Quadvest v. San Jacinto River Auth

United States Court of Appeals
for the Fifth Circuit
____________

No. 25-20415
____________

Quadvest, L.P.,

Plaintiff—Appellant,

versus

San Jacinto River Authority,

Defendant—Appellee.
______________________________

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-4508
______________________________

Before King, Smith, and Ramirez, Circuit Judges.
King, Circuit Judge:
A conservation district in Montgomery County, Texas, mandated a
30% reduction in groundwater usage by large volume groundwater users. To
attain collective compliance, the San Jacinto River Authority (the “River
Authority”) executed individual contracts with 80 utilities, including
Quadvest, L.P. (“Quadvest”). Believing those contracts to be unlawful
restraints of trade in violation of the Sherman Act, Quadvest brought this
suit. After a ten-day bench trial, the district court sided with the River
Authority. We AFFIRM.
United States Court of Appeals
Fifth Circuit
FILED
August 18, 2026

Lyle W. Cayce
Clerk
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I
A
The River Authority is “a political subdivision of the State of Texas,
created in 1937 by the Texas Legislature to conserve, control, and utilize the
storm and flood waters of the San Jacinto River and its tributary streams.”
Quadvest, L.P. v. San Jacinto River Auth., 7 F.4th 337, 340 (5th Cir. 2021). To
those ends, it enjoys broad powers under its enabling statute, including to:
 “formulate any and all plans deemed essential to the operation
of [the River Authority] and for its administration in the
control, storing, preservation, and distribution to all useful
purposes of the storm and flood waters of the San Jacinto River
and its tributary streams”;
 “control, utiliz[e] and coordinat[e] . . . regulation of the waters
of the San Jacinto River and its tributaries”;
 “provide water for domestic, municipal, commercial,
industrial and mining purposes . . . including water supplies for
cities, towns and industries”;
 “construct or otherwise acquire water transportation,
treatment and distribution facilities and supplemental sources
of supply”;
 “enter into any and all necessary and proper contracts . . .
necessary or useful in the furtherance of any power granted by
law to [the River Authority]”;
 “enter into such contracts . . . with municipalities or other
corporate bodies or persons, public or private, for the purpose
of establishing and collecting . . . rates and other charges for
the sale or use of water, water transmission, treatment or
connection facilities . . . and any other services sold, furnishes
or supplied by [the River Authority].”
Id. at 349–51.
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What it cannot do, however, is collect taxes. Instead, its major source
of funding is from contract revenue services (i.e., rates it sets and collects).
To an extent, the River Authority is also a market player. It “provides
groundwater services or wastewater services . . . in The Woodlands, based on
an arrangement dating back to the 1970s.” But that is the only place it
provides such services in, and it has not tried to grow or expand these
services.
B
Quadvest is a family-operated, investor-owned utility that operates in
Montgomery and surrounding counties to provide water and wastewater
services. It relies solely on groundwater to provide those services.
When it entered into the contract at issue with the River Authority, it
operated only in the retail market, selling to end-users of water. And as a
retailer, it competes for contracts with developers for the right to sell retail
water to customers in a particular geographic area. Once it secures a retail
contract, it must obtain a permit and receive approval of its rates from the
Texas Public Utility Commission.
A few years after executing the contract, Quadvest expanded into the
wholesale market. The wholesale market is not regulated like the retail
market. Wholesalers compete to contract with retailers or to provide
supplemental water to those who need it. And the rates need not be approved
by the Public Utility Commission and are set by contract.
C
Much of this case revolves around the difference between surface
water and groundwater. To the consumer, the two are indistinguishable. But
surface water is more expensive because of the infrastructure needed to
produce, treat, and deliver it. For example, before the regulations giving rise
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to this suit took effect, the River Authority’s cost to produce surface water in
Montgomery County was about $7.00 per thousand gallons, while
Quadvest’s cost to produce groundwater was about $1.69 per thousand
gallons.
That cost differential meant groundwater was much more popular. So
since the 1990s, the Texas Legislature has expressed concerns that existing
supplies of groundwater may be insufficient to meet rising demands and thus
be depleted.
To address that concern, in 2001, the Texas Legislature created the
Lone Star Groundwater Conservation District (the “Conservation
District”) and tasked it with managing groundwater in Montgomery County.
The Conservation District is governed by a nine-member board of directors,
and from the Conservation District’s creation until 2017, each director was
appointed by relevant government stakeholders, such as County
Commissioners Court, mayors, municipal utility districts, and the River
Authority. After 2017, the board members were elected.
What the Conservation District saw was projected groundwater
overuse. It concluded that the county’s aquifers were “recharging” at
64,000 acre-feet per year. But by 2010, groundwater demand was estimated
to exceed 70,000 acre-feet per year, and by 2020, 82,000 acre-feet per year.
The Conservation District thus sought to limit groundwater withdrawals to
the recharge rate of 64,000 acre-feet per year.
So came the groundwater reduction rule (the “Rule”). The Rule
mandated a 30% reduction in groundwater usage by “Large Volume
Groundwater Users” (“LVGUs”) by 2015. An LVGU is any user pumping
more than 10 million gallons of groundwater per year and includes Quadvest
and the River Authority. Importantly, the Rule permitted collective
compliance. That is, two or more LVGUs could join a reduction plan, under
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which some users would over-convert to surface water or alternative sources
and others would under-convert; if in the aggregate, the collective achieved
the 30% reduction, every member of the collective would be deemed to have
complied, even if individual members may not have.
D
The River Authority proposed just the thing. The River Authority’s
joint groundwater reduction plan (“Joint GRP”) proposed converting two of
the largest groundwater producers in Montgomery County (The Woodlands
and the City of Conroe) to reduce the burden of compliance on smaller
entities in the plan and to leverage economies of scale. It would achieve that
conversion by tapping into Lake Conroe, in which the River Authority holds
a one-third interest of the annual permitted yield and the City of Houston
holds the other two-thirds. All told, approximately 80 water utilities,
supplying 80% of the water in Montgomery County, joined the Joint GRP.
The Conservation District ultimately approved the Joint GRP.
To join the Joint GRP, each participating LVGU (“Participant”)
executed an individual contract (“GRP Contract”) with the River Authority.
Quadvest did so on July 1, 2010, “believe[ing] that it was ‘buying
compliance’ with” the Rule. And in a letter to its customers, Quadvest
described the Joint GRP as “the most economical way to reduce groundwater
pumpage” and achieve compliance—“the best option available.” Indeed,
compliance was crucial for Quadvest’s survival. Because the Conservation
District imposed escalating penalties—starting at $500 per day in 2008 and
increasing to $10,000 per day by 2011—Quadvest was facing up to $150,000
in fines per day for its 15 groundwater permits, more than its daily revenue.
And noncompliance could result in permit revocations altogether, taking it
out of the market.
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The GRP Contracts—which are substantially identical among all
Participants—essentially sold the River Authority’s compliance services in
exchange for fees. For its part, the River Authority agreed to provide the
following services:
 “the development and administration of a GRP that
includes Participant”;
 “the design, permitting, construction, operation,
maintenance, and administration of the Project . . . as
necessary to implement the GRP and thereby benefit
Participant”;
 “the sale of treated surface water by [the River Authority]
to certain Participants, as necessary to implement the GRP
and thereby benefit Participant”;
 “the administration of the GRP and the Project by [the
River Authority]”;
 “the financing by [the River Authority] of design,
permitting, construction, and other costs related to the
Project”;
 “the establishment and administration of the Project, the
GRP, and the Rules”; and
 “the establishment, collection, enforcement, and
application of fees, rates, and charges.”
And for its part, each Participant “agree[d] to pay [the River Authority]
certain fees, rates, and charges pursuant to the terms and provisions of th[e]
Contract.”
Two main issues confronted the Joint GRP—cost and a free-rider
problem. Paying Houston for its two-thirds interest in Lake Conroe water and
building the necessary infrastructure to treat and transport the surface water
were by no means going to be cheap. In fact, the total cost of this proposed
venture was estimated to be approximately $480,000,000. The Texas
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Legislature, however, declined to let the River Authority impose fees directly
on the LVGUs.
And like other collective actions, this one posed a free-rider problem.
While some would over-transition to more expensive surface water, others
would continue pumping cheaper groundwater while getting credit for
compliance. Worse still, there would be no incentive for anyone to convert to
surface water at all.
Two features of the GRP Contracts, central to this appeal, sought to
address these issues. Quadvest calls them the “cost equalization” provision
and “mandatory connection” provision. We explain them in turn.
1
The GRP Contract establishes two parallel fees: a pumpage fee
assessed on each Participant’s groundwater production and a delivery fee
charged for treated surface water delivered by the River Authority to the
Participant. Each fee is a function of (1) the quantity of water pumped or
delivered and (2) a “prevailing rate” for pumpage or delivery set by the River
Authority.
In setting the prevailing rate, the River Authority is constrained by
certain guiding principles. For the groundwater pumpage prevailing rate, it
must be set so that, “as nearly as practicable in [the River Authority’s]
reasonable determination[,] (i) the Participants are neither benefitted nor
penalized for utilizing groundwater from Wells, and (ii) reasonable allowance
is made for the Participants’ costs of operating and maintaining their Wells.”
And the pumpage prevailing rate “shall be equal and uniform among all
classes of Participants that pump groundwater.” Similarly, the surface-water
delivery prevailing rate must be set so that “the Participants are neither
benefitted nor penalized for being required to take Water from the Project
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under the GRP.” And both rates must be set “such that no special advantage
or disadvantage is realized by any of the Participants.”
The fees have two purposes. First, they ensure that the costs to
produce groundwater and surface water are equal so that those who over-
convert to surface water for the compliance of the collective are not
penalized. On the flipside, too, they ensure that those who remain on
groundwater do not get to free-ride on the costly conversion of others.
Second, they help the River Authority repay its debt. The River
Authority initially self-funded the venture by issuing more than
$530,000,000 in bonds for the construction of the surface water treatment
plant and delivery infrastructure. And these fees—the sole source of money
for the River Authority under the GRP Contracts—would be used to pay off
those bonds. Crucially, under the GRP Contract, the River Authority did not
earn a profit.
2
The GRP Contract also provides that the River Authority “shall
decide when, if ever, Participant must connect to the Project” and take
surface water. And once the River Authority mandates the connection, the
Participant must take treated surface water in quantity determined by the
River Authority based on “the capacity of the Project and the requirements
of the GRP.” The River Authority may also increase this mandatory take.
This provision ensures that some participants actually convert to
surface water. Without it, the Joint GRP could not compel any member to
convert, and it could not achieve the 30% reduction mandated by the Rule.
E
In 2015, the necessary infrastructure was completed, and the River
Authority began delivering surface water from Lake Conroe. Since then to
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now, it has continued to do so to 17 LVGUs, but it has never required
Quadvest to take surface water.
Even so, Quadvest took aim at the Rule undergirding the GRP
Contracts. In August 2015, Quadvest sued the Conservation District in state
court, challenging the validity of the Rule. While that suit was pending,
Quadvest overhauled the Conservation District’s board of directors through
a series of political maneuvers and advocacy. And in 2019, the new board
approved a settlement agreement with Quadvest and agreed to a final
judgment stating that it was “without legal authority” to limit pumping and
that the pumping limits “are, and have been, unlawful, void, and
unenforceable.” Now, the Conservation District provides a guideline that no
more than 97,000 acre-feet per year of groundwater should be pumped, but
no regulations currently enforce a reduction in groundwater pumping.
F
With the underlying regulation gone, Quadvest brought this challenge
to the GRP Contracts.
1
Quadvest, 7 F.4th at 339–40. The River Authority
moved to dismiss, asserting statute-of-limitations, laches, and state-action-
immunity defenses and arguing that the plaintiffs failed to state a claim. Id. at
342. The district court denied the motion, prompting an interlocutory appeal
on the state-action immunity issue. Id. This court affirmed, holding that the
River Authority is “not entitled to state-action immunity at this stage.” Id.
at 348.
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1
Initially, Quadvest was joined by another investor-owned water utility, Woodland
Oaks Utility. See Quadvest, 7 F.4th at 339. But before trial, Woodland Oaks Utility
voluntarily dismissed its claims. From trial through appeal, Quadvest was and remains the
sole plaintiff.
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After remand, the case went to trial in January 2024 on four Sherman
Act claims: (1) § 1 price-fixing; (2) § 1 market-allocation; (3) § 1 tying; and
(4) § 2 attempted-monopolization claims. Crucially, “Quadvest d[id] not
challenge any other Joint GRP contracts between [the River Authority] and
other [LVGUs] even though they have essentially identical terms.”
Following a bench trial, the district court issued a 106-page Findings of Fact
and Conclusions of Law, concluding that “Quadvest failed to prove any of its
claims,” and a final judgment in the River Authority’s favor. Quadvest timely
appealed, but only the price-fixing and market-allocation claims.
II
“The standard of review for a bench trial is well established: findings
of fact are reviewed for clear error and legal issues are reviewed de novo.”
Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 1036
(5th Cir. 2015).
III
On appeal, Quadvest presents seven points of error. They essentially
boil down to three: (1) the district court erred in concluding that Quadvest
failed to establish an antitrust injury; (2) the GRP Contract is a per se illegal
horizontal price-fixing or market allocation agreement in violation of § 1 of
the Sherman Act; and (3) even if the GRP Contract is not per se illegal, it fails
the rule of reason.
Even if the district court erred in finding no antitrust injury, however,
Quadvest failed to show that the GRP Contract is a violation of the Sherman
Act as a per se illegal arrangement or under the rule of reason. That is enough
for us to affirm, so we do not reach antitrust injury. See BRFHH Shreveport,
LLC v. Willis-Knighton Med. Ctr., 49 F.4th 520, 525 (5th Cir. 2022); see also
McCormack v. NCAA, 845 F.2d 1338, 1343 (5th Cir. 1988) (“Whether a
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plaintiff has antitrust standing does not raise a question of jurisdiction on
which we are required without exception to satisfy ourselves.”).
A
“Section 1 of the Sherman Act proscribes ‘[e]very contract,
combination . . . or conspiracy [] in restraint of trade or commerce . . . .”
Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d 1148, 1158 (5th
Cir. 1992) (quoting 15 U.S.C. § 1). “In order to state a claim for a violation of
Section 1, a plaintiff must allege (1) the existence of a [contract,
combination,] or conspiracy (2) affecting interstate commerce (3) that
imposes an unreasonable restraint of trade.” Id. (citation omitted).
We first address (1) the interstate-commerce nexus, then (2) whether
there is a contract, combination, or conspiracy for § 1 to apply, and, if so, (3)
whether it imposes an unreasonable restraint of trade.
1
“[T]he reach of the [Sherman A]ct is coextensive with the reach of
congressional power under the Commerce Clause of the Constitution.” Gulf
Coast Hotel-Motel Ass’n v. Miss. Gulf Coast Golf Course Ass’n, 658 F.3d 500,
504 (5th Cir. 2011). That is to say, it is expansive. See id. at 505 (collecting
cases). Indeed, “subject matter jurisdiction based on the Commerce Clause
has ‘long been interpreted to extend beyond activities actually in interstate
commerce to reach other activities that, while wholly local in nature,
nevertheless substantially affect interstate commerce.’” Id. (quoting Cowan
v. Corley, 814 F.2d 223, 226 (5th Cir. 1987)). At issue here is whether the
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relevant activity substantially affects interstate commerce, even if it is not in
it.
2

The district court found that “Quadvest has not met its burden to
establish that the alleged Sherman Act violation—[the River Authority’s]
GRP Contract with Quadvest—affects interstate commerce.” But that
examines the incorrect conduct; it is not the violation that must affect
interstate commerce, but the defendant’s commercial activity. As the
Supreme Court explained, a Sherman Act plaintiff “need not make the more
particularized showing of an effect on interstate commerce caused by the
alleged conspiracy . . . or by those other aspects of respondents’ activity that
are alleged to be unlawful.” McLain v. Real Estate Bd. of New Orleans, Inc.,
444 U.S. 232, 242–43 (1980). Rather, it must do no more than “demonstrate
a substantial effect on interstate commerce generated by respondents’
[commercial] activity.” Id. at 242. “If establishing jurisdiction required a
showing that the unlawful conduct itself has an effect on interstate
commerce, jurisdiction would be defeated by a demonstration that the
_____________________
2
The River Authority suggests that the interstate-commerce requirement is a
merits issue, not a jurisdictional one. As its argument goes, the Supreme Court in Arbaugh
v. Y&H Corp. announced a “bright line” rule that “when Congress does not rank a
statutory limitation on coverage as jurisdictional, courts should treat the restriction as
nonjurisdictional in character.” 546 U.S. 500, 516 (2006). And the Sherman Act does not
expressly say the interstate-commerce requirement is jurisdictional. But see Gulf Coast, 658
F.3d at 503–08 (post-Arbaugh, characterizing the interstate-commerce requirement as one
of “subject matter jurisdiction”).
That distinction may matter if there were no such interstate-commerce nexus
because then the district court’s final judgment on the merits would be invalid. See In re
Majestic Energy Corp., 835 F.2d 87, 89 (5th Cir. 1998) (“Where a federal court rules in a
matter over which it does not have jurisdiction, its decisions, opinions and orders are
without effect.”). But because we hold that there is sufficient interstate-commerce nexus,
we need not conclusively resolve whether this requirement is jurisdictional.
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alleged restraint failed to have its intended anticompetitive effect. That is not
the rule of our cases.” Id.
Because it relied on an erroneous view of the law, the district court
made no factual findings related to the interstate-commerce effects of the
River Authority’s commercial activities. Ordinarily, that may be grounds for
a remand. See Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982). But
“when the record permits only one resolution of the factual issue after the
correct law is applied, remand is unnecessary.” Aransas Project v. Shaw, 775
F.3d 641, 658 (5th Cir. 2014). And here, the record shows ample interstate-
commerce connection, even under the narrow standard the district court
applied.
Uncontroverted record evidence shows that vast sums of money
crossed state lines in furtherance of the Joint GRP and in the River
Authority’s name. Recall that the River Authority issued $530,000,000 in
bonds. The depository bank for the bond funds was the Bank of New York
Trust Company, which, as its name suggests, is not a Texas entity. The Bank
of New York Trust Company, in turn, disbursed the funds to various other
entities, including to a Massachusetts entity and a Texas entity. And the
funds were eventually used to build infrastructure in Texas. We see no
difficulty in concluding that hundreds of millions of dollars crossing state
lines have a substantial effect on interstate commerce. See McLain, 444 U.S.
at 245.
2
Having ascertained Sherman Act jurisdiction, we turn to whether § 1
of the Sherman Act is triggered at all. “The Sherman Act contains a ‘basic
distinction between concerted and independent action.’” Copperweld Corp.
v. Indep. Tube Corp., 467 U.S. 752, 767 (1984). “The conduct of a single
firm”—i.e., independent action—“is governed by § 2 alone and is unlawful
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only when it threatens actual monopolization.” Id. For instance, predatory
pricing—below-cost prices that drive rivals out of the market and allow the
monopolist to raise its prices later and recoup its losses—is unilateral
conduct scrutinized under § 2. Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc.,
555 U.S. 438, 448 (2009). “Section 1 of the Sherman Act, in contrast, reaches
unreasonable restraints of trade effected by a ‘contract, combination . . . or
conspiracy’ between separate entities.” Copperweld, 467 U.S. at 768. “It does
not reach conduct that is ‘wholly unilateral.’” Id.
The district court concluded as to the price-fixing claim that the River
Authority’s “offered pricing is ‘unilateral conduct’ that section 1 does not
reach.” But that conclusion misses the mark because the alleged illegal price-
fixing is the fees in the contract, not the offered pricing. A formed contract—a
step beyond a mere offer—requires two or more parties, and no one disputes
that the GRP Contract at issue is between Quadvest and the River
Authority—“between separate entities.” See Copperweld, 467 U.S. at 768.
To be sure, two parties can enter an agreement to form a joint venture
that operates as a single entity. See Texaco Inc. v. Dagher, 547 U.S. 1, 4 (2006).
But the district court never found that the Joint GRP is a joint venture, and
the River Authority conceded below that it “has never argued that its
contract with Quadvest created a single entity.” Moreover, a finding that the
Joint GRP was a joint venture would be hard to square with the district
court’s finding that “Quadvest is [the River Authority’s] customer,” not
partner.
The district court thus erred in concluding that the challenged
conduct is “‘unilateral conduct’ that section 1 does not reach.” It is a
concerted action between the River Authority and Quadvest, so § 1 applies.
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3
Finally, and perhaps most importantly, Quadvest must show that the
GRP Contract was an unreasonable restraint of trade. Antitrust analysis
under § 1 of the Sherman Act generally falls into two categories. “In the first
category are agreements whose nature and necessary effect are so plainly
anticompetitive that no elaborate study of the industry is needed to establish
their illegality—they are ‘illegal per se.’” Nat’l Soc’y of Prof’l Eng’rs v. United
States, 435 U.S. 679, 692 (1978). “In the second category are agreements
whose competitive effect can only be evaluated by analyzing the facts peculiar
to the business, the history of the restraint, and the reasons why it was
imposed,”—commonly known as the “rule of reason.” Id. Because the per se
label almost always sounds the death knell for the challenged scheme, courts
“have expressed reluctance to adopt per se rules.” State Oil Co. v. Khan, 522
U.S. 3, 10 (1997).
Quadvest claims that the GRP Contract is per se illegal and, even if it
is not, fails the rule of reason. To the contrary, we conclude that the GRP
Contract is not subject to per se condemnation because it is neither a
horizontal agreement nor an agreement to fix prices or allocate markets. And
we further conclude that the GRP Contract survives the rule of reason.
a
“Typically[,] only ‘horizontal’ restraints—restraints ‘imposed by
agreement between competitors’—qualify as unreasonable per se.” Ohio v.
Am. Express Co., 585 U.S. 529, 540 (2018) (quoting Bus. Elecs. Corp. v. Sharp
Elecs. Corp., 485 U.S. 717, 730 (1988)). The Supreme Court has recognized
two such horizontal restraints subject to the per se rule: price fixing and
market allocation. Texaco, 547 U.S. at 5 (price fixing); Palmer v. BRG of Ga.,
Inc., 498 U.S. 46, 49 (1990) (market allocation). Quadvest claims that the
GRP Contract is both. It is neither.
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i
“Horizontal agreements are . . . agreements between competitors.”
New Orleans Ass’n of Cemetery Tour Guides & Cos. v. New Orleans
Archdiocesan Cemeteries, 56 F.4th 1026, 1035 (5th Cir. 2023). “Vertical
agreements are those between entities at different levels of distribution.” Id.
The district court held that “Quadvest is [the River Authority’s] customer,”
not competitor, making the agreement vertical. The River Authority
similarly argues that the GRP Contract is an “agreement between buyer and
seller to achieve regulatory compliance.” Quadvest, on the other hand,
argues that the River Authority and Quadvest “are not part of any
distribution chain—they are both water wholesalers. Because [they] both
operate on the same level of production, their agreement is not vertical.”
The agreement is vertical for two reasons. First, regardless of whether
Quadvest and the River Authority compete in the wholesale market
generally, the specific transaction at issue is vertical. “[N]ot every agreement
between horizontally related firms is necessarily a horizontal agreement.”
Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law:
An Analysis of Antitrust Principles and Their
Application ¶ 1901b (5th ed. 2026). For example:
Chrysler, currently having excess capacity in windshield wiper
production facilities, might sell a wiper blade factory to Ford,
who currently does not make such blades. Although Chrysler
and Ford are rivals in the sale of automobiles, and presumably
in most aspects of their automobile-manufacturing business,
this particular transaction is actually vertical, in the sense that
Chrysler is acting as a supplier of an input into the production
of Ford automobiles.
Id. And here, even if Quadvest and the River Authority are wholesale
competitors, the River Authority “is acting as a supplier of an input into the
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production of” Quadvest’s groundwater—services to obtain regulatory
compliance.
3

Second, more fundamentally, the River Authority and Quadvest were
not competitors at the time the agreement was made. “[I]t is a basic antitrust
principle that the impact of an agreement on competition is assessed as of
‘the time it was adopted.’” Impax Lab’ys, Inc. v. Fed. Trade Comm’n, 994
F.3d 484, 496 (5th Cir. 2021) (quoting Polk Bros. v. Forest City Enters., 776
F.2d 185, 189 (7th Cir. 1985) (Easterbrook, J.)); see also Areeda &
Hovenkamp, supra, ¶ 1901b (explaining that rivalry must exist “at the
time the agreement is made”). Here, the district court specifically found—
and Quadvest does not dispute—that “[w]hen it signed the GRP Contract,
Quadvest did not have any wholesale water customers.” And it would not
have one until 2012.
In fact, even now, Quadvest and the River Authority do not compete.
The River Authority provides groundwater and wastewater services only in
The Woodlands, based on an arrangement dating back to the 1970s. Quadvest
does not point to any part of the record or the district court’s factual findings
that show that it too operates in that market or competes for the same
customers. Nor has Quadvest shown that the River Authority is encroaching
on Quadvest’s market. Indeed, the district court found that “Quadvest did
not establish that [the River Authority] tries to sell its wholesale treated
surface water on the free market or has any plans to do so.” And while, since
2012, Quadvest’s wholesale customers included home builders, real estate
_____________________
3
At oral argument, Quadvest’s counsel argued that the River Authority cannot act
as a supplier of an input by selling compliance because it “do[es]n’t have compliance to
sell.” We agree, but that misses the point. The River Authority is not selling compliance
per se, but services to obtain it. In that way, it is akin to an accountant who, while not having
tax-code compliance to sell, can offer services to achieve that compliance.
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developments, and new municipal utility districts, the River Authority has
not contracted with any such entities in the meantime. In fact, the River
Authority has no sales team at all. Moreover, while certain Joint GRP
Participants are drawing water from the River Authority, the district court
found that “Quadvest has not tried to compete with [the River Authority] to
deliver water to any GRP Participants.” Quadvest does not contend
otherwise.
In short, Quadvest has not entered and does not intend to enter the
River Authority’s part of the market, and the River Authority has not entered
and does not intend to enter Quadvest’s. They are not and have never been
competitors.
According to Quadvest, that matters little because they “compete by
seeking to provide the same services.” To start, that begs the question by
asserting that they “compete” in any capacity, contrary to the district court’s
unchallenged findings of fact. And, again, at the time of the agreement,
Quadvest and the River Authority did not seek to provide the same services
because Quadvest had not yet entered the wholesale market. Moreover, mere
provision of the same services—without more—is insufficient. The
purported competitors must do so in the same market to the same pool of
customers. Again, the district court found that Quadvest and the River
Authority do not do so.
Tellingly, the three cases Quadvest relies on do not support its
proffered proposition. Take Arizona v. Maricopa County Medical Society, 457
U.S. 332 (1982). There, the Supreme Court entertained an antitrust
challenge to two nonprofit foundations formed “to provide the community
with a competitive alternative to existing health insurance plans.” Id. at 339–
40. To that end, the foundations established a schedule of maximum fees the
participating doctors agreed to accept. Id. at 339. In holding that the fee
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schedule was per se illegal price fixing, the Court wrote, “[t]he agreement
under attack is an agreement among hundreds of competing doctors
concerning the price at which each will offer his own services to a substantial
number of consumers.” Id. at 356–57.
The issue for Quadvest is that Maricopa’s holding was built on the
factual predicate that the parties to the agreement were “competing
doctors.” Id. at 357. In fact, the foundations themselves conceded that “the
agreements at issue are horizontal.” Id. at 342. Here, of course, the River
Authority does not concede so, and Quadvest had the burden to establish that
factual predicate at trial but failed to carry it.
Similar problem for Quadvest’s reliance on North Texas Specialty
Physicians. North Texas Specialty Physicians (“NTSP”) was an organization
of physicians and physician groups that “negotiate[d] contracts between
these groups and ‘payors’ such as insurance companies.” N. Tex. Specialty
Physicians v. F.T.C., 528 F.3d 346, 352 (5th Cir. 2008). The organization’s
eight-member elected board of directors would disseminate the payors’
offers to physicians, and if a majority of the physicians voted to accept the
offer, the organization would proceed to negotiating a contract. Id. at 353.
But there too, the record before this court showed that the physicians
were competitors. As we explained, “[t]he ALJ found, and NTSP does not
dispute, that in Tarrant County NTSP specialists were a large percentage of
the practitioners within a specialty, for example 80 percent in pulmonary
disease, 59 percent in cardiovascular disease, and 69 percent in urology.
Many NTSP physicians compete with one another.” Id. Indeed, “[t]he FTC
found that NTSP is controlled by competing physicians,” a factual finding
we deemed conclusive because it was supported by evidence. Id. at 354, 356;
see also 15 U.S.C. § 45(c).
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So again, North Texas Specialty Physicians never purported to hold that
mere possibility of competition stemming from the provision of the same
services suffices for § 1 liability. Instead, like the Court in Maricopa, this court
built its holding on the factual predicate before it—that the signatories to an
agreement were in fact competitors. We have no such predicate before us.
The third case is even less applicable. Quoting American Needle, Inc.
v. National Football League, Quadvest tells us “[a]bsence of actual
competition may simply be a manifestation of the anticompetitive agreement
itself.” See 560 U.S. 183, 198 (2010). But that plucks the quote out of its
context. At issue in American Needle was whether the conduct of a marketing
entity formed by professional football teams in the National Football League
(“NFL”) should be viewed as a concerted action of those teams or a
unilateral action of the entity. Id. at 189. In arguing that it was a unilateral
action, the NFL pointed out that its teams “have for some time marketed
their trademarks jointly.” Id. at 198. The Court rejected that argument, and
it was in support of an unremarkable proposition—that a history of
anticompetitive behavior does not sanitize it—that the Court said the
absence of actual competition may be because of the anticompetitive
agreement itself. Id.
Here, however, there is no history of competition before the allegedly
anticompetitive agreement. Nor does Quadvest argue that it was bound by
another anticompetitive agreement before the GRP Contracts that inhibited
its competition with the River Authority. American Needle is thus inapposite.
In a similar vein, Quadvest argues that mere potential competitor
status is sufficient to form a horizontal agreement. To be sure, in United
States v. Topco Associates, Inc., the Supreme Court held as a per se illegal
horizontal agreement an agreement among small and medium sized regional
supermarket chains to divide up markets to sell private-label products. 405
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U.S. 596, 598, 601–02, 608 (1972). And it did so even though “[t]he
defendants in Topco had never competed in the same market, but had simply
agreed to allocate markets.” Palmer, 498 U.S. at 49.
But two points undermine Quadvest’s reliance on Topco. First, the
defendants there never disputed that the market is allocated among would-
be competitors, “accept[ing] as true most of the Government’s allegations
regarding territorial division and restrictions on wholesaling.” Topco, 405
U.S. at 604. The only issue before the Court was whether the defendants’
proffered justification for the horizontal agreement—that the territorial
divisions are necessary to compete with larger chains—saves the agreement
from the per se rule. Id. at 605.
Second, nothing in the record shows that Quadvest was even a
potential competitor to the River Authority. We reiterate that, at the time of
the GRP Contract, Quadvest was not a participant in the wholesale market.
And the record does not show that it even attempted to enter that market but
could not. In fact, it took two years after the GRP Contract to secure its first
wholesale contract.
That failure of proof is compounded by the district court’s finding that
“[t]ransporting water over large distances is costly, with water transmission
lines costing on average about $7.2 million per mile to construct.” “Based on
Quadvest’s total net income over the decade between 2011 and 2020,
Quadvest could afford to build only about two and a half miles’ worth of
instructor in the same decade.” Consequently, “[g]roundwater usage is very
localized, with groundwater being able to be transported only a few miles in
any direction.” The costly infrastructure therefore casts further doubt on
even the potential competitor status of Quadvest to the River Authority.
Lastly, Quadvest urges us to follow a 76-year-old case from the Fourth
Circuit. In Pennsylvania Water & Power Co. v. Consolidated Gas, Electric Light
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& Power Co., two utilities (Penn Water and Consolidated) were held to have
entered into a per se unlawful horizontal market-allocation agreement. 184
F.2d 552, 558 (4th Cir. 1950). Per Quadvest, the Fourth Circuit held so even
though the parties were mere potential competitors. But that potential-
competitor status was by virtue of their existing infrastructure, which
Quadvest lacks. As the Fourth Circuit explained, “[i]f it were not for the
agreement between the parties which [was] the subject of th[at] suit, the
parties would be potential competitors in the generation and sale of electric
energy through their present facilities or other facilities that might be constructed.”
Id. at 556 (emphasis added).
Indeed, the court took pains to explain the extent of the existing
infrastructure that would have enabled the two utilities to compete. Penn
Water had lines that “connect[ed] directly” to others, allowing it to draw
from them “if it were not for its contract with Consolidated”; Consolidated
had “four large steam generating plants” and “distribution facilities in and
around” the geographic market, with “extensive transmission lines”; and
both had charter rights for the purchase and sale of electricity in the
geographic market. Id. at 555–56. It was by virtue of such existing
infrastructure and modest extensions thereof that these utilities were
“potential competitors.” Id. at 556. The same cannot be said with respect to
Quadvest, whose infrastructure was limited and capital insufficient to greatly
expand it.
Therefore, the GRP Contract is a vertical agreement.
ii
Even if the GRP Contract is a horizontal agreement, it is not a price-
fixing agreement.
“The price-fixing within the scope of the per se prohibition of § 1 . . .
is an agreement to fix the price to be charged in transactions with third
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parties, not between the contracting parties themselves.” United States v. All
Star Indus., 962 F.2d 465, 470 n.10 (5th Cir. 1992). But nothing in the GRP
Contract sets wholesale water prices or affects Quadvest’s ability to negotiate
them with potential customers. In fact, in 2021, Quadvest entered a
wholesale water contract in which it expressly agreed not to pass along the
pumpage fees it was charged under the GRP Contract.
Quadvest counters that a “combination formed for the purpose and
with the effect of raising, depressing, fixing, pegging, or stabilizing the price
of a commodity in interstate or foreign commerce is illegal per se.” See United
States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223 (1940) (emphasis added).
The purpose and effect of the cost equalization provision, says Quadvest,
were to raise the cost of groundwater and lower the cost of surface water to
create “price neutrality” in the market.
While Quadvest is correct that the GRP Contract’s demonstrable
purpose was to raise and lower the respective production costs of the different
waters, it is an unsupported logical leap to conclude that the purpose—not
merely the effect—was to manipulate the market price. Start with two givens.
First, the GRP Contract, by design, affects the production cost. The River
Authority concedes as much, explaining that the cost equalization is
necessary to ensure that “participants who received surface water were not
penalized relative to those who continued pumping groundwater”
“[b]ecause surface water is more expensive to produce than groundwater.”
Second, the GRP Contract had an effect on the market price of water.
Quadvest merges the two givens. It claims that because there was a
purpose of affecting the cost, and the effect of affecting the market price, it
means there was the purpose of affecting the market price. It makes that logical
leap by characterizing the pumpage fee as “an agreed cost floor set by the
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participants, not the free market,” because the GRP Participants “have to
pass on” those fees.
But the record contradicts that characterization. No provision of the
GRP Contract sets a “cost floor” for the water. Again, nothing in the GRP
Contract sets or affects Quadvest’s ability to negotiate wholesale water prices
with potential customers. Nor does Quadvest “have to pass on those fees”;
it in fact entered into a wholesale agreement specifically agreeing not to pass
on those pumpage fees. Quadvest’s contention may make sense if the alleged
market and the relevant commodity was the act of production itself, not
water; the GRP Contract indisputably sets an agreed-upon cost floor on
production. But it does not set the floor on the downstream wholesale or
retail market.
Instead, the Joint GRP was agnostic as to the market price. As the
district court found, the River Authority “does not know what prices
Quadvest charges its customers, does not monitor those prices, has never
sought to determine what those prices are, and Quadvest has never
approached [the River Authority] to approve the prices that Quadvest
charges its customers.” Thus, the GRP Contract does not evince a purpose
of manipulating the market price and is not a price-fixing agreement.
iii
Next, the market-allocation claim. Before wading into the merits, we
first explain our disagreement with the district court’s conclusion that the
market-allocation claim is moot. Turning to the merits, we hold that the GRP
Contract is not a market-allocation agreement.
“The Constitution’s case-or-controversy limitation on federal
judicial authority, Art. III, § 2, underpins . . . [the] mootness jurisprudence.”
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167,
180 (2000). If there is no more controversy between the litigants, “they no
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longer qualify as adverse parties with sufficient legal interests to maintain the
litigation,” depriving this court of the “power to entertain the case.”
Sossamon v. Lone Star State of Tex., 560 F.3d 316, 324 (5th Cir. 2009).
But an exception exists: “[T]he voluntary cessation of a complained-
of activity by a defendant ordinarily does not moot a case.” Id. The standard
for a party to sidestep this so-called “voluntary cessation doctrine” is
“stringent: A case might become moot if subsequent events make it
absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Laidlaw, 528 U.S. at 189. This court, however, has
effectively carved out an exception to the exception. “Although Laidlaw
establishes . . . a heavy burden . . . government actors in their sovereign
capacity and in the exercise of their official duties are accorded a presumption
of good faith because they are public servants, not self-interested private
parties.” Sossamon, 560 F.3d at 324.
Relying on that “lighter burden” enjoyed by government actors, id.,
the district court found mootness because the River Authority “has
represented to the [c]ourt multiple times that it will not (and cannot) force
Quadvest to connect to the surface water treatment system now that the
Conservation District has rescinded its groundwater pumping limits.”
That was in error. Quadvest’s claim is not that the River Authority
may force Quadvest to connect to the surface water treatment system. It is
that the River Authority has forced other GRP Participants to do so,
allocating to itself a part of the wholesale market and depriving Quadvest of
potential customers. And “in evaluating mootness, we must assume that
Plaintiff[] will prevail on the merits of [its] claims.” Sandpiper Residents Ass’n
v. U.S. Dep’t of Hous. & Urb. Dev., 106 F.4th 1134, 1141 (D.C. Cir. 2024). So
whether the River Authority will not or cannot force Quadvest to connect has
no bearing on the existence of the claim that the River Authority has forced
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others to connect. This is especially true when the district court found that
the River Authority’s delivery of treated surface water has not changed since
2016,” suggesting that some entities remained locked into the River
Authority’s supply and out of Quadvest’s reach. The case is therefore not
moot.
On the merits, however, Quadvest fails. “One of the classic examples
of a per se violation of § 1 is an agreement between competitors at the same
level of the market structure to allocate territories in order to minimize
competition.” Topco, 405 U.S. at 608. It includes agreements “either not to
compete with one another in the market, or to divide customers or potential
customers between them.” Optronic Techs., Inc. v. Ningbo Sunny Elec. Co.,
Ltd., 20 F.4th 466, 481 (9th Cir. 2021).
Quadvest claims the mandatory connection provision does “exactly
that”—“The provisions give [the River Authority] the power to decide
which participants are required to purchase its surface water. [The River
Authority] exercised that right, making the largest groundwater users its
customers.” The River Authority takes a narrower view of the contract. By
its reading of the GRP Contract, Quadvest agreed to “allocate” itself to the
River Authority as a possible customer of surface water, and that is not
improper market allocation.
The River Authority has the better view. Quadvest challenges its own
GRP Contract and no one else’s. And the subject of the Quadvest–River
Authority GRP Contract’s mandatory connection provision is not the
entirety of the Joint GRP or even some of its members—it is only Quadvest.
The GRP Contract says the River Authority “shall decide when, if ever,
Participant must connect to the Project.” And “[i]f Participant is required to
connect to the Project . . . then Participant shall take Water . . . in accordance
with the requirements of this Contract and when directed by written notice
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from” the River Authority. “Participant,” in turn, is defined as none other
than “QUADVEST, L.P., a Texas limited partnership.” So contrary to the
Quadvest’s position, the plain language of the GRP Contract allows the River
Authority to require Quadvest—and only Quadvest—to take water. It does
not hold captive Quadvest’s potential customers.
To be sure, the GRP Contract also sometimes refers to “Participants”
in the plural. “Participants,” though, is a separately defined term that
“includes [the River Authority], Participant, and any other Regulated User
that enters into and remains subject to a written agreement with [the River
Authority] in a form substantially similar to this Contract.” The fact that the
challenged GRP Contract specifically sets out a separate definition of the
plural “Participants” to include other members of the Joint GRP, yet the
mandatory connection provision only refers to the singular “Participant,”
cuts against Quadvest. And of course, however often the contract refers to
third parties, the River Authority cannot require non-parties to a contract to
undertake an obligation under that contract.
In sum, far from allocating the market, the sole contract at issue
merely allows the River Authority to sell Quadvest surface water. That does
not amount to a market-allocation agreement. The GRP Contract is therefore
not subject to the per se rule.
4

_____________________
4
Quadvest also challenges the district court’s alternative conclusion that, even if
the GRP Contract is a horizontal restraint on competition, it benefits from the “ancillary
restraints” doctrine. Because the ancillary restraints doctrine is an exception to the per se
rule, see Aya Healthcare Servs., Inc. v. AMN Healthcare, Inc., 9 F.4th 1102, 1109 (9th Cir.
2021), and because we hold that the GRP Contract is not subject to the per se rule, we do
not reach whether the ancillary restraints doctrine applies here.
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b
Without the per se rule, Quadvest is left with the rule of reason. Under
the rule of reason, an agreement’s “competitive effect can only be evaluated
by analyzing the facts peculiar to the business, the history of the restraint, and
the reasons why it was imposed.” Nat’l Soc’y of Prof’l Eng’rs, 435 U.S. at
692.
“[T]o determine whether a restraint violates the rule of reason, . . . a
three-step, burden-shifting framework applies.” Am. Express, 585 U.S. at 541.
“Under this framework, the plaintiff has the initial burden to prove that the
challenged restraint has a substantial anticompetitive effect that harms
consumers in the relevant market.” Id. “If the plaintiff carries its burden,
then the burden shifts to the defendant to show a procompetitive rationale
for the restraint.” Id. “If the defendant makes this showing, then the burden
shifts back to the plaintiff to demonstrate that the procompetitive efficiencies
could be reasonably achieved through less anticompetitive means.” Id. at
542.
Quadvest falters out of the gate. It cannot carry its initial burden
because it failed to define the relevant market at trial and forfeited any
arguments to the contrary on appeal. We do not reach the other prongs.
Quadvest can carry its initial burden directly or indirectly. Id. “Direct
evidence of anticompetitive effects would be proof of actual detrimental
effects on competition, such as reduced output, increased prices, or
decreased quality in the relevant market.” Id. “Indirect evidence would be
proof of market power plus some evidence that the challenged restraint
harms competition.” Id. Both paths require Quadvest to “define the relevant
market” because “courts usually cannot properly apply the rule of reason
without an accurate definition of the relevant market.” Id. at 542–43.
“Without a definition of [the] market there is no way to measure [the
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defendant’s] ability to lessen or destroy competition.” Id. at 543 (quoting
Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 177
(1965)).
The relevant market has two components: a product market and a
geographic market. Hornsby Oil Co., Inc. v. Champion Spark Plug Co., Inc., 714
F.2d 1384, 1393 (5th Cir. 1983). “[T]he relevant product market is composed
of products that have reasonable interchangeability,” id., that is, “[g]oods
that consumers view as substitutes for other goods,” R.D. Imports Ryno Indus.
Inc. v. Mazda Distrib. (Gulf), Inc., 807 F.2d 1222, 1225 (5th Cir. 1987). The
relevant geographic market is “the area of effective competition,”
considering “economic and physical barriers to expansion as transportation
costs, delivery limitations and customer convenience and preference.”
Hornsby Oil, 714 F.2d at 1394–95.
The district court found that Quadvest did not prove either the
relevant product market or the relevant geographic market. As to the product
market, the court found, Quadvest excluded from the proposed product
market several commodities—such as water from the Catahoula aquifer and
reused/reclaimed wastewater effluent—even though Quadvest’s own expert
acknowledged that Joint GRP Participants use those commodities. And “a
proposed relevant market that clearly does not encompass all interchangeable
substitute products” is “legally insufficient.” Apani Sw., Inc. v. Coca-Cola
Enter., Inc., 300 F.3d 620, 628 (5th Cir. 2002). Moreover, the district court
found the product market evidence “not clear, credible or reliable” because
Quadvest pointed only to Joint GRP Participants, whose substitution choices
were constrained not by market forces but by their contractual obligations
under their GRP Contracts.
As to the geographic market, the district court rejected Quadvest’s
proffered countywide market. It found that Quadvest’s own evidence and
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expert demonstrated that high transportation costs make it economically
infeasible to transport water more than a few miles, making the proposed
geographic market of Montgomery County “far too large.” And Quadvest
did not prove that every wholesale water customer in every part of
Montgomery County can turn to the River Authority for water since the
River Authority does not operate in most of the county. The court concluded,
the River Authority “has no realistic possibility of operating in most, let alone
all, of Montgomery County.”
To all this, Quadvest says nothing. Its opening brief focuses only on
the next question—whether there are substantial anticompetitive effects of
the GRP Contract. And its reply brief attempts to shed the burden altogether
by arguing that no proof of market power is required where “the very purpose
and effect of a horizontal agreement” is to make the prices unresponsive to a
competitive market. Even at oral argument, Quadvest’s counsel reprised the
same burden-shedding argument, contending that Quadvest need not define
the market because the restraint is per se illegal.
As explained above, however, the GRP Contract is neither horizontal
nor price fixing, and thus, is not per se unlawful. That means Quadvest faces
the burden of proving the relevant market. And by not challenge the district
court’s adverse fact-finding on that point—reviewed for clear error—
Quadvest has forfeited any arguments to the contrary and failed to carry that
burden. See Vernon Smith v. Sch. Bd. of Concordia Par., 88 F.4th 588, 594 (5th
Cir. 2023). Consequently, it has not proven that the GRP Contract is an
unlawful restraint of trade under the rule of reason.
IV
For the foregoing reasons, we AFFIRM the judgment of the district
court.
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