     Case: 19-50257      Document: 00515464789         Page: 1    Date Filed: 06/24/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                                               FILED
                                                                            June 24, 2020
                                      No. 19-50257
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED BIOLOGICS, L.L.C., doing business as United Allergy Services;
ACADEMY OF ALLERGY & ASTHMA IN PRIMARY CARE,

               Plaintiffs - Appellants

v.

ALLERGY AND ASTHMA NETWORK/MOTHERS OF ASTHMATICS, INC.;
TONYA WINDERS,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:14-CV-35


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       United Allergy Services 1 and Academy of Allergy & Asthma in Primary
Care (“Academy”) (collectively, “Plaintiffs”) sued a number of defendants for
Sherman Act and Texas antitrust violations, Texas common law tortious



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       United Biologics LLC does business as United Allergy Services, and it was formerly
       1

known as United Allergy Labs. We refer to this entity as United Allergy.
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                                        No. 19-50257
interference with existing contracts and prospective business relations, and
civil conspiracy to commit those torts. The district court entered a directed
verdict for the two defendants who went to trial, Allergy and Asthma
Network/Mothers of Asthmatics, Inc. (“Mothers”) and Tonya Winders
(collectively, “Defendants”).       United Allergy and Academy now appeal; we
affirm.

                                   I.    Background
       United Allergy offers an alternative way to obtain allergy treatment.
Under the traditional model, allergy sufferers seek treatment from a certified
allergist who administers immunotherapy. Companies like Phadia US Inc. 2
sell equipment for allergy blood tests, which are often done in labs. United
Allergy saw opportunity in the small number of allergists compared to allergy
sufferers and began contracting directly with primary-care physicians for
immunotherapy treatment.            In exchange for a fee, United Allergy would
provide technicians and assist physicians with immunotherapy equipment and
supplies.    To support its business, United Allergy helped form and fund
Academy, a non-profit organization of physicians that “represent[s] the
interests of . . . primary care physicians that provide allergy and asthma care
to their patients.”
       Individual defendant Tonya Winders was first the market development
team leader at Phadia and later the president and CEO of Mothers, a patient
advocacy organization. While at Phadia, Winders identified United Allergy as
a market obstacle to traditional allergy businesses. In one e-mail, a Phadia




       2 Phadia is a former defendant in this case that settled before trial, which will become
important below. References to Phadia may also refer to its parent company, Thermo Fisher
Scientific Inc.


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                                     No. 19-50257
employee said that he, Winders, and another employee wanted to “compile a
broad strategy to wipe these [companies] off the face of the earth.”
      By August 2011, Winders had formulated what she called “[her] plan for
leading the charge to stop this market obstacle from negatively impacting
[business] further.” Phadia trained its clinical sales consultants to provide
information to physicians about remote allergy providers.                 In a regional
meeting, it listed three talking points for sales consultants to use when
interacting with customers: (1) patients are safer when receiving traditional
allergy and asthma care, (2) board-certified allergists receive extensive
training to become certified and prepared to address potential problems during
treatment, and (3) the billing practices of remote allergy providers are
concerning and could implicate providers if found to be illegal.
       In 2011, the Department of Health and Human Services’ Office of the
Inspector General (“OIG”) issued an advisory opinion regarding a business
model similar to United Allergy’s and concluded that it “could potentially
generate prohibited remuneration under the anti-kickback statute.” 3 U.S.
Dep’t of Health & Hum. Servs., Re: OIG Advisory Opinion No. 11-17, at 1 (Nov.
23, 2011). Phadia shared the opinion internally as something that would “help
. . . combat these companies.” It also shared the opinion with a company that
was negotiating with United Allergy, the Hospital Corporation of America. In
an e-mail chain, a Phadia employee said that he may have “prevented a clinic



      3   The opinion was requested by the owner of a company named Universal Allergy
Labs—similar to United Allergy’s former name, United Allergy Labs—and which is now
supposedly named Universal Allergy Services—similar to United Allergy Services. The
purpose was ostensibly to gather information on implementing a business model similar to
United Allergy’s. The requester sent the OIG a sample contract substantially the same as
one of United Allergy’s form contracts. After Winders became its president, Mothers hired a
consultant who had been involved with the request for the OIG opinion, although they both
testified that the two events were unconnected.


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from signing on with [United Allergy].” Phadia also distributed publications
authored by Mothers, and on one occasion, an insurance provider Phadia had
contacted told non-certified physicians to cease remote allergy treatments.
Mothers also campaigned against remote allergy practice, including by
distributing articles, in part under Winders’s direction.
      Beginning in 2013, United Allergy’s business declined; it lost insurance
reimbursements and ultimately substantially diminished its business.
Academy, for its part, lost many of its members.
      United Allergy and Academy filed the instant suit in 2014, later
amending their complaint to add Mothers, Winders, and Phadia as defendants,
which brought the number sued to more than a dozen. They alleged violations
of Section 1 of the Sherman Act 4 and Texas law: namely, section 15.05(a) of the
Texas Free Enterprise and Antitrust Act, 5 common law tortious interference
with existing contracts and prospective business relations, and common law
civil conspiracy.          At the time of trial in 2016, all defendants except the
appellees, Mothers and Winders, had settled.
      After trial, the Defendants moved for a directed verdict, arguing in part
that civil conspiracy was a “legal impossibility” because Phadia, which
allegedly committed the underlying tort, had settled. They urged that “[t]he
Court [could not] adjudicate the conduct of parties who [were not] before it,”
“there [was] no other way for the Court to adjudicate the underlying tort at
issue,” and “Miss Winders [could not] conspire with her own company.” The
district court agreed and entered a directed verdict on the issue of civil
conspiracy.      The jury then unanimously found that neither Mothers nor



      4   15 U.S.C. § 1.
      5   TEX. BUS. & COMM. CODE ANN. § 15.05(a).


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Winders individually committed tortious interference. The jury was asked a
conditional question; although the condition was not met, it answered the
question, finding that the “Defendants’ agreement with one or more of Phadia
[or other defendants] was only an attempt to persuade . . . lawmakers to take
official government action,” thus falling within the Noerr–Pennington safe
harbor. 6
        The Plaintiffs then moved for judgment as a matter of law and for a new
trial. The district court denied that motion, holding that any error made in the
jury instructions was harmless because no co-conspirator was found to have
committed the underlying tort—a prerequisite for civil conspiracy under Texas
law.        United Biologics, LLC v. Allergy & Asthma Network/Mothers of
Asthmatics, Inc., No. 5:14-CV-00035, 2019 WL 830967, at *2–3 (W.D. Tex. Feb.
21, 2019) (citing Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996)). The
jury, the court reasoned, found that Mothers committed no tort and did not
consider (and could not have considered) whether Phadia committed the
underlying tort with Mothers’ help because Plaintiffs did not request a jury
instruction on that question.           United Biologics, 2019 WL 830967, at *2.
Therefore, the court held, Mothers’ “liability for conspiracy was legally
impossible.” Id. United Allergy and Academy timely appealed.

                                  II.    Discussion
        We review a district court’s grant of a motion for judgment as a matter
of law de novo, using the same standard as the district court: such judgment is
appropriate if “there is no legally sufficient evidentiary basis for a reasonable
jury to have found for that party with respect to that issue.” Flowers v. S. Reg’l


        The Noerr–Pennington safe harbor doctrine arose out of two Supreme Court cases:
        6

Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and
United Mine Workers of America v. Pennington, 381 U.S. 657 (1965).


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Physician Servs. Inc., 247 F.3d 229, 235 (5th Cir. 2001) (quotation omitted); see
also FED. R. CIV. P. 50. Under this standard, a directed verdict should be
entered only when “the facts and inferences point so strongly and
overwhelmingly in the movant’s favor that reasonable jurors could not reach a
contrary conclusion.” Flowers, 247 F.3d at 235 (internal quotation omitted).

   A. Texas Civil Conspiracy
      In Texas, common law civil conspiracy extends liability for a tort jointly
and severally “beyond the active wrongdoer to those who have merely planned,
assisted, or encouraged his acts.” Carroll v. Timmers Chevrolet, Inc., 592
S.W.2d 922, 926–27 (Tex. 1979) (quotation omitted). The Texas Supreme Court
has enumerated five elements of civil conspiracy: “(1) two or more persons;
(2) an object to be accomplished; (3) a meeting of minds on the object or course
of action; (4) one or more unlawful, overt acts; and (5) damages as the
proximate result.” Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983).
      “Unlike criminal conspiracy, civil conspiracy itself does not create
liability—the conspirators must pursue an independently unlawful purpose or
use an independently unlawful means before they can be held liable.”
Chemetron Corp. v. Bus. Funds, Inc., 682 F.2d 1149, 1179 (5th Cir. 1982),
vacated on other grounds, 460 U.S. 1007 (1983).            In other words, civil
conspiracy is a “derivative tort,” meaning “a defendant’s liability for conspiracy
depends on participation in some underlying tort for which the plaintiff seeks
to hold at least one of the named defendants liable.” Tilton, 925 S.W.2d at 681.
The Texas Supreme Court clarified last year that “civil conspiracy is a theory
of vicarious liability” and is not an independent tort. Agar Corp. v. Electro
Circuits Int’l, LLC, 580 S.W.3d 136, 142 (Tex. 2019).
      Defendants make two arguments they say forestall consideration of the
Plaintiffs’ arguments: (1) that Phadia’s settlement precluded a finding of an


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underlying tort for civil conspiracy, and (2) that the jury’s finding on Noerr–
Pennington acted as a defense to any civil conspiracy claim that was or could
have been presented to the jury.

            Phadia’s Settlement
      The Defendants argue that because Phadia—the alleged tortfeasor—
settled, the Plaintiffs could not have proven the existence of an underlying tort,
making their civil conspiracy claim fail as a matter of law. 7 One Texas court
of appeals has held that civil conspiracy cannot rely on the alleged torts of
defendants who settled in a prior suit because they were never joined in the
instant suit. West Fork Advisors, LLC v. SunGard Consulting Servs., LLC, 437
S.W.3d 917, 920–21 (Tex. App.—Dallas 2014, pet. denied). Another has held
differently, concluding that (1) the plaintiff need not sue the underlying
tortfeasor in the same suit as the co-conspirators but may instead do so in
successive suits, and (2) co-conspirators may be held liable for civil conspiracy
even though the underlying tortfeasor previously settled. Klinek v. LuxeYard,
Inc., 596 S.W.3d 437, 446–48 (Tex. App.—Houston [14th Dist.], pet. filed).
      But these cases do not address the situation at hand: The alleged
tortfeasor, Phadia, was joined in the same suit as its alleged co-conspirators.
Under Texas law, “a defendant’s liability for conspiracy depends on
participation in some underlying tort for which the plaintiff seeks to hold at
least one of the named defendants liable.” Tilton, 925 S.W.2d at 681 (emphasis
added). United Allergy and Academy did this. The alleged co-conspirator need
not actually face liability. See Agar Corp., 580 S.W.3d at 140–42. Texas courts
are well-versed in submitting for the jury’s consideration the question of
whether persons not in the case contributed to the wrongs alleged: Chapter 33


      7   We discuss the underlying tort claims in detail below in section II.B.


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of the Texas Civil Practice and Remedies Code specifically provides that the
jury “shall determine the percentage of responsibility” for claimants,
defendants, settling persons, 8 and any responsible third parties. TEX. CIV.
PRAC. & REM. CODE ANN. § 33.003(a). Clearly, a settlement in general does not
prevent submitting to the jury questions about that party’s conduct (only
pursuing an actual judgment against the settling party). 9                     Therefore, we
conclude that Phadia’s settlement had no bearing on the Plaintiffs’ ability to
prove a civil conspiracy case against the Defendants based on an underlying
tort committed by Phadia.

            The Noerr–Pennington Finding
       The Noerr–Pennington defense protects, via the First Amendment,
arguably anti-competitive conduct that involves petitioning the government
rather than private entities, unless the petitioning is a sham. See generally
RRR Farms, Ltd. v. Am. Horse Prot. Ass’n, 957 S.W.2d 121, 126–28 (Tex. App—
Houston [14th Dist.] 1997, pet. denied) (explaining the history of the doctrine).
The question that would support this finding should not have been answered
by the jury. 10 Therefore, we do not consider it. See White v. Grinfas, 809 F.2d


       8 A “settling person” is “a person who has, at any time, paid or promised to pay money
or anything of monetary value to a claimant in consideration of potential liability with respect
to the personal injury, property damage, death, or other harm for which recovery of damages
is sought.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(5). Chapter 33 does not directly apply
here but is cited as illustrative of how jurors are asked all the time about persons/entities not
currently before them.
       9 To that same point, the Defendants failed to show (or cite any case law that would
support) that Phadia’s objection to having its name in the jury questions would have any
weight, given that it was no longer a party due to the settlement.
       10 This was question nine (the final question) on the verdict form; above question eight
was the instruction, “If you answered ‘Yes’ to Question 5, then answer the following
questions. Otherwise, do not answer the following questions.” The jury answered no to
question five, the question whether Mothers or Winders themselves intentionally interfered
with contracts or prospective business relations, but still answered question nine.


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1157, 1161 (5th Cir. 1987) (ignoring questions that the jury was instructed not
to answer and that necessarily conflicted with a question that it was required
to answer).     Therefore, this finding would not shield any civil conspiracy
activity committed by the Defendants.

   B. Sufficiency of the Evidence of an Underlying Tort
       Having concluded that no legal barriers prevent the Plaintiffs from
proving a claim of civil conspiracy, we turn to the question whether they
presented sufficient evidence of an underlying tort to survive a motion for
judgment as a matter of law. 11 We conclude that they did not, for they did not
present evidence that could support a finding in their favor on each element of
either alleged underlying tort: (a) tortious interference with existing contracts,
or (b) tortious interference with prospective business relations.

            Tortious Interference with Existing Contracts
       We first discuss whether there was evidence to conclude that Phadia
committed tortious interference with existing contracts. This tort has four
elements: “(1) the existence of a contract subject to interference; (2) a willful
and intentional act of interference; (3) such act was a proximate cause of
damage; and (4) actual damage or loss occurred.” Fluorine On Call, Ltd. v.
Fluorogas Ltd., 380 F.3d 849, 864 (5th Cir. 2004).                   The intentionality
requirement means that the interference must have been purposeful, not that
“the defendant acted with intent to injure.” Id.




       11 The Plaintiffs couch their argument in terms of whether the jury should have been
instructed on the issue of civil conspiracy. However, because the district court granted the
Defendants’ motion for judgment as a matter of law and entered a directed verdict, the
dispositive inquiry is whether a reasonable jury could have found in the appellants’ favor.
See Hodge, 933 F.3d at 473.


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      “Ordinarily, merely inducing a contract obligor to do what it has a right
to do is not actionable interference.” ACS Inv’rs, Inc. v. McLaughlin, 943
S.W.2d 426, 430 (Tex. 1997). This is true even if there is “malicious intent” to
produce the actions. See C.E. Servs., Inc. v. Control Data Corp., 759 F.2d 1241,
1248 (5th Cir. 1985). By contrast, tortious interference exists only when the
defendant (a) “knowingly induce[s] one of the contracting parties to breach its
obligations,” John Paul Mitchell Sys. v. Randalls Food Markets, Inc., 17 S.W.3d
721, 730 (Tex. App.—Austin 2000, pet. denied), or (b) makes “performance
more burdensome or of less or no value to the one entitled to performance.”
Khan v. GBAK Props., Inc., 371 S.W.3d 347, 359–60 (Tex. App.—Houston [1st
Dist.] 2012, no pet.).
      The Plaintiffs argue that “Phadia targeted clinics and physicians
contracting with [United Allergy] or associated with [Academy] and coerced
those physicians with unfounded concerns of fraud and malpractice liability to
‘put these guys out of business.’” But they point to no evidence that any
contract was breached or that performance was impaired—only that
membership and revenue declined because contracts with physicians ended in
some fashion, forcing United Allergy to cease expansion. For example, United
Allergy’s CEO testified that the company “negotiated” its relationship with the
Texas Health Physicians Group several times to prevent the contract from
ending. Further, the nature of United Allergy’s relationship with Hospital
Corporation of America is unclear—if they had a contract, there is no evidence
that it was breached or impaired. Even though United Allergy’s CEO testified
that contracts with physicians ended or terminated, there was no evidence that
their cessation was not proper according to their terms and the causation
evidence is ethereal at best. There was no evidence, either, that the physicians
and groups were not acting within their rights when they reduced their


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business with United Allergy in favor of traditional providers. Although the
evidence shows that Phadia wished for the Plaintiffs’ business to decline, and
perhaps played a part in producing that decline, there is no evidence that any
interference was tortious; competition alone is not tortious interference.
Therefore, the Plaintiffs proffered insufficient evidence to support a claim of
civil conspiracy based on tortious interference with existing contracts.

         Tortious Interference with Prospective Business Relations
      As the Defendants correctly identify, most of the Plaintiffs’ claims
instead depend on interference with prospective business relations, a different
tort that is also even more difficult to prove than tortious interference with
contract. It requires the following:
             (1) a reasonable probability that the plaintiff would
             have entered into a business relationship; (2) an
             independently tortious or unlawful act by the
             defendant that prevented the relationship from
             occurring; (3) the defendant did such act with a
             conscious desire to prevent the relationship from
             occurring or the defendant knew the interference was
             certain or substantially certain to occur as a result of
             the conduct; and (4) the plaintiff suffered actual harm
             or damages as a result of the defendant’s interference.
Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 860 (Tex. App.—Houston [14th
Dist.] 2001, pet. denied). The key distinguishing element is the second one:
that the defendant must commit an independently tortious or unlawful act, not
merely act with malice or other ill will. See Wal-Mart Stores, Inc. v. Sturges,
52 S.W.3d 711, 726 (Tex. 2001). The Texas Supreme Court recently clarified
that “interference with prospective business relations has never been thought
to be wrongful in and of itself.” Id. at 717. Therefore, a defendant must do
something independently unlawful or tortious (“actionable under a recognized
tort”). See id. at 726.


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      United Allergy and Academy have not identified what tort or illegal act
Phadia or another defendant is supposed to have committed. To be sure,
Phadia used various means to increase its market share in the face of
competition, but by all accounts, the means were legitimate, even if they were
arguably “‘sharp’ or unfair.”      See id.   The Plaintiffs claim that Phadia’s
statements about fraud and malpractice were “unfounded,” but they offer no
evidence in support. Evidence to the contrary includes the OIG opinion and
testimony that more than one insurance company independently began
investigating remote allergy billing practices. Phadia did circulate the OIG
opinion, but this was not tortious or wrongful; and it did not falsely represent
that the opinion referred specifically to United Allergy, but rather truthfully
said that it referred to a similar business model. Even if Phadia’s conduct was
expressly designed to put United Allergy out of business, it was not
independently tortious or unlawful and cannot support a claim of tortious
interference with prospective business relations. Therefore, the Plaintiffs put
forth insufficient evidence to support a claim of civil conspiracy based on
tortious interference with prospective business relations.

                            III.    Conclusion
      Although we find no legal obstacle to the Plaintiffs’ claims, we conclude
that the Defendants were entitled to judgment as a matter of law on civil
conspiracy. Therefore, we AFFIRM.




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