First Data Merchant Services v. SecurityMetrics, Inc., No. 15-2301 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-2301 FIRST DATA MERCHANT SERVICES CORPORATION, corporation; FIRST DATA CORPORATION, a Florida a Florida Plaintiffs – Appellees, v. SECURITYMETRICS, INC., a Utah corporation, Defendant – Appellant. No. 15-2364 FIRST DATA MERCHANT SERVICES CORPORATION, corporation; FIRST DATA CORPORATION, Plaintiffs – Appellants, v. SECURITYMETRICS, INC., a Utah corporation, Defendant - Appellee. Appeals from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:12-cv-02568-RDB) Argued: October 25, 2016 Decided: Before SHEDD, DUNCAN, and FLOYD, Circuit Judges. December 1, 2016 Affirmed by unpublished opinion. Judge Duncan opinion, in which Judge Shedd and Judge Floyd joined. wrote the ARGUED: Lannie Rex Sears, MASCHOFF BRENNAN LAYCOCK GILMORE ISRAELSEN & WRIGHT PLLC, Salt Lake City, Utah, for Appellant/Cross-Appellee. Michael Lee Eidel, FOX ROTHSCHILD LLP, Philadelphia, Pennsylvania, for Appellees/Cross-Appellants. ON BRIEF: Sterling A. Brennan, MASCHOFF BRENNAN LAYCOCK GILMORE ISRAELSEN & WRIGHT PLLC, Salt Lake City, Utah; J. Stephen Simms, SIMMS SHOWERS, LLP, Baltimore, Maryland, for Appellant/CrossAppellee. Joshua Horn, Clair E. Wischusen, FOX ROTHSCHILD LLP, Philadelphia, Pennsylvania; Charles N. Curlett, Jr., LEVIN & CURLETT LLC, Baltimore, Maryland, for Appellees/CrossAppellants. Unpublished opinions are not binding precedent in this circuit. 2 DUNCAN, Circuit Judge: First Data Corporation Merchant Services (collectively, “First Corporation Data”) and and First Data SecurityMetrics, Inc. (“SecurityMetrics”), business partners turned adversaries, bring this appeal and cross-appeal challenging two orders of the district court. Throughout this protracted litigation, the parties have asserted numerous claims against each other, but only four are at issue here. SecurityMetrics appeals three counterclaims on which the district court granted First Data summary judgment on December 30, 2014 (the “December Order”). First Data attorneys’ cross-appeals fees in “September Order”). an the order district dated court’s September denial 22, 2015 of (the For the reasons discussed below, we affirm both orders. I. A. First Data and SecurityMetrics are both companies in the Payment Card Industry (“PCI”). primary service providers. The PCI includes three types of Issuers supply payment cards to consumers and collect amounts due; acquirers clear and settle payment card transactions on behalf of merchants; and processors facilitate the communication and settlement of payment. PCI providers outsource certain 3 functions to Some third-party vendors. First functions. SecurityMetrics is a third-party vendor. The PCI Data Security performs both Standards acquirer Council, an and processor independent body created by the five major payment card brands, 1 issues a set of security standards, called the PCI Data Security Standard (“PCI Standard” or “PCI theft and fraud. DSS”) to help protect against credit card The PCI Standard is universal but the payment card brands each have different requirements for demonstrating or validating compliance with the standard. the category transaction at issue volume and here--have are required the to Level 4 merchants-lowest submit individual annual self- assessment questionnaires to demonstrate compliance. Any merchant that accepts credit payments must adhere to the PCI Standard. their merchants Acquirers, like First Data, must ensure that comply with the PCI Standard noncompliance penalties and fees on merchants. rely on third-party vendors, such as and can impose Acquirers often SecurityMetrics, to validate their merchants’ compliance. B. From 2008 until 2012 the parties worked together pursuant to a series of contracts. First Data 1 listed Under the terms of the agreements, SecurityMetrics as its preferred American Express, Discover, JCB, MasterCard, and Visa. 4 data compliance Level 4 vendor in merchants. all First communications Data with charged First merchants Data’s a PCI compliance fee and then paid SecurityMetrics for its compliance services on behalf of the merchants. First Data with SecurityMetrics’s a weekly system so SecurityMetrics provided data that feed First Data and access to track the could compliance status of its merchants. This arrangement continued without issue until First Data decided to offer its own compliance service 2012. 2 in In preparation for the launch of its service, First Data ordered SecurityMetrics to cease communication with its Level 4 merchants effective June 1, 2012. In response, SecurityMetrics alleged their First Data had breached contract and stopped sending its weekly data feed. C. In May 2012, First Data filed suit against SecurityMetrics in the United States District Court for the District of Utah (the “Utah litigation”) alleging breach of contract and other tortious conduct. The parties Utah litigation pursuant to a document titled “Terms of Settlement.” Under the 2 settled the During the course of this litigation, First down its proprietary compliance service and began different third-party PCI compliance vendor, Trustwave became First Data’s preferred PCI compliance 5 Data wound to use a Trustwave. vendor. Terms of Settlement, the parties agreed to a few basic provisions that were to be memorialized in a confidential final settlement agreement that disparagement provisions.” would include J.A. 217. “mutual non- First Data agreed to pay SecurityMetrics $5,000,000 and dismiss the Utah litigation with prejudice, and SecurityMetrics was granted the “use of Merchant Data for the purpose of selling its products and services.” A final settlement agreement never materialized. Id. Less than three months after signing the Terms of Settlement, First Data filed the United First underlying States Data action District alleged nine against SecurityMetrics. 3 fifteen counterclaims. 4 Court against for counts of the SecurityMetrics District of post-settlement in the Maryland. misconduct SecurityMetrics answered and asserted The parties filed cross-motions for 3 First Data asserted the following counts: (1) Declaratory relief as to the definition of Merchant Data; (2) Breach of Contract of the Terms of Settlement; (3) Common Law Unfair Competition; (4) Tortious Interference with Existing and Prospective Contractual and Business Relationships; (5) Injurious Falsehoods; (6) False Endorsement/Association, Lanham Act, 15 U.S.C. § 1125(a)(1)(A); (7) Trademark/Service Mark/Trade Name Infringement, Lanham Act, 15 U.S.C. §§ 1114(1), 1125(a)(1)(A); (8) False Advertising, Lanham Act, 15 U.S.C. § 1125(a)(1)(B); and (9) Declaratory Relief as to PCI compliance reporting data. 4 SecurityMetrics alleged First Data had, through its advertisements and communications with merchants, disparaged SecurityMetrics and brought the following counterclaims: (1) Specific Performance of the provision in the Terms of Settlement to execute a final settlement agreement; (Continued) 6 summary judgment, and the district court held a hearing on the motions and issued the December Order. In the December Order, the district court denied SecurityMetrics’s motion for summary judgment but granted First Data’s motion for summary judgment as to Counts 4 through 15 of SecurityMetrics’s counterclaims. The district court scheduled a trial as to the remaining claims. On the eve of trial, the parties narrowed the claims down to the sole issue of the meaning of the term “Merchant Data” in the Terms of Settlement. Following a two-day bench trial, the district court ruled in favor of SecurityMetrics. After the trial, First Data filed a motion for attorneys’ fees in relation to SecurityMetrics’s Utah Truth in Advertising Act (“UTIAA”) claim (Count 8) on which the district court had granted First Data summary judgment in the December Order. The UTIAA provides that “[t]he court shall award attorneys’ fees to the prevailing party” in a UTIAA action. Utah Code § 13-11a- (2) Declaratory Judgment with respect to the Merchant Data provision of the Terms of Settlement; (3) Declaratory Judgment with respect to the confidentiality clause of the Terms of Settlement; (4) Injurious Falsehoods; (5) Federal False Advertising; (6) Federal False Endorsement; (7) Cancellation of Registration; (8) Utah Deceptive Trade Practices violations; (9) Tortious Interference with Business Relations; (10) Federal Restraint of Trade; (11) Federal Monopolization and Attempted Monopolization; (12) Maryland Restraint of Trade; (13) Maryland Monopolization and Attempted Monopolization; (14) Maryland Predatory Pricing; (15) Anticompetitive pricing arrangements in violation of Md. Code Com. Law § 11-204(a)(6). 7 4(2)(c). The district court denied this motion in the September Order finding that, although First Data did prevail as to the UTIAA claim itself, it was not a “prevailing party” at trial and with respect to the litigation as a whole. D. On appeal, the parties do not contest the district court’s ruling at trial as to the meaning of the term Merchant Data. Rather, the claims at issue pretrial December Order. before us originate from the SecurityMetrics appeals three of its counterclaims that the district court dismissed. First, SecurityMetrics alleges First Data’s advertisements violated the Lanham Act. Certain First Data promotional materials stated its merchants would have to pay First Data’s compliance fee regardless of whether the merchant also used a third-party compliance vendor. SecurityMetrics claims this is a false statement because First Data actually provided refunds to merchants who used third-party compliance vendors. Finding the statements were literally true, the district court granted First Data summary judgment on this claim. Second, interfered SecurityMetrics with its business contends relations First by Data making tortiously disparaging comments to merchants about SecurityMetrics. The district court also as granted First Data summary 8 judgment to this claim because it found that SecurityMetrics had not offered the district any admissible evidence to establish causation. Third, SecurityMetrics challenges ruling as to its antitrust claims. court’s SecurityMetrics alleged that First Data violated several antitrust laws when it launched its own competing PCI compliance service. that, because competition, SecurityMetrics rather than had simply The district court found not injury standing to pursue those claims. demonstrated to itself, injury it to lacked The court therefore granted First Data summary judgment as to these claims. First Data cross-appeals the district court’s denial attorneys’ fees as to SecurityMetrics’s failed UTIAA claim. first consider evaluate First SecurityMetrics’s Data’s claims cross-appeal. For in turn the of We and then reasons that follow, we affirm the district court’s rulings on both parties’ claims. II. Summary judgment is appropriate when “there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). We review the district court’s grant of summary judgment de novo, viewing the facts and drawing all reasonable inferences in the light most favorable to the nonmovant. F.3d 263, 266 (4th Cir. 2016). Askew v. HRFC, LLC, 810 In doing so, “it is ultimately 9 the nonmovant’s burden to persuade us that there is indeed a dispute of material fact. It must provide more than a scintilla of merely evidence--and speculation--upon favor.” not which a conclusory jury could defeat properly find in or its CorTel Va., LLC v. Verizon Va., LLC, 752 F.3d 364, 370 (4th Cir. 2014) (citation omitted). imposed allegations by a the burden motion for of Regardless of the standard persuasion, summary judgment the nonmovant “without may not offering any concrete evidence from which a reasonable juror could return a verdict in his favor [nor] by merely asserting the jury might, and legally could,” disbelieve the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). III. A. We first consider whether the district court erred in granting summary judgment to First Data on its false advertising claim. We conclude it did not. To bring a false advertising claim under the Lanham Act, a plaintiff must establish that (1) the defendant made a false or misleading description of fact or representation of fact in a commercial advertisement about his own or another's product that (2) is material and (3) actually deceives or has the tendency to deceive a substantial segment of its audience (4) after being 10 placed in interstate commerce, (5) causing the plaintiff injury. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 120 (4th Cir. 2011). Only the first element--whether First Data’s advertisements were false or misleading--is at issue here. establish the first element by showing A plaintiff can an advertisement is either (a) literally false or (b) literally true but likely to mislead or confuse consumers. C.B. Fleet Co. v. SmithKline Beecham Consumer Healthcare, L.P., 131 F.3d 430, 434 (4th Cir. 1997). SecurityMetrics proceeds on the first theory. “In analyzing whether an advertisement . . . is literally false, a court must determine, first, the unambiguous claims made by the advertisement . . . claims are false.” and, second, whether those PBM Prods., 639 F.3d at 120 (quoting Scotts Co. v. United Indus. Corp., 315 F.3d 264, 274 (4th Cir. 2002)). “A literally false message may be either explicit or conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated.” F.3d at 274). Id. (quoting Scotts Co., 315 A false-by-necessary-implication claim must fail if the advertisement “can reasonably be understood as conveying different messages.” unambiguous message Scotts Co., 315 F.3d at 275. can be literally false.” Id. “Only an at 275–76 (quoting Novartis Consumer Health, Inc. v. Johnson & Johnson11 Merck Consumer Pharm. Co., 290 F.3d 578, 587 (3d Cir. 2002) (emphasis in original)). The challenged First Data advertisements state: If you choose to use a third-party vendor for PCI DSS compliance services, you will need to contract with and pay that vendor directly. In addition to your alternate vendor’s charges for PCI DSS compliance services, you still will need to pay the Compliance Service Fee charged to you by your merchant services provider. The Compliance Service Fee is not affected by your choice to use a third-party vendor. * * * If First Data’s PCI compliance services are contractually available to you, you will be charged an applicable annual compliance fee for those services, regardless of whether you use them or utilize the services of some other third-party PCI compliance services vendor. If you utilize the additional services of a third party vendor, you will pay that third party vendor’s charges for those fees in addition to First Data’s annual compliance fee. J.A. 799–800 (emphasis added). these advertisements refunded some compliance are merchants fee advertisements and can, in literally that a According to SecurityMetrics, paid third-party context, be false both because the First vendor. read more First Data Because than one Data PCI the way, however, we reject SecurityMetrics’s argument. It is undisputed that First Data has always charged its merchants a PCI together under SecurityMetrics compliance their from the fee. contract, PCI When First compliance 12 the parties Data fee worked would charged to pay the merchants. Once SecurityMetrics was no longer a preferred vendor, as the advertisements state, First Data still required its merchants to pay its PCI Compliance fee. If the merchant used First Data’s PCI compliance services, the merchant would not pay anything additional. If, however, a merchant wished to use a third-party compliance vendor--such as SecurityMetrics-the merchant would have to pay that fee directly to the third party. Hence, a merchant would pay for compliance services twice. SecurityMetrics contends that, though this was First Data’s official policy, in practice First Data would refund a merchant that complained about being amount of the SecurityMetrics fee. argues, the falsehood. advertisement The district double in the Therefore, SecurityMetrics necessarily court charged implies disagreed and a found literal these statements were “only problematic due to what was left unsaid-that a refund might be available.” 5 J.A. 1369. We agree. 5 SecurityMetrics also objects that, on the motion for summary judgment, the district court “without warning or other intervening change in circumstances” changed course from an earlier position. Appellant’s Br. at 15. When First Data moved to dismiss the false advertising claim, the district court found that the claim was “articulable as an affirmative misstatement-i.e., that merchants will pay for the service but that some do not because of the refund.” J.A. 229–30. SecurityMetrics alleges the district court erred in subsequently dismissing the claim. Of course this argument ignores the fundamental difference between attacking a claim on a motion to dismiss and at the summary judgment stage. In a motion to dismiss, the court must accept the factual allegations in the plaintiff’s (Continued) 13 First Data’s advertisements are not therefore cannot be literally false. unambiguous and On one reading of the advertisement, the service fee is affected because First Data would, if asked, refund customers an amount equal to the thirdparty vendor charge. Merchants who asked for and received a refund did not pay the third-party fee in addition to the PCI compliance fee. However, by another reading, because First Data’s refund policy was discretionary and not automatic, the advertisement is true on its face. Put another way, if a SecurityMetrics customer never asked First Data for a refund, it would, as the advertisement states, pay a third-party vendor fee “in addition to” First Data’s PCI Compliance fee. claim usually that is cannot “implicit, fairly be attenuated, characterized or as J.A. 799. merely A suggestive literally false.” Design Res., Inc. v. Leather Indus. of Am., 789 F.3d 495, 502 (4th Cir. 2015) (quoting Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 35 (1st Cir. 2000)). SecurityMetrics “asks us to reach entirely outside the face of complaint as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, a plaintiff has a higher burden when faced with a motion for summary judgment. At that stage of litigation, the party opposing summary judgment “must set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 256 (internal citation omitted). SecurityMetrics failed to carry its burden. 14 the ad and into the context surrounding the ad’s publication to uncover a false message it argues is necessarily implied,” Id. at 503, but the false-by-necessary-implication doctrine does not stretch that far. Therefore, the district court properly granted First Data summary judgment on that issue. 6 B. SecurityMetrics next argues that the district court erred in granting First Data interference claim. with economic summary as to the tortious Under Maryland law, tortious interference relations “(1) intentional judgment and requires willful acts; a (2) claimant to show calculated to cause damage to the plaintiffs in their lawful business; (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendants (which constitutes malice); and (4) actual damage and loss resulting.” Alexander & Alexander Inc. v. B. Dixon Evander & Assocs., Inc., 650 A.2d 260, 269 (Md. 1994) (quoting Willner v. Silverman, 71 A. 962, establish 964 (Md. 1909)). causation, the Because district 6 SecurityMetrics court granted failed First to Data SecurityMetrics also argues that a jury must decide whether the statements were literally false. That is incorrect. Although literal falsity is a question of fact, C.B. Fleet Co., 131 F.3d at 436, whether a nonmovant has put forth sufficient evidence to establish a genuine dispute as to that fact is a legal question for the district court’s determination. See Design Res., 789 F.3d at 502. 15 summary judgment on the tortious interference claim. We affirm for the same reason. SecurityMetrics alleged First Data used the Utah litigation as “a weapon . . . for the . . . purpose of interfering with SecurityMetrics’s J.A. 194. actual and According to prospective economic SecurityMetrics, it relations.” lost 280,000 existing customers as well as potential new customers because of this alleged misconduct. SecurityMetrics sought to introduce two show forms phone of calls evidence and to emails from causation: customers (1) stating transcripts why they of were canceling or not renewing their contracts with SecurityMetrics and (2) an expert report prepared by Clarke Nelson (the “Nelson report”). The whether The district court excluded both pieces of evidence. viability the of district SecurityMetrics’s court properly argument refused customer calls and emails and the Nelson report. to depends admit on the We review the district court’s rulings on the admissibility of evidence for abuse of discretion and will only reverse if the ruling was arbitrary and irrational. Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 349 (4th Cir. 2014). We find no abuse of discretion here. 16 1. First, the customer district court did communications not as err in excluding inadmissible the hearsay. SecurityMetrics asserts the calls and emails should have been admitted either because they are verbal acts, and therefore not hearsay, or under the state of mind exception to the hearsay rule. Under the declarations Federal where Rules “the of Evidence, statement itself verbal acts--those affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights”--are not hearsay. Fed. R. Evid. 801 advisory committee’s note to subdivision (c). “[P]roof of oral utterances by the parties in a contract suit constituting the offer and acceptance which brought the contract into being are not evidence verbal of conduct liabilities.” assertions to which offered the testimonially law attaches but rather duties and 2 McCormick on Evidence § 249 (7th ed.) (2016) (emphasis added). Although portions of the calls and emails--references to contract terminations constitute evidence verbal of the SecurityMetrics’s and acts, account these closure admissible causation element tortious interference instructions--might sections necessary to claim. are not support What SecurityMetrics wants to use from the calls--comments made by 17 customers regarding First Data’s conduct--are not verbal acts. In other words, the existence of the contract is a verbal act but irrelevant to the causation--why causation; the merchants portions decided not that to would renew or go to sign a contract--are relevant but inadmissible. Nor can the calls and recordings state of mind exception to hearsay. from hearsay “[a] statement of be admitted under the That exception excludes the declarant’s then-existing state of mind . . . but not including a statement of memory or belief to prove the fact remembered or believed unless relates to the validity or terms of the declarant’s will.” R. Evid. 803(3). it Fed. SecurityMetrics attempts to avail itself of this exception by stating that the calls and emails are offered only to prove “what customers believed and why they did what they did.” statements Appellant’s are asserted--that SecurityMetrics also the Br. offered merchants because of at 52. for However, unless the truth of canceled their contracts First Data’s the the matter with misconduct--these customer statements do not show causation. Put simply, to escape a hearsay exclusion, SecurityMetrics could only offer the evidence demonstrating causation. hearsay. Therefore, the for purposes irrelevant to The relevant evidence is inadmissible district 18 court did not abuse its discretion in determining that no admissible portion of the calls and emails satisfied the element of causation. 2. SecurityMetrics’s argument as to the Nelson report is also unavailing. On appeal, SecurityMetrics faults the district court for not considering its expert’s report as evidence of causation. However, SecurityMetrics retained Mr. Nelson as an expert to opine on the amount of damages, not causation. In Mr. Nelson’s deposition in connection with First Data’s motion in limine to exclude the report, he stated he did not “intend to give an opinion on causation . . . from a legal standpoint,” but he did “intend to express opinions that” a “correlation” existed between First Data’s “alleged bad acts and harm that was suffered.” J.A. 1027–28. Upon further questioning, Mr. Nelson reiterated that he was not going to offer an opinion at trial as to whether damage.” “the alleged J.A. 1903. bad acts by First Data caused any Therefore, the district court did not abuse its discretion by disregarding the Nelson report since it was not offered to prove any opinion on causation. C. Next, we SecurityMetrics turn to asserted SecurityMetrics’s six antitrust 19 antitrust counts. counterclaims against First Data under federal and Maryland law. 7 To proceed on any of its establish claims, standing, SecurityMetrics which requires must some first cognizable antitrust antitrust injury. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). “Because the antitrust laws are intended to protect competition, and not simply competitors, only injury caused by damage to the competitive antitrust claim.” L.P., 57 alleged F.3d frustrated price may form the basis of an Thompson Everett, Inc. v. Nat’l Cable Adv., 1317, antitrust process 1325 injury (4th in Cir. the competition. 1995). form The of SecurityMetrics reduced district output court and correctly rejected those claims because SecurityMetrics failed to support either theory with sufficient evidence to survive a motion for summary judgment. As an initial matter, we note SecurityMetrics did not properly plead its antitrust claims because it did not allege any antitrust injury before the summary judgment stage. Generally, a party may not raise new arguments after discovery without amending its complaint. U.S. ex rel. Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 731 (4th Cir. 2010). 7 SecurityMetrics argues that it did not need to Federal SecurityMetrics’s 202(a)(2). antitrust state law analysis claims. 20 also applies to See Md. Code § 11- plead which theory it would rely upon. Even assuming that is correct, SecurityMetrics was required to allege some antitrust injury, which its complaint did not. Even if SecurityMetrics did properly plead its antitrust claims, they nonetheless fail. SecurityMetrics’s evidence for its antitrust claims consisted of a wholly undeveloped claim that it lost 280,000 customers in two years, 70,000 of which went to First Data. SecurityMetrics points to the remaining unaccounted for 210,000 merchants as evidence of reduced output. SecurityMetrics provides no evidence to support its speculation that these “lost merchants” resulted from misconduct on the part of First Data. Any number of reasons might similarly explain the merchants’ departure, all of which are conjecture. 8 The merchants could have migrated to a company other than First Data or SecurityMetrics, gone out of business altogether, changed their business mode, or no longer been in the market for a number conduct. of other reasons unrelated to First Data’s alleged SecurityMetrics’s “tenuous” inferences are simply not enough to “fall within the range of reasonable probability” and 8 SecurityMetrics claims only First Data had access to the evidence related to the “lost merchants,” leaving SecurityMetrics with the sole option of deposing 210,000 third parties to show reduced output. This argument, of course, overlooks the possibility that SecurityMetrics could have retained an expert to opine on the issue of reduced output. 21 overcome a summary judgment challenge. F.3d at 1323. Thompson Everett, 57 The district court therefore properly rejected reduced output as a plausible antitrust injury. SecurityMetrics’s attempt to establish antitrust standing based on harm to price competition fails for the same reason. SecurityMetrics higher than claims that SecurityMetrics, although First First Data while SecurityMetrics has lost them. price competition this fact reflects. Data’s has prices gained are customers It is unclear what harm to SecurityMetrics does not allege predatory pricing, which is the only pricing practice that “has the requisite anticompetitive effect.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 340 (1990). SecurityMetrics may have shown injury to its business but the record lacks any evidence that First Data’s practices harmed the “competitive process.” Thompson Everett, 57 F.3d at 1325. We must therefore conclude that its antitrust claims fail. IV. Finally, we consider First Data’s sole issue on cross- appeal: the district court’s denial of its attorneys’ fees as it relates to SecurityMetrics’s UTIAA counterclaim. We review the denial of attorneys’ fees for abuse of discretion. Evers, 187 F.3d 348, 362 (4th Cir. 1999). Reinbol v. We apply Utah law to determine whether an award of attorneys’ fees to First Data is 22 warranted. See Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 631 (4th Cir. 1999). judgment, and reverse “[W]e defer to the trial court’s a trial court’s attorney fees determination only if the trial court exceeds the bounds of its discretion.” Neff v. Neff, 247 P.3d 380, 399 (Utah 2011). SecurityMetrics brought a counterclaim under the UTIAA, which was enacted “to prevent deceptive, misleading, and false advertising practices and forms in Utah.” 1. Utah Code § 13-11a- The district court granted First Data summary judgment as to this claim because “the relevant provisions of the [UTIAA] track the Lanham Act [so] SecurityMetrics’ J.A. 1372. 9 statute fail as well.” court shall Utah Code award attorneys’ fees § 13-11a-4(2)(c). claims under the state Under the UTIAA, “[t]he to the prevailing Notwithstanding the party.” statutory language, the district court did not award First Data attorneys’ fees because it was not the prevailing party “within the context of the case as a whole.” J.A. 1939. First Data argues the district court’s decision was an error of law. The party” Supreme Court specifically general framework as to of to Utah the has UTIAA, ascertain the not but We disagree. defined it has prevailing SecurityMetrics did not appeal its UTIAA claim. 23 provided party action. 9 “prevailing in a an In Neff v. Neff, 247 P.3d 380 (Utah 2011), two brothers and one-time business partners became spanning more than six years. embroiled litigation After trial, both parties sought attorneys’ fees, which the trial court denied. appealed. in Only one brother The Supreme Court of Utah affirmed the denial and held that a trial court “must base its decision [whether to award attorney fees] on a number of factors.” Id. at 398. These factors include the language of the contract or statute that forms the basis of the attorney fees award, the number of claims brought by the parties, the importance of each of the claims relative to the entire litigation, and the amounts awarded on each claim. . . . Accordingly, it is possible that, in litigation where both parties obtain mixed results, neither party should be deemed to have prevailed for purposes of awarding attorney fees. This is true even where the statutory language states that a prevailing party ‘shall be entitled to’ fees. Id. at 398–99 (emphasis added) (footnotes omitted). Here, the district court properly applied the rationale and standard announced in Neff. twenty-four claims before Between the two parties, there were the district court. The district court granted First Data summary judgment as to eleven of the claims. The parties voluntarily dismissed or withdrew eleven other claims. 10 Though the district court granted First Data 10 After various pre-trial motions, First Data had four remaining claims (Counts 1, 2, 4, and 9) and SecurityMetrics had two remaining claims (Counts 2 and 3). The Friday before trial, the parties reached a partial resolution to winnow the remaining claims down to the meaning of Merchant Data under the Terms of (Continued) 24 summary judgment on several claims, it “never ruled that the conduct of which SecurityMetrics complained was not actionable,” but rather that SecurityMetrics burdens. J.A. 1940. issue trial at was had not met its evidentiary Out of the twenty-four counts, the sole the parties’ competing claims as to the meaning of Merchant Data. Under Neff, the “prevailing party” does not refer to a single count nor is it simply a matter of adding up which party won the most claims. The district court here determined that, while First Data did prevail as to the UTIAA claim, it “had only limited success J.A. 1938. issue at when the case is considered as a whole.” The interpretation of Merchant Data was the only trial, an “resounding loss.” issue on which J.A. 1940. First Data suffered a Considering the Neff factors, the district court determined First Data’s UTIAA claim “occupied a peripheral position in the litigation as a whole.” J.A. 1939. The district court did not abuse its discretion in so finding. First Data’s argument that the plain language of the UTIAA “does not state prevailing party in the entire action” is plainly Settlement (First Data Count 1 and SecurityMetrics Count 2). The parties filed a consent order to dismiss with prejudice the remaining claims (First Data Counts 2, 4, and 9 and SecurityMetrics Count 3), each side bearing their own costs and fees. The parties also withdrew their request for a jury trial. 25 foreclosed by Neff’s holding that a district court must consider “each of the claims relative to the entire litigation . . . even where the statutory language shall be entitled to fees.” citation omitted). states that a prevailing party Neff 247 P.3d at 398–99 (internal Therefore, we affirm the district court’s denial of attorneys’ fees. V. On the record before us, SecurityMetrics did not present evidence of a genuine issue of material fact sufficient to survive a motion for summary judgment on its Lanham Act claim, tortious interference claim, or antitrust claims. The district court did not abuse its discretion in finding that First Data was not a prevailing party in the overall action and, therefore, not entitled to attorneys’ fees under the UTIAA. For these reasons, the judgment of the district court is AFFIRMED. 26

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