                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-2301


FIRST  DATA   MERCHANT   SERVICES  CORPORATION,       a   Florida
corporation; FIRST DATA CORPORATION,

                Plaintiffs – Appellees,

           v.

SECURITYMETRICS, INC., a Utah corporation,

                Defendant – Appellant.



                             No. 15-2364


FIRST  DATA   MERCHANT   SERVICES  CORPORATION,       a   Florida
corporation; FIRST DATA CORPORATION,

                Plaintiffs – Appellants,

           v.

SECURITYMETRICS, INC., a Utah corporation,

                Defendant - Appellee.



Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:12-cv-02568-RDB)


Argued:   October 25, 2016                 Decided:   December 1, 2016


Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion.        Judge Duncan    wrote   the
opinion, in which Judge Shedd and Judge Floyd joined.


ARGUED: Lannie Rex Sears, MASCHOFF BRENNAN LAYCOCK GILMORE
ISRAELSEN   &   WRIGHT   PLLC,   Salt   Lake   City,   Utah,   for
Appellant/Cross-Appellee.    Michael Lee Eidel, FOX ROTHSCHILD
LLP, Philadelphia, Pennsylvania, for Appellees/Cross-Appellants.
ON BRIEF: Sterling A. Brennan, MASCHOFF BRENNAN LAYCOCK GILMORE
ISRAELSEN & WRIGHT PLLC, Salt Lake City, Utah; J. Stephen Simms,
SIMMS SHOWERS, LLP, Baltimore, Maryland, for Appellant/Cross-
Appellee. Joshua Horn, Clair E. Wischusen, FOX ROTHSCHILD LLP,
Philadelphia, Pennsylvania; Charles N. Curlett, Jr., LEVIN &
CURLETT   LLC,    Baltimore,   Maryland,   for    Appellees/Cross-
Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

        First    Data    Merchant     Services      Corporation      and   First      Data

Corporation       (collectively,        “First      Data”)   and    SecurityMetrics,

Inc. (“SecurityMetrics”), business partners turned adversaries,

bring this appeal and cross-appeal challenging two orders of the

district       court.        Throughout      this   protracted      litigation,        the

parties have asserted numerous claims against each other, but

only    four    are     at   issue   here.        SecurityMetrics     appeals       three

counterclaims on which the district court granted First Data

summary judgment on December 30, 2014 (the “December Order”).

First     Data     cross-appeals        the       district   court’s         denial     of

attorneys’       fees    in    an    order    dated    September     22,     2015     (the

“September Order”).            For the reasons discussed below, we affirm

both orders.



                                             I.

                                             A.

       First Data and SecurityMetrics are both companies in the

Payment Card Industry (“PCI”).                The PCI includes three types of

primary    service       providers.          Issuers   supply      payment    cards     to

consumers and collect amounts due; acquirers clear and settle

payment card transactions on behalf of merchants; and processors

facilitate the communication and settlement of payment.                               Some

PCI     providers       outsource      certain        functions     to     third-party

                                              3
vendors.            First       Data    performs       both    acquirer       and    processor

functions.          SecurityMetrics is a third-party vendor.

        The      PCI    Security       Standards       Council,      an    independent      body

created by the five major payment card brands, 1 issues a set of

security standards, called the PCI Data Security Standard (“PCI

Standard”        or     “PCI    DSS”)    to     help    protect      against      credit   card

theft and fraud.               The PCI Standard is universal but the payment

card brands each have different requirements for demonstrating

or validating compliance with the standard.                           Level 4 merchants--

the     category          at     issue     here--have          the     lowest       individual

transaction            volume    and    are     required      to     submit    annual      self-

assessment questionnaires to demonstrate compliance.

       Any merchant that accepts credit payments must adhere to

the PCI Standard.               Acquirers, like First Data, must ensure that

their       merchants       comply      with    the    PCI    Standard      and     can   impose

noncompliance penalties and fees on merchants.                              Acquirers often

rely        on   third-party           vendors,       such    as     SecurityMetrics,        to

validate their merchants’ compliance.

                                                 B.

       From 2008 until 2012 the parties worked together pursuant

to a series of contracts.                      Under the terms of the agreements,

First        Data      listed      SecurityMetrics            as     its    preferred       data

        1   American Express, Discover, JCB, MasterCard, and Visa.



                                                  4
compliance       vendor    in    all     communications          with        First    Data’s

Level 4    merchants.            First     Data     charged       merchants           a     PCI

compliance fee and then paid SecurityMetrics for its compliance

services on behalf of the merchants.                    SecurityMetrics provided

First     Data     with      a     weekly        data     feed     and         access        to

SecurityMetrics’s         system   so     that    First    Data    could        track       the

compliance status of its merchants.

     This arrangement continued without issue until First Data

decided    to    offer     its   own     compliance     service         in    2012. 2        In

preparation for the launch of its service, First Data ordered

SecurityMetrics       to     cease       communication       with        its        Level     4

merchants effective June 1, 2012.                  In response, SecurityMetrics

alleged    First    Data     had   breached       their    contract           and    stopped

sending its weekly data feed.

                                           C.

     In May 2012, First Data filed suit against SecurityMetrics

in the United States District Court for the District of Utah

(the “Utah litigation”) alleging breach of contract and other

tortious    conduct.         The   parties       settled    the     Utah        litigation

pursuant to a document titled “Terms of Settlement.”                            Under the


     2
       During the course of this litigation, First                             Data wound
down its proprietary compliance service and began                               to use a
different   third-party   PCI   compliance   vendor,                            Trustwave.
Trustwave became First Data’s preferred PCI compliance                         vendor.



                                            5
Terms       of     Settlement,    the      parties     agreed       to   a     few    basic

provisions that were to be memorialized in a confidential final

settlement          agreement       that     would          include      “mutual          non-

disparagement provisions.”              J.A. 217.       First Data agreed to pay

SecurityMetrics $5,000,000 and dismiss the Utah litigation with

prejudice, and SecurityMetrics was granted the “use of Merchant

Data for the purpose of selling its products and services.”                               Id.

        A final settlement agreement never materialized.                        Less than

three months after signing the Terms of Settlement, First Data

filed       the    underlying     action     against        SecurityMetrics          in    the

United       States    District     Court    for      the    District     of    Maryland.

First       Data   alleged   nine    counts      of   post-settlement          misconduct

against SecurityMetrics. 3            SecurityMetrics answered and asserted

fifteen       counterclaims. 4       The    parties         filed   cross-motions          for


        3
       First Data asserted the following counts: (1) Declaratory
relief as to the definition of Merchant Data; (2) Breach of
Contract of the Terms of Settlement; (3) Common Law Unfair
Competition;   (4)   Tortious Interference  with   Existing  and
Prospective     Contractual    and    Business    Relationships;
(5) Injurious Falsehoods; (6) False Endorsement/Association,
Lanham Act, 15 U.S.C. § 1125(a)(1)(A); (7) Trademark/Service
Mark/Trade Name Infringement, Lanham Act, 15 U.S.C. §§ 1114(1),
1125(a)(1)(A); (8) False Advertising, Lanham Act, 15 U.S.C.
§ 1125(a)(1)(B); and (9) Declaratory Relief as to PCI compliance
reporting data.

        4
        SecurityMetrics alleged First Data had, through its
advertisements and communications with merchants, disparaged
SecurityMetrics   and   brought the   following  counterclaims:
(1) Specific Performance of the provision in the Terms of
Settlement    to   execute   a  final   settlement   agreement;
(Continued)
                                             6
summary judgment, and the district court held a hearing on the

motions and issued the December Order.    In the December Order,

the district court denied SecurityMetrics’s motion for summary

judgment but granted First Data’s motion for summary judgment as

to Counts 4 through 15 of SecurityMetrics’s counterclaims.

     The district court scheduled a trial as to the remaining

claims.   On the eve of trial, the parties narrowed the claims

down to the sole issue of the meaning of the term “Merchant

Data” in the Terms of Settlement.     Following a two-day bench

trial, the district court ruled in favor of SecurityMetrics.

     After the trial, First Data filed a motion for attorneys’

fees in relation to SecurityMetrics’s Utah Truth in Advertising

Act (“UTIAA”) claim (Count 8) on which the district court had

granted First Data summary judgment in the December Order.     The

UTIAA provides that “[t]he court shall award attorneys’ fees to

the prevailing party” in a UTIAA action.     Utah Code § 13-11a-




(2) Declaratory Judgment with respect to the Merchant Data
provision of the Terms of Settlement; (3) Declaratory Judgment
with respect to the confidentiality clause of the Terms of
Settlement;   (4)  Injurious   Falsehoods;   (5) Federal  False
Advertising; (6) Federal False Endorsement; (7) Cancellation of
Registration; (8) Utah Deceptive Trade Practices violations;
(9) Tortious Interference with Business Relations; (10) Federal
Restraint of Trade; (11) Federal Monopolization and Attempted
Monopolization; (12) Maryland Restraint of Trade; (13) Maryland
Monopolization and Attempted Monopolization; (14) Maryland
Predatory Pricing; (15) Anticompetitive pricing arrangements in
violation of Md. Code Com. Law § 11-204(a)(6).


                                7
4(2)(c).     The district court denied this motion in the September

Order finding that, although First Data did prevail as to the

UTIAA claim itself, it was not a “prevailing party” at trial and

with respect to the litigation as a whole.

                                            D.

       On appeal, the parties do not contest the district court’s

ruling at trial as to the meaning of the term Merchant Data.

Rather,    the     claims    at     issue    before     us    originate      from   the

pretrial December Order.             SecurityMetrics appeals three of its

counterclaims that the district court dismissed.

       First, SecurityMetrics alleges First Data’s advertisements

violated     the    Lanham    Act.          Certain    First     Data      promotional

materials stated its merchants would have to pay First Data’s

compliance fee regardless of whether the merchant also used a

third-party compliance vendor.               SecurityMetrics claims this is a

false statement because First Data actually provided refunds to

merchants who used third-party compliance vendors.                         Finding the

statements were literally true, the district court granted First

Data summary judgment on this claim.

       Second,     SecurityMetrics          contends    First       Data    tortiously

interfered    with    its    business       relations    by    making      disparaging

comments to merchants about SecurityMetrics.                    The district court

also   granted     First     Data    summary     judgment      as    to    this   claim



                                            8
because    it    found     that    SecurityMetrics      had       not   offered     any

admissible evidence to establish causation.

     Third,      SecurityMetrics       challenges       the       district      court’s

ruling as to its antitrust claims.             SecurityMetrics alleged that

First Data violated several antitrust laws when it launched its

own competing PCI compliance service.                The district court found

that,   because      SecurityMetrics     had   not     demonstrated        injury     to

competition,      rather    than    simply    injury    to    itself,      it     lacked

standing to pursue those claims.               The court therefore granted

First Data summary judgment as to these claims.

     First      Data   cross-appeals     the   district       court’s      denial     of

attorneys’ fees as to SecurityMetrics’s failed UTIAA claim.                          We

first     consider     SecurityMetrics’s       claims        in    turn    and     then

evaluate     First     Data’s     cross-appeal.        For    the       reasons    that

follow, we affirm the district court’s rulings on both parties’

claims.



                                        II.

     Summary judgment is appropriate when “there is no genuine

dispute as to any material fact.”               Fed. R. Civ. P. 56(a).               We

review the district court’s grant of summary judgment de novo,

viewing the facts and drawing all reasonable inferences in the

light most favorable to the nonmovant.                 Askew v. HRFC, LLC, 810

F.3d 263, 266 (4th Cir. 2016).               In doing so, “it is ultimately

                                         9
the nonmovant’s burden to persuade us that there is indeed a

dispute of material fact.              It must provide more than a scintilla

of   evidence--and          not        merely      conclusory      allegations        or

speculation--upon         which    a    jury      could   properly    find    in     its

favor.”       CorTel Va., LLC v. Verizon Va., LLC, 752 F.3d 364, 370

(4th Cir. 2014) (citation omitted).                    Regardless of the standard

imposed   by     the    burden    of    persuasion,       the   nonmovant     may    not

defeat    a    motion    for     summary    judgment      “without    offering       any

concrete evidence from which a reasonable juror could return a

verdict in his favor [nor] by merely asserting the jury might,

and legally could,” disbelieve the movant.                      Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986).



                                           III.

                                            A.

     We       first    consider    whether       the    district   court     erred   in

granting summary judgment to First Data on its false advertising

claim.    We conclude it did not.

     To bring a false advertising claim under the Lanham Act, a

plaintiff must establish that (1) the defendant made a false or

misleading description of fact or representation of fact in a

commercial advertisement about his own or another's product that

(2) is material and (3) actually deceives or has the tendency to

deceive a substantial segment of its audience (4) after being

                                            10
placed in interstate commerce, (5) causing the plaintiff injury.

PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 120 (4th

Cir. 2011).

       Only the first element--whether First Data’s advertisements

were false or misleading--is at issue here.                         A plaintiff can

establish        the   first    element     by    showing    an    advertisement      is

either (a) literally false or (b) literally true but likely to

mislead     or    confuse      consumers.        C.B.    Fleet    Co.   v.    SmithKline

Beecham Consumer Healthcare, L.P., 131 F.3d 430, 434 (4th Cir.

1997).    SecurityMetrics proceeds on the first theory.

       “In analyzing whether an advertisement . . . is literally

false, a court must determine, first, the unambiguous claims

made   by    the       advertisement . . .        and,    second,       whether    those

claims are false.”          PBM Prods., 639 F.3d at 120 (quoting Scotts

Co. v. United Indus. Corp., 315 F.3d 264, 274 (4th Cir. 2002)).

“A literally false message may be either explicit or conveyed by

necessary implication when, considering the advertisement in its

entirety, the audience would recognize the claim as readily as

if it had been explicitly stated.”                 Id. (quoting Scotts Co., 315

F.3d at 274).          A false-by-necessary-implication claim must fail

if the advertisement “can reasonably be understood as conveying

different messages.”             Scotts Co., 315 F.3d at 275.                  “Only an

unambiguous       message      can   be   literally      false.”        Id.   at   275–76

(quoting Novartis Consumer Health, Inc. v. Johnson & Johnson-

                                            11
Merck Consumer Pharm. Co., 290 F.3d 578, 587 (3d Cir. 2002)

(emphasis in original)).

     The challenged First Data advertisements state:

          If you choose to use a third-party vendor for PCI
     DSS compliance services, you will need to contract
     with and pay that vendor directly.      In addition to
     your alternate vendor’s charges for PCI DSS compliance
     services, you still will need to pay the Compliance
     Service Fee charged to you by your merchant services
     provider.   The Compliance Service Fee is not affected
     by your choice to use a third-party vendor.

                                             * * *

          If First Data’s PCI compliance services are
     contractually available to you, you will be charged an
     applicable annual compliance fee for those services,
     regardless of whether you use them or utilize the
     services of some other third-party PCI compliance
     services vendor.     If you utilize the additional
     services of a third party vendor, you will pay that
     third party vendor’s charges for those fees in
     addition to First Data’s annual compliance fee.

J.A. 799–800 (emphasis added).                    According to SecurityMetrics,

these   advertisements          are   literally          false   because    First      Data

refunded    some       merchants      that    paid       both    the    First   Data    PCI

compliance       fee     and    a     third-party          vendor.         Because      the

advertisements         can,    in   context,        be   read    more    than   one    way,

however, we reject SecurityMetrics’s argument.

     It is undisputed that First Data has always charged its

merchants    a     PCI    compliance         fee.        When    the    parties   worked

together     under        their       contract,          First     Data     would       pay

SecurityMetrics         from    the   PCI     compliance         fee    charged   to    the


                                             12
merchants.       Once    SecurityMetrics       was   no    longer    a       preferred

vendor, as the advertisements state, First Data still required

its merchants to pay its PCI Compliance fee.                   If the merchant

used First Data’s PCI compliance services, the merchant would

not pay anything additional.           If, however, a merchant wished to

use a third-party compliance vendor--such as SecurityMetrics--

the merchant would have to pay that fee directly to the third

party.     Hence,    a   merchant    would    pay    for   compliance         services

twice.     SecurityMetrics contends that, though this was First

Data’s official policy, in practice First Data would refund a

merchant   that     complained      about    being   double    charged         in   the

amount of the SecurityMetrics fee.               Therefore, SecurityMetrics

argues,    the      advertisement      necessarily         implies       a    literal

falsehood.        The    district    court     disagreed      and    found      these

statements were “only problematic due to what was left unsaid--

that a refund might be available.”            J.A. 1369.      We agree. 5


     5 SecurityMetrics also objects that, on the motion for
summary judgment, the district court “without warning or other
intervening change in circumstances” changed course from an
earlier position. Appellant’s Br. at 15. When First Data moved
to dismiss the false advertising claim, the district court found
that the claim was “articulable as an affirmative misstatement--
i.e., that merchants will pay for the service but that some do
not because of the refund.”      J.A. 229–30.    SecurityMetrics
alleges the district court erred in subsequently dismissing the
claim.     Of course this argument ignores the fundamental
difference between attacking a claim on a motion to dismiss and
at the summary judgment stage.     In a motion to dismiss, the
court must accept the factual allegations in the plaintiff’s
(Continued)
                                       13
     First       Data’s     advertisements         are     not     unambiguous     and

therefore cannot be literally false.                      On one reading of the

advertisement, the service fee is affected because First Data

would, if asked, refund customers an amount equal to the third-

party vendor charge.             Merchants who asked for and received a

refund did not pay the third-party fee in addition to the PCI

compliance       fee.     However,     by    another      reading,    because     First

Data’s refund policy was discretionary and not automatic, the

advertisement      is     true   on   its    face.        Put    another   way,   if   a

SecurityMetrics customer never asked First Data for a refund, it

would, as the advertisement states, pay a third-party vendor fee

“in addition to” First Data’s PCI Compliance fee.                      J.A. 799.       A

claim     that    is     “implicit,    attenuated,         or     merely   suggestive

usually    cannot       fairly   be   characterized         as    literally   false.”

Design Res., Inc. v. Leather Indus. of Am., 789 F.3d 495, 502

(4th Cir. 2015) (quoting Clorox Co. P.R. v. Proctor & Gamble

Commercial        Co.,     228    F.3d       24,     35     (1st      Cir.    2000)).

SecurityMetrics “asks us to reach entirely outside the face of




complaint as true.    Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). However, a plaintiff has a higher burden when
faced with a motion for summary judgment.      At that stage of
litigation, the party opposing summary judgment “must set forth
specific facts showing that there is a genuine issue for trial.”
Liberty Lobby, 477 U.S. at 256 (internal citation omitted).
SecurityMetrics failed to carry its burden.



                                            14
the ad and into the context surrounding the ad’s publication to

uncover a false message it argues is necessarily implied,”                                 Id.

at 503, but the false-by-necessary-implication doctrine does not

stretch      that     far.      Therefore,       the     district         court    properly

granted First Data summary judgment on that issue. 6

                                           B.

       SecurityMetrics next argues that the district court erred

in    granting      First    Data     summary    judgment      as    to     the    tortious

interference claim.            Under Maryland law, tortious interference

with       economic     relations        requires         a      claimant         to   show

“(1) intentional         and    willful       acts;     (2)    calculated         to   cause

damage to the plaintiffs in their lawful business; (3) done with

the    unlawful     purpose     to    cause     such    damage      and    loss,    without

right or justifiable cause on the part of the defendants (which

constitutes malice); and (4) actual damage and loss resulting.”

Alexander & Alexander Inc. v. B. Dixon Evander & Assocs., Inc.,

650 A.2d 260, 269 (Md. 1994) (quoting Willner v. Silverman, 71

A.    962,   964    (Md.     1909)).      Because      SecurityMetrics            failed    to

establish      causation,       the    district        court   granted       First     Data

       6SecurityMetrics also argues that a jury must decide
whether the statements were literally false. That is incorrect.
Although literal falsity is a question of fact, C.B. Fleet Co.,
131 F.3d at 436, whether a nonmovant has put forth sufficient
evidence to establish a genuine dispute as to that fact is a
legal question for the district court’s determination.      See
Design Res., 789 F.3d at 502.



                                           15
summary judgment on the tortious interference claim.                        We affirm

for the same reason.

        SecurityMetrics alleged First Data used the Utah litigation

as “a weapon . . . for the . . . purpose of interfering with

SecurityMetrics’s        actual     and    prospective       economic      relations.”

J.A.     194.        According     to     SecurityMetrics,      it    lost    280,000

existing customers as well as potential new customers because of

this alleged misconduct.                SecurityMetrics sought to introduce

two    forms    of   evidence     to    show    causation:    (1)    transcripts      of

phone    calls     and   emails    from    customers    stating      why    they     were

canceling or not renewing their contracts with SecurityMetrics

and (2) an expert report prepared by Clarke Nelson (the “Nelson

report”).       The district court excluded both pieces of evidence.

       The     viability   of     SecurityMetrics’s      argument          depends    on

whether      the     district     court    properly    refused       to    admit     the

customer calls and emails and the Nelson report.                      We review the

district court’s rulings on the admissibility of evidence for

abuse of discretion and will only reverse if the ruling was

arbitrary and irrational.              Minter v. Wells Fargo Bank, N.A., 762

F.3d 339, 349 (4th Cir. 2014).                  We find no abuse of discretion

here.




                                           16
                                                1.

      First,       the    district       court       did    not     err    in   excluding       the

customer           communications                as              inadmissible           hearsay.

SecurityMetrics asserts the calls and emails should have been

admitted either because they are verbal acts, and therefore not

hearsay, or under the state of mind exception to the hearsay

rule.

      Under    the       Federal       Rules    of    Evidence,           verbal    acts--those

declarations        where       “the     statement          itself     affects       the      legal

rights of the parties or is a circumstance bearing on conduct

affecting their rights”--are not hearsay.                                 Fed. R. Evid. 801

advisory committee’s note to subdivision (c).                               “[P]roof of oral

utterances by the parties in a contract suit constituting the

offer and acceptance which brought the contract into being are

not   evidence       of    assertions          offered       testimonially          but    rather

verbal     conduct         to     which        the         law     attaches        duties       and

liabilities.”            2 McCormick on Evidence § 249 (7th ed.) (2016)

(emphasis added).

      Although portions of the calls and emails--references to

contract    terminations           and    account          closure     instructions--might

constitute     verbal        acts,       these        admissible          sections      are     not

evidence      of     the        causation        element           necessary       to      support

SecurityMetrics’s               tortious         interference              claim.              What

SecurityMetrics wants to use from the calls--comments made by

                                                17
customers regarding First Data’s conduct--are not verbal acts.

In other words, the existence of the contract is a verbal act

but    irrelevant     to     causation;          the      portions         that    would   go     to

causation--why        the    merchants          decided        not    to     renew   or    sign    a

contract--are relevant but inadmissible.

       Nor   can    the     calls    and      recordings         be     admitted      under     the

state of mind exception to hearsay.                             That exception excludes

from    hearsay     “[a]     statement         of    the       declarant’s         then-existing

state of mind . . . but not including a statement of memory or

belief    to    prove      the     fact       remembered         or    believed       unless      it

relates to the validity or terms of the declarant’s will.”                                     Fed.

R. Evid. 803(3).            SecurityMetrics attempts to avail itself of

this exception by stating that the calls and emails are offered

only to prove “what customers believed and why they did what

they    did.”       Appellant’s           Br.       at    52.         However,       unless     the

statements      are     also     offered         for      the        truth    of     the   matter

asserted--that        the      merchants         canceled         their       contracts        with

SecurityMetrics           because        of     First          Data’s        misconduct--these

customer statements do not show causation.

       Put simply, to escape a hearsay exclusion, SecurityMetrics

could    only      offer     the    evidence             for    purposes          irrelevant      to

demonstrating causation.                 The relevant evidence is inadmissible

hearsay.        Therefore,         the    district         court       did     not    abuse     its



                                                18
discretion     in    determining        that      no   admissible     portion    of   the

calls and emails satisfied the element of causation.

                                             2.

      SecurityMetrics’s argument as to the Nelson report is also

unavailing.          On    appeal,     SecurityMetrics        faults     the    district

court for not considering its expert’s report as evidence of

causation.      However, SecurityMetrics retained Mr. Nelson as an

expert to opine on the amount of damages, not causation.                               In

Mr. Nelson’s deposition in connection with First Data’s motion

in limine to exclude the report, he stated he did not “intend to

give an opinion on causation . . .                     from a legal standpoint,”

but he did “intend to express opinions that” a “correlation”

existed between First Data’s “alleged bad acts and harm that was

suffered.”      J.A. 1027–28.          Upon further questioning, Mr. Nelson

reiterated that he was not going to offer an opinion at trial as

to   whether    “the       alleged     bad   acts      by   First    Data   caused    any

damage.”       J.A. 1903.            Therefore, the district court did not

abuse its discretion by disregarding the Nelson report since it

was not offered to prove any opinion on causation.

                                             C.

      Next,     we     turn     to     SecurityMetrics’s            antitrust    counts.

SecurityMetrics           asserted    six    antitrust       counterclaims      against




                                             19
First Data under federal and Maryland law. 7                            To proceed on any of

its     claims,        SecurityMetrics            must       first      establish     antitrust

standing,           which     requires       some      cognizable         antitrust       injury.

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489

(1977).         “Because the antitrust laws are intended to protect

competition, and not simply competitors, only injury caused by

damage     to       the    competitive        process        may   form    the    basis    of    an

antitrust claim.”              Thompson Everett, Inc. v. Nat’l Cable Adv.,

L.P.,     57    F.3d        1317,    1325     (4th     Cir.     1995).       SecurityMetrics

alleged     antitrust          injury       in   the     form      of   reduced     output      and

frustrated          price     competition.             The    district      court     correctly

rejected those claims because SecurityMetrics failed to support

either theory with sufficient evidence to survive a motion for

summary judgment.

      As       an    initial        matter,      we    note     SecurityMetrics        did      not

properly plead its antitrust claims because it did not allege

any     antitrust           injury     before          the    summary      judgment       stage.

Generally, a party may not raise new arguments after discovery

without amending its complaint.                          U.S. ex rel. Owens v. First

Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 731 (4th

Cir. 2010).               SecurityMetrics argues that it did not need to

      7  Federal               antitrust           analysis           also  applies  to
SecurityMetrics’s             state law           claims.            See Md. Code § 11-
202(a)(2).



                                                  20
plead which theory it would rely upon.                 Even assuming that is

correct, SecurityMetrics was required to allege some antitrust

injury, which its complaint did not.

      Even if SecurityMetrics did properly plead its antitrust

claims, they nonetheless fail.                SecurityMetrics’s evidence for

its antitrust claims consisted of a wholly undeveloped claim

that it lost 280,000 customers in two years, 70,000 of which

went to First Data.          SecurityMetrics points to the remaining

unaccounted for 210,000 merchants as evidence of reduced output.

SecurityMetrics provides no evidence to support its speculation

that these “lost merchants” resulted from misconduct on the part

of First Data.          Any number of reasons might similarly explain

the merchants’ departure, all of which are conjecture. 8                   The

merchants could have migrated to a company other than First Data

or   SecurityMetrics,      gone    out   of    business   altogether,   changed

their business mode, or no longer been in the market for a

number    of    other    reasons   unrelated      to   First   Data’s   alleged

conduct.       SecurityMetrics’s “tenuous” inferences are simply not

enough to “fall within the range of reasonable probability” and



      8SecurityMetrics claims only First Data had access to the
evidence    related   to    the    “lost   merchants,”    leaving
SecurityMetrics with the sole option of deposing 210,000 third
parties to show reduced output.       This argument, of course,
overlooks the possibility that SecurityMetrics could have
retained an expert to opine on the issue of reduced output.



                                         21
overcome a summary judgment challenge.                Thompson Everett, 57

F.3d at 1323.           The district court therefore properly rejected

reduced output as a plausible antitrust injury.

       SecurityMetrics’s attempt to establish antitrust standing

based on harm to price competition fails for the same reason.

SecurityMetrics       claims   that   although    First     Data’s    prices   are

higher   than     SecurityMetrics,     First   Data   has    gained    customers

while SecurityMetrics has lost them.             It is unclear what harm to

price competition this fact reflects.             SecurityMetrics does not

allege predatory pricing, which is the only pricing practice

that   “has     the     requisite   anticompetitive       effect.”      Atlantic

Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 340 (1990).

SecurityMetrics may have shown injury to its business but the

record lacks any evidence that First Data’s practices harmed the

“competitive process.”         Thompson Everett, 57 F.3d at 1325.              We

must therefore conclude that its antitrust claims fail.



                                       IV.

       Finally,    we    consider   First    Data’s   sole   issue    on   cross-

appeal: the district court’s denial of its attorneys’ fees as it

relates to SecurityMetrics’s UTIAA counterclaim.                We review the

denial of attorneys’ fees for abuse of discretion.                    Reinbol v.

Evers, 187 F.3d 348, 362 (4th Cir. 1999).              We apply Utah law to

determine whether an award of attorneys’ fees to First Data is

                                       22
warranted.          See Hitachi Credit Am. Corp. v. Signet Bank, 166

F.3d 614, 631 (4th Cir. 1999).                      “[W]e defer to the trial court’s

judgment,          and    reverse          a        trial        court’s       attorney          fees

determination only if the trial court exceeds the bounds of its

discretion.”        Neff v. Neff, 247 P.3d 380, 399 (Utah 2011).

       SecurityMetrics          brought         a     counterclaim         under     the    UTIAA,

which was enacted “to prevent deceptive, misleading, and false

advertising practices and forms in Utah.”                               Utah Code § 13-11a-

1.     The district court granted First Data summary judgment as to

this claim because “the relevant provisions of the [UTIAA] track

the    Lanham      Act   [so]     SecurityMetrics’               claims      under    the    state

statute fail as well.”                 J.A. 1372. 9              Under the UTIAA, “[t]he

court      shall    award    attorneys’             fees    to    the    prevailing        party.”

Utah       Code    § 13-11a-4(2)(c).                  Notwithstanding          the    statutory

language, the district court did not award First Data attorneys’

fees because it was not the prevailing party “within the context

of the case as a whole.”                       J.A. 1939.          First Data argues the

district court’s decision was an error of law.                               We disagree.

        The   Supreme       Court     of       Utah    has       not    defined      “prevailing

party”      specifically        as    to   the        UTIAA,      but   it    has    provided       a

general       framework      to      ascertain         the       prevailing      party      in    an

action.

       9   SecurityMetrics did not appeal its UTIAA claim.



                                                 23
     In Neff v. Neff, 247 P.3d 380 (Utah 2011), two brothers and

one-time    business   partners    became    embroiled      in   litigation

spanning more than six years.         After trial, both parties sought

attorneys’ fees, which the trial court denied.             Only one brother

appealed.     The Supreme Court of Utah affirmed the denial and

held that a trial court “must base its decision [whether to

award attorney fees] on a number of factors.”         Id. at 398.

     These factors include the language of the contract or
     statute that forms the basis of the attorney fees
     award, the number of claims brought by the parties,
     the importance of each of the claims relative to the
     entire litigation, and the amounts awarded on each
     claim. . . .     Accordingly, it is possible that, in
     litigation where both parties obtain mixed results,
     neither party should be deemed to have prevailed for
     purposes of awarding attorney fees. This is true even
     where the statutory language states that a prevailing
     party ‘shall be entitled to’ fees.

Id. at 398–99 (emphasis added) (footnotes omitted).

     Here, the district court properly applied the rationale and

standard announced in Neff.       Between the two parties, there were

twenty-four   claims   before   the    district   court.      The   district

court granted First Data summary judgment as to eleven of the

claims.     The parties voluntarily dismissed or withdrew eleven

other claims. 10   Though the district court granted First Data


     10 After various pre-trial motions, First Data had four
remaining claims (Counts 1, 2, 4, and 9) and SecurityMetrics had
two remaining claims (Counts 2 and 3). The Friday before trial,
the parties reached a partial resolution to winnow the remaining
claims down to the meaning of Merchant Data under the Terms of
(Continued)
                                      24
summary judgment on several claims, it “never ruled that the

conduct of which SecurityMetrics complained was not actionable,”

but   rather    that     SecurityMetrics        had    not    met    its   evidentiary

burdens.      J.A. 1940.         Out of the twenty-four counts, the sole

issue   at    trial     was    the   parties’    competing      claims     as   to    the

meaning of Merchant Data.

      Under    Neff,     the    “prevailing      party”      does    not   refer     to   a

single count nor is it simply a matter of adding up which party

won the most claims.             The district court here determined that,

while First Data did prevail as to the UTIAA claim, it “had only

limited      success    when     the    case    is    considered      as    a   whole.”

J.A. 1938.       The interpretation of Merchant Data was the only

issue   at     trial,    an     issue    on    which    First       Data   suffered       a

“resounding loss.”             J.A. 1940.       Considering the Neff factors,

the district court determined First Data’s UTIAA claim “occupied

a peripheral position in the litigation as a whole.”                        J.A. 1939.

The district court did not abuse its discretion in so finding.

First Data’s argument that the plain language of the UTIAA “does

not   state    prevailing       party   in     the   entire    action”     is   plainly




Settlement (First Data Count 1 and SecurityMetrics Count 2).
The parties filed a consent order to dismiss with prejudice the
remaining   claims  (First  Data  Counts   2,  4,   and  9   and
SecurityMetrics Count 3), each side bearing their own costs and
fees. The parties also withdrew their request for a jury trial.



                                          25
foreclosed by Neff’s holding that a district court must consider

“each of the claims relative to the entire litigation . . . even

where   the    statutory    language      states   that   a   prevailing   party

shall be entitled to fees.”              Neff 247 P.3d at 398–99 (internal

citation omitted).          Therefore, we affirm the district court’s

denial of attorneys’ fees.



                                         V.

     On the record before us, SecurityMetrics did not present

evidence      of   a   genuine   issue    of   material   fact   sufficient   to

survive a motion for summary judgment on its Lanham Act claim,

tortious interference claim, or antitrust claims.                 The district

court did not abuse its discretion in finding that First Data

was not a prevailing party in the overall action and, therefore,

not entitled to attorneys’ fees under the UTIAA.                     For these

reasons, the judgment of the district court is

                                                                     AFFIRMED.




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