                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
           ___________

           No. 98-1557
           ___________

Blue Dane Simmental Corporation;      *
Roland Nuss; Ron Vlasin;              *
Dennis Behrhorst,                     *
                                      *
             Plaintiffs/Appellants,   *
                                      *
      v.                              *
                                      *
American Simmental Association;       *
Tom Risinger,                         *
                                      *
             Defendants/Appellees,    *   Appeals from the United States
                                      *   District Court for the
John Doe,                             *   District of Nebraska.
                                      *
             Defendant,               *
                                      *
Risinger Ranches, Inc.,               *
                                      *
             Defendant/Appellee.      *

           ___________

           No. 98-1615
           ___________

Blue Dane Simmental Corporation;      *
Roland Nuss; Ron Vlasin;              *
Dennis Behrhorst,                     *
                                      *
             Plaintiffs/Appellees,    *
                                    *
     v.                             *
                                    *
American Simmental Association;     *
                                    *
            Defendant/Appellant,    *
                                    *
Tom Risinger; John Doe;             *
Risinger Ranches, Inc.,             *
                                    *
            Defendants.             *

          ___________

          No. 98-1617
          ___________

Blue Dane Simmental Corporation;    *
Roland Nuss; Ron Vlasin;            *
Dennis Behrhorst,                   *
                                    *
            Plaintiffs/Appellees,   *
                                    *
     v.                             *
                                    *
American Simmental Association;     *
                                    *
            Defendant,              *
                                    *
Tom Risinger,                       *
                                    *
            Defendant/Appellant,    *
                                    *
John Doe,                           *
                                    *
            Defendant,              *
                                    *

                                    -2-
Risinger Ranches, Inc.,              *
                                     *
             Defendant/Appellant.    *

           ___________

           No. 98-1727
           ___________

Blue Dane Simmental Corporation;     *
Roland Nuss; Ron Vlasin;             *
Dennis Behrhorst,                    *
                                     *
             Plaintiffs/Appellees,   *
                                     *
      v.                             *
                                     *
American Simmental Association;      *
                                     *
             Defendant/Appellant,    *
                                     *
Tom Risinger; John Doe;              *
Risinger Ranches, Inc.,              *
                                     *
             Defendants.             *

           ___________

           No. 98-1815
           ___________

Blue Dane Simmental Corporation;     *
Roland Nuss; Ron Vlasin;             *
Dennis Behrhorst,                    *
                                     *
             Plaintiffs/Appellees,   *
                                     *

                                     -3-
      v.                              *
                                      *
American Simmental Association;       *
                                      *
            Defendant,                *
                                      *
Tom Risinger,                         *
                                      *
            Defendant/Appellant,      *
                                      *
John Doe,                             *
                                      *
            Defendant,                *
                                      *
Risinger Ranches, Inc.,               *
                                      *
            Defendant/Appellant.      *
                                 ___________

                             Submitted: February 10, 1999

                                 Filed: June 2, 1999
                                  ___________

Before WOLLMAN,1 LOKEN, and MORRIS S. ARNOLD, Circuit Judges.
                           ___________

WOLLMAN, Chief Judge.

     Blue Dane Simmental Corporation, Roland Nuss, Ron Vlasin, and Dennis
Berhorst (plaintiffs) appeal the grant of judgment as a matter of law entered by the




      1
        Roger L. Wollman became Chief Judge of the United States Court of Appeals
for the Eighth Circuit on April 24, 1999.

                                        -4-
district court2 in favor of the American Simmental Association (ASA), Tom Risinger,
and Risinger Ranches (defendants). We affirm.

                                           I.

       The ASA was organized in 1968 as a non-profit corporation for “the
development, recording, registration, and promotion of the Simmental breed of cattle
in the United States of America.” To catalog Simmental cattle within the United States,
the ASA maintains what is known as an open herdbook. In this system, breeders may
register animals that are less than 100% Simmental. In contrast, a closed herdbook
system limits registration to animals that are 100% of a particular breed. Prior to 1988,
the ASA registered cattle as either “percentage” or “purebred.” Percentage cattle had
either one-half, three-quarters, or seven-eighths Simmental blood. Purebred
Simmentals were females of at least seven-eighths blood, or males of at least fifteen-
sixteenths blood. Purebred animals were considered 100% Simmental for calculating
the percentage of Simmental blood in their offspring, regardless of their actual
percentage of Simmental blood.

      Initially, the ASA did not recognize a difference between purebred domestic
animals and purebred Simmental from the original herds of Austria, France, Germany,
or Switzerland. Some breeders, however, sought official acknowledgment that some
animals were “original,” or from European herds. In response to growing demand from
its membership, the ASA passed a “foreign ancestry rule” in 1988.3 This rule made no


      2
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
      3
          The 1988 Foreign Ancestry rule states:

      Certificates of Foreign Registration may be issued that identify an animal
      whose parentage traces only to foreign ancestry.

                                          -5-
mention of genetic purity, directing focus only on the country of origin to determine
whether an animal qualified for foreign ancestry designation. As a result of the rule,
between 75,000 and 80,000 purebred animals were given a foreign ancestry
designation.

      In 1992, the rule was amended by changing “foreign ancestry” to “fullblood.”
Thus, any animal whose pedigree was completely traced to the herdbooks of Austria,
France, Germany, or Switzerland within five generations was known as fullblood.

       Although the rule identified fullbloods as cattle traced to European herdbooks,
the members of the ASA continued to disagree as to how fullblood should be defined.
Some members believed that fullblood referred to animals with varying percentages of
Simmental ancestry, while others thought that it meant “no known ancestry of another
breed.” In 1994, the ASA amended the rule a third time, defining fullblood animals as
Simmentals with no known ancestry from another breed. In addition, the 1994 rule
contained a grandfather clause that permitted all animals previously classified as
fullblood to retain that classification.




      1. When a mating occurs between two animals whose parentage
      originates solely from a qualified foreign registry, the resulting offspring
      shall be eligible for the designation of foreign ancestry.

      2. Only animals whose ancestors originate from the herdbooks of France,
      Germany, Austria, or Switzerland are eligible for this designation.

      3. Upon payment of the appropriate fee, a breeder may request a
      pedigree search for animals which enter the ASA Herdbook from any
      herdbook other than those noted above to determine if the animal in
      question qualified for the designation of foreign ancestry.

Appellant’s App. at 554.

                                          -6-
       The current controversy involves a dispute over the classification of animals
registered by Risinger. In 1991, Risinger filed an application to register nineteen
animals the genetic material of which he had purchased the exclusive right to sell within
the United States and Mexico. Based upon the documentation that was received by the
ASA, seven of the animals were designated as foreign ancestry under the 1988 rule in
November 1991. The remaining twelve animals were registered as fullblood under the
1992 rule in April 1992.

      Plaintiffs subsequently discovered that some of the Risinger animals contained
Angus ancestry. In particular, two bulls, Manor Washington and Manor Westerner,
had in their pedigree a German bull named Pirol. Pirol was 97% Simmental, the
remaining 3% was confirmed to be Angus. Plaintiffs filed a protest with the ASA,
seeking to revoke the animals’ classification as fullblood. In addition, they opposed
the adoption of the 1994 rule change, objecting to the grandfather clause which would
allow the Risinger animals to retain their fullblood registration. At the American
Simmental conference on February 24, 1994, Gianluca Brenni, president of Blue Dane,
explained the problems with the 1994 rule and the Risinger cattle and moved to table
the 1994 rule. His motion lost, and the 1994 rule was adopted by a vote of 1,228 to
118.

       On April 14, 1994, plaintiffs initiated the present action, alleging violations of
the Racketeer Influenced and Corrupt Organizations (RICO) Act, 96 U.S.C. § 1962,
the Sherman Act, 15 U.S.C. §§ 1 and 4(a), and the Lanham Act, 15 U.S.C. § 1125, and
raising state law negligence claims. After a nine-day jury trial, the district court entered
judgment as a matter of law in favor of defendants under Fed. R. Civ. P. 50. The
district court then denied defendants’ motion for attorney fees under the Lanham Act,
15 U.S.C. § 1117.

       Plaintiffs appeal, arguing that the district court erred in excluding testimony from
its economic expert regarding causation, by not submitting its RICO, Sherman Act,

                                            -7-
Lanham Act, and negligence claims to the jury, and by excluding specific exhibits at
trial.4 Defendants cross-appeal the denial of attorney fees.

                                           II.

                                           A.

        Plaintiffs argue that the district court erred by excluding the testimony of Dr.
Alan Baquet, an agricultural economist, under Daubert v. Merrell-Dow
Pharmaceuticals, 509 U.S. 579 (1993). We review the district court’s ruling for an
abuse of discretion. See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1171 (1999);
National Bank of Commerce, of El Dorado, Ark. v. Dow Chem. Co., 133 F.3d 1132,
1132 (8th Cir. 1998) (per curiam). Moreover, “[t]hat standard applies as much to the
trial court’s decisions about how to determine reliability as to its ultimate conclusion.”
Kumho, 119 S. Ct. at 1176.

       When evaluating the admissibility of expert testimony under Federal Rule of
Evidence 702, the district court must look to both the relevancy and the reliability of
the testimony. See Kumho, 119 S. Ct. at 1174; Daubert, 509 U.S. at 589; Jaurequi v.
Carter Mfg. Co., No. 97-3142, slip op. at 8 (8th Cir. Apr. 6, 1999). This gate-keeping
function is applicable to “‘technical’ and other ‘specialized’” expert testimony, in
addition to the testimony of scientific experts. Kumho, 119 S. Ct. at 1171 (quoting
Fed. R. Evid. 702).

       Dr. Baquet was to testify that the introduction of the nineteen Risinger animals
into the fullblood Simmental market in the United States caused the market value of all
American Simmentals to drop substantially. To support this testimony, he noted that


      4
         We have considered and hold to be without merit plaintiffs’ contention that the
district court erred in ruling on certain discovery matters.

                                           -8-
prior to the introduction of the Risinger animals, both the Canadian and American
Simmental markets were dropping. Following the introduction of these animals, the
United States market dropped another 53%, while the Canadian market dropped only
26%. Dr. Baquet attributed this 27% difference in market price to the introduction of
the Risinger Simmentals.

       In determining that the testimony was not reliable, the district court did not
dispute that Dr. Baquet was an adequately qualified expert witness. Instead, it found
that the methodology he employed was unreliable, stating that the analysis was
“simplistic.” The court noted that Dr. Baquet attributed the entire difference in market
price within the United States and Canada to the Risinger fullbloods, despite the fact
that these animals made up a tiny fraction of the market, nineteen out of 138,169 total
head.

        The district court noted that at least one other independent variable contributed
to the falling cattle markets, as it was undisputed that both the Canadian and American
markets were falling prior to the introduction of the Risinger animals. Furthermore,
during his deposition Dr. Baquet admitted that various factors contribute to particular
cattle breeds losing market value. He stated that generally an economist would attempt
to identify and evaluate all of the independent variables significantly affecting changes
in the value of a breed. Dr. Baquet acknowledged that he had neglected to consider
any variables other than the introduction of the Risinger fullbloods.

      Plaintiffs argue that the proper remedy for defendants would be to challenge this
methodology through cross-examination and introduction of rebuttal expert testimony.
They contend that Dr. Baquet’s research method, called a before-and-after model, is
a common tool used by economic researchers.

      In Kumho, the Supreme Court found that the exclusion of a qualified tire expert’s
use of visual and tactile examination of automobile tires was within the trial courts

                                          -9-
discretion, despite the fact that this methodology was generally accepted within the
relevant field. See 119 S. Ct. at 1176-77. In so holding, the court found that it was not
the general acceptance of the methodology that was relevant, “[r]ather, it was the
reasonableness of using such an approach, along with [the expert’s] particular method
of analyzing the data thereby obtained, to draw a conclusion regarding the particular
matter to which the expert testimony was directly relevant.” Id. at 1177. Because the
Court found that the research method did not satisfy the four Daubert factors, and was
not a reliable indicator of the results to which the expert would testify, it upheld the
exclusion of the testimony. See Kumho at 1178-79.

       This case is analogous to Kumho. Although Dr. Baquet utilized a method of
analysis typical within his field, that method is not typically used to make statements
regarding causation without considering all independent variables that could affect the
conclusion. We find no evidence in the record that other economists use before-and-
after modeling to support conclusions of causes of market fluctuation. See, e.g.,
Kumho 119 S. Ct. at 1178. See also Jaurequi, slip op. at 8 & n.3 (quoting General
Elec. Co. v. Joiner, 118 S. Ct. 512, 519 (1997)) (finding that the scientific validity of
a methodology is the key to admissibility, and noting that “[a] court may conclude that
there is simply too great an analytical gap between the data and the opinion proffered”).
Nor do plaintiffs cite to any articles or papers that would support Dr. Baquet’s
approach. See Kumho, 119 S. Ct. at 1178. Accordingly, we conclude that the district
court did not abuse its discretion by excluding Dr. Baquet’s testimony.

                                           B.

       Plaintiffs allege that the ASA and Risinger violated RICO, the Sherman Act, and
the Lanham Act by conspiring to improperly register the Risinger animals as fullblood,
by attempting to create a monopoly in fullblood Simmental animals, and by advertising
the Risinger animals as fullblood.


                                          -10-
       An animal’s classification as foreign ancestry under the 1988 rule was dependent
on ancestry in foreign herdbooks, not genetic purity. Thus, if an animal’s parents could
be traced to herdbooks in Austria, France, Germany, or Switzerland, it was registered
as having foreign ancestry. Pursuant to a vote of the ASA members, the term
“fullblood” replaced “foreign ancestry” in 1992, without making any reference to the
genetic purity required for registration as fullblood.

       Plaintiffs testified that they interpreted fullblood to mean that an animal had no
known breeds other than Simmental within its pedigree. However, plaintiffs’
interpretation does not preclude the ASA from adopting a different definition of
fullblood.

       Testimony at trial indicated that the members of the ASA disagreed as to how
animals should be classified as fullblood. After public comment by the members of the
organization, a vote determined that animals whose ancestors could be traced to foreign
herdbooks would be deemed fullblood. Brian Kitchen, the chief executive officer of
the ASA during the registration of the Risinger animals, testified that prior to the 1994
rule change, fullblood was interpreted as referring to national origin and not genetic
purity. He further testified that because the Risinger animals could be traced back to
foreign herdbooks, they were properly registered as fullbloods.

        Generally, the decision of the classifying organization “will be conclusive and
the courts will not intervene.” Jackson v. American Yorkshire Club, 340 F. Supp. 628,
635 (N.D. Iowa 1971). Here, the classification was completed with the implied
consent of the majority of active membership of the ASA. Throughout the process of
adopting the classification rules, plaintiffs had adequate opportunity to address the
membership and seek support for their position. Because there is no evidence of
illegality in passing either the 1988 foreign ancestry rule, or the 1992 or 1994 fullblood
rules, we assume that the animals were properly classified as fullblood. Cf. McCreery
Angus Farms v. American Angus Ass’n, 379 F. Supp. 1008, 1019 (S.D. Ill.), aff’d, 506

                                          -11-
F.2d 1404 (7th Cir. 1974) (finding judicial intervention appropriate when association
did not have “even the most basic and elemental requirements of a fair hearing”).

       A violation of RICO under 96 U.S.C. § 1962(c), requires “(1) conduct (2) of an
enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex
Co., 473 U.S. 479, 496 (1985) (footnote omitted). Mail fraud and wire fraud are within
the predicate acts that may constitute “racketeering activity” under RICO. See
Wisdom v. First Midwest Bank, 167 F.3d 402, 406 (8th Cir. 1999) (citing 18 U.S.C.
§ 1961(1)). Plaintiffs claim that the use of the mail and telephone to classify the
Risinger animals as fullblood Simmental was a predicate fraudulent act. As stated
above, however, the testimony indicates that under the ASA rules the animals were not
wrongfully classified. There being no fraud, there is no predicate act to support the
allegations of racketeering under RICO. See id. at 407 (citing Primary Care Investors,
Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208, 1215 (8th Cir. 1993)).

       Plaintiffs allege that defendants violated the Sherman Act, 15 U.S.C. §§ 1 and
4(a), by fraudulently registering the nineteen animals as fullblood. They claim that
anticompetitive conduct is apparent from the ASA’s approval of the Risinger animals
as fullblood. A claim that the ASA wrongfully approved a competitor’s animals is
insufficient to state a claim for a Sherman Act violation, however. See ECOS Elecs.
Corp. v. Underwriters Lab., 743 F.2d 498, 502 (7th Cir. 1984) (explaining that
complaints that consumers have been dissuaded from purchasing its products is not
enough to state cause of action under the Sherman Act, when allegation is that
competitors’ products were wrongfully authorized by organization). To show that the
ASA committed an “antitrust act” against them, Plainitiffs must show that their animals
were barred from registration as fullbloods “on a discriminatory basis from its
competitors, or that the conduct as a whole was manifestly anticompetitive and
unreasonable.” ECOS Elecs., 743 F.2d at 501 (quoting Eliason Corp. v. National
Sanitation Found., 614 F.2d 126, 129 (6th Cir. 1980)).


                                          -12-
       As discussed above, the approval of the Risinger animals as fullblood was not
manifestly unreasonable. There was no showing that plaintiffs’ animals were unfairly
denied registration as foreign registry or fullblood. Although plaintiffs’ evidence
indicated that some animals that may have qualified as having foreign ancestry under
the 1988 rule were not registered as such, many were retroactively registered as having
foreign ancestry. Without evidence of discrimination or unreasonableness, plaintiffs
failed to meet their burden under the Sherman Act. See, e.g., ECOS Elecs., 743 F.2d
at 502-03 (stating that an organization’s approval of a competitor’s products, without
more, cannot constitute an illegal restraint of trade).

       Plaintiffs allege Lanham Act violations due to the publication of advertisements
identifying the Risinger animals as Fleckvieh.5 To establish a claim under the false
advertising prong of the Lanham Act, a plaintiff must prove: (1) that the defendant
made a false statement of fact about its product in a commercial advertisement; (2) that
the statement actually deceived or has a tendency to deceive a substantial segment of
its audience; (3) the deception is likely to influence the purchasing decision; (4) the
defendant caused the false statement to enter interstate commerce; and (5) the plaintiffs
have been or are likely to be injured as a result. See United Indus. Corp. v. Clorox Co.,
140 F.3d 1175, 1180 (8th Cir. 1998) (citing 15 U.S.C. § 1125). “In addition, to
recover money damages under the Act, a ‘[p]laintiff must prove both actual damages
and a causal link between defendant’s violation and those damages.’” United Indus.,
140 F.3d at 1180 (quoting Rhone-Pulenc Rorer Pharm., Inc. v. Marion Merrell Dow,
Inc., 93 F.3d 511, 515 (8th Cir. 1996)).

      It is undisputed that advertisements published in the ASA Register stated that the
Risinger animals were Fleckvieh. As discussed above, however, we assume that the
animals in question were properly labeled as fullblood by the ASA. Because the


      5
      Fleckvieh refers to Simmental cattle that can be traced solely to the herdbooks
of Germany or Austria.

                                          -13-
fullblood label was properly applied to the animals, defendants’ representations cannot
constitute a literally false claim under the Lanham Act. See United Indus., 140 F.3d
at 1180-82. Where advertising is not literally false, the plaintiffs bear “the ultimate
burden of proving actual deception by using reliable consumer or market research.”
Id. at 1183. Plaintiffs presented no evidence that consumers purchased artificial
insemination services from the Risinger animals because of a mistaken belief in the
genetic makeup of these animals based upon the advertisements. In fact, plaintiffs
admitted that none of them had actually purchased the genetic material of the Risinger
animals. Absent such a showing, there is no evidence that the advertisements were
implicitly false or misleading.

       Even if they had established that the animals were improperly classified as
fullblood, plaintiffs failed to show that classification of the Risinger animals caused
them damages under RICO, the Sherman Act, or the Lanham Act. The only evidence
of damages was plaintiffs’ testimony that they believed that their sales had dropped
because of the introduction of the Risinger animals into the American market. Thus,
plaintiffs’ claim fails for want of proof. See Sedima, 473 U.S. at 496 (RICO);
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (Sherman
Act); United Indus., 140 F.3d at 1180 (Lanham Act).

                                            C.

        Although plaintiffs contend that they produced sufficient evidence to survive
judgment as a matter of law on their negligence claim, we conclude that this claim too
fails for want of proof.

                                            D.

        Plaintiffs contend that the district court erred by excluding from evidence certain
letters, as well as minutes of ASA meetings. The district court’s decision to exclude

                                           -14-
evidence is reviewed for an abuse of discretion. See Roth v. Homestake Mining Co.,
74 F.3d 843, 844 (8th Cir. 1996) (internal quotations omitted). These exhibits were
excluded because of hearsay, lack of foundation, and relevance. We find no abuse of
discretion in the district court’s rulings.

                                         III.

       Following the grant of their motion for judgment as a matter of law, defendants
moved for attorney fees under the Lanham Act, 15 U.S.C. § 1117, which allows a
prevailing defendant to recover attorney fees in “exceptional cases.” Hartman v.
Hallmark Cards, Inc., 833 F.2d 117, 123 (8th Cir. 1987). We review the district
court’s denial of attorney fees for an abuse of discretion. See Scott Fetzer Co. v.
Williamson, 101 F.3d 549, 555 (8th Cir. 1996).

       An exceptional case is one where the plaintiff’s claim “is groundless,
unreasonable, vexatious, or pursued in bad faith.” Id. We cannot say that the district
court abused its discretion in finding that this is not such a case and in denying the
motion for fees.

      The judgment is affirmed.

      A true copy.

             Attest:

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




                                        -15-
