           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2   Highland Capital v. Franklin Nat’l Bank       No. 02-5505
        ELECTRONIC CITATION: 2003 FED App. 0417P (6th Cir.)
                    File Name: 03a0417p.06                             DORTCH & DAVIS, Nashville, Tennessee, for Appellee.
                                                                       ON BRIEF: Jeffrey Alan Greene, Nashville, Tennessee, for
                                                                       Appellant. Joseph A. Woodruff, W. Travis Parham,
UNITED STATES COURT OF APPEALS                                         WALLER, LANSDEN, DORTCH & DAVIS, Nashville,
                                                                       Tennessee, for Appellee.
                  FOR THE SIXTH CIRCUIT
                    _________________                                                      _________________

 HIGHLAND CAPITAL, INC.,         X                                                             OPINION
          Plaintiff-Appellant,    -                                                        _________________
                                  -
                                  -   No. 02-5505                        DAVID M. LAWSON, District Judge. The plaintiff,
            v.                    -                                    Highland Capital, Inc. (Highland), appeals from a summary
                                   >                                   judgment dismissing its complaint against Franklin National
                                  ,                                    Bank (the Bank) that was brought under the anti-tying
 FRANKLIN NATIONAL BANK,          -
          Defendant-Appellee. -                                        provisions of the Bank Holding Company Act (BCHA), 12
                                                                       U.S.C. § 1972. Highland asserted that the Bank required
                                 N                                     Highland to purchase stock in the Bank’s holding company as
      Appeal from the United States District Court                     a prerequisite for obtaining a loan. The lower court found
    for the Middle District of Tennessee at Nashville.                 that there was insufficient evidence of the connection required
  No. 00-00832—William J. Haynes, Jr., District Judge.                 by Section 1972 between the loan and the stock purchase.
                                                                       We find that a claim under Section 1972 requires proof that
                  Argued: September 9, 2003                            the extension of credit was actually conditioned on the bank’s
                                                                       customer obtaining some other product or service from the
            Decided and Filed: November 25, 2003                       bank or one of its subsidiaries, and that Highland did not offer
                                                                       evidence on this element sufficient to avoid summary
        Before: GUY and DAUGHTREY, Circuit Judges;                     judgment. We therefore affirm the judgment of the district
                  LAWSON, District Judge.*                             court.

                      _________________                                                               I.

                           COUNSEL                                       At the time of the loan and the stock purchase, Highland
                                                                       was controlled by its principal shareholder, Steve Morriss. In
ARGUED: Jeffrey Alan Greene, Nashville, Tennessee, for                 an ongoing dispute with his erstwhile business partners,
Appellant. Joseph A. Woodruff, WALLER, LANSDEN,                        Morriss lost control of Highland. None of the individuals
                                                                       who succeeded to control of the company were involved in
                                                                       the loan transactions at issue here, and all of the personnel
    *
                                                                       who were involved, including bank representatives and
     The Honorable David M. Lawson, United States District Judge for   Morriss, aver that no tying condition was imposed as a
the Eastern D istrict of M ichigan, sitting by de signation.

                                 1
No. 02-5505 Highland Capital v. Franklin Nat’l Bank           3    4   Highland Capital v. Franklin Nat’l Bank      No. 02-5505

requirement for obtaining the loan. Highland, under new            the Bank had “dealt with customer on several deal [sic] over
ownership, believes that it offered circumstantial evidence        the past years. Satisfactory. Will update appraisal.” Ibid.
sufficient to contradict the direct denials of the defendant’s     The Report, however, was later amended to correct errors and
witnesses and to create a material fact question that precludes    to remove the reference to the stock purchase.
summary judgment.
                                                                      On the same day that the loan was approved, Highland
  Morriss controlled Highland in 1998. In the later part of        deposited $499,777 into a securities fund account with FFS.
that year, Highland obtained a substantial sum of money from       These were the funds used to purchase 69,400 shares of stock
a commercial transaction. It subsequently deposited $1             in the Bank’s holding company, FFC. Morriss claims that he
million of those funds into its account at the Bank. Morriss       bought the stock “because [he] believed it was a good
then approached Charles Lanier, the Bank’s Executive Vice-         investment.” Aff. of Steve Morriss at ¶ 2, J.A. at 79. Prior to
President, and told him that Highland was interested in            this time, neither Highland nor Morriss owned any FFC stock,
purchasing the stock of the Bank’s holding company,                nor did Morriss or Highland ever purchase additional stock.
Franklin Financial Corporation (FFC). Lanier sent Morriss to
see James Rinker, a broker with Franklin Financial Securities,       The loan closed on December 7, 1998, and was secured by
Inc. (FFS), who helped the plaintiff open a securities account.    the Hollis Tract and a portion of the plaintiff’s FFC stock.

  Shortly thereafter, Highland sought a loan from the Bank           In the months that followed, the Bank made several
for $610,000 to refinance an existing loan on a 42-acre parcel     additional loans to Highland at Morriss’ request. There is no
of real estate located in Williamson County, Tennessee,            contention by the plaintiff that these loans were conditioned
referred to as the Hollis Tract. Morriss averred that he alone     upon Highland’s purchase of FFC stock. Rather, the plaintiff
made the decision to seek this loan on behalf of Highland.         claims that these other loans provide circumstantial evidence
                                                                   that the original loan was the product of an illegal tying
   Highland received loan approval from the Bank on                arrangement between the plaintiff and the Bank. The Bank
November 10, 1998. In making its decision, the Bank waived         lent the plaintiff $157,000 in February 1999 to fund litigation
its otherwise applicable policy of requiring a written loan        in which Morriss was embroiled with his ex-partners. Then
application and submission of the borrower’s financial             in April 1999, the Bank lent the plaintiff an additional
statement. The Bank also did not require Morriss to                $85,000, which was also secured by the Hollis Tract. The
personally guarantee the loan. The Bank’s decision is              Bank additionally approved a renewal of the original
reflected on a pre-printed form entitled “Lending Officer’s        $610,000 note for $607,000 in January 2000, and a renewal
Report” dated November 10, 1998. This report states:               of the $157,000 note on May 31, 2000.
“Customer has wired $1,000,000 into cash management
account. Customer has also put in a buy order for 70,000             Morriss lost control of Highland in July 2000. A closely
shares of Franklin Financial Stock.” Joint Appendix (J.A.) at      held company called Tareco Properties, Inc. (Tareco)
667. The loan collateral is described as 46 acres of real estate   purchased a Texas court judgment that was entered sometime
containing a 2,500-square-foot home valued at $800,000,            prior to 2000, for which Morris was somehow liable. In
apparently referring to the Hollis Tract, and a $90,000 escrow     partial satisfaction of that judgment, Mr. Morriss gave Tareco
assignment. The form also notes that the financial statement       his Highland stock. However, Tareco is owned and
requirement was waived, and contained the explanation that         controlled by Kevin McShane, who is affiliated with two of
No. 02-5505 Highland Capital v. Franklin Nat’l Bank           5    6   Highland Capital v. Franklin Nat’l Bank       No. 02-5505

Morriss’ former business partners, Jerrold Pressman and            Bank employee averred that Inman caused the Bank to renege
Robert Geringer. Pressman is the plaintiff in a lawsuit            on a loan commitment, thereby depriving the Bank of a
pending in the federal district court in Tennessee that alleges    profitable business opportunity available at a very low risk,
that Morriss, with the aid of the Bank and its Chairman,           and then offered to make the loan privately. Finally,
conspired to defraud Pressman and Morriss’ other business          Highland submitted the opinion of Frank De Lisi, who was
partners in a limited partnership known as Inglehame Farm,         offered as a banking expert, that the $610,000 loan “should
LP. The purpose of this limited partnership was to develop         not have been made.” Dep. of Frank DeLisi at 152, 170-71,
400 acres of Tennessee property. The property, however,            J.A. at 846-850. Highland argued that the irregularities in
lacked access to major streets. The suit alleges that Morriss,     processing the loan, the lack of solid information about the
who was supposed to investigate acquiring the Hollis Tract         creditworthiness of the borrower, and other evidence that the
for that purpose for the partnership, told his partners that the   loan otherwise would not have been made in the normal
property could not be purchased and, unbeknownst to them,          course of banking practice, coupled with the nefarious
proceeded to purchase it for himself.                              conduct of Gordon Inman who conspired with Morriss to
                                                                   cheat Morriss’ business partners, proved that another, illegal
   Highland, under its new ownership, filed suit against the       motivation must have prompted the Bank to lend $610,000 to
Bank asserting that the $610,000 loan was conditioned on the       Highland; and that the “other motivation” must have been the
purchase of stock in the Bank’s holding company, and thus          prior purchase of the holding company stock.
the Bank violated the anti-tying provisions of 12 U.S.C.
§ 1972. The Bank moved for summary judgment. In support               The motion was referred to the magistrate judge, who filed
of the motion, the Bank filed affidavits from the seven            a report recommending that the motion be granted. The
members of its loan committee, who each averred that the           magistrate judge first rejected the plaintiff’s premise that its
loan was not conditioned on the purchase of the holding            statutory claim under the BHCA was analogous to an antitrust
company stock; the affidavits of Morriss and Bank officer          cause of action. He then found nothing illogical about a bank
Charles Lanier, who attested that Morriss initiated the inquiry    making a loan to an established customer with $1 million in
regarding the purchase of the stock and that Lanier did not        the bank and securing the loan with property valued at more
solicit the transaction; and the deposition of McShane, in         than the loan value. The magistrate judge noted that the
which he acknowledged that he was aware of no document,            plaintiff was required to show that it was coerced to purchase
statement or conversation that established the tying of the        bank stock as a condition of the loan to avoid summary
loan to the stock purchase. In response, Highland offered          judgment. After reviewing the circumstantial evidence,
deposition evidence that tended to prove that most of the          including evidence that the loan was not made pursuant to
Bank’s stock that Highland purchased came from the private         normal banking procedures, that the loan and stock purchase
holdings of Gordon Inman, the Bank’s Chairman, who stood           occurred at relatively the same time, and that the loan was
to profit personally from the transaction. The plaintiff points    part of a larger scheme between Morriss and the Bank, the
out that James Rinker of FFS was Inman’s son-in-law and            magistrate concluded that the evidence did not create a
that he facilitated the stock transaction. Highland also filed     genuine issue of material fact.
an affidavit from an individual who contended that Inman
engaged in private loan transactions with him when the Bank          Following an order requesting further findings, the
could not do so, and that one of those loans was conditioned       magistrate judge supplemented his report and
on the purchase of Bank holding company stock. A former            recommendation. The plaintiff filed timely objections to the
No. 02-5505 Highland Capital v. Franklin Nat’l Bank          7    8    Highland Capital v. Franklin Nat’l Bank        No. 02-5505

recommendation. The district court subsequently granted the       judgment motion must “do more than simply show that there
defendant’s motion for summary judgment and dismissed the         is some ‘metaphysical doubt as to the material facts.’” Pierce
complaint on March 22, 2002. The court adopted the                v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.
magistrate judge’s description of the factual record, and then    1994) (quoting Matsushita Elec. Ind. Co. v. Zenith Radio
concluded that there was no evidence that the Bank coerced        Corp., 475 U.S. 574, 586 (1986)). Thus, “[t]he mere
the plaintiff to purchase stock as a condition of obtaining the   existence of a scintilla of evidence in support of the plaintiff's
loan, and no proof that the Bank “possessed the ‘appreciable      position will be insufficient; there must be evidence on which
economic’ power in the loan market to impose [the] tying          the jury could reasonably find for the plaintiff.” Anderson,
arrangement.” Dist. Ct. Judgment at 2, J.A. at 13. Judgment       477 U.S. at 251-52.
was entered for the defendant, and the plaintiff then filed its
notice of appeal.                                                    As noted above, the statute upon which the plaintiff’s claim
                                                                  is based comes from the BHCA, and states in relevant part:
                              II.
                                                                      (1) A bank shall not in any manner extend credit, lease
   We review an order granting summary judgment de novo               or sell property of any kind, or furnish any service, or fix
and use the same standard employed by the district court. See         or vary the consideration for any of the foregoing, on the
Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir.          condition or requirement--
1993). That test, of course, is set forth in Federal Rule of
Civil Procedure 56(c), which states that summary judgment             ...
is allowed where the moving party establishes through
pleadings, depositions, answers to interrogatories, admissions,       (B) that the customer shall obtain some additional credit,
and affidavits that “there is no genuine issue as to any              property, or service from a bank holding company of
material fact and that the moving party is entitled to a              such bank, or from any other subsidiary of such bank
judgment as a matter of law.” Fed. R. Civ. P. 56(c). A                holding company; [or]
moving party can meet its burden under Rule 56(c) by
“‘showing’ – that is, pointing out to the district court – that       ...
there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325            (D) that the customer shall provide some additional
(1986). See Estate of Mauro By and Through Mauro v.                   credit, property, or service to a bank holding company of
Borgess Med. Ctr., 137 F.3d 398, 401 (6th Cir. 1998). Once            such bank, or to any other subsidiary of such bank
the moving party has made that showing, the nonmoving                 holding company.
party cannot rest on its pleadings, but must identify specific    12 U.S.C. § 1972 (emphasis added). Congress enacted this
facts that can be established by admissible evidence that         provision “to apply the general principles of the Sherman
demonstrate a genuine issue for trial. Anderson v. Liberty        Antitrust Act prohibiting anticompetitive tying arrangements
Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex, 477 U.S.       specifically to the field of commercial banking.” Kenty v.
at 324; Hall v. Tollett, 128 F.3d 418, 421-22 (6th Cir. 1997).    Bank One, N.A., 92 F.3d 384, 394 (6th Cir. 1996) (quoting
  We review the evidence in the light most favorable to the       Parsons Steel, Inc. v. First Alabama Bank of Montgomery,
nonmoving party. However, the party opposing the summary
No. 02-5505 Highland Capital v. Franklin Nat’l Bank          9    10 Highland Capital v. Franklin Nat’l Bank       No. 02-5505

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

1192, 1196 (6th Cir. 1978) (observing that “[t]he bank was            The plaintiff argues that the circumstantial evidence points
also sued under the Bank Holding Company Act, which                to the conclusion that Morriss caused Highland to buy the
establishes a Per se [sic] rule and provides the same penalties    Bank’s holding company stock specifically in order to
for tying arrangements as the Sherman Act, but without the         influence the Bank’s decision on Highland’s loan request.
necessity of proving any economic power in the market for          That argument suggests that a statutory claim can be
the tying product”). The plaintiff could satisfy the first         established without actually proving “coercion” on the part of
element required of a claim under Section 1972 merely by           the Bank. Indeed, in Dibidale of La., Inc., v. American Bank
showing that the Bank demanded that Highland obtain other          & Trust Co., 916 F.2d 300 (5th Cir. 1990), the court held that
property (the bank holding company stock) or furnish other         the anti-tying provision of the BHCA “does not include a
property (the payment for the stock) as a condition or             coercion element.” Id. at 302. In that case, the plaintiff
requirement of obtaining the $610,000 loan.                        sought a construction loan from the defendant bank and
                                                                   agreed to hire the bank’s preferred choice as construction
   We agree with the district court, however, that the plaintiff   manager. The loan was made, but the construction manager
failed to establish a factual issue on the existence of a tying    turned out to be incompetent and caused considerable loss to
arrangement. In its motion for summary judgment, the               the plaintiff. The plaintiff admitted that hiring the
defendant pointed out the absence of evidence on this              construction manager was never an explicit condition of
element, and came forward with direct evidence to prove the        receiving the loan, although the bank had made it clear that it
contrary proposition, in the form of affidavits from everyone      would feel “comfortable” with that choice, and that he went
involved in seeking and making the loan, who each said that        along with it out of deference to the bank. In reversing the
the stock purchase was not a condition or requirement for the      lower court’s dismissal of the Section 1972 claim, the Fifth
extension of credit. See Celotex, 477 U.S. at 325. Under our       Circuit construed the “condition or requirement” language of
summary judgment jurisprudence, the plaintiff was obligated        the statute quite broadly, reasoning that “[t]o restrict the scope
at that point to come forward with facts that proved, or from      of those words to tying arrangements in which a seller is
which a fact finder reasonably could infer, that the Bank          literally forced to purchase or provide a tied product or
required Highland to buy its holding company stock as a            service in order to obtain credit would vitiate that section’s
condition of receiving the loan. See Anderson, 477 U.S. at         intended role, for as Congress recognized, a tying
247-48. To meet that burden, the plaintiff imported the            arrangement may squelch competition whether coercive or
allegations from the lawsuit by Pressman against the Bank          not.” Id. at 306.
and others that Morriss and Inman were engaged in a
conspiracy to cheat Morriss’ partners in a real estate               Likewise, in S & N Equip. Co. v. Casa Grande Cotton Fin.
development venture, testimony that the stock purchase was         Co., 97 F.3d 337 (9th Cir. 1996), the Ninth Circuit rejected
filled from Inman’s personal holdings through Inman’s son-         the argument that Section 1972 requires a claimant to show
in-law, proof that the loan did not adhere to the Bank’s           “some modicum of coercion” and, instead, held that
normal lending policies, and the opinion of a banking expert       “[a]lthough some showing of coercion may be required under
that the loan should not have been made in the normal course       the Clayton Act and the Sherman Act, . . . it is not a
of banking business. This offering falls considerably short of     requirement under the Bank Holding Company Act.” Id. at
the proof that this Circuit requires to establish a successful     346 n.18. A contrary view, however, was expressed by the
Section 1972 claim.                                                Eleventh Circuit in Integon Life Ins. Corp. v. Browning, 989
                                                                   F.2d 1143, 1150-51 (11th Cir. 1993), construing the identical
No. 02-5505 Highland Capital v. Franklin Nat’l Bank 13            14 Highland Capital v. Franklin Nat’l Bank         No. 02-5505

language found in the Home Owners’ Loan Act, 12 U.S.C.            positively impressed by such conduct, or even that the other
§ 1464(q). That court held that “to establish a tying in          transaction was a factor in the bank’s decision to extend
violation of HOLA, a plaintiff must prove that the thrift         credit. According to the plain language of the statute, a
forced or coerced the plaintiff into purchasing the tied          claimant must prove that the purchase of the tied product or
product.” Id. at 1151.                                            service was a mandatory condition or requirement of
                                                                  obtaining a loan from the lender. The borrower must be
   Although we do not subscribe to the view set forth by the      prevailed upon to agree to the additional product or service,
Fifth Circuit, because it disregards the plain language of the    lest credit be denied.
statute, we likewise believe that emphasizing the notion of
“coercion” creates a requirement that is not contained in the        This element of a Section 1972 claim may be established by
statute. Section 1972 does not require proof of “force or         circumstantial evidence. However, the plaintiff in this case
coercion,” particularly as those terms are used in the            failed to offer admissible evidence from which an inference
economic sense in antitrust jurisprudence. The terms              of a tying arrangement could be drawn. The procedure that
employed in the statute are “condition or requirement.” A         led to the loan’s approval, although perhaps out of the
“condition” is “[s]omething demanded or required as a             ordinary, did not demonstrate that a tying condition was
prerequisite to the granting or performance of something          imposed. A reasonable person would not conclude that a
else.” OXFORD ENGLISH DICTIONARY 309 (2d ed. 1989). A             bank’s decision to lend $610,000 to an established bank
“requirement” is “that which is called for or demanded; a         customer, without a loan application or personal guarantee,
condition which must be complied with.” Id. at 1565. Giving       when the loan was secured by property appraised at $800,000
those terms their ordinary meanings as used in Section 1972,      plus additional property valued at $90,000, was unusual or
we conclude that a statutory violation is established by proof    prompted by an ulterior motive. The evidence of the shadowy
that a bank conveyed an intention to withhold credit unless       dealings between Morriss and Bank Chairman Inman may be
the borrower fulfilled a “prerequisite” of purchasing or          relevant to the other litigation involving Morriss’ former
furnishing some other product or service. The borrower may        business partners, but it has little to do with any connection
readily agree with the tying condition demanded by the bank;      between the loan and the stock purchase. To the contrary, the
that is, the whole notion of force or involuntary submission      inference that emerges from this evidence is that the original
may be absent. Nonetheless, proof of a statutory violation        and subsequent loans were made to further another
will be made out by evidence that taking or furnishing another    conspiratorial objective allowing Morriss to usurp a business
service or product is a condition that must be fulfilled before   opportunity from his real estate venture, not as consideration
the bank will agree to extend credit.                             for the purchase of FFC stock. Inman’s private dealings with
                                                                  other Bank customers does nothing to further the inference of
  In this case, Morriss agreed to purchase the Bank’s holding     a tying arrangement involving the Bank, Morriss, and the
company stock on behalf of Highland, and the buy order was        plaintiff. Finally, the plaintiff’s banking expert, who testified
reported to the loan committee in the first version of the Loan   that “[t]here is no direct evidence, whatsoever, that there is –
Officer’s Report. This evidence may establish that the Bank       there was a requirement, as a condition of the loan, that he
looked more favorably upon Highland because of the stock          buy the stock,” Dep. of Frank DeLisi at 152, J.A. at 847, does
purchase. It is not enough, however, merely to bring forth        not furnish the necessary link that supports an inference of a
evidence that the borrower purchased another bank product or      tying arrangement.
service to curry favor with the lender, or that the lender was
No. 02-5505 Highland Capital v. Franklin Nat’l Bank 15

                              III.
   The plaintiff’s argument that the Bank’s $610,000 loan was
illegally tied to Highland’s purchase of FFC stock does not
rise above the level of speculation or conjecture.
Constructing a circumstantial case in the face of
overwhelming, contrary, direct evidence was a daunting
burden that, we believe, ultimately proved insurmountable for
the plaintiff. The plaintiff failed to establish a genuine issue
for trial on an essential element of its claim. We therefore
affirm the district court’s summary judgment in favor of the
defendant.
