UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-2062

LOREN DATA CORPORATION,

Plaintiff - Appellant,

v.

GXS, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Deborah K. Chasanow, Chief District 

Judge. (8:10-cv-03474-DKC)

Argued: September 20, 2012 Decided: December 26, 2012

Before NIEMEYER and KEENAN, Circuit Judges, and Michael F. 

URBANSKI, United States District Judge for the Western District 

of Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Urbanski wrote the 

opinion, in which Judge Niemeyer and Judge Keenan joined. 

ARGUED: Glenn B. Manishin, TROUTMAN SANDERS, LLP, Washington, 

D.C., for Appellant. Robert A. Schwinger, CHADBOURNE & PARKE, 

LLP, New York, New York, for Appellee. ON BRIEF: David H. 

Evans, CHADBOURNE & PARKE, LLP, Washington, D.C.; Benjamin D. 

Bleiberg, CHADBOURNE & PARKE, LLP, New York, New York, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

URBANSKI, District Judge:

Loren Data Corporation (“Loren Data”) filed a 

complaint against GXS, Inc. (“GXS”) alleging violations of 

Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 

2, the Maryland antitrust statute, as well as common law claims 

of tortious interference and breach of contract. The district 

court granted GXS’s motion to dismiss Loren Data’s antitrust 

claims. Because the district court correctly recognized that 

Loren Data failed to allege a plausible conspiracy in restraint 

of trade in violation of Section 1 of the Sherman Act or facts 

sufficient to state a plausible Section 2 claim, we affirm. 

I.

Loren Data and GXS are engaged in the Electronic Data 

Interchange industry. Electronic Data Interchange (“EDI”) is 

the transfer and exchange of business data from one computer 

system to another using a standard digital format. EDI messages 

are generated, sent, and received by business computing systems 

for parties engaged in commercial trading, and often include the 

transmission of business information such as invoices and 

purchase orders. EDI messages travel over secure, private data 

networks called Value Added Networks (“Networks”). Both GXS and 

Loren Data operate such Networks. Loren Data alleges that the 

GXS Network is the market leader, and this case concerns GXS’s 
3

refusal to allow Loren Data to connect to the GXS Network in the 

manner sought by Loren Data. 

Networks transfer business information in two ways, 

referred to in the industry as a non-settlement peer 

interconnect (“peer interconnect”) and a commercial mailbox. 

When data is transmitted over a peer interconnect, each Network 

bears its own costs associated with the transfer of data, and 

neither Network charges the other for the data transmission. In 

contrast, Networks communicating via a commercial mailbox charge 

each other based on the volume of data transferred. Loren Data 

alleges that a peer interconnect is the industry standard and 

that a commercial mailbox is cumbersome, inefficient, and 

expensive. While Loren Data has had access to the GXS Network 

by means of a commercial mailbox, it charges a violation of the 

antitrust laws because GXS has refused to grant it a peer 

interconnect. 

Loren Data’s efforts to obtain a peer interconnect 

from GXS span the last decade. The amended complaint alleges 

that Loren Data began negotiations with GXS to secure a peer

interconnect in November 2000. While negotiations were 

underway, GXS made a commercial mailbox available to Loren Data 

as an interim solution. In August 2001, GXS declined Loren 

Data’s request for a peer interconnect and notified Loren Data 

that it would terminate the commercial mailbox if $30,000.00 in 
4

overdue fees owed by Loren Data were not paid. When Loren Data

did not pay the overdue fees, GXS terminated the commercial 

mailbox. Loren Data approached GXS again in 2002 to establish a 

peer interconnect, but that request too was denied. 

In August 2003, Loren Data again approached GXS about 

a peer interconnect, this time because a potential customer, 

Covisint, required routing to commercial trading partners on the 

GXS Network. Although Loren Data had, by this time, settled its 

outstanding accounts with GXS, GXS declined to provide a peer

interconnect, again offering a commercial mailbox. Despite the 

fact that Loren Data could only offer Covisint a commercial 

mailbox connection to the GXS Network, Covisint contracted with 

Loren Data.1

 

Matters came to a head in 2010. In a letter dated 

September 3, 2010, GXS addressed the terms under which it was 

willing to do business with Loren Data. This letter, attached 

 1 While the commercial mailbox relationship between Loren 

Data and GXS has been the norm over the last decade, there have 

been exceptions. From 2005 to 2009, GXS allowed Loren Data a 

peer interconnect for traffic pursuant to an outsourcing 

contract between Loren Data and IBM. In 2009, Loren Data signed 

a transit agreement with Inovis, Inc. which gave Loren Data 

indirect access to the GXS Network through the InovisWorks 

Network. Loren Data alleges that GXS indicated that it would 

not renew or extend the InovisWorks transit agreement upon its 

expiration in May 2011. 
5

as an exhibit to the amended complaint, forms the core of Loren 

Data’s Sherman Act Section 1 conspiracy allegation. 

In the September 3, 2010 letter, GXS explained that it 

could not offer Loren Data anything more than a commercial 

mailbox because it believed Loren Data’s business model to be 

incompatible with its own. GXS characterized Loren Data’s 

business model as a “service bureau.” As a “service bureau,” 

GXS asserted that Loren Data was focused exclusively on selling 

a connection to the GXS Network and did not provide the value 

associated with other Networks, which GXS contended are focused 

on growing the overall EDI market.

GXS also expressed concern that providing a peer

interconnect to Loren Data would result in service quality 

problems. GXS stated that the core of Loren Data’s business 

model involves message “daisy chaining.” GXS distinguished 

daisy chaining from the “one-hop” approach employed by GXS in 

which “messages traverse one network and stop.” In contrast, 

daisy chaining allows a message to hop from Network to Network. 

According to GXS, “[a] proliferation of daisy chaining increases 

GXS[’s] risks in its ability to manage service latency, 

availability, and overall service quality.” The September 3, 

2010 letter stated that GXS’s current Network interconnect 

agreements expressly prohibit daisy chaining. 
6

The amended complaint alleges that both GXS and Loren 

Data have peer interconnect agreements with all of the 36 other 

EDI Networks. Regardless, Loren Data alleges that peer 

interconnect access to the GXS Network is essential to 

competition because that Network controls over 50 percent of the 

market. Although Loren Data alleges a concerted refusal to 

deal, the amended complaint states that “[c]urrently about 55% 

of Loren Data’s business travels on GXS [Networks].” 

II.

Loren Data filed a complaint on December 13, 2010 

alleging that GXS’s refusal to provide it a peer interconnect to 

the GXS Network violated Sections 1 and 2 of the Sherman Act, 

the Maryland antitrust statute, and the common law. GXS moved 

to dismiss the complaint pursuant to Federal Rule of Civil 

Procedure 12(b)(6). In response to GXS’s motion to dismiss, 

Loren Data filed an amended complaint, which incorporated the 

original complaint, introduced supplemental facts, and attached 

the September 3, 2010 letter, which it believed evidenced the

agreement to restrain trade. 

On August 9, 2011, the district court dismissed the

action. The district court reasoned that Loren Data failed to 

allege specific facts in support of a Section 1 conspiracy, and, 

in fact, the facts alleged suggest the absence of an agreement 
7

in restraint of trade. As to the Section 2 monopolization

claim, the district court held that Loren Data did not properly 

allege a plausible essential facilities claim or that the 

alleged refusal to deal constituted unlawful exclusionary 

conduct. The district court also held that Loren Data’s 

attempted monopolization claim did not sufficiently allege the

specific intent to monopolize or a dangerous probability of 

successful monopolization. 

Loren Data filed two post-judgment motions that the 

district court construed as motions to alter judgment pursuant 

to Federal Rule of Civil Procedure 59(e). In those motions, 

Loren Data sought clarification as to whether the case was 

dismissed with or without prejudice and reconsideration of the 

dismissal. The court denied the motions and ordered that the 

case be dismissed with prejudice. This appeal followed.2

III.

An order granting dismissal under Rule 12(b)(6) is 

reviewed de novo. See E.I. du Pont de Nemours & Co. v. Kolon 

 2 Loren Data did not appeal the district court’s rulings as 

to its Maryland common law claims and those portions of its 

Maryland antitrust claims that do not parallel its Sherman Act 

claims. As such, these claims are not addressed herein. 

Likewise, there is no need to undertake separate analysis of the 

parallel Maryland antitrust claims, as resolution of those 

claims is subsumed in the Sherman Act analysis.
8

Indus., 637 F.3d 435, 440 (4th Cir. 2011). The Supreme Court 

in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),

articulated a two-pronged approach to assessing the sufficiency 

of a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 

First, the complaint must allege facts sufficient to support the

legal conclusions in the complaint, as Federal Rule of Civil 

Procedure 8 requires “more than labels and conclusions,” and 

admonishes against “a formulaic recitation of the elements of a 

cause.” Twombly, 550 U.S. at 555. Second, “[t]o survive a 

motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 557). Plausibility requires that 

the factual allegations “be enough to raise a right to relief 

above the speculative level . . . on the assumption that all the 

allegations in the complaint are true.” Twombly, 550 U.S. at 

555; see, e.g., Robertson v. Sea Pines Real Estate Companies,

Inc., 679 F.3d 278, 288 (4th Cir. 2012). 

In the context of an agreement to restrain 

trade, Twombly teaches that a court may not simply credit 

conclusory allegations of conspiracy. 550 U.S. at 555. Rather, 

the court must determine whether the well-pleaded, nonconclusory factual allegations give rise to a “plausible 

suggestion of conspiracy.” Id. at 565-66. As the district 
9

court correctly concluded, the factual allegations in this case 

fail to reach that level.

IV.

A.

Count I of Loren Data's amended complaint alleges a 

violation of Section 1 of the Sherman Act. Section 1 of the 

Sherman Act states that: “Every 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. To establish a 

Section 1 violation, a plaintiff must prove, and therefore 

plead, “(1) a contract, combination, or conspiracy; (2) that 

imposed an unreasonable restraint of trade.” Dickson v. 

Microsoft Corp., 309 F.3d 193, 202 (4th Cir. 2002). 

“Not every instance of cooperation between two people 

is a potential ‘contract, combination . . . or conspiracy, in 

restraint of trade.’” Am. Needle, Inc. v. Nat’l Football 

League, 130 S. Ct. 2201, 2208 (2010). The term “contract, 

combination . . . or conspiracy” in Section 1 applies only to 

concerted action, and not unilateral activity. Id.

(citing Copperweld Corp. v. Independence Tube Corp., 467 U.S. 

752, 761 (1984)). The Sherman Act proscribes concerted action 

because it is “fraught with anticompetitive risk” and “deprives 
10

the marketplace of the independent centers of decision-making 

that competition assumes and demands.” Robertson, 679 F.3d at

284 (internal citations omitted). The purpose of the

distinction “between concerted and independent action [is] to 

deter anticompetitive conduct and compensate its victims, 

without chilling vigorous competition through ordinary business 

operations.” Id. 

More particularly, concerted activity is prohibited by 

Section 1 when “multiple parties join their resources, rights, 

and economic power together in order to achieve an outcome that, 

but for concert, would naturally be frustrated by their

competing interests (by way of profit maximizing choices).” Va. 

Vermiculite, Ltd. v. Historic Green Springs, Inc., 307 F.3d 277, 

282 (4th Cir. 2002). Thus, Section 1 does not include “the 

entire body of private contract,” and a business generally has

“the right to deal or not deal with whomever it likes, as long 

as it does so independently.” Laurel Sand & Gravel, Inc. v. CSX 

Transp., Inc., 924 F.2d 539, 542 (4th Cir. 1991). 

To adequately plead a Section 1 conspiracy, the 

complaint must allege a factual basis plausibly suggesting that 

concerted activity led to an agreement to restrain 

trade. See Twombly, 550 U.S. at 556. Specifically, when 

concerted conduct is a matter of inference, a plaintiff must 

include evidence that places the parallel conduct in “context 
11

that raises a suggestion of a preceding agreement” as “distinct 

from identical, independent action.” Id. at 549, 

556; see also Robertson, 679 F.3d at 289. 

“Conspiracies are often tacit or unwritten in an 

effort to escape detection, thus necessitating resort to 

circumstantial evidence to suggest that an agreement took 

place.” Robertson, 679 F.3d at 289-90. There are no 

allegations in this case suggestive of such circumstantial 

evidence of conspiracy. Rather, Loren Data relies on the 

reference in the September 3, 2010 letter to the prohibition on 

daisy chaining in the GXS Network interconnect agreements to 

meet Section 1’s concerted action requirement. Loren Data reads 

the daisy chaining ban contained in the GXS interconnect 

agreements as evidence of collusion between GXS and each of the 

other 36 Networks to boycott Loren Data. 

Merely pleading or pointing to an express contract is 

not enough to show that an actual conspiracy to restrain trade 

is afoot, however. A reviewing court must “take account of the 

absence of a plausible motive to enter into the alleged . . . 

conspiracy.” Matsushita Electric Indus. Co., Ltd. v. Zenith 

Radio Corp., 475 U.S. 574, 595 (1986). “[C]ourts should not 

permit factfinders to infer conspiracies when such inferences 

are implausible, because the effect of such practices is often 

to deter procompetitive conduct.” Id. at 593 (citing Monsanto 
12

Co. v. Spray-Rite Service Corp., 465 U.S. 752, 762-64 (1984). 

If the alleged co-conspirators “had no rational economic motive 

to conspire, and if their conduct is consistent with other, 

equally plausible explanations, the conduct does not give rise 

to an inference of conspiracy.” Matsushita, 475 U.S. at 596-97 

(citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 

253, 278-80 (1968). The evidence must tend to exclude the 

possibility that the alleged co-conspirators acted 

independently, and the alleged conspiracy must make practical, 

economic sense. Matsushita, 475 U.S. at 597-98 

(citing Monsanto, 465 U.S. at 764). 

Here, the allegations do not meet this standard. The 

September 3, 2010 letter does not provide any indication that 

other Networks have acquiesced or joined in any kind of 

conspiracy to boycott Loren Data, much less taken any action 

against Loren Data. The letter merely suggests that GXS was 

unwilling to contract with Loren Data on the terms it sought and 

provides no evidence that others agreed to boycott Loren Data. 

Indeed, it is difficult, if not impossible, to reconcile Loren 

Data’s allegation that the September 3, 2010 letter is direct 

evidence of a conspiracy against Loren Data with a full 

examination of the terms of that letter. When read in its 

entirety, the letter explains that Loren Data’s daisy chain 

business model raises service quality concerns for the GXS 
13

Network. To address the service quality problems posed by daisy 

chaining, GXS proposed a new commercial relationship with Loren 

Data. As such, the September 3, 2010 letter is hardly 

suggestive of an unlawful conspiracy or an agreement to boycott 

Loren Data. Rather, it simply explains the terms on which GXS 

was willing to contract with Loren Data. 

Moreover, as the district court recognized, the facts 

alleged by Loren Data contradict any inference of conspiracy. 

Loren Data simultaneously alleges: (1) that GXS contracted with 

all other Networks to exclude Loren Data from obtaining a peer

interconnect with GXS; yet (2) Loren Data was able to obtain 

peer interconnects with all of these allegedly boycotting

Networks. The fact that Loren Data was able to interconnect 

with all of these other Networks negates any suggestion that 

these Networks conspired with GXS to boycott Loren Data. These 

facts do not support an allegation of a Section 1 conspiracy;

rather, they are consistent with unilateral conduct by GXS to 

protect its Network from the service quality perils it perceived 

to be associated with daisy chaining. 

Given the fact that Loren Data was able to 

interconnect freely with so many other Networks, the letter of 

September 3, 2010 cannot plausibly be read as evidence of 

concerted action. Rather, it reflects GXS’s unilateral business 

judgment as to the parameters under which it was willing to deal 
14

with Loren Data, an entity it viewed as having an incompatible

business model. Monsanto, 465 U.S. at 761 (“A manufacturer of 

course generally has a right to deal, or refuse to deal, with 

whomever it likes, as long as it does so independently . . . .

And a distributor is free to acquiesce in the manufacturer's 

demand in order to avoid termination.”). Given the facts 

alleged in the amended complaint, the conspiracy posited by 

Loren Data simply makes no practical or economic sense. As 

such, the district court correctly concluded that the Sherman 

Act Section 1 claim fails as a matter of law.

V.

Counts II and III of Loren Data’s amended complaint 

allege violations of Section 2 of the Sherman Act, 15 U.S.C. 

§ 2, which make it illegal to “monopolize, or attempt to 

monopolize, or combine or conspire with any other person or 

persons, to monopolize any part of the trade or commerce among 

the several States, or with foreign nations.” Loren Data 

challenges the district court’s decision to dismiss both its 

monopolization and attempted monopolization claims. 

A.

To state a monopolization claim under Section 2, two 

elements must be demonstrated: (1) the possession of monopoly 
15

power in the relevant market3 and (2) the willful acquisition or 

maintenance of that power as distinguished from growth or 

development as a consequence of a superior product, business 

acumen, or historic accident. United States v. Grinnell Corp., 

384 U.S. 563, 570-571 (1966); Verizon Commc’ns Inc. v. Law 

Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) 

(“Trinko”). The Supreme Court in Trinko noted that the 

possession of monopoly power is only unlawful when it is coupled 

with anticompetitive conduct. 540 U.S. at 407. To violate 

Section 2 of the Sherman Act, a defendant must engage in conduct 

“to foreclose competition, gain a competitive advantage, or to 

destroy a competitor.” E.I. DuPont de Nemours, 637 F.3d at 450 

(citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 

U.S. 451, 482-83 (1992)). The anticompetitive conduct 

 3 Monopoly power is defined as “the power to control prices 

or exclude competition.” United States v. E.I. du Pont de 

Nemours & Co., 351 U.S. 377, 391 (1956). “Proof of a relevant 

market is the threshold for a Sherman Act § 2 claim. The 

plaintiff must establish the geographic and product market that 

was monopolized.” Consul, Ltd. v. Transco Energy Co., 805 F.2d 

490, 493 (4th Cir. 1986). The district court questioned whether 

Loren Data’s “inconclusive statements as to geographic market 

are adequate to state a claim,” Loren Data Corp. v. GXS, Inc., 

No. DKC 10-3474, 2011 WL 3511003, at *6 (D. Md. Aug. 9, 2011), 

but noted that it need not reach that issue “because Loren 

Data’s claim has other failings.” Id. at *7. As to the 

relevant product market alleged by Loren Data, the EDI industry, 

the district court concluded that “it cannot be said that Loren 

Data has failed to plead a relevant product market in terms 

sufficient to state a claim.” Id.
16

requirement reflects the essence of an antitrust violation, that 

of harm to competition, rather than to an individual 

competitor. Spanish Broad. Sys. of Fla., Inc. v. Clear Channel 

Commc’ns, Inc., 376 F.3d 1065, 1075 (11th Cir. 2004). The 

Supreme Court has explained that “[e]ven an act of pure malice 

by one business competitor against another does not, without 

more, state a claim under the federal antitrust laws.” Brooke 

Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 

225 (1993). “The [Act] directs itself not against conduct which 

is competitive, even severely so, but against conduct which 

unfairly tends to destroy competition itself.” Spectrum Sports

Inc. v. McQuillan, 506 U.S. 447, 458 (1993). “That is, it must 

harm the competitive process and thereby harm consumers. In 

contrast, harm to one or more competitors will not 

suffice.” United States v. Microsoft Corp., 253 F.3d 34, 70-71 

(D.C. Cir. 2001) (en banc) (emphasis in original).

Loren Data alleges that GXS’s anticompetitive behavior 

is evidenced by its refusal to provide it a peer interconnect 

and this refusal is a denial of access to an essential facility. 

i.

The Sherman Act “does not restrict the long recognized 

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

private business, freely to exercise his own independent 
17

discretion as to parties with whom he will deal.” United States 

v. Colgate & Co., 250 U.S. 300, 307 (1919). Nevertheless, 

“[t]he high value that we have placed on the right to refuse to 

deal with other firms does not mean that the right is 

unqualified.” Trinko, 540 U.S. at 408 (citing Aspen Skiing Co. 

v. Aspen Highlands Skiing Corp., 472 U.S. 585, 601 (1985)). 

In Trinko, the Court observed that exceptions to the 

right to refuse to deal should be recognized with caution due to 

the “uncertain virtue of forced sharing and the difficulty of 

indentifying and remedying anticompetitive conduct by a single 

firm.” Id. Specifically, the Court noted that Aspen Skiing

represented an exception to this rule and is situated “at or 

near the outer boundary of § 2 liability.” Id. The Aspen 

Skiing exception applies when “[t]he unilateral termination of a 

voluntary (and thus presumably profitable) course of dealing 

suggested a willingness to forsake short-term profits to achieve 

an anticompetitive end.” Id.

Loren Data’s attempt to analogize this case to Aspen 

Skiing is unpersuasive. GXS has not refused to deal with Loren 

Data. Indeed, in the September 3, 2010 letter, GXS proposed 

terms for a commercial relationship with Loren Data. There is 

no suggestion, and the amended complaint does not allege, that 

this offer of a new commercial agreement was some sort of sham 
18

or that GXS would renege on its proposal; rather, Loren Data was 

not satisfied with its terms. 

Loren Data counters that a commercial mailbox 

arrangement is not a viable alternative to a peer interconnect. 

But simply because GXS does not offer Loren Data the terms and 

conditions it desires does not mean that GXS has violated the 

antitrust laws. Indeed, GXS provides legitimate business 

justifications for the terms it offers Loren Data. Cf. Laurel 

Sand & Gravel, 924 F.2d at 544 (noting that anticompetitive 

exclusionary conduct may be shown if “there was no legitimate 

business reason for its conduct.”). Plainly, as GXS explains in 

its September 3, 2010 letter, there are ample business 

justifications for its decision not to deal with Loren Data on 

the terms Loren Data wants. 

Nor does the alleged failure of GXS to contract with 

Loren Data on those terms work to deprive the market of vigorous 

competition. GXS granted peer interconnects to every other 

Network, large or small, and the district court correctly 

concluded that “GXS is not likely to gain monopoly control over 

the industry if it refuses to deal with only one of 36 available 

VAN networks.” Loren Data Corp., 2011 WL 3511003, at *11. Not 

only does GXS interconnect with the 36 other Networks, Loren 

Data was able to do so as well. Further, even though Loren Data 

was not able to obtain a peer interconnect with GXS, its 
19

allegations acknowledge that more than half of its business 

traveled on the GXS Network. Simply put, Loren Data’s 

allegations that it is able to access 36 other Networks and that 

more than half of its business traversed the GXS Network negates 

any plausible inference of anticompetitive exclusionary conduct 

by GXS. Loren Data argues that smaller EDI consumers are harmed

by GXS’s exclusionary conduct because accessing the GXS Network

through another Network is more expensive. But Loren Data 

offers no facts to support its conclusory assertion that smaller 

EDI consumers have been denied access or are otherwise unable to 

obtain EDI services because of cost. In short, Loren Data has 

failed to allege a plausible claim of exclusionary conduct 

directed to competition as a whole. 

ii.

Loren Data also alleges that the GXS Network is an 

essential facility, the denial of access to which violates 

Section 2. The Supreme Court has not adopted the essential 

facilities doctrine. Trinko, 540 U.S. at 411 (“We have never 

recognized such a doctrine . . . and we find no need either to 

recognize it or repudiate it here.”). Nevertheless, we 

considered such a claim in Laurel Sand & Gravel. 924 F.2d at 

544. 
20

Under such a theory, a refusal by a monopolist to deal 

“may be unlawful because a monopolist’s control of an essential 

facility (sometimes called a ‘bottleneck’) can extend monopoly 

power from one stage of production to another, and from one 

market into another. Thus, the antitrust laws have imposed on 

firms controlling an essential facility the obligation to make 

the facility available on non-discriminatory terms.” MCI 

Commc’ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1132 (7th 

Cir.), cert. denied, 464 U.S. 891 (1983). “[T]he central 

concern in an essential facilities claim is whether market power 

in one market is being used to create or further a monopoly in 

another market.” Advanced Health-Care Servs., Inc. v. Radford 

Cmty. Hosp., 910 F.2d 139, 150 (4th Cir. 1990). 

In order to proceed on an essential facilities claim, 

four elements must be proven: “(1) control by the monopolist of 

the essential facility; (2) the inability of the competitor 

seeking access to practically or reasonably duplicate the 

facility; (3) the denial of the facility to the competitor; and 

(4) the feasibility of the monopolist to provide the 

facility.” Laurel Sand & Gravel, 924 F.2d at 544 (citing MCI 

Commc’ns Corp., 708 F.2d at 1132). The owner of an essential 

facility is not obligated to make it available under whatever 

terms the competitor wishes; the owner need only offer access 

under reasonable terms. Id. Moreover, terms are not 
21

unreasonable simply because they will reduce a competitor's 

profits. Id. 

The amended complaint does not sufficiently allege 

that GXS is an essential facility. First, Loren Data cannot 

plausibly maintain that a peer interconnect with GXS is 

essential. Although Loren Data complains that GXS has 

repeatedly denied it a peer interconnect, it alleges that more 

than half of its EDI business travels over the GXS Network. 

Moreover, Loren Data has established peer interconnects with 

three dozen other Networks. The fact that the majority of Loren 

Data’s business traversed the GXS Network without a peer 

interconnect demonstrates the fallacy of the claim that a peer 

interconnect is essential to competition. Second, there is no 

indication that the new commercial agreement offered to Loren 

Data by GXS in the September 3, 2010 letter is an unreasonable 

alternative to the terms Loren Data seeks. Loren Data’s history 

with Covisint further illustrates this point. Covisint required 

Loren Data to have access to the GXS Network as part of its 

prospective contract agreement. Even though Loren Data was able 

to connect to the GXS Network only through a commercial mailbox, 

Covisint still decided to contract with Loren Data. While a 

peer interconnect with GXS may suit Loren Data better, it is 

plainly not essential. 
22

At its core, Loren Data’s amended complaint does not 

plausibly allege the denial of access to an essential facility. 

Loren Data has functioned for a decade without unfettered peer 

interconnect access to the GXS Network it now claims is 

essential. Even were access to the GXS Network essential for 

Loren Data to compete, GXS offered Loren Data access to its 

Network on terms acceptable to GXS as set forth in the September 

3, 2010 letter. For both of these reasons, this case does not 

present a plausible essential facilities claim. 

B.

Loren Data also argues that the district court erred 

in dismissing its attempted monopolization claim. To state a 

claim for attempted monopolization, a plaintiff must 

demonstrate: (1) a specific intent to monopolize the relevant 

market; (2) predatory or anticompetitive acts in furtherance of 

the intent; and (3) a dangerous probability of 

success. Spectrum Sports, Inc., 506 U.S. at 456. The district 

court held that Loren Data failed to allege facts demonstrating 

a specific intent to monopolize or a dangerous probability that 

GXS would succeed in establishing a monopoly. We agree. 

Loren Data has not sufficiently alleged that GXS had a 

specific intent to monopolize. Indeed, Loren Data alleges just 

the opposite - that GXS grants peer interconnects to every other 
23

Network, both large and small – which is entirely inconsistent 

with an intent to monopolize. Nor does Loren Data allege a 

dangerous probability of successful monopolization by GXS. 

Loren Data characterizes two acquisitions by GXS over a ten year 

period as an aggressive campaign to monopolize. Loren Data 

cites M & M Medical Supplies & Service, Inc. v. Pleasant Valley 

Hospital, Inc., 981 F.2d 160, 168 (4th Cir. 1992), for the 

proposition that a rising market share is sufficient to show a 

dangerous probability of achieving monopoly power. However, 

in M & M Medical, we held that “[o]ther factors must be 

considered, such as ease of entry, which heralds slight chance 

of success [of achieving monopoly power], or exclusionary 

conduct without the justification of efficiency, which enhances 

the likelihood of success [of achieving monopoly power].” Id. 

Loren Data’s complaint and amended complaint are devoid of any 

factual allegation suggesting that GXS’s rising market share was 

coupled with any exclusionary conduct. Inconsistent with Loren 

Data’s theory is its allegation that GXS established peer 

interconnects with 36 other Networks, conduct which is hardly 

suggestive of an attempt to monopolize the EDI market. In sum, 

the fact that GXS has contracted with every other Network in the 

market suggests that its refusal to deal with Loren Data on the 

terms Loren Data desires will not have any negative effects on 

competition as a whole. 
24

VI.

Finally, Loren Data argues that the district court 

erred in denying its post-judgment motions. Loren Data filed a 

“motion for clarification” asking the district court to issue a 

revised or supplemental order stating whether its claims were 

dismissed with or without prejudice. Before this motion was 

ruled on, Loren Data filed another motion asking the district 

court to reconsider its order granting GXS’s motion to dismiss. 

The district court construed both of these motions as motions to 

alter judgment pursuant to Federal Rule of Civil Procedure 

59(e). 

The reconsideration of a judgment after its entry is 

an extraordinary remedy which should be used sparingly. Pac.

Ins. Co. v. Am. Nat’l Ins. Co., 148 F.3d 396 (4th Cir. 1998). 

We review the denial of a Rule 59(e) motion under the 

deferential abuse of discretion standard. Ingle ex rel. Estate 

of Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006). Rule 

59(e) provides that a court may alter or amend the judgment if 

the movant shows (1) an intervening change in the controlling 

law, (2) new evidence that was not available at trial, or 

(3) that there has been a clear error of law or a manifest 

injustice. Id.; see e.g., Robinson v. Wix Filtration Corp. LLC, 

599 F.3d 403 (4th Cir. 2010). It is the moving party’s burden 
25

to establish one of these three grounds in order to obtain 

relief under Rule 59(e).

The district court did not abuse its discretion in 

denying Loren Data’s motions. As there was no suggestion of a 

change in intervening law or new facts, Loren Data was left to 

argue that a clear error of law or manifest injustice occurred. 

As the foregoing analysis of Loren Data’s claims makes plain, 

the dismissal of Loren Data’s antitrust claims was neither. Nor 

was it a clear error of law for the district court to dismiss 

the case without first making a specific finding that an 

additional opportunity to amend the complaint would be futile. 

In ruling on the post-judgment motions, the district court made 

it abundantly clear that any amendment to the complaint would be 

futile for two reasons. First, Loren Data had already amended 

the complaint once before, suggesting that further amendment 

would be futile. Second, Loren Data provided nothing of 

additional substance to the district court to demonstrate that a 

dismissal without prejudice would be fruitful. Plainly, the 

district court did not abuse its discretion in denying Loren 

Data’s post-judgment motions. 
26

VII.

For these reasons, the judgment of the district court 

is affirmed.

AFFIRMED