## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 19 2002 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LANTEC, INC., a Utah corporation; LANCOMPANY INFORMATICA LTDA., a Brazil corporation; LANTEC INFORMATICA LTDA., a Brazil corporation; LANTRAINING INFORMATICA LTDA., a Brazil corporation, Plaintiffs - Counter-Defendants - Appellants,

v. NOVELL, INC., a Delaware corporation, Defendant - Counter-Claimant - Appellee. No. 01-4109

Appeal from the United States District Court

for the District of Utah (D.C. No. 2:95-CV-97-ST)
P. Bruce Badger (Robert A. Garda and Stanford B. Ow en of Fabian & Clendenin, Salt Lake City, Utah; and Evan A. Schmutz of Hill, Johnson & Schmutz, P.C. Provo, Utah, with him on the briefs) of Fabian & Cl endenin, Salt Lake City, Utah, for Plaintiffs - Counter-Defendants - Appellants. Stanley J. Preston (R. Brent Stephens and Maralyn M . Reger with him on the brief) of Snow, Christensen & Martineau, Salt Lake City, Utah, for Defendant - Counter-Claimant - Appellee.

Before KELLY, Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ , Circuit Judge.-2-

BRORBY , Senior Circuit Judge.

While the Microsoft antitrust case has captured muc h media attention, this antitrust case is just as important to the computerprogram developers involved. Here, the Lantec companies appeal a district court order dismissing state-law contract and promissory estoppel claims on summary judgment. The Lantec companies also argue the district court incorrectlygranted Novell, Inc.’s (“Novell”) motion for judgment as a matter of law o n several antitrust claims. The facts and legal issues in this case are complexand will be discussed at length. However, the Lantec companies’ basic argument is No vell drove them out of business.

We exercise jurisdiction pursuant to 28 U.S.C. § 12 91 and affirm.

FACTUAL BACKGROUND Beginning in the mid-1980s, Novell sold a network o perating system for connecting computers called NetWare. James E. Gask in, Mastering NetWare 5, 20 (1999). A network operating system “is the software used to connect computers and other devices, share resources, trans fer files, and perform other network services and activities.” Sue Plumley, Network Administration Survival1 Throughout the record and the briefs, messaging transport agents are

variously referred to as messaging engines, messagi ng transcript agents, and messaging transfer agents. Some of the discrepanci es may be attributed to the fact some testimony was translated from Portuguese to English. Because “messaging transport agent” appears to be the prefe rred term, we have chosen to use it in this opinion.

2The parties agree the term “groupware” refers to any software containing an e-mail application plus one other collaborative application such as calendaring, scheduling, or task management.

-3- Guide 25 (1999). It controls access to the networkand allows users to share data. Id

.

Novell also distributed Message Handling System andGlobal Message Handling System. These products were messaging transport agents 1 for NetWare. A messaging transport agent essentially acts as the computer version of a post office; it routes, stores, and delivers messages se nt by e-mail or groupware
programs. 2 Message Handling System and Global Message Handli ng System were designed to be used with the NetWare operating syst em and groupware programs. In addition to routing messages, Message Handling S ystem and Global Message Handling System allow groupware to access security features, printing, file sharing, and other data shared through the NetWare operating system.

Although Novell began marketing Message Handling Sy stem and Global3 Application program interfaces allow a programer writing an application

to instruct an operating system or another program to carry out specific tasks. In essence, application program interfaces act as buil ding blocks. When programers have the application program interfaces, they can c reate software to complete tasks through the program providing the interfaces by putting the interfaces together. See United States v. Microsoft Corp. , 253 F.3d 34, 53 (D.C. Cir.), cert. denied, 122 S. Ct. 350 (2001). If programers do not have the application program interfaces they must completely recreate instructio ns for the tasks with original code. Id

.

-4- Message Handling System in the early 1990s, it did not immediately develop groupware programs to be used with Message Handling System and Global Message Handling System. Instead, independent software programers developed this groupware. By making the application program interfaces 3 in Message Handling System and Global Message Handling System publicly available, Novell enabled independent programers to write groupware. Software designed using the Message Handling System and Global Message Handling System application program interfaces can communicate with Message Han dling System or Global Message Handling System and therefore with NetWare.

In addition to providing application program interf aces, Novell participated in a group known as the Message Handling System All iance. The Alliance was a group of independent software developers interestedin Message Handling System. Through this group, Novell helped independ ent software programers-5-

market, and provide technical support for, their gr oupware products.

Lantec, Inc. (“Lantec”), LanCompany Informatica Ltd a. (“LanCompany”), Lantec Informatica Ltda. (“Lantec Brazil”), and Lan Training Informatica Ltda. (“LanTraining”) (collectively “the Lantec companies ”) were interested in making groupware using the application program interfaces in Message Handling System and Global Message Handling System. All the Lantec companies grew out of a predecessor Brazilian software development company called DataRede. Originally, DataRede worked with Novell to distribute NetWare in Brazil. At that time, Brazil refused to allow foreign software deve lopers access to the Brazilian market unless there were no similar software produc ts designed by Brazilian companies. DataRede conducted similarity tests to help convince Brazilian regulators to allow Novell’s products in Brazil.

One of the contract disputes in this case arises fr om a February 1990 letter from Novell to DataRede that discusses DataRede’s p articipation in the similarity tests. LanCompany now refers to this letter as the “DataRede Agreement” and claims Novell breached the Agreement by failing to fully compensate DataRede or its successor company for conducting the similaritytests.-6-

Although disputes subsequently developed, DataRede began doing more work with Novell. As DataRede’s Novell business in creased, it transferred that business to three new companies headed by Marcello Thoillier and other partners in the DataRede organization. Lantec Brazil was cr eated to develop software compatible with Novell products, particularly NetWa re and Message Handling System. LanCompany was to market Novell software, and LanTraining was to train people to use Novell products. In Utah durin g 1991, Mr. Thoillier and his associates incorporated Lantec, an American sister corporation to the Brazilian companies. Lantec was charged with translating Lan tec Brazil’s products from Portuguese to English. Lantec also began looking f or companies to manufacture, market, and distribute the products in the United S tates.

The Lantec companies developed XPostWare, a package of software containing menu, e-mail, fax, and calendaring appli cations. XPost, the e-mail portion of XPostWare, used Novell’s Message Handlin g System to transport messages using NetWare. Lantec and Lantec Brazil e ach entered an Original Equipment Manufacturer Agreement with Novell to all ow them to package XPostWare with Novell’s NetWare and Message Handlin g System.

Just as Lantec was on the verge of offering its XPo stWare package in the-7-

United States, Novell and WordPerfect announced plans to merge. At this point, the relationship between Novell and the Lantec comp anies became strained. The day of the announcement, Mr. Thoillier indicated he was going to shut down Lantec’s business. The next day, the Lantec compan ies put all their marketing, advertising, and packaging projects on hold. Less than a month later, a Novell executive left Mr. Thoillier a voice message statin g other executives at Novell wanted to terminate the relationship between Novell and the Lantec companies. Although Novell subsequently sent a letter stating it was willing to work with the Lantec companies and continue the Original Equipmen t Manufacturer Agreements, Lantec and Lantec Brazil argue the lett er should be discounted because another Novell executive later threatened t o drive the Lantec companies out of business. The Lantec companies never shippe d XPostWare and made no attempt to actively sell XPostWare after the Novell /WordPerfect merger.

The Novell/WordPerfect merger changed Novell’s appr oach to Message Handling System and Global Message Handling System. After the merger, Novell released GroupWise. Rather than being solely a mes saging transport agent like Message Handling System and Global Message Handling System, GroupWise contains both the messaging transport agent and gro upware. This software design strategy was similar to WordPerfect’s pre-merger me ssaging software which also-8-

contained both the messaging transport agent and gr oupware. Ultimately, Novell quit developing Message Handling System and focusedsolely on GroupWise.

PROCEDURAL HISTORY Based on these facts, in 1995, Lantec filed a compl aint in federal district court in Utah. More than a year later, Lantec Braz il, LanCompany, and LanTraining joined the suit as plaintiffs. The Lan tec companies brought state law tort claims, breach of contract claims, and a promi ssory estoppel claim. In addition, they alleged Novell violated federal and state antitrust laws by (1) unlawfully merging with WordPerfect; (2) contractin g combining, or conspiring to unreasonably restrain trade; (3) monopolizing, attempting to monopolize, and conspiring to monopolize the worldwide groupware fo r NetWare market; (4) unlawfully using its monopoly power in the network operating system market to gain a competitive advantage in what the Lantec companies designate the “groupware for NetWare market”; and (5) unlawfully tying the sale of its groupware to NetWare. See 15 U.S.C. §§ 1, 2, 14, 18; Utah Code Ann. § 76-10- 914(1), (2).

Prior to trial, the district court granted Novell’s motion for summary judgment on the tort, contract, and promissory esto ppel claims. It also dismissed-9-

the antitrust claims brought by LanCompany and LanT raining for lack of standing. The case, however, proceeded to trial o n the remaining antitrust claims. After the Lantec companies presented theircase to the jury, Novell moved for judgment as a matter of law. The distric t court ruled in Novell’s favor. Lantec, Inc. v. Novell, Inc. , 146 F. Supp. 2d 1140, 1142 (D. Utah 2001).

On appeal, the Lantec companies raise several issue s. We first address the contract and promissory estoppel issues and then ex amine the antitrust issues.

CONTRACT AND PROMISSORY ESTOPPEL CLAIMS The Lantec companies argue the district court erred in granting summary judgment on (1) the breach of contract claim based on the “DataRede Agreement”; (2) the breach of contract claim based on the Original Equipment Manufacturing Agreements; (3) the breach of the ora l “Message Handling System Agreement” claim; and (4) the promissory estoppel c laim.

We review a grant of summary judgment de novo

. Cliffs Synfuel Corp. v.
Norton , 291 F.3d 1250, 1257 (10th Cir. 2002). Summary ju dgment is only appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, show that there is no4Paulo Rufino, a former president of DataRede, tes tified DataRede

assigned the agreement to LanCompany. Consequently , LanCompany is the sole entity appealing this issue.

-10- genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c ). “In applying this standard, we examine the factual record and draw reasonable i nferences therefrom in the light most favorable to the nonmoving party.” Clinger v. New Mexico Highlands
Univ. , 215 F.3d 1162, 1165 (10th Cir. 2000), cert. denied, 531 U.S. 1145 (2001).

We will address the Lantec companies’ contract and promissory estoppel arguments in light of this standard.

I. THE “DATAREDE AGREEMENT ” LanCompany argues the district court erred in grant ing summary judgment on its claim Novell breached the “DataRede Agreemen t.” 4 The “DataRede Agreement” claim is based on a February 7, 1990 letter from Novell’s director of new business development to DataRede. Prior to the letter, DataRede had, under the direction of Novell, conducted similarity tests necessary to allow Novell to distribute NetWare in Brazil. After the completion of the similarity tests, Novell sent the February letter promising a license to bui ld network interface cards with-11-

no up-front fee. LanCompany refers to this letter as the “DataRede Agreement”.

Specifically, the letter states: “Novell has agree d to the following measures as recognition of DataRede’s special contribution t o the registration and approval of NetWare .... No up-front fee for NE1000 & NE200 0.” NE1000 and NE2000 are network interface cards. They are essentially hardware that allows a computer to communicate with a network. Although Novell hadthe technology for these cards, it typically licensed the technology to othe r hardware manufacturers rather than producing the cards itself. LanCompany conten ds Novell breached the Agreement by failing to deliver the license.

The district court granted summary judgment in favo r of Novell, concluding there was no contract because there was no consider ation for the letter. The court found “there was no consideration for the claimed c ontract because the benefits granted by the letter were past consideration for D ataRede’s earlier participation in the Brazilian registration process, a process co mpleted two months before the ... [l]etter.” Furthermore, the court said even if the “letter was an agreement, the evidence is that Novell did comply with the terms o f the letter.” The district court later denied a request for rehearing on this issue.-12-

LanCompany argues there was sufficient consideratio n for an enforceable contract because the parties had intended Novell “t o compensate DateRede for its participation in the similarity test.”LanCompany explains “[e]ven though the DataRede Agreement is dated after the similarity te st, Novell’s promises that were memorialized in the document were not made independ ent of DataRede’s promised performance.” LanCompany claims “DateRede , therefore, had a claim for its efforts, and even if the claim for a reward might not have been enforceable, the surrender of its claim in exchange for the Data Rede Agreement was sufficient consideration for the contract.” Although LanCompa ny does not specifically mention accord and satisfaction, it directs us to a ccord and satisfaction cases.

Generally, past services cannot serve as considerat ion for a subsequent promise. Dementas v. Estate of Tallas ex rel. First Securit y Bank, 764 P.2d 628, 633 (Utah Ct. App. 1988) (“Events which occur priorto the making of the promise and not with the purpose of inducing the pr omise in exchange are viewed as ‘past consideration’ and are the legal equivalen t of ‘no consideration.’”); Jensen v. Anderson , 468 P.2d 366, 368 (Utah 1970) (“Past services, wh en rendered under ... circumstances as to create no le gal liability, are not consideration for a subsequent promise” (citations omitted).). Utah law does, however, enforce a subsequent promise based on comp leted services when the-13-

completed service was not meant to be gratuitous an d the subsequent promise meets the requirements of an accord and satisfactio n. See England v. Horbach , 905 P.2d 301, 304 (Utah Ct. App. 1995), rev’d on other grounds , 944 P.2d 340, 344 (Utah 1997); Jensen, 468 P.2d at 368 n.6. “A party seeking to prove an accord and satisfaction must show (1) an unliquidat ed claim or a bona fide dispute over the amount due; (2) a payment offered as full settlement of the entire dispute; and (3) an acceptance of the payment as fu ll settlement of the dispute.” ProMax Dev. Corp. v. Raile , 998 P.2d 254, 259 (Utah 2000).

We are not persuaded by LanCompany’s arguments. Th e “DataRede Agreement” lacks sufficient consideration to consti tute an enforceable contract. LanCompany readily admits DataRede completed the re gistration tests before Novell sent the letter allegedly creating the DataR ede Agreement. Although LanCompany’s brief suggests the letter simply “memo rialized” promises made prior to the completion of the registration tests, there is no evidence in the record to support this suggestion. Viewed in the light mo st favorable to LanCompany, the record merely reveals testimony the parties exp ected DataRede would receive some compensation. But, the parties had not agreed upon the terms of DataRede’s compensation before Novell sent the February 7, 1990 letter. We, therefore, will enforce the promises in the letter only if they meet the-14-

requirements of an accord and satisfaction.

Even assuming LanCompany is correct in its assertio n there was a dispute as to the compensation Novell owed LanCompany for c onducting the similarity tests, we cannot conclude the DataRede Agreement am ounts to an enforceable accord and satisfaction. In this case, LanCompany needed to show the agreement was in satisfaction of the dispute. See ProMax Dev ., 998 P.2d at 259. But, there is no indication DataRede or LanCompany ever surren dered any of its potential claims against Novell. In fact, the letter embodyi ng the DataRede Agreement shows the Agreement was not in satisfaction of any claims. As the letter itself explains: In the course of events, DataRede made special requ ests to Novell .... These requests were made without prioragreements, and, in some cases, without a precise definition of the scope or [sic] the request. Some of the requests have been granted, o thers have been subject to negotiation, and still others must be fu rther defined. As the letter states, negotiations were still underway concerning DataRede’s requests made incident to the registration tests. Furthermore, LanCompany does not direct us to any other evidence suggesting the “DataRede Agreement” was reached in satisfaction of any claims or in full se ttlement of any dispute. There is simply no evidence to support LanCompany’s contenti on it surrendered potential claims against Novell to receive the benefits in th e February 1990 letter.-15-

Consequently, the alleged “DataRede Agreement” fail s for lack of consideration.

Because we conclude the promises in the letter lackconsideration, we need not consider whether Novell breached the alleged ag reement. The district court was correct in granting summary judgment on the bre ach of the “DataRede Agreement” claim.

II. BREACH OF ORIGINAL EQUIPMENT MANUFACTURER AGREEMENT Lantec and Lantec Brazil claim Novell breached its Original Equipment Manufacturer Agreements. These Agreements allowed Lantec and Lantec Brazil to package their products with Novell’s NetWare andMessage Handling System products. Lantec and Lantec Brazil claim Novell te rminated the Agreements in April 1994 when Ron Palmeri, a Novell executive, le ft Mr. Thoillier a voice mail message. They also claim Tom Pesut, a Novell execu tive, subsequently confirmed the repudiation when he “declared that [Novell] wou ld refuse to do business in the future with any of the Lantec Companies.”

The district court granted Novell’s motion for summ ary judgment dismissing the claims involving the Original Equipm ent Manufacturer Agreements because there was “no showing of anticipatory repud iation by Novell.” The court-16-

concluded the Agreements “required written notice o f termination and none was given.” In addition, the court noted Novell sent aletter reaffirming the Agreements and “demonstrated a willingness to conti nue with the agreement[s] as [they] existed or to modify [them] in a way that wo uld be acceptable to all” at a subsequent meeting with the Lantec companies. The district court later denied Lantec and Lantec Brazil’s motion for reconsiderati on on this issue.

We will consider each fact relevant to Novell’s all eged wrongful breach of the Original Equipment Manufacturer Agreements in turn. We first consider whether Mr. Palmeri’s telephone message constitutes triable evidence indicating Novell repudiated the Original Equipment Manufactur er Agreements. Next, even if Novell did repudiate, we ask whether Novell succ essfully retracted the repudiation. Finally, we address whether the distr ict court abused its discretion in striking a portion of an affidavit Lantec and Lante c Brazil intended to use to establish Mr. Pesut’s alleged threat to refuse to d eal with the Lantec companies. Ultimately, we affirm the district court’s decision s related to the Agreements.

A. Voice Mail Message In April 1994, Mr. Palmeri of Novell left a voice m ail message for Mr. Thoillier. In relevant part, it stated:-17-

I had a meeting with Tom Pesut yesterday and Jim Su llivan, who is the director of channel sales and they want to term inate the relationship between the companies. I want to let y ou know. Leave me a voice mail and let me know that you did get in fact this message, I don’t want you to be surprised when the letter comes from our legal. OK? I’ll try to give you a ring b ack again but it is just gonna be a lit [sic] tough to reach for the ne xt couple of days. Lantec and Lantec Brazil argue this message could r easonably be viewed as an anticipatory repudiation of the Original Equipment Manufacturer Agreements.

A repudiation occurs when a party to a contract mak es “an overt communication of intention or an action which rende rs performance impossible or demonstrates a clear determination not to continue with performance.” Uniform Commercial Code § 2-610 cmt. 1 (1989). “[T]o const itute a repudiation, a party’s language must be sufficiently positive to be reason ably interpreted to mean that the party will not perform.” Scott v. Majors , 980 P.2d 214, 218 (Utah Ct. App. 1999) (quotation marks and alterations omitted). See also Utah Code Ann. § 70A2-610. “Mere expression of doubt as to [a party’s] willingness or ability to perform is not enough to constitute a repudiation.” Restatement (Second) of Contracts § 250 cmt. b (1979). Anticipatory repudi ation requires more than statements revealing a party does not want to perfo rm the contract or has misgivings about the contract. Hurwitz v. David K. Richards & Co. , 436 P.2d 794, 795-96 (Utah 1968).-18-

Viewing Mr. Palmeri’s voice message in the light mo st favorable to Lantec and Lantec Brazil, we conclude the message was not definite enough to serve as an anticipatory repudiation. The message only stat es two Novell executives wanted to terminate Novell’s relationship with the Lantec companies. Nowhere in the message does it state Novell would not perform its duties under the Original Equipment Manufacturer Agreements.

B. Retraction Even if the voice mail message had been definite en ough to act as a repudiation, the undisputed facts show Novell subse quently reaffirmed the Agreements. Utah law provides a repudiating party “can retract [its] repudiation unless the aggrieved party has since the repudiatio n canceled or materially changed [its] position or otherwise indicated that [it] considers the repudiation final.” Utah Code Ann. § 70A-2-611(1). A party may retract “by any method which clearly indicates to the aggrieved party thatthe repudiating party intends to perform.” Utah Code Ann. § 70A-2-611(2).

After receiving the telephone message, Mr. Thoillie r sent Novell a letter stating: “I am writing this letter to confirm yourtermination of the [Original5 The letter further states: “I received notice of your termination by telephone message from Ron Palmeri last week.” In their reply brief, Lantec and Lantec Brazil argue this letter shows they treated the telephone call as a final repudiation. They therefore argue Novell’s “attemp t to retract the repudiation came too late” under Utah Code § 70A-2-611. We con clude Lantec and Lantec Brazil waived this argument. In spite of the fact the district court’s opinion concluded Novell retracted any repudiation, they di d not raise their argument that Novell’s retraction was ineffective in their initia l appellate brief. In fact, prior to the reply brief, the only time the Lantec companies raised this argument was in a motion for reconsideration before the district court. The district court denied the motion for reconsideration because the argument “co uld have been, but was not, raised in the prior briefing and is therefore inapp ropriate in a motion to reconsider.” Similarly, the Lantec companies’ argu ment has been brought to our attention too late. “We are not obligated to addre ss an argument which was not [properly] made in the district court, nor even in this court until the reply brief.” Mountain Fuel Supply v. Reliance Ins. Co. , 933 F.2d 882, 887 (10th Cir. 1991). See also Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000) (explaining arguments initially raised in a reply brief “rob[] the appellee of the opportunity to demonstrate that the record does not support an app ellant’s factual assertions and to present an analysis of the pertinent legal prece dent”). Thus, we decline to consider this argument.

-19- Equipment Manufacturer] Agreement[s].” 5 Novell responded with a letter stating: “I must take exception to [a] comment[] made in you r letter. .... [Y]ou referred to Novell’s ‘termination’ of the Lantec agreement[s]. [Those] agreement[s] can only be terminated in writing and with appropriate notic e.” On appeal, Lantec and Lantec Brazil argue “the notion that Novell could n ot repudiate unless it terminated the contract[s] in writing was simply no nsensical and poorly reasoned.” Assuming termination did not need to be in writing, the letter nevertheless shows Novell did not intend to terminate the Agreements. Further-20-

showing Novell’s commitment to the Agreements, the letter established a meeting between Novell and the Lantec companies on May 4, 1 994, in Las Vegas. In closing, the letter reaffirmed, “Novell is willing to consider any reasonable proposal with respect to the ... [a]greement[s] to make th[ose] agreement[s] workable for Lantec (e.g., mutual termination of th e agreement[s], restructuring of payment terms, reduction of volume commitment, e tc.). I think you will find Novell to be very accommodating on this issue.”

Novell’s actions following the reaffirming letter a lso demonstrate a commitment to the Original Equipment Manufacturer A greements. In May 1994, the parties met in Las Vegas to discuss the Agreeme nts. The undisputed outcome of the meeting was that “[t]he parties did not reac h any agreement as to their respective rights and duties under the Lantec [Orig inal Equipment Manufacturer] [A]greement[s],” but that the Lantec companies woul d “evaluate their business relationship with Novell.”

Consequently, we conclude the undisputed material e vidence shows Novell successfully retracted any repudiation of the Origi nal Equipment Manufacturer Agreements.-21-

C. Alleged Threat In their appellate brief, Lantec and Lantec Brazil argue a threat made by Tom Pesut immediately following the Las Vegas meeti ng “raised a clear disputed fact about Novell’s intention to repudiate the [Ori ginal Equipment Manufacturer] Agreement[s].” According to a portion of an affidavit submitted by Marcello Thoillier, Mr. Pesut, a Novell executive, said if t he Lantec companies opposed the Novell/WordPerfect merger “Novell would immediatelysever its relationship with these companies and put them out of business.” Lan tec and Lantec Brazil argue the alleged threat “belied the notion that Novell i ntended to continue doing business with Lantec.”

The district court did not consider whether the all eged threat created a material issue of fact. Instead, the district court struck the portion of Mr. Thoillier’s affidavit pertaining to the threat beca use the court found it was an attempt to create a “sham issue of fact.” The court noted “Mr. Thoillier was extensively deposed over a period of several days o n the same subject matters which form the bases for his affidavit.” The courtdetermined the relevant allegation “conflicts with Mr. Thoillier’s prior de position testimony regarding the meeting.”-22-

We review a district court’s decision to exclude ev idence at the summary judgment stage for abuse of discretion. Sports Racing Servs., Inc. v. Sports Car Club , 131 F.3d 874, 894 (10th Cir. 1997). Under this s tandard we will not disturb the district court’s decision “unless [we have] a d efinite and firm conviction that the lower court made a clear error of judgment or e xceeded the bounds of permissible choice in the circumstances.” United States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986.)

There is authority for the proposition that in dete rmining whether a material issue of fact exists, an affidav it may not be disregarded because it conflicts with the affiant’s prior sworn statements. In assessing conflict under there circ umstances, however, courts will disregard a contrary affidavitwhen they conclude that it constitutes an attempt to create asham fact issue. Franks v. Nimmo , 796 F.2d 1230, 1237 (10th Cir. 1986) (citations o mitted). In deciding whether an affidavit is an attempt to create a sham issue of fact, the relevant factors are “whether the affiant was cross -examined during his earlier testimony, whether the affiant had access to the pe rtinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflect s confusion which the affidavit attempts to explain.” Id

.

Lantec and Lantec Brazil argue affidavit references to the alleged threat did not directly contradict Mr. Thoillier’s deposition testimony. According to their-23-

argument, counsel for Novell never asked Mr. Thoill ier about his meeting with Mr. Pesut. Instead, Mr. Thoillier’s deposition tes timony only concerned the May 1994 meeting in Las Vegas with Novell officials andcounsel for the Lantec companies and Novell. According to the affidavit, Mr. Pesut’s threat came not in the scheduled meeting, but in a private conversatio n immediately following the meeting.

After reviewing the deposition and affidavit, we co nclude the district court did not abuse its discretion in ruling parts of the affidavit contradicted Mr. Thoillier’s deposition testimony. During the depos ition Mr. Thoillier was specifically asked whether Mr Pesut was “receptive to a discussion” about continuing Novell’s association with the Lantec companies. Mr. Thoillier answered he did not “recall these exact words.” Co unsel for Novell then asked whether “Novell had communicated that as far as it was concerned, it was prepared to go ahead with the [Original Equipment M anufacturer Agreements].” Mr. Thoillier said it “was discussed.” Searching f or further clarification, counsel for Novell asked to identify the result of the mee ting. Mr. Thoillier admitted Lantec and Lantec Brazil were supposed to decide wh ether they wanted to modify their agreements with Novell and then schedule anot her meeting with Novell. Nothing in the deposition questioning suggested Mr. Thoillier should limit his-24-

answers to discussions occurring when all of the pe ople attending the meeting were present. During his deposition, Mr. Thoilliernever mentioned any threats from Mr. Pesut. Consequently, the district court d id not abuse its discretion in concluding the portions of the affidavit related to the alleged threat were contradictory.

Lantec and Lantec Brazil also argue the relevant po rtion of the affidavit was not “intended to create a sham issue of fact.” They point to the deposition testimony of LanCompany’s Chief Financial Officer, Ovidio Rovell, who testified Mr. Thoillier told him of Mr. Pesut’s alleged threat. Novell conducted Mr. Rovell’s deposition before Mr. Thoillier’s. Becaus e Mr. Rovell’s testimony of Mr. Thoillier’s hearsay statements gave Novell prio r notice of the alleged threat, Lantec and Lantec Brazil argue the affidavit cannotbe viewed as an attempt “to fabricate a disputed factual issue.”

While it is true Novell had notice of the alleged t hreat, we cannot conclude the district court abused its discretion when otherfactors suggest the affidavit was intended to create a sham issue of fact. First , Mr. Thoillier was represented by counsel and cross-examined during his deposition

. See Franks , 796 F.2d at 1237. Second, because the alleged threat is not ne wly discovered evidence, there-25-

is no question Mr. Thoillier should have known about the alleged threat at the time of the deposition. See id. Third, there is nothing in the deposition testimo ny reflecting any level of confusion or uncertainty co ncerning Mr. Thoillier’s testimony requiring clarification or explanation. See id . Given these circumstances, we do not have a definite and firm c onviction the district court exceeded the bounds of permissible choice in striki ng the portions of Mr. Thoillier’s affidavit related to the alleged threat . Consequently, we will not consider whether the alleged threat would have rais ed a material issue of fact.

In short, we conclude Novell was entitled to summary judgment on the claims involving the Original Equipment Manufacture r Agreements. Mr. Palmeri’s telephone message was not definite enoughto amount to a repudiation of the Agreements. Even assuming otherwise, the re cord shows Novell subsequently sent a letter reaffirming the Agreemen ts and acted in accordance with the reaffirmation at a subsequent meeting. As ide from properly stricken portions of an affidavit, Lantec and Lantec Brazil have not directed us to any portion of the record suggesting otherwise. Theref ore, we affirm the district court’s grant of summary judgment on the breach of the Original Equipment Manufacturer Agreement claims.-26-

III. THE ALLEGED MESSAGE HANDLING SYSTEM ORAL AGREEM ENT Lantec and Lantec Brazil next argue Novell breached an oral agreement regarding Messaging Handling System. According to the verified complaint, Novell agreed to provide: (1) increased marketplace exposure; (2) approval an d promotion of the manufacturer’s messaging applications; (3) comp etitive advantages in the messaging applications marketplac e because of association with NetWare; (4) opportunity for direc t input to Novell concerning the growth and development direction of [Message Handling System]; (5) heavy support and promotion o f [Message Handling System] as the dominant [Network Operating System] messaging [transport agent] and promotion of [Messa ge Handling System] for many years to come; and (6) freedom fro m the fear or competition with the [network operating system] or messaging [transport agent] manufacturer – Novell. In return, Lantec and Lantec Brazil contend they ag reed to “(1) join in and actively (but not financially) support the [Message Handling System] Alliance; (2) convert existing products to [Message Handling Syst em]; (3) migrate exclusively to the [Message Handling System] engine for develop ment of future messaging applications; and (4) promote NetWare as the [Netwo rk Operating System] of choice for all messaging applications.” They belie ve Novell broke these promises by merging with WordPerfect, manufacturing GroupWis e, and failing to develop Message Handling System and Global Message Handling System after the merger.

The district court granted Novell’s motion for summ ary judgment. The-27-

court stated Lantec and Lantec Brazil “rely exclusi vely upon the allegations of their Verified Amended Complaint to show the existe nce and terms of the alleged [Message Handling System] oral agreement.” The cou rt concluded Lantec and Lantec Brazil had not produced specific evidence “t o show the existence of the alleged oral [Message Handling System] Agreement.”

Unsatisfied, Lantec and Lantec Brazil filed a motio n for reconsideration arguing they should have been allowed to rely on th eir verified complaint at the summary judgment stage. In ruling on the motion, t he court recognized that verified complaints can sometimes be used to avoid summary judgment. The district court, however, determined the relevant pa ragraphs of the complaint could not be treated as an affidavit because they did notrelate to facts within Mr. Thoillier’s personal knowledge. The court further stated “the factual allegations relied upon for this motion ... are conclusory .... For example, the [complaint] lack[s] specific details of who made the alleged pr omises on behalf of Novell.” For these reasons, the district court also denied the motion for reconsideration.

On appeal, Lantec and Lantec Brazil argue the distr ict court erred in refusing to consider the averments in their amendedverified complaint as evidence of the contract. They believe the verifie d complaint shows genuine-28-

issues of material fact precluding summary judgment

.

“[W]e review a district court’s decision to exclude evidence at the summary judgment stage for abuse of discretion.” Sports Racing Servs. , 131 F.3d at 894. Under this standard, we will not disturb a districtcourt’s ruling “unless [we have] a definite and firm conviction that the lower courtmade a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Ortiz, 804 F.2d at 1164 n.2.

A district court may treat a verified complaint “as an affidavit for purposes of summary judgment if it satisfies the standards f or affidavits set out in Rule 56(e).” Conaway v. Smith , 853 F.2d 789, 792 (10th Cir. 1988). According to Rule 56(e), an affidavit must “be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed. R. Civ. P. 56(e). Furthermore, a district court need not treat a verified complaint as an affidavit if “the allegations contained in the plea ding are merely conclusory.” Conaway , 853 F.2d at 793. See Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 671-72 (10th Cir. 1998) (“The conclusory allegationin Plaintiff’s complaint, although verified, are of ... little help in carryi ng her burden under Rule 56(e).”);-29-

Sheinkopf v. Stone , 927 F.2d 1259, 1262 (1st Cir. 1991) (holding a tr ial court must disregard conclusory allegations in a verifiedcomplaint when considering a motion for summary judgment).

We conclude the district court did not abuse its di scretion in refusing to consider the amended verified complaint as an affid avit for summary judgment purposes. We agree the allegations in the complain t were conclusory and the district court was, therefore, free to disregard th ese allegations. This case is similar to Mitchael v. Intracorp, Inc. , 179 F.3d 847 (10th Cir. 1999), where we stated an affidavit was “conclusory, vague, and/or lacking in foundation” and was insufficient to support the conclusion an agreementhad been formed. Id . at 855
n.9. In Mitchael , the affiant “fail[ed] to state how he learned of [the] agreement, who exactly represented the other ... companies, ho w he could speak for what they wanted or needed, when this agreement or understand ing was formed, and how it was to operate.” Id . Here, Mr. Thoillier’s averments in the complaintdo not reveal who represented Novell in making the oral co ntract. He did not state where or how the agreement was communicated and exp lains only that the agreement was reached “in approximately June 1993.” With respect to the formation of the alleged Message Handling System or al contract, the amended verified complaint did little more than state a leg al conclusion as to the terms of-30-

the contract. Thus, we hold the district court was within the bounds of permissible choice in concluding the verified compl aint was conclusory and refusing to consider the complaint as an affidavit.

Lantec and Lantec Brazil do not direct us to portio ns of the record, other than their verified complaint, to support the alleg ed breach of the Message Handling System oral contract. This is so even tho ugh Mr. Thoillier provided an extensive deposition and a supplemental affidavit. Because Lantec and Lantec Brazil have not provided record citations, we need not sift through the record in an attempt to find evidence of the alleged oral con tract. See Gross v. Burggraf
Constr. Co. , 53 F.3d 1531, 1546 (10th Cir. 1995). For these r easons, the breach of the Message Handling System oral contract claim fails.

IV. PROMISSORY ESTOPPEL The Lantec companies next appeal the district court ’s grant of summary judgment on their promissory estoppel claim. They argue, under the doctrine of promissory estoppel, Novell should be held to its p romises: “(1) Novell would never compete in the applications market; (2) devel opers who agreed to work with Novell would be given access to technical informati on necessary to write applications for NetWare; and (3) those developers would profit by designing-31-

applications solely for NetWare.”The Lantec compani es allege they relied on these promises to their detriment and should theref ore be compensated.

The district court held Novell was entitled to summ ary judgment because the Lantec companies had not presented any evidence to support their contention Novell made enforceable promises to the Lantec comp anies. It pointed out “Mr. Thoillier ... candidly admits he can’t recall any occasion when a representative of Novell ever said that Novell would ‘never, ever’ en ter the applications business. As to the other alleged promises, plaintiffs have p ointed to no evidence of such promises other than the allegations in their Amende d Verified Complaint.” Thus, the district court concluded, “[t]his is [a] case w here plaintiffs rely on their subjective understanding of alleged vague and nonsp ecific conversations with Novell representations. This is not sufficient to support a promissory estoppel claim.”

The Lantec companies first argue the district court“improperly disregarded the Amended Verified Complaint in reaching its dete rmination.” In our prior discussion of the alleged Message Handling System o ral contract, we rejected the argument that the district court acted inappropriat ely in refusing to consider portions of the amended verified complaint relevantto the oral contract claim.-32-

Here, we conclude the portion of the complaint related to the promissory estoppel claim is similarly conclusory. The complaint does not reveal which of Novell’s officers or employees made the alleged promises nordoes it reveal when, where, or how the promises were communicated. Instead the complaint merely recites the alleged promises and concludes Novell “made the representations and promises ... with the knowledge and intention that Lantec and Lantec Brazil would detrimentally rely on such representations an d promises.”The district court did not abuse its discretion in refusing to conside r these conclusory allegations as an affidavit. See Conaway , 853 F.2d at 792-93.

The Lantec companies have not directed us to any po rtion of the record, other than their complaint, to support their claim Novell promised to give developers technical information. Likewise, they h ave not provided citations to the record to support their claim Novell promised d evelopers would profit by designing applications solely for NetWare. Because these alleged promises have no support in the record, the district court proper ly dismissed them.

The Lantec companies have, however, directed us to portions of the record to support their claim Novell promised to never ent er the applications business. Therefore, we must decide whether this evidence sup ports a promissory estoppel-33-

claim. We conclude it does not.

Under Utah law, the elements of promissory estoppel are: (1) The promisee acted with prudence and in reasonable reliance on a promise made by the promisor; (2) the promisor knew that the promisee had relied on the promise which t he promisor should reasonably expect to induce action or forbea rance on the part of the promisee or a third person; (3) the promisorwas aware of all material facts; and (4) the promisee relied on the promise and the reliance resulted in a loss to the promisee. J.R. Simplot Co. v. Sales King Int’l, Inc. , 17 P.3d 1100, 1107 (Utah 2000) (quotation marks and alterations omitted). “[T]he alleged promise must be reasonably certain and definite, and a claimant’s s ubjective understanding of the promissor’s statements cannot, without more, support a promissory estoppel claim.” Nunley v. Westates Casing Servs., Inc. , 989 P.2d 1077, 1089 (Utah 1999). See also J.R. Simplot , 17 P.3d at 1107.

The Lantec companies argue the district court “impr operly disregarded” deposition testimony from Mr. Thoillier, depositiontestimony from two independent software developers, and internal Novel l documents. We will begin our analysis with Mr. Thoillier’s testimony. The L antec companies direct us to a portion of Mr. Thoillier’s deposition. It states:

Q: The allegation is made Novell promised develope rs, including Lantec and Lantec Brazil, that Novell was only in the-34-

business of marketing, distributing NetWare and wou ld never compete with such developers in the NetWare applications market. Were you ever present when such representations wer e made?
A: Yes Mr. Thoillier continued, saying Novell employees Jared Blauser, Roy Olsen, and Ray Noorda all made such promises.

But this is not the end of Mr. Thoillier’s testimony. Upon further questioning, Mr. Thoillier retreats from the positi on he heard specific promises Novell would not enter the applications business. When asked specifically what Novell said, Mr. Thoillier answered: It was the same speech. We are in the application business. We are not in the – I’m sorry, we are in the operating sys tems business. We are not in the application business blah-blah-blah. We are – in fact, the whole industry talks about Novell being the Swi tzerland of the software. That’s why Novell partnered with so much[sic]. That’s why you have so may application vendors that began to develop for Novell networks. While this statement supports the proposition Novel l was not then in the applications business, it does not show a certain and definite promise not to enter the applications business. In fact, Mr. Thoillier eventually admitted he could not recall an instance where Novell promised it would n ever enter the applications business. Q: ... Do you recall any occasion when any Novell officer or director or employee in your presence said under no circumstances,-35-

or words to that effect, will Novell get in the quo te-unquote “applications” business? A: I don’t recall. I just recall until such a tim e as the merger happened the speech was the same. Novell was not g oing to enter into the application business until the time the me rger happened. And then everyone was, even the Novell employees .. . were all speechless. Q: But you do not recall an occasion where Novell said – when anyone associated with Novell ever said Novell, und er no circumstances, will ever get into the applications business; isn’t that true? A: No. I don’t recall. Mr. Thoillier’s testimony established only that Nov ell had stated it was not in the applications business. This is not a clear and def inite promise. Furthermore, to the extent Mr. Thoillier’s deposition claims a prom ise, it is only his subjective understanding of Novell’s statements that is insuff icient to support the claim Novell promised it would not enter the applications business.

In addition to Mr. Thoillier’s testimony, other Lan tec employees testified they could not recall any instance where Novell cle arly stated it would never enter the applications business. The Lantec companies ne ver produced an employee or officer of any kind who heard Novell make a clear o r definite promise Novell would not enter the applications business. We cann ot see how, as a matter of law, the Lantec companies could reasonably rely on a pro mise when nobody at the-36-

Lantec companies can recall Novell specifically mak ing that promise.

Nevertheless, we turn to other evidence offered by the Lantec companies. They direct us to the testimony of two independent software developers who were making applications for use with Message Handling S ystem. One developer testified Novell repeatedly said it was not in the applications business. “[T]he phrase that I kept hearing from Novell people was t hat we are not in the application – we don’t develop applications. We de velop the network operating system or as they call it, the plumbing.” Again, t his testimony, at most, establishes the fact Novell was not initially in th e applications business, but does not show Novell promised it would never enter the applications business. Other similar testimony is, likewise, unhelpful to the La ntec companies’ argument.

Finally, the Lantec companies direct us to internal Novell documents written by Jeff Callo, a Novell employee. Novell a rgues “these documents were not part of the record below when the district court granted summary judgment and Lantec cannot rely upon them now.” The Lantec companies do not respond to this argument in their reply brief. After reviewin g the copies of the summary judgment motion and response provided as part of th e record on review, it appears these documents, while referenced in the Lantec companies brief, were not-37-

presented to the district court. Our examination o n review “is confined to an examination of materials before the lower court at the time the ruling was made.” Allen v. Minnstar, Inc ., 8 F.3d 1470, 1475 (10th Cir. 1993) (quotation marks and alterations omitted). We “will not reverse the gra nt of summary judgment based on evidence not before the district [court].” Id. (quotation marks and alterations omitted). Consequently, we will not consider the d ocuments written by Mr. Callo.

In sum, we affirm the grant of summary judgment on the promissory estoppel claim. The Lantec companies are not entit led to rely on their conclusory verified complaint. They have offered no additiona l evidence on their claim Novell promised it would provide technical informat ion or their claim Novell promised the Lantec companies would profit by devel oping Message Handling System applications. In addition, the Lantec compa nies failed to produce any evidence of a clear and definite promise Novell wou ld never enter the applications business. Further, the Lantec compani es’ reliance on any promise was unreasonable when they could not produce a sing le officer or employee who remembered hearing the promise.

ANTITRUST CLAIMS Having resolved the contract and promissory estoppe l claims, we turn to the6“Economic arrangements between companies standing in a suppliercustomer relationship are characterized as ‘vertica l.’” Brown Shoe Co. v. United States , 370 U.S. 294, 323 (1962). “The primary vice of avertical merger or other arrangement tying a customer to a supplier is that, by foreclosing the competitors of either party from a segment of the market otherw ise open to them, the arrangement may act as a ‘clog on competition.’” Id . at 323-24 (citation omitted).

7The Lantec companies originally alleged unlawful competition in the “NetWare Messaging Applications Market.” Later, th e Lantec companies refined their description to the “groupware for NetWare market.” Following the parties and the district court we use the latter term. Lantec , 146 F. Supp. 2d at 1144 n.1.

8The Lantec companies also brought a claim allegin g Novell unlawfully tied its groupware product to NetWare thereby lesse ning competition in the groupware for NetWare market in violation of 15 U.S .C. § 14. The district court dismissed this claim, Lantec , 146 F. Supp. 2d at 1155, and Lantec and Lantec Brazil have not appealed the dismissal.

-38- antitrust claims. In their complaint, the Lantec c ompanies alleged: (1) the Novell/WordPerfect merger was an unlawful vertical 6 merger because it lessened competition in the “groupware for NetWare” market i n violation of 15 U.S.C. § 18; 7(2) Novell contracted, combined, and conspired to unreasonably restrain trade and commerce in violation of 15 U.S.C. § 1; ( 3) Novell monopolized, attempted to monopolize, and conspired with WordPer fect to monopolize the groupware for NetWare market in violation of 15 U.S .C. § 2; and (4) Novell unlawfully used its monopoly power in the network o perating system market as leverage to gain a competitive advantage in the gro upware for NetWare market in violation of 15 U.S.C. § 2. 8 The Lantec companies also brought identical claim s9The parties agree the Utah antitrust claims are d uplicative of the federal

antitrust claims. We, therefore, will not address the Utah antitrust claims separately.

-39- under Utah antitrust statutes. See Utah Code Ann. § 76-10-914(1), (2). 9

Prior to trial, the district court granted Novell’s motion to dismiss the antitrust claims brought by LanCompany and LanTrain ing finding the court lacked subject matter jurisdiction. Neither LanCompany or LanTraining appealed this ruling.

The case proceeded to trial on the antitrust claims brought by Lantec and Lantec Brazil. After Lantec and Lantec Brazil pres ented their case, Novell moved for judgment as a matter of law. Lantec , 146 F. Supp. 2d at 1142. The district court granted the motion concluding the antitrust c laims should fail because (1) Lantec and Lantec Brazil failed to establish the ex istence of the alleged groupware for NetWare market; (2) Lantec and Lantec Brazil failed to produce evidence of any conspiracy between Novell and WordP erfect; and (3) Lantec and Lantec Brazil failed to produce evidence of antitru st injury. Id . at 1156. In their appeal, Lantec and Lantec Brazil challenge each of these conclusions.-40-

We review the district court’s grant of judgment as a matter of law de novo , using the same standard as the district court. Baty v. Willamette Indus., Inc. , 172 F.3d 1232, 1241 (10th Cir. 1999). According to the Federal Rules of Civil Procedure, “[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis fo r a reasonable jury to find for that party on that issue, the court ... may grant a moti on for judgment as a matter of law against that party.” Fed. R. Civ. P. 50(a)(1). Judgment as a matter of law “is warranted only if the evidence points but one way a nd is susceptible to no reasonable inferences supporting the party opposing the motion.” Baty , 172 F.3d at 1241 (quotation marks and citation omitted). We must, however, affirm the grant of judgment as a matter of law in favor of No vell “if there is no legally sufficient evidentiary basis with respect to a clai m ... under the controlling law.” Id . (quotation marks and alterations omitted). With this standard in mind, we will examine each of the district court’s conclusions.

I. Relevant Market Lantec and Lantec Brazil argue they produced eviden ce sufficient to establish a world-wide groupware for NetWare market . We disagree.

The relevant market is “a market relevant to the le gal issue before the10See Salco Corp. v. General Motors Corp. , 517 F.2d 567, 576 (10th Cir.

1975) (“Specific intent to monopolize is the heart of a conspiracy [to monopolize] charge [under 15 U.S.C. §2], and a plaintiff is notrequired to prove what is the ‘relevant market.’”). We note there is a split amo ng the circuits as to whether proof of the relevant market is required to prove aconspiracy to monopolize claim. Compare Salco , 517 F.2d at 576 (holding proof of relevant marketis not required) with Doctor’s Hosp. of Jefferson, Inc. v. SoutheastMed. Alliance, Inc. , 123 F.3d 301, 311 (5th Cir. 1997); Bill Beasley Farms, Inc. v. Hubbard Farms , 695 F.2d 1341, 1343 (11th Cir. 1983) (holding proof of relevant market is required). In this case, Novell does not argue Lan tec and Lantec Brazil should be required to establish the relevant market to succee d on the conspiracy to monopolize claim. Furthermore, we are bound by ourprecedent and therefore need not revisit this rule. See In re Smith , 10 F.3d 723, 724 (10th Cir. 1993).

-41- court.” SCFC ILC, Inc. v. Visa USA, Inc. , 36 F.3d 958, 966 (10th Cir. 1994) (quotation marks and citation omitted). In order t o prevail on all their antitrust claims, except the conspiracy to monopolize claim, 10 Lantec and Lantec Brazil must establish the relevant market. United States v. E.I. du Pont de Nemours &
Co. , 353 U.S. 586, 593 (1957) (holding “[d]eterminatio n of the relevant market is a necessary predicate to a finding of” unlawful mer ger under 15 U.S.C. § 18); TV Communications Network, Inc. v. Turner Network Tele vision, Inc. , 964 F.2d 1022, 1027 (10th Cir. 1992) (holding a 15 U.S.C. § 1 unre asonable restraint of trade claim requires proof “the defendant entered a contr act, combination or conspiracy that unreasonably restrains trade in the relevant market ” (emphasis added)); Full Draw Prods. v. Easton Sports, Inc. , 182 F.3d 745, 756 (10th Cir. 1999) (holding monopolization and attempted monopolization claims under 15 U.S.C. § 2 require11 There is a circuit split as to whether leveraging is an independent claim

under 15 U.S.C. § 2. See Eleven Line, Inc. v. North Tex. State Soccer As s’n, Inc. , 213 F.3d 198, 206 n.16 (5th Cir. 2000) (recognizing circuit split). We have not yet decided whether leveraging is an independent cl aim in the Tenth Circuit and need not reach the issue in this case. Even assumi ng the existence of an independent § 2 leveraging cause of action, Lantec and Lantec Brazil’s leveraging claim fails because they have not established the r elevant market.

-42- proof of the relevant market); Catlin v. Washington Energy Co. , 791 F.2d 1343, 1349 (9th Cir. 1986) (holding leveraging claims und er 15 U.S.C. § 2 require proof of the relevant primary and secondary markets). 11

In this case, Lantec and Lantec Brazil bear the bur den of defining the relevant market. See Tarabishi v. McAlester Reg’l Hosp ., 951 F.2d 1558, 1569 n.15 (10th Cir. 1991). The relevant market is made up of the product at issue and available substitutes for that product. See Visa USA , 36 F.3d at 966. “In defining the relevant market, two aspects must be considered : the product market and the geographic market.” Rural Tel. Serv., Co. v. Feist Publ’ns, Inc. , 957 F.2d 765, 768 n.2 (10th Cir. 1992). In this case, we divide our discussion of Lantec and Lantec Brazil’s evidence of a worldwide groupware f or NetWare market first into expert testimony and then into lay testimony.-43-

A. Expert Testimony Lantec and Lantec Brazil argue the testimony of the ir economic expert, Dr. John C. Beyer, is sufficient to establish the group ware for NetWare market. Dr. Beyer testified the relevant market was “groupware for NetWare users.” After hearing Dr. Beyer’s testimony at trial, the distric t court found the testimony lacked foundation, was unreliable, and should be ex cluded in its entirety. The district court concluded “Dr. Beyer did not employ in the courtroom the same level of intellectual rigor that characterizes an e xpert in the field of economics and industrial organization.” Specifically, the co urt stated Dr. Beyer (1) used unreliable data; (2) did not understand computers o r the computer market; (3) testified the relevant market was determined by con sumer purchasing patterns but did not conduct or cite surveys revealing consumer preferences; (4) did not calculate the cross-elasticity of demand to determi ne which products were substitutes; (5) changed his opinion from the opini on he gave in an earlier expert report; and (6) did not address changes in the comp uter market. Further, the district court found portions of Dr. Beyer’s testim ony were non-technical in nature and would not assist the jury. We agree wit h the district court’s
assessment.

Federal Rule of Evidence 702 governs the admissibil ity of expert witness-44-

testimony. Fed. R. Evid. 702. Under Rule 702, exp ert testimony is admissible if it will assist the trier of fact and if “(1) the te stimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Id. Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 593-95 (1993), outlines the framework a district court sho uld use in determining whether to admit evidence under Rule 702. Under Daubert , courts measure reliability of scientific evidence by considering (1) whether the technique can and has b een tested; (2) whether the technique has been subjected to peer review; (3 ) the known or potential error rate of the technique; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether the technique has gained general acceptance in the scientific communi ty. United States v. Call , 129 F.3d 1402, 1404 (10th Cir. 1997) (citing Daubert , 509 U.S. at 593-95), cert. denied, 524 U.S. 906 (1998). “We review de novo whether the district court properly followed the framework set forth in Daubert .” Id . at 1405. If, however, the district court correctly ap plied the Daubertstandards, we may reverse only if we find the district court abus ed its discretion. Id

.

From its order, it is clear the district court foll owed the Daubert framework. Therefore, we look to see whether the d istrict court abused its discretion in excluding Dr. Beyer’s testimony. Aft er reviewing Dr. Beyer’s testimony, we conclude the district court order exc luding the testimony is-45-

thorough and well-reasoned. We see little benefit in reproducing the reasoning from the district court’s eighteen-page order.

We will, however, comment on one particularly troub ling aspect of Dr. Beyer’s testimony. Throughout his testimony, Dr. B eyer relied heavily on his personal experience as president of a consulting fi rm which installed a new network operating system. Before Lantec and Lantec Brazil hired Dr. Beyer as an economic expert, his consulting firm was looking fo r a new network operating system. In an effort to make an informed purchase, Dr. Beyer spoke with the technology experts at two or three other consulting firms in the Washington, D.C. area. Lantec and Lantec Brazil characterize Dr. Be yer’s limited personal experience as reliable and scientific “first-hand i nterviews.” In reality, Dr. Beyer attempted to spin anecdotes from a handful of perso nal conversations with firms in a limited geographic area into evidence of a wor ldwide product market. These conversations are not sufficient facts or data to s upport Dr. Beyer’s conclusions. The district court did not abuse its discretion in excluding Dr. Beyer’s testimony.

B. Lay Testimony Lantec and Lantec Brazil argue “[e]ven without Dr. Beyer’s testimony, there was more than sufficient evidence for the jury to find the existence of the-46-

groupware for NetWare market.”

The district court held Lantec and Lantec Brazil ha d not produced sufficient lay testimony or other evidence to estab lish a relevant market. Lantec , 146 F. Supp. 2d at 1149. It concluded Lantec and L antec Brazil had not presented evidence to support the groupware for NetWare produ ct market because they did not present “evidence on the costs of the various p roducts or of how the consumer would react to a price increase in such costs, ther e is no evidence of price sensitivity. There is no evidence of consumer pref erences.” Id . at 1148-49. The district court also held the “skimpy evidence of [L antec and Lantec Brazil’s] own experiences” was not sufficient to support a world- wide geographic market. Id . at 1149.

In their opening brief, Lantec and Lantec Brazil ar gue the district court impermissibly “weighed evidence and made credibility determinations in holding as a matter of law that Lantec failed to establish the existence of the groupware for NetWare market.” Lantec and Lantec Brazil poin t to Novell documents stating Novell’s belief customers wanted groupware tightly integrated with NetWare. They further claim “Lantec’s ... marketin g firm ... recognized the existence of the groupware for NetWare market ... [ and] advised Lantec to focus-47-

on the submarket of groupware made for NetWare.”

While Lantec and Lantec Brazil offered lengthy argu ments as to how the record supports their definition of the product market, their opening brief did not challenge the district court’s conclusion that theyhad not proven a geographic market. Novell responded to Lantec and Lantec Braz il’s opening brief by arguing Lantec and Lantec Brazil had waived any appeal of t he district court’s ruling on the geographic market. Only then, in their reply b rief, did Lantec and Lantec Brazil argue “the worldwide geographic market was e stablished.”

We are under no obligation to address the district court’s geographic market ruling because Lantec and Lantec Brazil did not raise the issue in their opening brief. See Stump , 211 F.3d at 533. Since proof of relevant market requires evidence of both a product market and a ge ographic market, Feist , 957 F.2d at 768 n.2, we can affirm the district court’s decision simply because Lantec and Lantec Brazil failed to properly appeal the geo graphic market ruling.

Even if Lantec and Lantec Brazil had properly raise d their argument against district court’s ruling on the geographic market, t heir definition of a “worldwide geographic market” fails. “The geographic market co nsists of the area of effective-48-

competition.” Bacchus Indus., Inc. v. Arvin Indus. , Inc. , 939 F.2d 887, 893 (10th Cir. 1991). It is “the narrowest market which is w ide enough so that products from adjacent areas cannot compete on substantial p arity with those included in the market.” Westman Comm’n Co. v. Hobart Int’l, Inc. , 796 F.2d 1216, 1222 (10th Cir. 1986) (quotation marks and alterations o mitted), cert. denied, 486 U.S. 1005 (1988). The size of the relevant geographic m arket depends on a number of factors, including “[p]rice data and such corroborative factors as transportation costs, delivery limitations, customer convenience a nd preference, and the location and facilities of other producers and distributors. ” T. Harris Young & Assocs., Inc. v. Marquette Elecs., Inc. , 931 F.2d 816, 823 (11th Cir. 1991). See also Kaplan v. Burroughs Corp. , 611 F.2d 286, 292 (9th Cir. 1979).

Lantec and Lantec Brazil have not pointed us to any facts in the approximately 10,000 pages of record that specifica lly address price data, the location and facilities of other producers, or any of the other factors cited by courts as relevant to determining the relevant geog raphic market. Instead, Lantec and Lantec Brazil claim they presented evidence suf ficient to establish a worldwide geographic market because “Lantec establi shed that it sold XPost, its first groupware product, around the world.”They als o state they “established that [Lantec] intended to sell XPostWare around the glob e as evidenced by the12The distinction between groupware and Lantec’s XP ost e-mail

application is not merely semantic. Had Lantec and Lantec Brazil’s antitrust claims survived judgment as a matter of law, they w ould have had a tactical advantage in narrowly defining the “groupware for N etWare” market to exclude competitors whose applications only contained an e- mail program. Since Lantec and Lantec Brazil narrowly define the relevant prod uct market in order to bolster their product market and monopoly power arguments, Lantec and Lantec Brazil must, at a minimum, live with this narrow definitio n in establishing the relevant geographic market.

-49- numerous domestic and foreign distribution contract s it negotiated.”

Neither of Lantec and Lantec Brazil’s arguments is effective. First, under Lantec’s definition of groupware (products containi ng e-mail and one other messaging application), XPost is not groupware. XP ost consisted solely of an email application. Consequently, sale of XPost in s everal different international markets cannot establish a worldwide groupware mark et. 12 Second, the fact Lantec and Lantec Brazil were, through distributors hip agreements, attempting to sell their products in several different countries is not, by itself, helpful. “[T]he geographic market is not comprised of the region inwhich the seller attempts to sell its product, but rather is comprised of the ar ea where his customers would look to buy such a product.” Tunis Bros. Co. v. Ford Motor Co ., 952 F.2d 715, 726 (3rd Cir. 1992). See also Morgan, Strand, Wheeler & Biggs v. Radiolo gy, Ltd. , 924 F.2d 1484, 1490 (9th Cir. 1991) (holding wher e the plaintiff company-50-

competes does not define the relevant geographic ma rket).

Because Lantec and Lantec Brazil have not properly appealed the district court’s determination of the geographic market and, in any event, did not introduce evidence from which a jury could find a w orldwide market, we need not consider whether they introduced evidence sufficient to establish a groupware for NetWare product market. We, therefore, affirm the district court’s grant of judgment as a matter of law on the unlawful vertica l merger claim, conspiracy to restrain trade claim, monopolization claim, attempt ed monopolization claim, and leveraging claim.

II. Conspiracy Having affirmed the dismissal of the other antitrus t claims, we must now consider whether Lantec and Lantec Brazil have esta blished their conspiracy to monopolize claim brought under 15 U.S.C. § 2. Acco rding to Tenth Circuit case law, a conspiracy to monopolize claim requires proo f of “(1) the existence of a combination or conspiracy to monopolize; (2) overt acts done in furtherance of the combination or conspiracy; (3) an effect upon a n appreciable amount of interstate commerce; and (4) a specific intent to m onopolize.” TV Communications Network, 964 F.2d at 1026 (quotation marks and citation-51-

omitted).

The district court granted judgment as a matter of law on the conspiracy to monopolize claim, concluding Lantec and Lantec Braz il had not produced sufficient evidence for a jury to find a conspiracy between Novell and WordPerfect prior to the merger. The court stated: “[I]f this case the evidence produced by Plaintiffs at trial is that WordPerfectand Novell representatives met in the period between merger announcement and compl etion. Among other things they discussed were [Message Handling System] and i ntegration. Some persons in the two companies were in favor of [Message Hand ling System] and some were not.” Rather than suggesting a common scheme, the court concluded the evidence “shows the opposite, that the companies had differe nt views on how things should proceed.” Consequently, the court held “Plaintiffs ’ evidence is mere speculation and conjecture, and that will not suffice.” Lantec and Lantec Brazil have appealed the district court’s conclusion there was no evidence of a conspiracy.

In considering whether Lantec and Lantec Brazil hav e produced evidence of a conspiracy, we are guided by relevant case law . Initially, a conspiracy requires at least two parties. A corporation is no t capable of conspiring with itself. Copperweld Corp. v. Independence Tube Corp ., 467 U.S. 752, 769-7213 In describing the necessary evidence to infer a c onspiracy, both

Multistate Legal Studies and Matsushitaare specifically addressing a conspiracy to restrain trade under 15 U.S.C. § 1 rather than aconspiracy to monopolize under 15 U.S.C. § 2. However, the limits on inferences o f concerted actions under § 1 apply in § 2 cases. See AD/SAT v. Associated Press , 181 F.3d 216, 232-33 (2d Cir. 1999); In re Beef Indus. Antitrust Litig., 907 F.2d 510, 516 (5th Cir. 1990); Stephen Jay Photography, Ltd. v. Olan Mills, Inc. , 903 F.2d 988, 996 (4th Cir. 1990). But see H.L. Hayden Co. v. Siemens Med. Sys., Inc. , 879 F.2d 1005, 1019 & n.9 (2d Cir. 1989) (raising the possibility infer ential restraints under § 1 do not apply to § 2).

-52- (1984). A plaintiff can prove a conspiracy with ei ther direct or circumstantial evidence. See American Tobacco Co. v. United States , 328 U.S. 781, 809-10 (1946) (“The essential combination or conspiracy inviolation of the Sherman Act may be found in a course of dealing or other circum stances as well as in any exchange of words.”). When a plaintiff attempts to prove conspiracy through circumstantial evidence, “ambiguous conduct that is as consistent with permissible competition as with illegal conspiracy does not by itself support an inference of antitrust conspiracy.” Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal & Prof’l Publ’ns, Inc. , 63 F.3d 1540, 1556 (10th Cir. 1995) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 588 (1986)), cert. denied, 516 U.S. 1044 (1996). 13 “A plaintiff must offer evidence tending to exclude the possibility that th e alleged conspirators either acted independently or colluded in a way that could not have harmed the plaintiff.” Id.-53-

A. Pre-Merger Conduct In arguing for an inference of a pre-merger conspir acy, Lantec and Lantec Brazil first direct us to several actions Novell to ok after merging with WordPerfect. They claim: (1) “Novell created inco mpatibility with [Message Handling System] and [Global Message Handling Syste m] post-merger ”(emphasis added); (2) “Novell ‘did not do a lick’ to enhance [Message Handling System] post-merger ” (emphasis added); (3) Novell “refus[ed] to provid e the [application program interfaces] to GroupWise”; (4) “Novell refu sed to ‘unbundle’ the GroupWise [message transport agent] from the rest o f the application”; (5) Novell prevented independent software programers “from usi ng its trade dress after the
merger ” (emphasis added); and (6) “Novell abandoned all m arketing activities on behalf of [independent software programers] after the merger ” (emphasis added). Although Lantec and Lantec Brazil appear to acknowl edge Novell and WordPerfect could not, as a matter of law, conspire after the merger, their theory is the post-merger actions raise an inference Novel l and WordPerfect conspired before the merger.

In carefully reviewing the record, we could not fin d a shred of evidence suggesting Novell and WordPerfect agreed to any of these post-merger changes before the merger was complete. Novell’s post-merg er actions taken alone are-54-

just “as consistent with permissible competition” a greed to after the merger as they are “with [an] illegal conspiracy” agreed to b efore the merger. See Multistate Legal Studies , 63 F.3d at 1556. Therefore, in this instance, No vell’s post-merger actions are not sufficient to raise an inference of conspiracy to monopolize. See id

.

Lantec and Lantec Brazil next argue Novell’s “termi nation of the [Original Equipment Manufacturer] Agreement[s] point[s] to a conspiracy.” This argument fails because we have already concluded Novell did not terminate the Agreements.

B. GroupWise Application Program Interfaces Lantec and Lantec Brazil continue their attempt to show a conspiracy by stating “the evidence established that the GroupWis e developers within WordPerfect received pre-release [NetWare applicati on program interfaces] prior to consummation of the merger, thus establishing, i f not at least raising an inference of, an agreement to monopolize.” Accordi ng to Lantec and Lantec Brazil, a GroupWise “version was released in Octobe r of 1994, at approximately the same time as NetWare 4.1, yet was totally integ rated with NetWare 4.1. These circumstances strongly indicate that the GroupWise developers received-55-

pre-release [application program interfaces] before consummation of the merger.”

After reviewing the record, we conclude it lacks any evidence showing GroupWise developers were given pre-release NetWare application program interfaces. Lantec and Lantec Brazil’s assertions rest on the testimony of their witness Antonio Sergio Martins. Mr. Martins’ testi mony is speculative and does not lead to the conclusion Novell and WordPerfect c onspired. Mr. Martins testified: I am speaking theoretically, hypothetically. If Gr oupWise went out on the market a few weeks after NetWare came out al ready prepared as a ready product, a product that was edited, docu mented, already produced for computers, it is very probable that th e GroupWise team, the group which was developing the software, would have had access to that quite a bit before, previously. A few week s before. I am speaking hypothetically just based on my experience

. When asked whether he had “any specific knowledge a s to whether or not GroupWise developers actually received or actually wrote any GroupWise product to any unpublished [application program interfaces] ,” Mr. Martins said he could not “say anything about that except hypothetically. ” Mr. Martins went on to admit the application program interfaces from a pre vious version of NetWare were publically released and could have been used t o write the 1994 GroupWise program. Other portions of the record uniformly st ate the GroupWise version released in 1994 was written with the public applic ation program interfaces from-56-

a prior version of NetWare. Consequently, the reco rd does not support the conclusion Novell conspired with WordPerfect by giv ing WordPerfect pre-release NetWare application program interfaces.

C. Business Justification Lastly, Lantec and Lantec Brazil claim there is evi dence showing prior to the merger Novell and WordPerfect intended to shiftall of the Message Handling System customers to GroupWise. They argue this is sufficient evidence to support the inference Novell and WordPerfect conspi red to monopolize. Novell denies “that Novell and WordPerfect took any action s to migrate [Message Handling System users] to GroupWise” during the tim e when a conspiracy could have been formed. Novell further argues its shift from Message Handling System to GroupWise was “fully justified by its efforts to compete with Microsoft and Lotus in a market that was ever changing, rapidly e volving, fiercely competitive, and technologically complex.” In response, Lantec and Lantec Brazil claim there is no evidence in the record showing “Novell had a plausible business justification to take these actions.”

After careful consideration of the record, we concl ude any agreement between Novell and WordPerfect to move from Message Handling System to-57-

GroupWise had legitimate business justifications. Uncontested evidence shows the groupware, messaging engine, and e-mail markets were in flux. Novell’s key rivals, Microsoft and Lotus, were developing comple tely new groupware products to compete with Message Handling System, as well as with other groupware and e-mail applications. Eventually, Microsoft, Lotus, and other developers began giving e-mail applications away for free. Novell c ould not expect independent developers to be interested in developing products other companies were giving away. In this rapidly changing environment, there were obvious pro-competitive justification for Novell to develop a new messaging engine and complimentary groupware software. Because conduct as consistent with permissible competition as with illegal conspiracy does not support an infe rence of antitrust conspiracy, Matsushita Electric Indus. , 475 U.S. at 588, any shift from Message Handling System to GroupWise does not support the inference Novell and WordPerfect conspired to monopolize.

In sum, we conclude Lantec and Lantec Brazil have n ot produced evidence from which a jury could draw an inference of a cons piracy to monopolize. Therefore, their conspiracy to monopolize claim und er 15 U.S.C. § 2 fails.14In its brief, Novell urges us to sanction the Lan tec companies for

inaccurate and misleading record citations. We may impose sanctions if we determine an appeal is frivolous. Fed. R. App. P. 38. While an appeal may be frivolous if it consists “of irrelevant and illogic al arguments based on factual misrepresentations and false premises,” Romala Corp. v. United States , 927 F.2d 1219, 1222 (Fed. Cir. 1991), the Lantec companies’ misstatements are not egregious enough to warrant sanctions in this case.

-58- III. ANTITRUST INJURY Because we have affirmed the district court’s decis ions that Lantec and Lantec Brazil failed to prove the relevant market a nd failed to prove a conspiracy, there are no antitrust claims remaining. We, there fore, decline to address whether Lantec and Lantec Brazil provided proof of an antit rust injury.

CONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision. 14