                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3447
                                   ___________

Upsher-Smith Laboratories, Inc.,        *
                                        *
            Plaintiff - Appellant,      * Appeal from the United States
                                        * District Court for the
      v.                                * District of Minnesota.
                                        *
Federal Insurance Company,              *       [UNPUBLISHED]
                                        *
            Defendant - Appellee.       *
                                   ___________

                            Submitted: May 14, 2003
                               Filed: June 19, 2003
                                ___________

Before LOKEN, Chief Judge, BRIGHT, Circuit Judge, and SMITH CAMP1, District
      Judge.
                              ___________

PER CURIAM.

     This case relates to insurance coverage. Upsher-Smith Laboratories
(“Upsher-Smith”) sought a declaration of the duty to defend under a policy issued
by Federal Insurance Company (“Federal”) for a complaint filed by the Federal
Trade Commission (“FTC”) and more than forty private civil litigation actions.
Upsher-Smith tendered the defense in the actions to Federal, and Federal refused


      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, sitting by designation.
to defend Upsher-Smith, stating the activity complained of fell under the antitrust
exclusion in the policy. Upsher-Smith brought a declaratory judgment action
against Federal to enforce Federal's duty to defend. Since this is a diversity
action, Minnesota law controls in its disposition.

      The district court2 granted summary judgment in favor of Federal,
determining that the policy language was unambiguous and that the activity
complained of in all the relevant actions fell within the scope of the antitrust
exclusion. The court ruled that Federal had no duty to defend.

       On appeal, Upsher-Smith argues the court misconstrued the language of the
exclusion and that Federal has a duty to defend on the common law claims related
to fraud and unjust enrichment raised in the private actions.

      We affirm the district court on the basis of its well-reasoned order,
published at Upsher-Smith Lab., Inc. v. Federal Ins. Co., ___ F.Supp.2d ___, No.
CIV.01-1573, 2002 WL 32100695 (D. Minn. Aug. 29, 2002).

      A true copy.

            Attest:

                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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