies in Cement Institute

agreed upon a specific price ($3.286854 per barrel) with the fact that the insurance 

companies here declared that “they will pay no more than State Farm pays.” See 

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25

Dissent at 10. But the per se violation of horizontal price fixing includes an 

agreement “formed for the purpose and with the effect of raising, depressing, 

fixing, pegging, or stabilizing” prices. See United States v. Socony-Vacuum Oil 

Co., 310 U.S. 150, 223, 60 S. Ct. 811, 844 (1940) (emphasis added). 

Challenging the second plus factor, the Dissent argues that the body shops’ 

tactics are “among the most common and time-worn methods of increasing 

corporate profits in any industry.” Dissent at 15. This argument, however, relies

on the Dissent’s external knowledge about practices commonplace in the 

automobile industry and consequent derogation of the severity of the tactics 

alleged in the complaint. Again, we must look only within the four corners of the 

complaint. The complaints contain extensive allegations about the concerning 

practices of insurance companies that make the same misleading or false 

statements about certain body shops to ensure that the amount that the companies 

must reimburse the shops stays low. They contain the practices of insurance 

companies that all force body shops to install parts that the shops believe are 

unsafe and force shops to offer discounts and concessions at the risk of losing 

between 70% and 95% of their revenue (60% for the Kentucky body shop). The 

Dissent’s external knowledge about these practices is inapposite to whether these 

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26

practices violate federal antitrust law. The Dissent’s external knowledge is 

inapposite to this review of the sufficiency of the complaints.9

B. Boycotting

The Sherman Act’s prohibition of any unreasonable contract, combination, 

or conspiracy in the restraint of interstate trade or commerce extends to a 

prohibition of boycotting. See 15 U.S.C. §§ 1, 1013(b); St. Paul Fire & Marine Ins.

v. Barry, 438 U.S. 531, 541, 98 S. Ct. 2923, 2929 (1978). “The generic concept of 

boycott refers to a method of pressuring a party with whom one has a dispute by 

withholding, or enlisting others to withhold, patronage or services from the target.” 

St. Paul Fire & Marine Ins., 438 U.S. at 541, 98 S. Ct. at 2930. Boycotting that is 

per se illegal involves “horizontal agreements among direct competitors.” See

NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 135, 119 S. Ct. 493, 498 (1998). The 

“ultimate target” of the agreement can be either a competitor or “a customer of 

some or all of the [boycotters] who is being denied access to desired goods or 

services because of a refusal to accede to particular terms set by some or all of the 

[boycotters].” St. Paul Fire & Marine Ins., 438 U.S. at 543, 98 S. Ct. at 2931. 

 

9 The Dissent disputes both plus factors by emphasizing the absence from the complaints of a 

statement in the body shops’ brief: that the insurance companies used identical “scripts” to steer 

insureds away from noncompliant shops. See Dissent at 13–14. Also, the Dissent emphasizes 

that “the body shops’ [brief] takes undue liberties in construing the allegations that can be fairly 

read from their pleadings.” Dissent at 1 n.1. The absence from the complaints of the allegation

about “scripts” and other “constructions” of the allegations is inapposite to the soundness of the 

allegations that are present in the complaint.

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27

Accepted as true, the body shops’ allegations readily and plausibly establish 

the per se violation of boycotting. The body shops allege that the insurance 

companies targeted non-compliant shops by keeping insureds away until those 

shops charged at or less than the market rate. And the body shops allege that, in 

accordance with the agreement, the insurance companies used identical tactics to 

keep insureds away. Specifically, they allege that the insurance companies made

misleading or false statements about the body shops’ business integrity and quality, 

including that a shop takes longer to repair (and that the company would not pay 

for a rental car after a certain number of days); that the company cannot guarantee 

the shop’s work as it does for other shops; that the shop offers lower quality 

services; and that previous customers had complained about the shop. We reverse 

the dismissal of the boycotting claims.

Challenging this reversal, the Dissent argues that, because the insurance

companies can choose from an ambit of different (and commonplace) tactics, the 

tactics are not uniform. In support, the Dissent draws an analogy to people 

choosing from different but limited modes of transportation (car, bike, train, etc.)

to reach the same destination. This analogy again belies allegations in the 

complaint that each tactic was misleading or false. As compared to the common 

and limited means of transportation, the insurance companies’ misleading or false

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28

tactics together create an idiosyncrasy, the repetition of which is hardly “common.” 

The insurance companies’ use of the same ambit of tactics “raise[s] a reasonable 

expectation that discovery will reveal evidence of illegal agreement.” Twombly, 

550 U.S. at 556, 127 S. Ct. at 1965. 

VI. State Tort Claims

In addition to claiming antitrust violations, the body shops claim that the 

insurance companies committed state torts, three of which are on appeal: unjust 

enrichment, quantum meruit, and tortious interference. Because the body shops’ 

allegations plausibly support each claim, we reverse the dismissal of the claims.

A. Unjust Enrichment

Generally, unjust enrichment requires a showing that a plaintiff conferred a 

benefit on a defendant that the defendant knew about and that allowing the 

defendant to retain the benefit without payment would be unjust. See Jones v. 

Sparks, 297 S.W.3d 73, 78 (Ky. Ct. App. 2009); JB Contracting, Inc. v. Bierman, 

147 S.W.3d 814, 819 (Mo. Ct. App. 2004); Iliadis v. Wal-Mart Stores, Inc., 

191 N.J. 88, 110 (2007); Schmidt v. Household Fin. Corp., II, 276 Va. 108, 116 

(2008). The allegations readily and plausibly establish the claims of unjust 

enrichment. The body shops allege that the shops conferred benefits by providing

repair services at the low price that the insurance companies collectively selected. 

Also, the body shops allege that the insurance companies not only knew about the 

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29

benefits but also forced the shops to confer the benefits with two lines of tactics: 

first selecting a low market rate and second pressuring the shops into accepting the 

market rate. If we assume the truth of these allegations, the body shops have stated 

claims for unjust enrichment. We reverse the dismissal of the unjust enrichment 

claims.

Both the district court and the Dissent reject the claims for unjust enrichment 

based on the argument that, because the body shops knew how much they were 

going to be paid before repairing cars, these claims for unjust enrichment are based 

on buyer’s remorse—based on unsatisfactory bargaining by the shops—and that 

the claims are for post hoc judicial determination of a reasonable rate for the 

repairs. This argument is based on a mistaken assumption that any dealing 

between the body shops and the insurance companies was based on a valid 

contract. See Dissent at 27–28 (“They were not threatened or tricked. They were 

not coerced.”). Assuming the truth of the allegations and drawing inferences in 

favor of the body shops, the insurance companies forced the shops to perform 

repairs, and any dealing between the shops and the companies was based on an 

invalid, unenforceable contract. “[A] liability in respect of benefits already 

received [should not] be imposed (or measured) by the terms of an invalid 

contract.” Restatement (Third) of Restitution and Unjust Enrichment § 33 cmt. d 

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30

(2011); see also id. (“Liability in contract [is] distinguished from liability in 

restitution.” (emphasis omitted)).

The district court dismissed the body shops’ claims for unjust enrichment by 

faulting the shops for failing to bargain with the insurance companies. In imposing 

this requirement to bargain, the court cited a comment in the Third Restatement of 

Restitution and Unjust Enrichment entitled “Benefits voluntarily conferred”:

“Instead of proposing a bargain, the restitution claimant first confers a benefit, then 

seeks payment for its value. When this manner of proceeding is unacceptable—as 

it usually is, if the claimant neglects an opportunity to contract—a claim based on 

unjust enrichment will be denied.” Id. § 2 cmt. d. However, the body shops 

consistently allege that the insurance companies forced the shops to confer 

benefits; that the shops involuntarily performed repairs at the low market rate. 

Disputing the resolution of the unjust enrichment claims, the Dissent warns 

of a world in which parties can renege on the terms of a contract by suing for 

unjust enrichment. The Dissent offers an example of a painter who could contract

to paint a home for $10,000 and then recover $5,000 based on an argument that the 

actual market rate was $15,000. The Dissent offers a second example of a 

circumstance in which the result is the same despite less parity in bargaining 

power. These analogies, designed to demonstrate an absurd result, derive from the 

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31

Dissent’s assumption that the body shops’ claims are based on unsatisfactory 

bargaining by the shops. However, the allegations, assumed as true, establish that 

no bargaining occurred that could support the existence of an enforceable 

agreement. Also, our ruling has no bearing on whether the body shops will later 

successfully prove the invalidity of the contracts under which they repaired the 

vehicles of the defendant companies’ insureds. Even if the parties did bargain and 

the issue becomes whether the disparity in bargaining power was such that would 

invalidate the contract, determining the extent of disparity compels, at the very 

least, discovery.

B. Quantum Meruit

Generally, quantum meruit requires a showing that a plaintiff with a 

reasonable expectation of compensation rendered valuable services to a defendant

who knew about the services but refused to pay reasonable value for the services. 

See Quadrille Bus. Sys. v. Ky. Cattlemen’s Ass’n, Inc., 242 S.W.3d 359, 366 

(Ky. Ct. App. 2007); Starkey, Kelly, Blaney & White v. Estate of Nicolaysen, 

172 N.J. 60, 68 (2002); Raymond, Colesar, Glaspy & Huss, P.C. v. Allied Capital 

Corp., 961 F.2d 489, 491 (4th Cir. 1992) (applying Virginia law).

10 The 

allegations readily and plausibly establish the claims for quantum meruit. The 

 

10 The Missouri complaint contains no claim for quantum meruit.

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body shops allege that they rendered repair services, expecting compensation; that 

the services were in fact for the insurance companies, which were obligated to pay 

the shops in accordance with the companies’ relationship with their insureds; and 

that the companies paid an artificial price, below the reasonable value for the 

services. Also, the body shops allege that the insurance companies demanded 

discounts and concessions for the companies’ insureds; such additional services 

were provided to the companies, who refused to pay any compensation for those 

services. If we assume the truth of these allegations, the body shops have stated 

claims for quantum meruit. We reverse the dismissal of the claims.

C. Tortious Interference

Generally, tortious interference requires a showing of a valid business 

relationship or expectancy that would have occurred but for the defendant’s 

improper or malicious interference, which resulted in damages. See Snow Pallet, 

Inc. v. Monticello Banking Co., 367 S.W.3d 1, 6 (Ky. Ct. App. 2012); Clinch v. 

Heartland Health, 187 S.W.3d 10, 14 (Mo. Ct. App. 2006); Lamorte Burns & Co. 

v. Walters, 167 N.J. 285, 305–06 (2001); Dunlap v. Cottman Transmission Sys., 

LLC, 287 Va. 207, 216 (2014). The allegations readily and plausibly establish the 

claims of tortious interference. The body shops allege (1) that the insurance

companies prevented insureds willing to use the shops from doing so with 

misleading or false statements about the shops’ business integrity and quality and 

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33

(2) that this prevention resulted in the loss of business. Also, the body shops allege 

that the insurance companies forced the shops to perform incomplete or 

substandard repairs, which prevented the shops from fulfilling obligations to 

customers to return vehicles to their pre-accident conditions and which negatively 

affected business. If we assume the truth of these allegations, the body shops have 

stated claims for tortious interference.

In dismissing the body shops’ claims for tortious interference, the district 

court faulted the shops for filing a so-called “group pleading,” which prevented the 

shops from tailoring their allegations to the claim of tortious interference in each 

state. Although the complaints are largely similar, the complaints as they stand 

include sufficiently tailored allegations for us to conclude the plausibility of the 

claim of tortious interference in each state. For example, the complaints specify 

for each state the insurance companies that used State Farm’s market rate, the 

market dominance of the defendant companies, and the percentage of revenue that 

the defendant companies generated for a body shop—all of which establish the

companies’ command over a shop in each state. These individualized allegations 

lend credence to the claims that the insurance companies exercised enough control 

over insureds’ choice of body shops to affect the profitability of the shops.

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34

Also, in dismissing the tortious interference claims, the district court stated 

that, “at a minimum, Plaintiffs should allege sufficient facts specific to each 

Defendant, or at least each corporate family of Defendants, to tie that Defendant to 

the wrongdoing alleged.” It is unclear why such allegations are necessary; in a 

complaint alleging uniformity of the insurance companies’ price and practices, 

requiring the body shops to include allegations about each company can only result 

in needless repetition. Further, the complaints specified two insurance companies

as engaging in tortious interference: State Farm, for its role in determining the 

market labor rate, and GEICO, for its delay in payment and re-inspection.11 We 

reverse the dismissal of the tortious interference claims.

VII. Conclusion

At no point did the body shops claim to know when, where, and how the 

insurance companies agreed to fix a market rate and to boycott those who charged 

more—nor did the shops have to. “Asking for plausible grounds to infer an 

agreement . . . simply calls for enough fact to raise a reasonable expectation that 

discovery will reveal evidence of illegal agreement.” Twombly, 550 U.S. at 556, 

127 S. Ct. at 1965. The body shops have supplied enough allegations to raise such 

a reasonable expectation. The body shops have consistently alleged the existence 

 

11 As stated above, the allegations about GEICO appear only in the New Jersey complaints.

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of parallel conduct and of plus factors allowing a plausible inference of an illegal 

agreement. And the allegations have sufficiently established the body shops’ state 

tort claims of unjust enrichment, quantum meruit, and tortious interference. We 

reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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ANDERSON, Circuit Judge, concurring in part in the judgment and dissenting in 

part:

I concur with the majority in that I too would reverse the district court’s 

dismissal of the tortious interference claim. However, because I have significant 

concerns with the analysis of that claim, I join in that portion of the opinion only as 

to the result. Additionally, because I am of the opinion that the body shops have 

failed to plausibly allege the existence of the agreement required to state a federal 

antitrust claim and have failed to adequately plead their other state law claims, I 

would affirm the district court’s dismissal of those causes. Accordingly, I concur in 

the judgment of the majority opinion with respect to Part VI.C. With regard to the 

remainder, I respectfully dissent.

VIII. Introduction

I do not differ substantially from the majority in its framing of the relevant 

facts of this case. Based on the allegations in the complaints,

1 I accept that the 

 

1 At the outset, I pause to address two issues regarding the complaints. The first is merely 

an observation of the time-worn principle that it is only the factual allegations contained therein 

which we must accept as true. In my opinion, the body shops’ appellate briefing takes undue 

liberties in construing the allegations that can be fairly read from their pleadings. The district 

court dismissed these claims without prejudice and, therefore, the body shops had an opportunity 

to amend their complaints to include any additional allegations that may have been omitted from 

their initial pleadings. Having chosen not to do so, they are not permitted to simply “insert” new 

allegations through their appellate briefing. These gaps—between the allegations of the 

complaints and the allegations of the appellate briefing—are discussed, where relevant, below.

Secondly, I note that this appeal is a consolidation of five cases and, therefore, there are 

five complaints in the record. References in this opinion to the “complaints” can be considered a 

collective reference to all of them. References to a “complaint” and citations to “Compl. at ¶ X” 

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insurance companies have engaged in a series of actions that are designed to 

depress the amounts they pay to body shops—including to those body shops that 

are not signatories to a DRP agreement. I accept, for instance, that State Farm sets 

a market labor rate, that other insurance companies advise the body shops that they 

will pay no more than State Farm, and that, in setting this rate, State Farm: uses a 

methodologically unsound “half-plus-one” technique; manipulates survey data; 

threatens and effectuates removal of noncompliant shops from its “preferred 

providers” list; and explicitly demands that shops lower their rates if they want to 

be preferred providers. I also accept that the insurance companies refuse to pay for 

new parts, that they require the use of aftermarket or salvaged parts, and that they: 

utilize industry-standard databases only when financially advantageous to them; 

refuse to reimburse the cost of certain procedures and materials; require the shops’ 

participation in their parts procurement processes; and insist on discount programs. 

Lastly, I accept that the insurance companies engage in “steering,” that they 

discourage insureds from patronizing noncompliant repair shops through 

“misrepresentation, insinuation, and casting aspersions,” and that they erroneously 

inform insureds that particular shops: are not on their preferred provider lists; have 

 

are to the complaint in the New Jersey case filed by Quality Auto Painting Center of Roselle, 

Inc., which is, in relevant part, representative of the other four complaints.

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38

had quality control issues; charge more than other shops; take longer than other 

shops; and do not perform work that can be guaranteed.

My concern with the body shops’ complaints in this case—and with the 

majority’s treatment of those complaints—is not that they have failed to adequately 

describe a pattern of behavior that, taken as true, might be considered 

objectionable. Indeed, as to one of the asserted causes of action—the tortious 

interference claim—I am persuaded that these actions, if proven, are unlawful. 

Rather, my concern is that conduct does not become unlawful by virtue of having 

been deemed objectionable. Nor does it become unlawful in one context by virtue 

of having been found so in another. Accordingly, when considering a motion to 

dismiss, courts must carefully apply the well-pled allegations to the requirements 

of each asserted claim. With regard to the antitrust claims, binding case law 

indicates to me that the allegations of these complaints do not give rise to the 

necessary reasonable inference of agreement or conspiracy and, therefore, fail to 

state a claim. I also conclude that the allegations fall short of stating claims with 

regard to quantum meruit and unjust enrichment. I discuss each in turn.

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39

IX. Federal Antitrust Claims

The body shops have repeatedly2 argued that the above-recited facts, if 

proven, violate federal antitrust law. Thus we are tasked with answering, as the 

Supreme Court has phrased it, “the antecedent question of what a plaintiff must 

plead in order to state a claim under § 1 of the Sherman Act.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 554–55, 127 S. Ct. 1955, 1964 (2007). Section 1 of the 

Sherman Act, under which both the price fixing and boycotting claims are brought, 

provides that “[e]very contract, combination in the form of trust or otherwise, or 

conspiracy, in restraint of trade or commerce among the several States, or with 

foreign nations, is declared to be illegal.” 15 U.S.C. § 1. As that statutory language 

suggests, the Act “does not prohibit [all] unreasonable restraints of trade . . . but 

only [those] restraints effected by a contract, combination, or conspiracy.”

Twombly, 550 U.S. at 553, 127 S. Ct. at 1964 (first two alterations in original) 

(quoting Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 775, 104 S. Ct. 

2731, 2743 (1984)). The crucial consideration then “is whether the challenged 

anticompetitive conduct ‘stem[s] from independent decision or from an agreement, 

 

2 The instant appeal represents only a portion of more than twenty such cases filed on 

behalf of body shops around the country and consolidated in the Middle District of Florida. 

Notwithstanding this Court’s disagreement with its resolution of the present issues, I agree with 

the majority in expressing my gratitude to the district court for its efficient and thorough 

handling of this extraordinarily complex litigation.

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tacit or express.’ ” Id. at 553, 127 S. Ct. at 1964 (alteration in original) (quoting 

Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 540, 74 S. Ct. 

257, 259 (1954)). Accordingly, the answer to our antecedent question turns on 

whether there is “a complaint with enough factual matter (taken as true) to suggest 

that an agreement was made.” Id. at 556, 127 S. Ct. at 1965.

In plausibly establishing the existence of such an agreement, “an allegation 

of parallel conduct and a bare assertion of conspiracy will not suffice.” Id. at 556, 

127 S. Ct. at 1966. Indeed, long before Twombly:

It [was] well settled in this circuit that evidence of conscious 

parallelism alone does not permit an inference of conspiracy unless 

the plaintiff either establishes that, assuming there is no conspiracy, 

each defendant engaging in the parallel action acted contrary to its 

economic self-interest, or offers other “plus factors” tending to 

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

prices or otherwise restrain trade.

City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 570–71 (11th Cir. 1998) 

(footnotes, citations, alterations, and quotations omitted). A showing of plus 

factors is necessary because they “remove [a plaintiff’s] evidence from the realm 

of equipoise and render that evidence more probative of conspiracy than of 

conscious parallelism.” Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 

1287, 1301 (11th Cir. 2003). Thus the body shops were required to plausibly allege 

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41

the existence of both (1) parallel conduct and (2) sufficient “plus factors” from 

which we could infer an agreement.3

The majority, in a conclusion to which I do not object, finds that the body 

shops have established the existence of the necessary parallel conduct. Based on 

this conduct, I—like the majority—searched the complaints for plus factors 

suggesting the existence of the proscribed collusive agreement. As it detailed 

above, the majority’s search revealed two plus factors4 that in its opinion support a 

plausible inference of an agreement to fix prices. Additionally, and although it 

declines to label them as such, the majority also apparently found sufficient plus 

factors to support an inference of an agreement to boycott. I am convinced that

none of the identified factors—whether considered individually or together—will 

bear the weight attributed to them.

 

3 Of course, an antitrust plaintiff can also offer direct evidence of an agreement or evidence 

of parallel conduct that is contrary to the defendants’ self-interest. The body shops have not done 

so here and are, accordingly, left with an attempt at adducing evidence of relevant plus factors.

4 The body shops argued on appeal that their complaints established at least five plus 

factors. The majority has relied only on those it identified in its opinion and, therefore, I do not 

address the body shops’ additional plus factors in any depth. It bears mentioning, however, that I 

consider them to be wholly without merit. 

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A. Price Fixing 

Turning to the individual plus factors allegedly supporting horizontal price 

fixing,5 the majority identifies two that it believes are suggestive of an agreement. 

Broadly speaking, the first concerns uniformity of price and the second concerns 

uniformity of action. I discuss each in turn.

1. Uniformity of Price

The majority first suggests that the insurance companies’ conduct “probably 

does not result from chance, coincidence, independent responses to common 

stimuli, or mere interdependence unaided by an advance understanding among the 

parties” because they have “adopt[ed] a uniform price despite variables that would 

ordinarily result in divergent prices.” Maj. Op. at 15–16. As the majority’s 

recitation suggests, this plus factor consists of two components. First, the 

defendants must have adopted a uniform price. This component, however, is 

suggestive only of parallel conduct and, without more, will not justify invoking the 

plus factor. Accordingly, the uniform price must exist “despite variables that would 

 

5 In considering each plus factor, I am cognizant of the Supreme Court’s admonition that 

antitrust plaintiffs receive “the full benefit of their proof without tightly compartmentalizing the 

various factual components and wiping the slate clean after scrutiny of each.” Cont’l Ore Co. v. 

Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S. Ct. 1404, 1410 (1962). At the same 

time, it is undoubtedly our responsibility “to evaluate the evidence proffered by the plaintiffs not 

to ascertain its credibility, but instead to determine whether that evidence, if credited, ‘tends to’ 

establish a conspiracy more than it indicates conscious parallelism.” Williamson Oil Co., Inc. v. 

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

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43

ordinarily result in divergent pricing.” The second component is the indicator of 

the agreement that makes collusion more likely than conscious parallelism.

The sources on which the majority relies in introducing this plus factor make 

clear the necessity of both components. Indeed, the majority observes that the 

Supreme Court has inferred an agreement where “for many years, with rare 

exceptions, cement has been offered for sale in every given locality at identical 

prices and terms by all producers.” Maj. Op. at 16 (quoting FTC v. Cement Inst., 

333 U.S. 683, 713, 68 S. Ct. 793, 809 (1948)). But this is just the first component; 

the majority fails to point out that the record evidence in that case—discussed in 

the sentence immediately following the one that it quotes—established that 

“[t]housands of secret sealed bids ha[d] been received by public agencies which 

corresponded in prices of cement down to a fractional part of a penny.” Cement 

Inst., 333 U.S. at 713, 68 S. Ct. at 809. Likewise, the majority quotes a leading 

antitrust treatise for the idea that an agreement may be present if rivals establish 

identical prices, but fails to grapple with the caveat that this is only true where 

there are “simultaneous identical bids on a made-to-order product not readily 

assembled from standard and conventionally priced items.” Maj. Op. at 16 

(quoting Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1434b (3d ed. 

2012)). Thus, while this so-called convergent pricing certainly is—or at least could 

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44

be—a plus factor, it should only be invoked where we should otherwise expect 

divergent pricing. Considered in the appropriate light, the differences between the 

instant case and the sources on which the majority relies are substantial. 

First, the focus on “secret,” “sealed,” and “simultaneous” bids is crucial 

precisely because it excludes the possibility of conscious parallelism: competitors 

cannot consciously parallel one another if they only learn of the other’s price after 

they have established their own. Perhaps sensing this, the body shops’ brief on 

appeal argues that “[a]ll of the [insurance companies] reach[] the same, identical 

‘market rate’ . . . which State Farm refuses to [make] public.” Brief of Appellants 

at 21. As an initial matter, alleging that State Farm does not publicly disclose the 

market rate and arguing that it is a secret are two very different things. The sources 

on which the majority relies do not focus on whether a certain party made the 

information public but, rather, simply on whether or not it was public. Stated 

differently, the fact that State Farm does not issue a press release with the market 

rate does not foreclose the possibility that it is publicly known. This is a crucial 

distinction. 

However, giving the body shops the benefit of every inference in their favor 

as required in this posture, their argument in brief—that State Farm does not 

publish its market rate—could charitably be read to suggest that the market rate is 

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45

a secret. This would be a fairly damning allegation, and one that strikes right to 

heart of Cement Institute’s focus, if it were at all supported by the complaints. 

Unfortunately, there are no factual allegations—to speak nothing of evidence—that 

the market rate is a secret. Indeed, nowhere in the complaint do the body shops 

suggest that the labor rate is a secret. Quite the opposite, the complaint reveals that 

State Farm must necessarily tell the number to every repair shop in a given 

geographic area. 

Moreover—even if it were possible to share the market rate with the body 

shops while, at the same time, keeping it a secret from the other insurance 

companies—there are no allegations at all that the other insurance companies knew 

what it was in advance. Indeed, rather than allege that all of the insurance 

companies approached the body shops with an identical market rate (which might 

possibly indicate that they had communicated in advance), the complaint alleges 

twice that the other insurance companies simply conform to State Farm’s rate—

whatever that may be. Compl. at ¶ 62 (“Defendants . . . specifically advised the 

Plaintiff they will pay no more than State Farm pays for labor.”); Compl. at ¶ 115 

(“[D]efendants [state] that they will conform to State Farm’s payment structure.”). 

Following the example set by a competitor, without agreeing to do so in advance, 

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is textbook “price leadership”6

—a practice we have repeatedly stated is insufficient 

to establish the existence of an agreement. See, e.g., Williamson Oil, 346 F.3d at 

1301–03; City of Tuscaloosa, 158 F.3d at 571. Accordingly, even if State Farm’s 

market rate were a secret—which, again, the body shops do not allege—such a fact 

would be of no use when the other insurance companies are not also alleged to 

have known the number in advance.

Further distinguishing our case from the examples on which the majority 

relies is the fact that auto body repairs are not the type of “made-to-order product 

not readily assembled from standard and conventionally priced items” where we 

expect to see divergent pricing. Maj. Op. at 16 (quoting Areeda ¶ 1434b). On the 

contrary, the “products” here—cars—are so readily assembled from standard parts 

that their assembly-line manufacturing set the standard for other industries. That 

the body shops are repairing those cars, rather than assembling them for the first 

time, does not make the parts used to do so any less standard. And they are so 

conventionally priced that, as discussed below, the body shops believe that the 

insurance companies should not be allowed to deviate from third-party databases 

 

6 The majority (Maj. Op. at 22-23) fails to recognize that the allegation—that the insurance 

companies told the body shops that they would pay no more than State Farm—gives rise to no 

inference of prior agreement; to the contrary, it is a straightforward assertion of following the 

price leader.

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that set standardized prices. Certainly, some parts—such as spark plugs, 

windshield wipers, brakes, and tires—may be standard across many makes and 

models of cars, while others—such as doors, windshields, headlights, and 

fenders—may only fit a few. But for the overwhelming majority of cars, the 

necessary parts are ubiquitous, interchangeable, and standardly priced. Thus, while 

convergent pricing where it should otherwise not be expected can undoubtedly 

serve as a plus factor, none of the indicators to which courts and commentators 

have traditionally looked to support such a factor—or at least none to which the 

body shops or the majority have pointed—are present here. 

Neither the body shops nor the majority have pointed to any plausible reason 

that one should expect that prices in this market—involving standardized 

automobile parts and repairs—would be divergent. Quite the contrary, the body 

shops argue that the insurance companies should comply with several databases 

that exist for the sole purpose of establishing standardized pricing. That is, the fact 

that the body shops insist that the insurance companies should comply with the 

prices published in these three separate databases assumes that such prices are 

standardized, and that one should expect convergent prices—not divergent prices.

In short, the instant case bears none of the traditional hallmarks of a situation 

in which uniform pricing is present in an industry where we would otherwise not 

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expect it. Nor are any of the other reasons offered by the body shops (or the 

majority) suggestive of an environment in which we would expect to see divergent 

pricing. The majority’s reliance on this plus factor is premised on an assumption

that there has been an “adoption of a uniform price despite variables that would 

ordinarily lead to divergent prices;” yet I see no indication that I should expect to 

see divergent pricing in this industry. And without an expectation of divergent 

pricing all that remains is an allegation of uniform pricing, which is indicative only 

of parallel conduct. Accordingly, I would reject this plus factor as an indicator of 

the necessary agreement. 

2. Uniformity of Tactics

As to its second plus factor, the majority concludes that the insurance 

companies have engaged inuniform practices suggestive of an agreement. Maj. Op. 

at 17-18. True enough, several courts have found a plus factor where there is a 

similarity of language, terms, or conditions used by the alleged co-conspirators that 

would be improbable absent collusion. See, e.g., Apex Oil Co. v. DiMauro, 822 

F.2d 246, 256–58 (2d Cir. 1987); De Jong Packing Co. v. U.S. Dep’t of Agric., 618 

F.2d 1329, 1332–34 (9th Cir. 1980). And, true enough, the body shops’ appellate 

briefing describes the insurance companies’ tactics as “the same,” “identical,” and 

part of a “script[].” Brief of Appellants at 22. Thus, if I were required to accept the 

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well-pled allegations of a brief as true I might be inclined to agree with the 

majority.

Unfortunately, the body shops’ appellate briefing is once again betrayed by 

their complaints, which introduce the relevant tactics as follows:

Through various methods, the [insurance companies] have, 

independently and in concert, instituted numerous methods of 

coercing the [body shops] into accepting less than actual and/or 

market costs for materials and supplies expended in completing 

repairs.

Compl. at ¶ 63. Whatever else can be said about that allegation, I see no reason to 

conclude—as the majority obviously does—that the body shops even believe the 

tactics were highly uniform.7

 Indeed, the complaint reflects nothing approaching 

the level of conviction about the body shops’ allegations that the majority reads 

into it. 

Nonetheless, the majority concludes that the insurance companies have 

engaged in uniform tactics because they have all required the body shops “to repair 

a faulty part rather than install a replacement part; to install a used or recycled part; 

and to offer discounts and concessions.” Maj. Op. at 18. Even if these tactics were 

 

7 As for what else can be said about that allegation, the fact that the body shops concede 

that some of the alleged actions occurred “independently” is certainly noteworthy. How the 

majority was able to discern which of the allegedly nefarious activities were conducted “in 

concert”—a Sherman Act concern—and which were conducted “individually”—a decidedly 

non-Sherman Act concern—is left unspoken. 

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highly uniform, they are suggestive of an agreement only when those tactics would 

not plausibly arise from “independent responses to common stimuli.” See

Twombly, 550 U.S. at 556 n.4, 127 S. Ct. at 1965 n.4 (quoting Areeda ¶ 1425). Yet, 

the majority fails to address the fact that all three of these “highly uniform” tactics 

are easily explained by the most common of corporate stimuli: a desire to increase 

profits. And while some methods of increasing profits could be so idiosyncratic as 

to be unlikely to arise in the absence of an agreement, such is plainly not the case 

here. None of these tactics could even be fairly described as novel, let alone as 

sufficiently idiosyncratic to support an inference of an agreement. It can hardly be 

denied that repairing (rather than replacing) damaged parts, installing recycled 

(rather than new) parts, and requiring discounts are among the most common and 

time-worn methods of increasing corporate profits in any industry, let alone in an 

industry where parts and labor reimbursements are the primary business 

expenditures. Cf. Maj. Op. at 14 (setting forth an established legal principle, which 

I respectfully submit the majority then fails to apply: “But plaintiffs’ plus factors 

are no more consistent with an illegal agreement than with rational and competitive 

business strategies, independently adopted by firms acting within an 

interdependent market.” (quoting In re Musical Instruments & Equip. Antitrust 

Litig., 798 F.3d 1186, 1189 (9th Cir. 2015)). And yet, under the standard 

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announced today, the mere existence of an industry-wide practice permits an 

antitrust plaintiff to establish a plus factor.

I do not believe that a complaint merely alleging several common (and 

obvious) industry practices should proceed directly past a motion to dismiss and 

into the expensive and settlement-inducing quagmire of antitrust discovery. The 

Supreme Court has described precisely this problem:

[E]ven if [defendants committed all the acts] in all the ways the 

plaintiffs allege, there is no reason to infer that the companies had 

agreed among themselves to do what was only natural anyway; so 

natural, in fact, that if alleging parallel decisions to resist competition 

were enough to imply an antitrust conspiracy, pleading a § 1 violation 

against almost any group of competing businesses would be a sure 

thing.

Twombly, 550 U.S. at 566, 127 S. Ct. at 1971 (citation omitted). 

In short, the majority’s analysis of its second plus factor suggests that the 

insurance companies’ tactics are highly uniform when even the complaint does not 

seem to believe that; declines to explain how it divined which of the challenged 

activities occurred “in concert” and which occurred “independently;” and relies 

upon several alleged tactics which are clearly common, obvious, and mainstream. 

In contrast to the majority, I do not believe an inference of prior agreement arises 

from the mere fact that several insurance companies adopt policies favoring use of 

cheaper parts and offering discounts to insurance companies. I respectfully submit 

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that the majority’s analysis is inconsistent with Supreme Court and Eleventh 

Circuit precedent. Accordingly, as with the first, I would reject the second plus 

factor and affirm the dismissal of the price fixing claim.

B. Boycotting

Despite my substantial doubts about the existence of a price fixing 

agreement, the allegations suggesting an agreement to boycott are even weaker. At 

least in their price fixing allegations the body shops made passing reference to an 

agreement. Not so with respect to a boycott agreement. While I do not consider it 

dispositive, it is certainly noteworthy that the body shops never allege—even in a 

conclusory fashion—an agreement to steer customers away from, or to boycott, the 

body shops.8 Neither the “steering” allegations nor the “boycott” section of the 

complaint allege the existence of an agreement to do so. And even if we 

incorporate the allegations of an agreement from the price fixing sections of the 

complaint, I respectfully submit that the instant complaint would still fall short of 

even the “few stray statements [that] speak directly of agreement” which the 

Supreme Court has held are insufficient. Twombly, 550 U.S. at 564, 127 S. Ct. at 

1970.

 

8 Although I do not consider this failure to be dispositive, treating it as such would not be 

outlandish. At a bare minimum, we should expect antitrust plaintiffs to state their belief that an 

agreement was reached before we go off in search of plus factors to support an inference of its 

existence. 

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Undisturbed by the fact that the body shops do not even profess a belief in 

the existence of an agreement to boycott, the majority concludes a brief reversal of 

the boycotting claim with the following analysis:

Accepted as true, the body shops’ allegations readily and plausibly 

establish the per se violation of boycotting. The body shops allege that 

the insurance companies targeted non-compliant shops by keeping 

insureds away until those shops charged at or less than the market 

rate. And the body shops allege that, in accordance with the 

agreement, the insurance companies used identical tactics to keep

insureds away.

Maj. Op. at 25 (alteration in original). Thus the majority offers two allegations—it 

declines to call them plus factors—which it apparently believes support the 

existence of an agreement to boycott: steering and the use of identical tactics in 

that steering.

As an initial matter, an allegation of steering—standing alone—cannot be 

indicative of an agreement. Steering is a decidedly unilateral activity; it involves 

one insurance company steering one of its customers away from one of the body 

shops. Accordingly, even if all of the insurance companies engage in it, steering 

itself suggests only parallel conduct. Of course, as the tortious interference claims 

suggest, it is potentially illegal parallel conduct. But it is only parallel conduct all 

the same. 

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That said, if there were allegations that “the insurance companies used 

identical tactics to steer insureds away,” as the majority claims, the needle would 

move toward an inference of the existence of an agreement if, but only if, such 

similar or identical tactics would not plausibly arise from “independent responses 

to common stimuli.” Twombly, 550 U.S. at 556 n.4, 127 S. Ct. at 1965 n.4. But 

once more, the body shops have asserted in their appellate briefing—and the 

majority has sanctioned—facts that are simply unsupportable on this record. 

Indeed, although the body shops have argued on appeal that “[a]ll of the 

Defendants utilize the same script containing identical false and misleading 

steering statements,” Brief of Appellants at 30, neither they nor the majority 

opinion suggest where I can find such an allegation. Both the word “script”—as 

used by the body shops—and the word “identical”—as used by the majority—are 

conspicuously absent from the complaints.

Almost as troubling as what the body shops have not pled and yet are given 

credit for is what they have pled and yet are not held to account for. With regard to 

steering, the body shops allege that:

Examples of this practice include telling insureds and/or claimants 

that a particular chosen shop is not on the preferred provider list, that 

quality issues have arisen with that particular shop, that complaints 

have been received about that particular shop from other consumers, 

that the shop charges more than any other shop in the area and these 

additional costs will have to be paid by the consumer, that repairs at 

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the disfavored shop will take much longer than at other, preferred 

shops and the consumer will be responsible for rental car fees beyond 

a certain date, and that the Defendant cannot guarantee the work of 

that shop as it can at other shops.

Compl. at ¶ 83. From this, it is argued—and I am asked to conclude—that the body 

shops have engaged in “identical” tactics. But even a basic illustration of the 

pleading trick at work here reveals a fatal flaw. Assume that State Farms steers a 

consumer using excuse X; 21st Century steers a consumer using excuse Y; and 

GEICO steers a consumer using excuse Z. The body shops can (truthfully) make 

the following allegation: “The insurance companies engage in steering. Examples 

of these tactics include X, Y, and Z.”9 In reality, tactics X, Y, and Z are in no way 

identical. And yet—using this exact pleading formula—the majority here would 

infer that the companies use identical tactics and allow a claim to lie for antitrust 

boycotting. Put another way, the body shops’ allegations—and the conclusion the 

majority draws from them—is akin to saying: (1) that a group of people “travel” to 

get to work; (2) that “examples of this ‘travel’ include driving cars, riding bikes, 

 

9 It is worth noting in my example—as in the instant case—the body shops have not 

alleged that the complained-of tactics are “identical.”

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boarding trains, and walking on sidewalks;” and (3) that these people, therefore, 

use “identical tactics” to get to work. This simply cannot be the case.10

Put simply, the majority relies upon two asserted plus factors: one (steering) 

is at best indicative of parallel conduct and the other (identical tactics) has no basis 

in the complaint. Moreover, even if the insurance companies were alleged to have 

used the same or similar reasons why their insureds should not use a particular 

body shop, established case law would still require a court to then address whether 

such similarity would be improbable absent collusion or, rather, whether it was 

equally plausible as independent responses to common stimuli.

11 For the forgoing 

reasons, I conclude that the complaints fall short of alleging facts giving rise to an 

inference of an agreement or conspiracy to boycott the body shops.

C. Conclusion

As the Supreme Court has observed, “it is only by taking care to require 

allegations that reach the level suggesting conspiracy that we can hope to avoid the 

potentially enormous expense of discovery in cases with no ‘reasonably founded 

 

10 The body shops use, and the majority endorses, a similar pleading trick with respect to 

the “non-exhaustive list of procedures and processes the [d]efendants refuse to pay and/or pay in 

full.” Maj. Op. at 8 n.5 (alteration in original).

11 Even if the insurance companies were alleged to have used similar or identical reasons as 

to why their insureds should not use a particular body shop, the reasons suggested—that the body 

shop charges more or takes longer or does poor quality work—would seem to be obvious reasons 

an insurance company would not want its insureds to use that body shop. That is, such similarity 

would seem to be independent responses to common stimuli.

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hope that the [discovery] process will reveal relevant evidence’ to support a § 1 

claim.” Twombly, 550 U.S. at 559, 127 S. Ct. at 1967 (alteration in original) 

(quoting Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S. Ct. 1627, 1634 

(2005)). The care required is, at a minimum, enough to ensure that the facts which 

are used to justify invoking a plus factor are actually alleged, and that the plus 

factors demonstrate parallel behavior plus something else sufficient to give rise to 

a plausible inference of the existence of an agreement or conspiracy. Because the 

body shops’ complaints reveal significant shortcomings on both of these basic 

requirements, I would affirm the district court’s dismissal of both federal antitrust 

claims.12 Accordingly, I respectfully dissent from the majority’s decision with 

regard to the antitrust claims.

X. State Tort Claims

The district court also dismissed, as relevant here, three state law claims 

brought by the body shops. As does the majority, I would reverse the dismissal of 

the body shops’ tortious interference claims. Unlike the majority, however, I would 

affirm the dismissal of both the unjust enrichment and quantum meruit claims 

because neither is justified by the allegations of the complaint. 

 

12 See infra note 28 (suggesting my concern that the majority may have implicitly relied on 

the insurance companies’ market power, leading it to dilute the requirement that there must be—

in addition to consciously parallel conduct—a plus factor giving rise to a plausible inference of 

an agreement or conspiracy). 

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A. Unjust Enrichment

I respectfully dissent from the majority’s decision to reverse the district 

court’s decision dismissing the body shops’ unjust enrichment claims. In all of the 

complaints there is an allegation to the effect that each insurance company 

specifically advised each body shop that they would pay no more than State Farm 

pays. Compl. at ¶ 62 (“Defendants . . . specifically advised the Plaintiff they will 

pay no more than State Farm pays for labor.”). Thus it is clear that the body shops 

knew before undertaking the repair that they were to be paid certain amounts or in 

certain ways. The body shops then undertook the repair anyway. Accordingly, it is 

simply not unjust for the insurance companies to retain whatever “benefit” (if any) 

that they might be deemed to have received.

Under the laws of the four states relevant here—Kentucky, Missouri, New 

Jersey, and Virginia—one of the elements of an unjust enrichment claim is that it 

would be unjust or inequitable for the defendant to retain the benefit allegedly 

conferred upon it.13 Because each complaint at issue here specifically alleges that 

 

13 See Jones v. Sparks, 297 S.W.3d 73, 78 (Ky. Ct. App. 2009) (“For a party to prevail 

under the theory of unjust enrichment, they must prove three elements: (1) benefit conferred 

upon defendant at plaintiff’s expense; (2) a resulting appreciation of benefit by defendant; and 

(3) inequitable retention of benefit without payment for its value.”); Binkley v. Am. Equity 

Mortg., Inc., 447 S.W.3d 194, 199 (Mo. 2014) (“An unjust enrichment claim requires a showing 

that: (1) the plaintiff conferred a benefit on the defendant; (2) the defendant appreciated the 

benefit; and (3) the defendant accepted and retained the benefit under inequitable and/or unjust 

circumstances.” (quotation omitted)); VRG Corp. v. GKN Realty Corp., 641 A.2d 519, 526 (N.J. 

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each insurance company advised the body shops that it would pay no more than 

State Farm pays, it clearly was not unjust for each insurance company to pay only 

that amount and no more. 

Moreover, there is an indisputable principle of law set forth in the 

Restatement (Third) that where the parties have an opportunity to arrive at a 

contract and do not do so, the courts will generally not go behind them and 

establish a valuation for their transaction. See Restatement (Third) of Restitution 

and Unjust Enrichment § 2 cmt. d (2011) (“Instead of proposing a bargain, the 

restitution claimant first confers a benefit, then seeks payment for its value. When 

this manner of proceeding is unacceptable—as it usually is, if the claimant neglects 

an opportunity to contract—a claim based on unjust enrichment will be denied.” 

(emphasis added)). As the district court correctly held, the body shops’ unjust 

enrichment claims fail because they had an opportunity to bargain for a deal they 

 

1994) (“To establish unjust enrichment, a plaintiff must show both that defendant received a 

benefit and that retention of that benefit without payment would be unjust.”); Schmidt v. 

Household Fin. Corp., II, 661 S.E.2d 834, 838 (Va. 2008) (“To state a cause of action for unjust 

enrichment, [a plaintiff has] to allege that: (1) he conferred a benefit on [the defendant]; (2) 

[defendant] knew of the benefit and should reasonably have expected to repay [plaintiff]; and (3) 

[defendant] accepted or retained the benefit without paying for its value.”). Although the 

Virginia rule statement does not expressly require that retention of the benefit be unjust, such a 

requirement is routinely read into the elements by Virginia courts. See, e.g., R.M. Harrison 

Mech. Corp. v. Decker Indus., Inc., 75 Va. Cir. 404, 2008 WL 10669311, at *3 (2008) (“The 

circumstances of the acceptance or retention of the benefit must render it inequitable for the 

defendant not to compensate the plaintiff.”).

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considered to be fair and failed to do so.14 Forgoing their opportunity to bargain, 

and notwithstanding the fact that the insurance companies had specifically advised 

that they would pay no more than State Farm pays, the body shops nevertheless 

undertook the repairs and are now seeking to require the insurance companies to 

pay more than State Farm had said it would pay. In my judgment, the unjust 

enrichment claims of the body shops are not only without merit, they border on 

being frivolous claims. I would affirm the judgment of the district court with 

regard to the unjust enrichment claims, and I respectfully dissent from the 

majority’s decision to reverse.

I also briefly set forth two additional concerns with regard to the majority’s 

analysis of the unjust enrichment claims. First, in service of a conclusion that the 

insurance companies’ actions were somehow unjust, the majority stretches the 

words “forced” and “involuntarily” until they cover basic participation in a free 

market economy. Second, the majority implicitly resolves an open question of state 

law without any analysis at all. Both are problematic.

 

14 The body shops have consistently argued that they did not have an opportunity to bargain 

because the insurance companies offered the market rate on a “take it or leave it” basis and that 

the insurance companies refused to negotiate. If this is all that is necessary to circumvent the rule 

that parties who are able to negotiate should be held to do so, the rule will quickly become 

extinct. 

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My first concern with the majority’s analysis is its determination that it 

would be unjust for the insurance companies to retain any benefit based on the 

explanation that “the body shops consistently allege that the insurance companies 

forced the shops to confer benefits; that the shops involuntarily performed repairs 

at the low market rate.” Maj. Op. at 28 (first emphasis added). While it is not 

possible here to raise all of the secondary consequences of the majority’s 

conclusion that the body shops were “forced” into “involuntarily” performing 

repairs, I find it worthwhile to highlight just a few of my more serious concerns.

As an initial matter, the majority’s analysis calls into question the principle, 

discussed above, that parties who have an opportunity to contract in advance 

should do so and, if they do not, the courts should generally refrain from 

establishing a value in quasi-contract after the fact. Accord Restatement (Third) of 

Restitution and Unjust Enrichment § 2 cmt. d (2011) (quoted above). As the 

Seventh Circuit has recognized, “[b]etter that the [plaintiff] should negotiate with 

the defendant rather than thrusting on the court the difficult task of constructing a 

hypothetical bargain.” Nadalin v. Auto. Recovery Bureau, Inc., 169 F.3d 1084, 

1086 (7th Cir. 1999). The majority turns this traditional conception on its head and 

places those who forgo a contract in a better legal position than those who contract 

in advance. This is evident from that fact that the body shops in the instant 

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appeal—who did not negotiate a DRP agreement—are permitted to bring 

otherwise unavailable state law claims while those shops who (as the law 

encourages) contracted in advance through a DRP are limited to suing on their 

contracts. As the majority notes, none of the body shops in the instant appeal are a 

part of a DRP. This is not an accident. The body shops are well aware that if they 

are signatories to a DRP agreement, their remedy lies in contract rather than in the 

unjust enrichment actions they bring here.

Nonetheless, the majority apparently concludes that the body shops’ failure 

to strike an acceptable bargain for their services prior to performing the repairs is 

excusable because the insurance companies allegedly “forced” them to 

“involuntarily” perform the repairs at State Farm’s market rate. I respectfully 

submit that the majority has—in its attempt bring the body shops’ allegations 

within the scope of unjust enrichment—expanded the definition of those two words 

beyond their accepted meaning. The majority’s use of the term “forced” in the 

instant context is inconsistent with the facts actually pled by the body shops. The 

body shops were under no obligation, legal or otherwise. They were not threatened 

or tricked. They were not coerced.15 They simply made themselves available to 

 

15 I submit that the body shops’ allegation of force should be disregarded as a conclusory 

allegation. No concrete facts have been alleged from which might arise a reasonable inference of 

force. 

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perform a service for compensation, the amount of which they were advised before 

undertaking the repair. They are now dissatisfied with that amount of 

compensation and are suing for more. Like any other service provider, they have—

or at least had—three options: (1) perform their service for the price that someone 

else was willing to pay; (2) negotiate for a higher fee; or (3) decline to perform the 

service. Every company in America recognizes that finding the proper mix of those 

three basic choices is a crucial part of achieving—or maximizing—profitability.

What the body shops now seek is a fourth option: run to the federal courts and 

complain of being “forced” into performing their service.16

It is no exaggeration to say that the majority’s apparent holding threatens 

some basic tenets of our economic system. As just one example, consider a 

homeowner who makes known that she will pay $10,000 to have her house painted, 

claiming (truthfully or not) that this is the going rate. A painter, believing that the 

actual market rate (again, truthfully or not) is $15,000, paints the house and the 

owner writes him a check for $10,000. If the failure to contract is no longer a 

 

16 For that matter, I see no reason why the majority’s logic cannot just as readily be 

employed as a weapon by consumers against the body shops. Suppose a consumer’s car is badly 

damaged and cannot be driven. Not wanting his insurance rates to increase, he decides to pay for 

the repairs out of pocket. If one of the body shops charges him an amount in excess of what he 

thinks he should pay, has he been “forced” to pay that amount? Is it “involuntary”? Is he 

permitted to sue the body shop and have a court determine the reasonable price of the repair? Is 

this really what federal courts should be doing? These questions, and many more, are left 

unanswered in the majority’s opinion. 

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barrier in this Circuit—as would seem to be the case under the majority 

opinion17—the painter then sues for unjust enrichment of $5,000 on the theory that 

the market rate established by the owner was too low. Has she “forced [him] to 

confer benefits?” Has he “involuntarily performed [the painting] at the low market 

rate?” Has she been unjustly enriched? Surely these questions must be 

resoundingly answered in the negative. And if that must be so, there is no 

principled reason why the answer to our present question should be any different.

Nor does this example become any more unjust by virtue of a shift in the 

parties’ relative bargaining power.18 Suppose that, rather than a singular 

homeowner, a real estate developer desires to have an entire subdivision of homes 

painted at a rate of $9,000 each. This amount consists of the $10,000 “market rate” 

and a 10% “volume discount.” The painter is faced with the same options as our 

body shops: conform to the rate and accept the discount, negotiate with the 

 

17 Notably, both parties in this example agree that the painter is entitled to some amount 

($10,000) just as both parties in our instant case agree that body shops are entitled to some 

amount (the State Farm “market rate”). The failure to contract then in both cases is for an amount 

beyond what was agreed to.

18 The majority suggests that a mere disparity in bargaining power can invalidate a contract. 

Maj. Op. at 29. However, the majority cites no case law or other authority to support the novel 

proposition that mere bargaining power or mere market power is sufficient to invalidate a 

contract. Moreover, the body shops have not even argued on appeal that a disparity in 

bargaining power could invalidate a contract, or that it could render unjust the insurance 

companies’ retention of the benefits conferred. Thus, any such argument, not being fairly raised 

on appeal, is abandoned. See, e.g., Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-83 

(11th Cir. 2014). 

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developer, or forgo the business. The fact that this is a large chunk of the painter’s 

business notwithstanding, it cannot be seriously argued that he is being forced to 

paint the houses. Nonetheless the painter—if the majority’s opinion and its logical 

consequences are to be taken at face value—can now undertake the job, collect the 

discounted rate ($9,000 per house), and then sue the company for the remaining 

amount it feels it is owed.19 I am troubled by this possibility.

 My second concern is the majority’s implicit decision on an open question 

of state law. Both on appeal and in the district court, the insurance companies 

argued that, because the body shops repaired cars belonging to the insureds, any 

benefits were rendered to them and not to the insurance companies. This argument 

was sufficiently persuasive that the district court had previously dismissed another 

action in this litigation because, under Florida law, the benefits were conferred not 

on the defendant insurance companies but rather on their insureds.20 However, in 

the instant case, the district court recognized that outside of Florida the courts are 

divided on the issue of whether, in the insurance context, the benefit is bestowed 

 

19 This is, of course, on top of the fact that if a couple of other developers all independently 

decide to pay no more than our hypothetical price leader, the entire group can now be hit with 

antitrust violations if the majority opinion and its logical consequences are to be the law of this 

Circuit.

20 See A&E Auto Body, Inc. v. 21st Century Centennial Ins. Co., 2015 WL 12867010, at *5 

(M.D. Fla. Jan. 22, 2015) (“[I]n unjust enrichment case, . . . ‘a third party providing services to 

an insured confers nothing on the insurer except a ripe claim for reimbursement.’” (quoting 

Adventist Health Sys./Sunbelt Inc. v. Med. Sav. Ins. Co., 2004 WL 6225293, at *6 (M.D. Fla. 

Mar. 8, 2004))).

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on the insured or the insurance company. For that reason, the district court 

dismissed the instant unjust enrichment claims on alternative grounds.21 Although 

it was not a basis for the decision below, this question—on whom the benefit was 

conferred—was discussed in the magistrate’s report and recommendation, in the 

district court’s order, and in the appellate briefing. 

Implicitly deciding this open issue of state law, the majority simply holds, 

twice, that the body shops stated a valid claim for unjust enrichment. Maj. Op. at 

27 (“The allegations readily and plausibly establish the claims of unjust 

enrichment.”); Maj. Op. at 33 (“[T]he allegations have sufficiently established the 

body shops’ state tort claims of unjust enrichment . . . .”). In doing so, the majority 

has necessarily decided that all of the elements have been satisfied. Thus the 

majority has implicitly decided that, under the laws of all four states, the benefit is 

to be deemed conferred on the insurance company, not the insured.

The majority’s implicit decision might be understood if the case law so 

clearly supported one side or the other as to not be worthy of lengthy discussion. 

Unfortunately, the opposite is true. In many states—including, as far as I can tell, 

each of the four that are relevant here—the proper resolution of this issue remains 

 

21 These alternative grounds largely mirror the basis on which I would affirm the district 

court’s decision to dismiss the unjust enrichment claims—namely that the retention of a benefit 

(if any) would not be unjust where the body shops knew how much the insurance companies 

would pay before undertaking the repair and where they also forwent an opportunity to bargain. 

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an open question. 22 And, in addition to its being an open question in the relevant 

states, the states that have decided the question differ widely in their approach.

23

In implicitly deciding this issue, the majority opinion has the effect of 

foreclosing the insurance companies from raising the argument on remand. Even 

if the majority must reverse the district court and hold that the body shops have 

adequately pled that the insurance companies’ retention of benefits was unjust, I 

respectfully submit that the majority should have remanded this issue of first 

impression to the district court to resolve in the first instance on remand. 

For the reasons discussed above, I would affirm the judgment of the district 

court with respect to the unjust enrichment claims, and I respectfully dissent from 

the majority’s decision in this regard.

B. Quantum Meruit

I must also register my dissent from the majority’s decision to reverse the 

district court’s dismissal of the quantum meruit claims arising under the state laws 

 

22 New Jersey has found a benefit to a prison where a private hospital treated an inmate on 

its behalf. Saint Barnabas Med. Ctr. v. Essex County, 543 A.2d 34 (N.J. 1988). While certainly 

analogous, that case is factually distinguishable based, among other things, on the legal duty a 

jailer owes to inmates. A federal district court in Kentucky has addressed a similar question in 

the health insurance context. See Appalachian Reg’l Healthcare v. Coventry Health & Life Ins. 

Co., 2013 WL 1314154 (E.D. Ky. Mar. 28, 2013). Any conclusions that are drawn therein are 

obviously not binding on us or the Kentucky state courts. I have not seen any indication that the 

Virginia or Missouri courts have addressed this question. 

23 Compare Myrtle Beach Hosp., Inc. v. City of Myrtle Beach, 532 S.E.2d 868 (S.C. 2000), 

with Emergency Physicians Integrated Care v. Salt Lake County, 167 P.3d 1080 (Utah 2007).

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of Kentucky, New Jersey, and Virginia.24 I would have affirmed the judgment of 

the district court because, under the laws of the three states relevant here, the body 

shops were required to allege, among other elements, that the circumstances 

reasonably notified the insurance companies that they expected to get paid 

(Virginia and Kentucky) or that they reasonably expected to be compensated (New 

Jersey).25 They cannot do so here.

As I have discussed above, the body shops specifically alleged that each of 

the insurance companies informed them that they would pay no more than State 

Farm. The body shops then undertook the repairs. Having fully informed the body 

shops of what they were willing to pay, the circumstances could have only 

reasonably informed the insurance companies that the body shops expected to be 

paid the market rate. This is fatal to the Virginia and Kentucky claims. Likewise, 

having been fully informed that the insurance companies would only pay the 

market rate, the body shops could not have reasonably expected to receive more 

than that amount. This is fatal to the New Jersey claim. 

Respectfully, I think that the majority’s analysis contains two flaws that 

have resulted in our differing views on the resolution of this issue. The first is the 

 

24 The Missouri complaint does not include a cause of action for quantum meruit.

25 See Raymond, Colesar, Glaspy & Huss, P. C. v. Allied Capital Corp., 961 F.2d 489, 491 

(4th Cir. 1992); JP White, LLC v. Poe Cos., LLC, 2011 WL 1706751, at *5 (Ky. Ct. App. May 

6, 2011); Weichert Co. Realtors v. Ryan, 608 A.2d 280, 285 (N.J. 1992).

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majority’s conclusion that, because the body shops had a reasonable expectation of 

some compensation, they need not demonstrate a reasonable expectation as to the 

amount they are now requesting. Maj. Op. at 30 (“The body shops allege that they 

rendered repair services, expecting compensation . . . and that the companies paid 

an artificial price, below the reasonable value for the services.”). Undoubtedly, the 

body shops could reasonably have expected some compensation. Equally 

undoubtedly, they could not—at least not reasonably—have expected to receive 

more than the market rate when, by their own pleadings, every insurance company 

informed them that they intended to pay no more than that rate. Unconcerned with 

this distinction, the majority apparently concludes that because they expected some 

compensation, they are entitled to have a court determine not just what they could 

reasonably have expected, but—regardless of their expectations—the reasonable 

value of the services they provided.

The body shops have not cited, and independent research has not uncovered, 

any controlling authority in the three relevant states to such an effect. Thus, 

without any explanation as to why, the majority appears to have decided an open 

question of state law on a state cause of action. As I have mentioned previously, 

deciding open state law questions with no explanation might be understandable if 

other authority overwhelmingly pointed in a single direction. Such is not the case. 

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The only analogous case law suggests the exact opposite result of that reached by 

the majority: when a plaintiff has a reasonable expectation of some amount, they 

cannot reasonably expect to receive additional compensation and therefore cannot 

bring suit to recover it.26

It is not at all surprising to me that the courts to consider this issue have 

resolved it differently than the majority given that it is indistinguishable from the 

house painting example in the previous section. True enough, the painter could 

have expected some compensation ($10,000) for performing a service (painting the 

house). But—having already received what he could have reasonably expected in 

compensation—surely he is not now entitled to file a lawsuit for quantum meruit, 

allege that the reasonable value of his services is $15,000, and have a court 

determine what should be paid him. And yet as surely as such a conclusion is 

implausible, it would logically follow from today’s decision. It simply cannot be 

the law that a plaintiff, knowing full and well that it has no reasonable expectation 

of receiving what it considers the fair market value of its services, can nonetheless 

perform a service and then survive a motion to dismiss in its subsequent suit to 

 

26 See, e.g., Hindsight Sols., LLC v. Citigroup Inc., 53 F. Supp. 3d 747, 776 (S.D.N.Y. 

2014) (unjust enrichment claim failed because plaintiff could not have reasonably expected to 

receive additional compensation); Rodriguez v. Ready Pac Produce, 2014 WL 1875261, at *3 

(D.N.J. May 9, 2014) (dismissing unjust enrichment claim where plaintiff “would have no 

reasonable expectation to receive additional compensation for hours worked in excess of a 

particular amount per week”).

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recover that “full” value. This is unworkable for the business community and 

unsustainable for the judicial community. 

My second concern is that the majority, again in the quantum meruit context, 

has implicitly decided the same open question of state law referred to above in my 

discussion of unjust enrichment. Again, the majority has implicitly decided that, 

under the laws of the three relevant states, the quantum meruit law contemplates in 

the insurance context that the car repairs constitute a service to the insurance 

company rather than (or in addition to) the insured. However, as in the unjust 

enrichment context, this is an open question of state law that was not addressed by 

the district court and has decisively split the jurisdictions to confront it. In so 

doing, the majority tackles a substantial and unresolved question of state law, 

without any analysis. I respectfully submit that the more appropriate resolution for 

the majority would have been to remand the issue to the district court for resolution 

in the first instance. 

For the reasons stated in the first two paragraphs of this section, it is clear to 

me that the allegations of these complaints fall far short of stating any claim for 

quantum meruit. Accordingly, I would affirm the judgment of the district court in 

this regard. I respectfully dissent from the majority’s decision with respect to the 

quantum meruit claims.

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C. Tortious Interference

Lastly, although I agree with the majority that the dismissal of the tortious 

interference claims was in error and is due to be reversed, I disagree with the 

reasoning employed by the majority in reaching that decision. As an initial matter, 

I would have reversed the district court’s decision to dismiss the tortious 

interference claims for allegedly impermissible group pleading. The concerns 

raised by the district court stem not from the fact that the insurance companies are 

unable to ascertain which aspects of the alleged conduct apply to them but, rather, 

from the fact that it was not clear to the district court how that conduct amounts to 

a viable claim. This is a pleading problem to be sure, but it is not a group pleading 

problem. Accordingly, the dismissal was due to be reversed on that basis alone.

I would also have found that the body shops adequately stated a claim under 

the laws of each of the four states. Although the elements of the claim are not 

identical, there are three requirements of tortious interference that are both 

common to all four of the relevant states and which could reasonably be contested 

by the parties: (1) the body shops must have had a valid business expectancy; (2) 

the insurance companies must have had knowledge of that valid business 

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expectancy; and (3) any interference must have been improper.27 All are satisfied 

by the steering allegations. The first requirement is met because the body shops 

allege that the insureds had chosen a particular body shop, Compl. at ¶ 83 

(“Examples of this practice include telling insureds and/or claimants that a 

particular chosen shop is not on the preferred provider list . . . .” (emphasis 

added)), thereby raising the shop’s prospective economic interest above a purely 

speculative level. Secondly, the steering allegations also make clear that the 

insurance companies had knowledge of the prospective economic advantage—if 

they did not know that an insured had chosen a shop they would not have been able 

to steer them away from it. Lastly, the allegations of the complaint suggest, among 

 

27 See Snow Pallet, Inc. v. Monticello Banking Co., 367 S.W.3d 1, 6 (Ky. Ct. App. 2012) 

(“[Plaintiff] must prove: (1) the existence of a valid business relationship or expectancy; (2) that 

[defendant] was aware of this relationship or expectancy; (3) that [defendant] intentionally 

interfered; (4) that the motive behind the interference was improper; (5) causation; and (6) 

special damages.”); Clinch v. Heartland Health, 187 S.W.3d 10, 14 (Mo. Ct. App. 2006) (“The 

elements of tortious interference with a business relationship are: (1) The plaintiff was involved 

in a valid business relationship; (2) the defendant was aware of the relationship; (3) the 

defendant intentionally interfered with the relationship, inducing its termination; (4) the 

defendant acted without justification; and (5) the plaintiff suffered damages as a direct result of 

defendant’s conduct.”); Lamorte Burns & Co., Inc. v. Walters, 770 A.2d 1158, 1170 (N.J. 2001) 

(“To prove its claim, plaintiff must show that it had a reasonable expectation of economic 

advantage that was lost as a direct result of defendants’ malicious interference, and that it 

suffered losses thereby.”); Dunlap v. Cottman Transmission Sys., LLC, 754 S.E.2d 313, 318 (Va. 

2014) (“The necessary elements to establish a prima facie case are: (1) the existence of a valid 

contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy 

on the part of the interferor; (3) intentional interference inducing or causing a breach or 

termination of the relationship or expectancy; and (4) resultant damage to the party whose 

relationship or expectancy has been disrupted. . . . [A] plaintiff, in order to present a prima facie 

case of tortious interference, must allege and prove not only an intentional interference, but also 

that the defendant employed improper methods.” (alterations and quotations omitted)).

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other things, that steering is done to “punish” noncompliant shops, that it is 

accomplished through “misrepresentation of facts,” and that it is “malicious.” 

Compl. at ¶¶ 36, 82, & 107. Taken as true, such behavior is sufficiently improper 

to survive a motion to dismiss. Accordingly, in addition to reversing the district 

court’s group pleading analysis, I would also have remanded with a determination 

that the complaints state a valid claim for tortious interference. 

Although I agree with its outcome, I have two significant concerns with the 

majority’s analysis of the claims that prevent me from concurring in the opinion. 

My first concern with the majority’s analysis of the tortious interference claims is 

that it makes explicit a sentiment that I fear may have implicitly influenced the 

majority’s disposition of other claims: namely that “the market dominance of the 

defendant companies and the percentage of revenue that the defendant companies 

generated for a body shop . . . establish the companies’ command over a body shop 

in each state.” Maj. Op. at 31-32. However, whether or not the insurance 

companies, collectively, have a large market share is plainly not relevant to an 

inquiry into whether an insurance company tortiously interfered with a customer of 

a particular body shop. I have previously outlined the three elements of a tortious 

interference claim that both are common to all four relevant states and are also 

contested here. Market power is plainly irrelevant to both the first—the existence 

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of a valid business expectancy—and the second—the insurance companies’ 

knowledge of that business expectancy. And as to the third element—

improper intentional interference—neither the body shops nor the majority cite any 

authority suggesting that mere market power can transform otherwise appropriate 

conduct into improper interference for purposes of a tortious interference claim. 

Accordingly, I respectfully submit that the majority’s reliance on the market power 

of the insurance companies is inappropriate.28

Lastly, I write to express my concern with the majority’s brief analysis of 

group pleading, a doctrine that has plagued this case from the beginning. 

Specifically, the majority notes that the district court concluded that “at a 

minimum, Plaintiffs should allege sufficient facts specific to each Defendant, or at 

 

28 The majority’s explicit reliance on market power in the contexts of both tortious 

interference and unjust enrichment (see supra, note 18), and the prominence of the majority’s 

recitation in its Part II.A of the facts relating to market dominance, lead me to fear that the 

majority may have implicitly relied on market power in its resolution of other claims. In the 

price-fixing context for example, I fear that this concern may have lured the majority into 

holding that market power, coupled only with consciously parallel conduct, is sufficient to 

warrant an inference of agreement or conspiracy to fix prices notwithstanding the absence of any 

plausible factual allegations giving rise to such inference, and notwithstanding that the actual 

facts indicate that convergent pricing (especially in light of the price leadership) would be the 

expected course of events. If the majority is implicitly holding that market power—coupled only 

with consciously parallel conduct in the form of price leadership—is a sufficient plus factor to 

warrant an inference of agreement or conspiracy for antitrust purposes, I respectfully submit that 

such a complex and novel holding should be explored only after thorough briefing and full analysis. In any 

event, I would disagree with any such holding for at least two reasons: first, that argument has not been fairly raised 

in the body shops’ appellate briefing, and therefore has been abandoned, see, e.g., Sapuppo v. Allstate Floridian Ins. 

Co, 739 F.3d 678, 681–83 (11th Cir. 2014) (“A party fails to adequately ‘brief’ a claim when he does not ‘plainly 

and prominently’ raise it . . . .”); and second, even if market power could in an appropriate case be considered to 

have any relevance in the “plus factor” analysis—an issue which I need not address—it would not warrant an 

inference of agreement or conspiracy in the instant case where convergent pricing is so clearly to be expected. 

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least each corporate family of Defendants, to tie that Defendant to the wrongdoing 

alleged.” Maj. Op. at 32. It then rejects this premise because “[i]t is unclear why 

such allegations are necessary.” Maj. Op. at32. I do not find it at all unclear. They 

are necessary because the purpose of Rule 8 pleading is to provide a “defendant 

fair notice of what the [plaintiff’s] claim is and the grounds upon which it rests.” 

Twombly, 550 U.S. at 55, 127 S. Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 

41, 47, 78 S. Ct. 99, 103 (1957)). And whatever else such “fair notice” requires, I 

think, as the district court clearly did, that “at a minimum, [it requires that] 

Plaintiffs should allege sufficient facts specific to each Defendant, or at least each 

corporate family of Defendants, to tie that Defendant to the wrongdoing alleged.” 

It is, to put it plainly, necessary because a defendant cannot be fairly asked to 

defend a claim if the alleged facts do not tie that defendant to the wrongdoing.

The problem with the district court’s group pleading analysis in this case is 

not—as the majority believes—that it unnecessarily required the body shops to tie 

the insurance companies to the alleged wrongdoing. The problem with the district 

court’s analysis—and the reason that I join the majority in reversing with respect to 

this claim—is that the body shops have in fact done so. Each corporate defendant 

could read the complaint and fairly discern what it is they are alleged to have done. 

This—at least in this context—is all that Rule 8 requires and, accordingly, it was 

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error to dismiss the complaints for group pleading. But to suggest that such 

pleadings are not “necessary” is plainly not true.

Accordingly, although I agree with the majority’s decision to ultimately 

reverse the dismissal of the tortious interference claims for the reasons I detailed in 

the opening paragraphs of this section, because of the concerns that I raise about 

the majority’s reasoning for doing so, I concur only in the judgment. 

XI. Conclusion

With regard to the majority’s reversal of the district court order dismissing the 

tortious interference claims, I concur in the result only. With regard to the 

remainder of the majority’s opinion, I respectfully dissent. 

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