Highland Capital, Inc. v. Franklin National Bank

*The Honorable David M. Lawson, United States District Judge for
the Eastern D istrict of M ichigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0417P (6th Cir.)
File Name: 03a0417p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
HIGHLAND CAPITAL, INC.,
Plaintiff-Appellant,
v.
FRANKLIN NATIONAL BANK,
Defendant-Appellee.
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No. 02-5505
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 00-00832—William J. Haynes, Jr., District Judge.
Argued: September 9, 2003
Decided and Filed: November 25, 2003
Before: GUY and DAUGHTREY, Circuit Judges;
LAWSON, District Judge.*
_________________
COUNSEL
ARGUED: Jeffrey Alan Greene, Nashville, Tennessee, for
Appellant. Joseph A. Woodruff, WALLER, LANSDEN,
2 Highland Capital v. Franklin Nat’l Bank No. 02-5505
DORTCH & DAVIS, Nashville, Tennessee, for Appellee.
ON BRIEF: Jeffrey Alan Greene, Nashville, Tennessee, for
Appellant. Joseph A. Woodruff, W. Travis Parham,
WALLER, LANSDEN, DORTCH & DAVIS, Nashville,
Tennessee, for Appellee.
_________________
OPINION
_________________
DAVID M. LAWSON, District Judge. The plaintiff,
Highland Capital, Inc. (Highland), appeals from a summary
judgment dismissing its complaint against Franklin National
Bank (the Bank) that was brought under the anti-tying
provisions of the Bank Holding Company Act (BCHA), 12
U.S.C. § 1972. Highland asserted that the Bank required
Highland to purchase stock in the Bank’s holding company as
a prerequisite for obtaining a loan. The lower court found
that there was insufficient evidence of the connection required
by Section 1972 between the loan and the stock purchase.
We find that a claim under Section 1972 requires proof that
the extension of credit was actually conditioned on the bank’s
customer obtaining some other product or service from the
bank or one of its subsidiaries, and that Highland did not offer
evidence on this element sufficient to avoid summary
judgment. We therefore affirm the judgment of the district
court.
I.
At the time of the loan and the stock purchase, Highland
was controlled by its principal shareholder, Steve Morriss. In
an ongoing dispute with his erstwhile business partners,
Morriss lost control of Highland. None of the individuals
who succeeded to control of the company were involved in
the loan transactions at issue here, and all of the personnel
who were involved, including bank representatives and
Morriss, aver that no tying condition was imposed as a

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No. 02-5505 Highland Capital v. Franklin Nat’l Bank 3
requirement for obtaining the loan. Highland, under new
ownership, believes that it offered circumstantial evidence
sufficient to contradict the direct denials of the defendant’s
witnesses and to create a material fact question that precludes
summary judgment.
Morriss controlled Highland in 1998. In the later part of
that year, Highland obtained a substantial sum of money from
a commercial transaction. It subsequently deposited $1
million of those funds into its account at the Bank. Morriss
then approached Charles Lanier, the Bank’s Executive Vice-
President, and told him that Highland was interested in
purchasing the stock of the Bank’s holding company,
Franklin Financial Corporation (FFC). Lanier sent Morriss to
see James Rinker, a broker with Franklin Financial Securities,
Inc. (FFS), who helped the plaintiff open a securities account.
Shortly thereafter, Highland sought a loan from the Bank
for $610,000 to refinance an existing loan on a 42-acre parcel
of real estate located in Williamson County, Tennessee,
referred to as the Hollis Tract. Morriss averred that he alone
made the decision to seek this loan on behalf of Highland.
Highland received loan approval from the Bank on
November 10, 1998. In making its decision, the Bank waived
its otherwise applicable policy of requiring a written loan
application and submission of the borrower’s financial
statement. The Bank also did not require Morriss to
personally guarantee the loan. The Bank’s decision is
reflected on a pre-printed form entitled “Lending Officer’s
Report” dated November 10, 1998. This report states:
“Customer has wired $1,000,000 into cash management
account. Customer has also put in a buy order for 70,000
shares of Franklin Financial Stock.” Joint Appendix (J.A.) at
667. The loan collateral is described as 46 acres of real estate
containing a 2,500-square-foot home valued at $800,000,
apparently referring to the Hollis Tract, and a $90,000 escrow
assignment. The form also notes that the financial statement
requirement was waived, and contained the explanation that
4 Highland Capital v. Franklin Nat’l Bank No. 02-5505
the Bank had “dealt with customer on several deal [sic] over
the past years. Satisfactory. Will update appraisal.” Ibid.
The Report, however, was later amended to correct errors and
to remove the reference to the stock purchase.
On the same day that the loan was approved, Highland
deposited $499,777 into a securities fund account with FFS.
These were the funds used to purchase 69,400 shares of stock
in the Bank’s holding company, FFC. Morriss claims that he
bought the stock “because [he] believed it was a good
investment.” Aff. of Steve Morriss at ¶ 2, J.A. at 79. Prior to
this time, neither Highland nor Morriss owned any FFC stock,
nor did Morriss or Highland ever purchase additional stock.
The loan closed on December 7, 1998, and was secured by
the Hollis Tract and a portion of the plaintiff’s FFC stock.
In the months that followed, the Bank made several
additional loans to Highland at Morriss’ request. There is no
contention by the plaintiff that these loans were conditioned
upon Highland’s purchase of FFC stock. Rather, the plaintiff
claims that these other loans provide circumstantial evidence
that the original loan was the product of an illegal tying
arrangement between the plaintiff and the Bank. The Bank
lent the plaintiff $157,000 in February 1999 to fund litigation
in which Morriss was embroiled with his ex-partners. Then
in April 1999, the Bank lent the plaintiff an additional
$85,000, which was also secured by the Hollis Tract. The
Bank additionally approved a renewal of the original
$610,000 note for $607,000 in January 2000, and a renewal
of the $157,000 note on May 31, 2000.
Morriss lost control of Highland in July 2000. A closely
held company called Tareco Properties, Inc. (Tareco)
purchased a Texas court judgment that was entered sometime
prior to 2000, for which Morris was somehow liable. In
partial satisfaction of that judgment, Mr. Morriss gave Tareco
his Highland stock. However, Tareco is owned and
controlled by Kevin McShane, who is affiliated with two of

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No. 02-5505 Highland Capital v. Franklin Nat’l Bank 5
Morriss’ former business partners, Jerrold Pressman and
Robert Geringer. Pressman is the plaintiff in a lawsuit
pending in the federal district court in Tennessee that alleges
that Morriss, with the aid of the Bank and its Chairman,
conspired to defraud Pressman and Morriss’ other business
partners in a limited partnership known as Inglehame Farm,
LP. The purpose of this limited partnership was to develop
400 acres of Tennessee property. The property, however,
lacked access to major streets. The suit alleges that Morriss,
who was supposed to investigate acquiring the Hollis Tract
for that purpose for the partnership, told his partners that the
property could not be purchased and, unbeknownst to them,
proceeded to purchase it for himself.
Highland, under its new ownership, filed suit against the
Bank asserting that the $610,000 loan was conditioned on the
purchase of stock in the Bank’s holding company, and thus
the Bank violated the anti-tying provisions of 12 U.S.C.
§ 1972. The Bank moved for summary judgment. In support
of the motion, the Bank filed affidavits from the seven
members of its loan committee, who each averred that the
loan was not conditioned on the purchase of the holding
company stock; the affidavits of Morriss and Bank officer
Charles Lanier, who attested that Morriss initiated the inquiry
regarding the purchase of the stock and that Lanier did not
solicit the transaction; and the deposition of McShane, in
which he acknowledged that he was aware of no document,
statement or conversation that established the tying of the
loan to the stock purchase. In response, Highland offered
deposition evidence that tended to prove that most of the
Bank’s stock that Highland purchased came from the private
holdings of Gordon Inman, the Bank’s Chairman, who stood
to profit personally from the transaction. The plaintiff points
out that James Rinker of FFS was Inman’s son-in-law and
that he facilitated the stock transaction. Highland also filed
an affidavit from an individual who contended that Inman
engaged in private loan transactions with him when the Bank
could not do so, and that one of those loans was conditioned
on the purchase of Bank holding company stock. A former
6 Highland Capital v. Franklin Nat’l Bank No. 02-5505
Bank employee averred that Inman caused the Bank to renege
on a loan commitment, thereby depriving the Bank of a
profitable business opportunity available at a very low risk,
and then offered to make the loan privately. Finally,
Highland submitted the opinion of Frank De Lisi, who was
offered as a banking expert, that the $610,000 loan “should
not have been made.” Dep. of Frank DeLisi at 152, 170-71,
J.A. at 846-850. Highland argued that the irregularities in
processing the loan, the lack of solid information about the
creditworthiness of the borrower, and other evidence that the
loan otherwise would not have been made in the normal
course of banking practice, coupled with the nefarious
conduct of Gordon Inman who conspired with Morriss to
cheat Morriss’ business partners, proved that another, illegal
motivation must have prompted the Bank to lend $610,000 to
Highland; and that the “other motivation” must have been the
prior purchase of the holding company stock.
The motion was referred to the magistrate judge, who filed
a report recommending that the motion be granted. The
magistrate judge first rejected the plaintiff’s premise that its
statutory claim under the BHCA was analogous to an antitrust
cause of action. He then found nothing illogical about a bank
making a loan to an established customer with $1 million in
the bank and securing the loan with property valued at more
than the loan value. The magistrate judge noted that the
plaintiff was required to show that it was coerced to purchase
bank stock as a condition of the loan to avoid summary
judgment. After reviewing the circumstantial evidence,
including evidence that the loan was not made pursuant to
normal banking procedures, that the loan and stock purchase
occurred at relatively the same time, and that the loan was
part of a larger scheme between Morriss and the Bank, the
magistrate concluded that the evidence did not create a
genuine issue of material fact.
Following an order requesting further findings, the
magistrate judge supplemented his report and
recommendation. The plaintiff filed timely objections to the

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No. 02-5505 Highland Capital v. Franklin Nat’l Bank 7
recommendation. The district court subsequently granted the
defendant’s motion for summary judgment and dismissed the
complaint on March 22, 2002. The court adopted the
magistrate judge’s description of the factual record, and then
concluded that there was no evidence that the Bank coerced
the plaintiff to purchase stock as a condition of obtaining the
loan, and no proof that the Bank “possessed the ‘appreciable
economic’ power in the loan market to impose [the] tying
arrangement.” Dist. Ct. Judgment at 2, J.A. at 13. Judgment
was entered for the defendant, and the plaintiff then filed its
notice of appeal.
II.
We review an order granting summary judgment de novo
and use the same standard employed by the district court. See
Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir.
1993). That test, of course, is set forth in Federal Rule of
Civil Procedure 56(c), which states that summary judgment
is allowed where the moving party establishes through
pleadings, depositions, answers to interrogatories, admissions,
and affidavits that “there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). A
moving party can meet its burden under Rule 56(c) by
“‘showing’ – that is, pointing out to the district court – that
there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). See Estate of Mauro By and Through Mauro v.
Borgess Med. Ctr., 137 F.3d 398, 401 (6th Cir. 1998). Once
the moving party has made that showing, the nonmoving
party cannot rest on its pleadings, but must identify specific
facts that can be established by admissible evidence that
demonstrate a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex, 477 U.S.
at 324; Hall v. Tollett, 128 F.3d 418, 421-22 (6th Cir. 1997).
We review the evidence in the light most favorable to the
nonmoving party. However, the party opposing the summary
8 Highland Capital v. Franklin Nat’l Bank No. 02-5505
judgment motion must “do more than simply show that there
is some ‘metaphysical doubt as to the material facts.’” Pierce
v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.
1994) (quoting Matsushita Elec. Ind. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)). Thus, “[t]he mere
existence of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.” Anderson,
477 U.S. at 251-52.
As noted above, the statute upon which the plaintiff’s claim
is based comes from the BHCA, and states in relevant part:
(1) A bank shall not in any manner extend credit, lease
or sell property of any kind, or furnish any service, or fix
or vary the consideration for any of the foregoing, on the
condition or requirement--
. . .
(B) that the customer shall obtain some additional credit,
property, or service from a bank holding company of
such bank, or from any other subsidiary of such bank
holding company; [or]
. . .
(D) that the customer shall provide some additional
credit, property, or service to a bank holding company of
such bank, or to any other subsidiary of such bank
holding company.
12 U.S.C. § 1972 (emphasis added). Congress enacted this
provision “to apply the general principles of the Sherman
Antitrust Act prohibiting anticompetitive tying arrangements
specifically to the field of commercial banking.” Kenty v.
Bank One, N.A., 92 F.3d 384, 394 (6th Cir. 1996) (quoting
Parsons Steel, Inc. v. First Alabama Bank of Montgomery,

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No. 02-5505 Highland Capital v. Franklin Nat’l Bank 9
N.A., 679 F.2d 242, 245 (11th Cir.1982), rev’d on other
grounds, 474 U.S. 518 (1986)).
The Sherman Act does not explicitly prohibit tying
arrangements. However, such arrangements can violate both
Section 1 of the Sherman Act (15 U.S.C. § 1) and Section 3
of the Clayton Act (15 U.S.C. § 4) when they produce an
anticompetitive effect. A tying arrangement may also support
a claim for monopolization under Section 2 (15 U.S.C. § 45)
of the Sherman Act. See Davis v. Marathon Oil Co., 528
F.2d 395, 398 (6th Cir. 1975). A tying arrangement is
defined “as an agreement by a party to sell one product but
only on the condition that the buyer also purchases a different
(or tied) product, or at least agrees that he will not purchase
that product from any other supplier.” Northern Pac. Ry. Co.
v. United States, 356 U.S. 1, 5-6 (1958). Most tying cases
involve a seller’s attempt to exploit its economic power over
one product or in one market to force a less desirable, tied
product on a buyer. Thus, tying arrangements have been
found to be “unreasonable in and of themselves whenever a
party has sufficient economic power with respect to the tying
product to appreciably restrain free competition in the market
for the tied product and a ‘not insubstantial’ amount of
interstate commerce is affected.” Id. at 6.
A tying claim under the Sherman Act requires that the
plaintiff prove that a seller had substantial economic power in
the tying product’s market, see Jefferson Parish Hosp. Dist.
No. 2 v. Hyde, 466 U.S. 2, 12-13, 26-31 (1984) (noting that
“the essential characteristic of an invalid tying arrangement
lies in the seller’s exploitation of its control over the tying
product to force the buyer into the purchase of a tied product
that the buyer either did not want at all, or might have
preferred to purchase elsewhere on different terms”), and an
anticompetitive effect in the tied-product market. See PSI
Repair Servs. V. Honeywell, Inc., 104 F.3d 811, 821-22 (6th
Cir. 1997).
10 Highland Capital v. Franklin Nat’l Bank No. 02-5505
However, a plaintiff need not establish a bank’s economic
power or an anti-competitive effect to make out a claim under
12 U.S.C. § 1972. “The language of the [Act] makes clear
that the availability to a potential customer of any credit,
property, or service of a bank may not be conditioned upon
that customer’s use of any other credit, property, or service
offered by the bank . . . . The purpose of this provision is to
prohibit anti-competitive practices [that] require bank
customers to accept or provide some other service or product
or refrain from dealing with other parties in order to obtain
the bank product or service they desire.” S. Rep. 91-1084
(1970), reprinted in 1970 U.S.C.C.A.N. 5519, 5535.
Nonetheless, Section 1972 “was not intended to interfere with
the conduct of appropriate traditional banking practices,”
McCoy v. Franklin Sav. Ass’n 636 F.2d 172, 175 (7th Cir.
1980) (quoting Clark v. United Bank of Denver Nat’l Assoc.,
480 F.2d 235, 238 (10th Cir.), cert. denied, 414 U.S. 1004
(1973)), or to prohibit banks from protecting their
investments. Parsons Steel, Inc., 679 F.2d at 245.
To make out a claim under Section 1972, therefore, the
plaintiff must prove that (1) the bank imposed an anti-
competitive tying arrangement, that is, it conditioned the
extension of credit upon the borrower’s obtaining or offering
additional credit, property or services to or from the bank or
its holding company; (2) the arrangement was not usual or
traditional in the banking industry; and (3) the practice
conferred a benefit on the bank. See Kenty, 92 F.3d at 394
(quoting Sanders v. First Nat’l Bank & Trust Co., 936 F.2d
273, 278 (6th Cir. 1991)).
The district court based its summary judgment for the
defendant in part on the ground that the plaintiff failed to
offer evidence of the Bank’s “‘appreciable economic’ power
in the loan market to impose [the] tying arrangement.” Dist.
Ct. Judgment at 2, J.A. at 13. This was error. The plaintiff
was not required to prove that the Bank had sufficient
strength in the credit market to enable it to impose the tying
arrangement. See Costner v. Blount Nat’l. Bank, 578 F.2d

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No. 02-5505 Highland Capital v. Franklin Nat’l Bank 11
1192, 1196 (6th Cir. 1978) (observing that “[t]he bank was
also sued under the Bank Holding Company Act, which
establishes a Per se [sic] rule and provides the same penalties
for tying arrangements as the Sherman Act, but without the
necessity of proving any economic power in the market for
the tying product”). The plaintiff could satisfy the first
element required of a claim under Section 1972 merely by
showing that the Bank demanded that Highland obtain other
property (the bank holding company stock) or furnish other
property (the payment for the stock) as a condition or
requirement of obtaining the $610,000 loan.
We agree with the district court, however, that the plaintiff
failed to establish a factual issue on the existence of a tying
arrangement. In its motion for summary judgment, the
defendant pointed out the absence of evidence on this
element, and came forward with direct evidence to prove the
contrary proposition, in the form of affidavits from everyone
involved in seeking and making the loan, who each said that
the stock purchase was not a condition or requirement for the
extension of credit. See Celotex, 477 U.S. at 325. Under our
summary judgment jurisprudence, the plaintiff was obligated
at that point to come forward with facts that proved, or from
which a fact finder reasonably could infer, that the Bank
required Highland to buy its holding company stock as a
condition of receiving the loan. See Anderson, 477 U.S. at
247-48. To meet that burden, the plaintiff imported the
allegations from the lawsuit by Pressman against the Bank
and others that Morriss and Inman were engaged in a
conspiracy to cheat Morriss’ partners in a real estate
development venture, testimony that the stock purchase was
filled from Inman’s personal holdings through Inman’s son-
in-law, proof that the loan did not adhere to the Bank’s
normal lending policies, and the opinion of a banking expert
that the loan should not have been made in the normal course
of banking business. This offering falls considerably short of
the proof that this Circuit requires to establish a successful
Section 1972 claim.
12 Highland Capital v. Franklin Nat’l Bank No. 02-5505
The plaintiff argues that the circumstantial evidence points
to the conclusion that Morriss caused Highland to buy the
Bank’s holding company stock specifically in order to
influence the Bank’s decision on Highland’s loan request.
That argument suggests that a statutory claim can be
established without actually proving “coercion” on the part of
the Bank. Indeed, in Dibidale of La., Inc., v. American Bank
& Trust Co., 916 F.2d 300 (5th Cir. 1990), the court held that
the anti-tying provision of the BHCA “does not include a
coercion element.” Id. at 302. In that case, the plaintiff
sought a construction loan from the defendant bank and
agreed to hire the bank’s preferred choice as construction
manager. The loan was made, but the construction manager
turned out to be incompetent and caused considerable loss to
the plaintiff. The plaintiff admitted that hiring the
construction manager was never an explicit condition of
receiving the loan, although the bank had made it clear that it
would feel “comfortable” with that choice, and that he went
along with it out of deference to the bank. In reversing the
lower court’s dismissal of the Section 1972 claim, the Fifth
Circuit construed the “condition or requirement” language of
the statute quite broadly, reasoning that “[t]o restrict the scope
of those words to tying arrangements in which a seller is
literally forced to purchase or provide a tied product or
service in order to obtain credit would vitiate that section’s
intended role, for as Congress recognized, a tying
arrangement may squelch competition whether coercive or
not.” Id. at 306.
Likewise, in S & N Equip. Co. v. Casa Grande Cotton Fin.
Co., 97 F.3d 337 (9th Cir. 1996), the Ninth Circuit rejected
the argument that Section 1972 requires a claimant to show
“some modicum of coercion” and, instead, held that
“[a]lthough some showing of coercion may be required under
the Clayton Act and the Sherman Act, . . . it is not a
requirement under the Bank Holding Company Act.” Id. at
346 n.18. A contrary view, however, was expressed by the
Eleventh Circuit in Integon Life Ins. Corp. v. Browning, 989
F.2d 1143, 1150-51 (11th Cir. 1993), construing the identical

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No. 02-5505 Highland Capital v. Franklin Nat’l Bank 13
language found in the Home Owners’ Loan Act, 12 U.S.C.
§ 1464(q). That court held that “to establish a tying in
violation of HOLA, a plaintiff must prove that the thrift
forced or coerced the plaintiff into purchasing the tied
product.” Id. at 1151.
Although we do not subscribe to the view set forth by the
Fifth Circuit, because it disregards the plain language of the
statute, we likewise believe that emphasizing the notion of
“coercion” creates a requirement that is not contained in the
statute. Section 1972 does not require proof of “force or
coercion,” particularly as those terms are used in the
economic sense in antitrust jurisprudence. The terms
employed in the statute are “condition or requirement.” A
“condition” is “[s]omething demanded or required as a
prerequisite to the granting or performance of something
else.” OXFORD ENGLISH DICTIONARY 309 (2d ed. 1989). A
“requirement” is “that which is called for or demanded; a
condition which must be complied with.” Id. at 1565. Giving
those terms their ordinary meanings as used in Section 1972,
we conclude that a statutory violation is established by proof
that a bank conveyed an intention to withhold credit unless
the borrower fulfilled a “prerequisite” of purchasing or
furnishing some other product or service. The borrower may
readily agree with the tying condition demanded by the bank;
that is, the whole notion of force or involuntary submission
may be absent. Nonetheless, proof of a statutory violation
will be made out by evidence that taking or furnishing another
service or product is a condition that must be fulfilled before
the bank will agree to extend credit.
In this case, Morriss agreed to purchase the Bank’s holding
company stock on behalf of Highland, and the buy order was
reported to the loan committee in the first version of the Loan
Officer’s Report. This evidence may establish that the Bank
looked more favorably upon Highland because of the stock
purchase. It is not enough, however, merely to bring forth
evidence that the borrower purchased another bank product or
service to curry favor with the lender, or that the lender was
14 Highland Capital v. Franklin Nat’l Bank No. 02-5505
positively impressed by such conduct, or even that the other
transaction was a factor in the bank’s decision to extend
credit. According to the plain language of the statute, a
claimant must prove that the purchase of the tied product or
service was a mandatory condition or requirement of
obtaining a loan from the lender. The borrower must be
prevailed upon to agree to the additional product or service,
lest credit be denied.
This element of a Section 1972 claim may be established by
circumstantial evidence. However, the plaintiff in this case
failed to offer admissible evidence from which an inference
of a tying arrangement could be drawn. The procedure that
led to the loan’s approval, although perhaps out of the
ordinary, did not demonstrate that a tying condition was
imposed. A reasonable person would not conclude that a
bank’s decision to lend $610,000 to an established bank
customer, without a loan application or personal guarantee,
when the loan was secured by property appraised at $800,000
plus additional property valued at $90,000, was unusual or
prompted by an ulterior motive. The evidence of the shadowy
dealings between Morriss and Bank Chairman Inman may be
relevant to the other litigation involving Morriss’ former
business partners, but it has little to do with any connection
between the loan and the stock purchase. To the contrary, the
inference that emerges from this evidence is that the original
and subsequent loans were made to further another
conspiratorial objective allowing Morriss to usurp a business
opportunity from his real estate venture, not as consideration
for the purchase of FFC stock. Inman’s private dealings with
other Bank customers does nothing to further the inference of
a tying arrangement involving the Bank, Morriss, and the
plaintiff. Finally, the plaintiff’s banking expert, who testified
that “[t]here is no direct evidence, whatsoever, that there is –
there was a requirement, as a condition of the loan, that he
buy the stock,” Dep. of Frank DeLisi at 152, J.A. at 847, does
not furnish the necessary link that supports an inference of a
tying arrangement.

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No. 02-5505 Highland Capital v. Franklin Nat’l Bank 15
III.
The plaintiff’s argument that the Bank’s $610,000 loan was
illegally tied to Highland’s purchase of FFC stock does not
rise above the level of speculation or conjecture.
Constructing a circumstantial case in the face of
overwhelming, contrary, direct evidence was a daunting
burden that, we believe, ultimately proved insurmountable for
the plaintiff. The plaintiff failed to establish a genuine issue
for trial on an essential element of its claim. We therefore
affirm the district court’s summary judgment in favor of the
defendant.

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