TMT Management Group, LLC, et al., Appellants,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0915

TMT Management Group, LLC, et al.,
Appellants,

vs.

U.S. Bank National Association, et al.,
Respondents,

Wilbur Tate,
Respondent,

United Credit Recovery, LLC,
Respondent,

Leonard Potillo,
Respondent.

Filed February 10, 2020
Affirmed
Florey, Judge

Dakota County District Court
File No. 19HA-CV-16-991

Kenneth R. White, Law Office of Kenneth R. White, P.C., Mankato, Minnesota (for
appellants)

Brooks F. Poley, Justin H. Jenkins, Reid J. Golden, Winthrop & Weinstine, P.A.,
Minneapolis, Minnesota (for respondents U.S. Bank, et al.)

Wilbur Tate, III, Dacula, Georgia (pro se respondent)

United Credit Recovery, L.L.C., Sanford, Florida (pro se respondent)

Leonard Potillo, Longwood, Florida (pro se respondent)

Considered and decided by Johnson, Presiding Judge; Jesson, Judge; and Florey,
Judge.

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S Y L L A B U S
An allegation of commercial bribery does not reli eve a litigant of the need to show
targeting and market foreclosure in order to state an antitrust refusal -to-deal claim under
Minn. Stat. § 325D.53, subd. 1(3) (2018).
O P I N I O N
FLOREY, Judge
Appellants TMT Management Group, LLC , et. al. (TMT) assert that the district
court erred by: (1) impos ing a sanction against TMT that precluded the introduction of
evidence relating to alleged oral statements made by respondent s U.S. B ank National
Association, et. al. (U.S. Bank) ; (2) determining that TMT could not prove a clear and
definite promise to support its promissory-estoppel claim; (3) granting U.S. Bank summary
judgment dismissing TMT’s failure-to-deal claim; and (4) dismissing TMT’s derivative
claims for lack of underlying tortious conduct. We affirm.
FACTS
This action involves a dispute between TMT, a debt-purchasing company, and U.S.
Bank. TMT asserts that U.S. Bank conspired with another debt -purchasing company,
United Credit Recover y, LLC (UCR), to prevent TMT from purchasing portfolios of
overdrawn consumer checking accounts, which are referred to as demand deposit accounts
(DDAs).
On March 16, 2011, the principals of TMT, Mark Bugni and respondent Thomas
Leiferman, met with employees of U.S. Bank for the first time to discuss TMT’s desire to

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purchase DDA portfolios from U.S. Bank. U.S. Bank expressly rejected TMT’s proposal
for a five-year forward-flow agreement at that time.1
On February 18, 2011, prior to meeting with TMT, U.S. Bank executed a forward-
flow agreement with UCR for the sale of DDA portfolios whereby U.S. Bank agreed to
sell UCR all of its 2011 DDA portfolios. U.S. Bank cancelled its forward-flow agreement
with UCR on June 7, 2011, and granted UCR a right of fi rst refusal on the next portfolio
sale.
U.S. Bank sold its May 2011 DDA portfolio to UCR pursuant to the entities’
forward-flow agreement. TMT bid on U.S. Bank’s July 2011 DDA portfolio, but UCR
exercised its right of first refusal to purcha se it. TMT executed a purchase agreement for
U.S. Bank’s September 2011 portfol io. In March 2012, U.S. Bank offered its last DDA
portfolio for sale, which it also sold to TMT.
On May 8, 2013, TMT’s principals again met with U.S. Bank to discuss possible
future purchases of DDA portfolios. TMT alleges that U.S. Bank orally agreed to sell TMT
$200 million in DDA debt for three cents on the dollar. U.S. Bank denies that it made a
clear and definite promise to sell a DDA portfolio to TMT at that meeting.
In June 2014 , federal authorities indicted UCR’s principal, Leonard Potillo, for
defrauding UCR’s customers by misrepresenting the value of DDA debt purchased from
U.S. Bank and other financial institutions. U.S. Bank was not charged with any
wrongdoing. Wilber Tate, a former U.S. Bank employee, pleaded guilty to unrelated

1 A forward-flow agreement allows the buyer to purchase all of the bank’s DDA portfolios
for a given period at specified prices.

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bribery charges in Connecticut. However, there is no dispute that Tate received kickbacks
from UCR and Potillo from 2007 until his resignation in January 2011 in exchange for
inside information and preferential treatment regarding U.S. Bank’s DDA sales.
Following the dismissal of TMT’s civil federal claims against U.S. Bank by the
federal district court in February 2016, TMT i nitiated the present action in state district
court against U.S. Bank, UCR, and various employees and principals of those entities,
under the over arching theory that U.S. Bank and UCR conspired to prevent TMT from
purchasing U.S. Bank’s DDA portfolios. Near the close of discovery, TMT produced an
email that it asserted memorialized an oral contract entered into by U.S. Bank and TMT
during the initial March 16, 2011 meeting. Following a forensic analysis, the district court
determined that Leiferman fabricated the email. The district court sanctioned TMT for
perpetrating a fraud upon the court , precluding TMT from introducing any evidence of
alleged oral statements made by, or on behalf of, U.S. Bank defendants, among other
penalties.
TMT narrowed or withdrew a n umber of its claims, and the district court granted
U.S. Bank summary judgment on all remaining claims, based, in part, on its evidentiary
sanction against TMT. TMT appeals.
ISSUES
I. Did the district court abuse its discretion by imposing an eviden tiary sanction on
TMT?

II. Did the district court err by granting U.S. Bank summary judgment on TMT’s
promissory-estoppel claim?

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III. Are the extant state-law refusal-to-deal precedents distinguishable when the plaintiff
alleges commercial bribery as the basis of the claim?

IV. Did the district court err by dismiss ing TMT’s derivative claims for lack of
underlying tortious conduct?

ANALYSIS
I. Evidentiary sanction
TMT argues that the district court abused its discretion by precluding TMT from
introducing any evidence of alleged oral statements made by, or on behalf of, U.S. Bank
defendants as a sanction for TMT’s fabrication of evidence related to a purported oral
contract. The party challenging a district court’s choice of sanction “has the difficult
burden of convincing an ap pellate court that the [district] court abused its discretion —a
burden which is met only when it is clear that no reasonable person would agree [with] the
[district] court’s assessment of what sanctions are appropriate.” Patton v. Newmar Corp.,
538 N.W.2d 116, 119 (Minn. 1995) (quotation omitted); accord In re Kujawa , 270 F.3d
578, 582 (8th Cir. 2001) (stating that appellate courts review sanctions imposed pursuant
to a court’s inherent authority for an abuse of discretion).
TMT concedes that Leiferman fabricated evidence, but argues that the district court
abused its discretion by failing to narrowly tailor the sanction s it imposed. In support of
this proposition, TMT cites the Eighth Circuit’s decision in Kujawa, but the language TMT
relies on refers specifically to monetary sanctions. 270 F.3d at 583 (“The cornerstone of
imposing a monetary sanction . . . should be the selection of an amount no greater than
sufficient to deter future misconduct by the party.”) Here, TMT does not challenge the

6
imposition of monetary sanctions by the d istrict court, only the preclusion of evidence
related to alleged oral statements.
TMT also relies on the supreme court’s statement that courts “should impose the
least severe sanction necessary to effectuate t he purpos e of deterrence. ” Uselman v.
Uselman, 464 N.W.2d 130, 145 ( Minn. 1990) (citations omitted). However, in Uselman,
the supreme court specifically provided for the exclusion of evidence as an available
sanction, which it ranked as the sixth most severe sanction out of twelve potential penalties,
and stated that the district court “may also consider the presence or absence of bad faith in
determining an appropriate sanction.” Id.
The supreme court also noted in Seagate Tech., LLC v. W. Digital Corp. that while
preclusion of evidence is a severe sanction, it ha s been applied in other jurisdictions as a
penalty for fabricating evidence. 854 N.W.2d 750, 763-64 (Minn. 2014). Here, the record
reflects that the district court seriously considered U.S. Bank’s request that it dismiss all of
TMT’s claims as a sanction for TMT’s fraud. While the district court noted that significant
sanctions were warranted, it decided to impose the less-severe penalty of precluding TMT
from introducing evidence of alleged oral statements made by, or on behalf of, U.S. Bank,
as the most effective means of deterring TMT from any additional attempts to fabricate
evidence of alleged oral statements. We conclude that the district court did not abuse its
discretion.
II. Promissory estoppel
TMT argues that the district court erred by granting U.S. Bank summary judgment
on TMT’s promissory -estoppel claim. “We review the grant of summary judgment de

7
novo to determine whether there are genuine issues of material fact and whether the district
court erred in its application of the law.” Montemayor v. Sebright Prods., Inc., 898 N.W.2d
623, 628 (Minn. 2017) (quotation omitted). “We view the evidence in the light most
favorable to the party against whom summary judgment was granted.” STAR Ctrs., Inc. v.
Faegre & Benson, L.L.P. , 644 N.W.2d 72, 76 -77 (Minn. 2002). Summary judgment “is
inappropriate when reasonable persons might draw different conclusions from the evidence
presented.” Montemayor, 898 N.W.2d at 628.
TMT seeks to estop U.S. Bank from rescinding an alleged oral promise to sell TMT
a $200 million DDA portf olio for three cents on the dollar. Promissory estoppel is an
equitable doctrine which requires proof of the following three elements: “(1) a clear and
definite promise, . . . (2) the promisor intended to induce reliance and the promisee in fact
relied to his or her detriment, and (3) the promise must be enforced to prevent injustice.”
Martens v. Minn. Min. & Mfg. Co., 616 N.W.2d 732, 746 (Minn. 2000). The district court
granted U.S. Bank summary judgment on the base s that TMT failed to establish a dispute
of material fact regarding the existence of a clear and definite promise, and also as a result
of the sanction precluding TMT from introducing evidence of U.S. Bank’s alleged oral
statements.
TMT alleged that a U.S . Bank vice chairman orally promised to sell TMT a DDA
portfolio during the May 8, 2013 meeting. TMT asserts that the deposition testimony of
its own principals, along with t hat of a local U.S. Bank employee, created a dispute of
material fact regarding whether the U.S. Bank vice chairman made the alleged o ral
promise.

8
As an initial matter, the U.S. Bank employee did not testify to the existence of a
clear and definite promise. The U.S. Bank employee testified as follows:
Q: Can you tell me whether you think that a final, finished
deal had been reached for U.S. Bank to sell TMT DDA
by the end of the lunch meeting?
A: A final deal, no.

. . . .

Q: [D]o you remember [U.S. Bank employees] saying,
“Yeah, that price sounds good to us”?
A: I don’t recall that, that they verbally agreed to it. I can’t
recall 100 percent.
Q: Do you remember them shaking hands or hugging or
giving high fives during the meeting?
A: I do remember at the end of the meeting . . . they were
shaking and hugging making comments that . . . [they
were] looking for a way to make a deal happen.

Even when viewed in the l ight most favorable to TMT, the bank employee’s testimony
established the existence of a negotiation, not a clear and definite promise upon which
TMT could rely.
Furthermore, TMT was precluded from introducing any evidence of oral statements
allegedly made on behalf of U.S. Bank. TMT identified no other evidence in the record
that could potentially create a dispute of material fact regarding the existence of a clear and
definite promise. Accordingly, the district court properly granted summary judgment to
U.S. Bank on the promissory-estoppel claim. See Leamington Co. v. Nonprofits’ Ins., 661
N.W.2d 674, 679 (Minn. App. 2003) (“A party must present specific admissible facts
showing that there was a genuine issue for trial to avoid summary judgment.” (quotation
omitted)).

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III. Refusal to deal
TMT argues that the district court erred by granting U.S. Bank summary judgment
on TMT’s antitrust refusal-to-deal claim. TMT concedes that it cannot p revail under
controlling Minnesota precedent, but asserts that those holdings are distinguishable when
the purportedly collusive agreement is the result of commercial bribery.
TMT initially brought a number of anti trust claims, first in federal district court
under federal antitrust law, and then following the dismissal of those claims, in state district
court under Minnesota antitrust law —all centered around its alle gation that a bribery
scheme between UCR and Tate operated to artificially control the market for U.S. Bank’s
DDA portfolio sales. However, TMT eventually limited its antitrust allegations to a single
claim of refusal to deal under Minn. Stat. § 325D.53, subd. 1(3), which, with certain
exceptions, makes “a contract, combination, or conspiracy between two or more persons
refusing to deal with another person” unlawful.
A. Refusals to deal under Minnesota antitrust law
The parties have identified two cases that interpret the Minnesota refusal-to-deal
statute. In Minn.-Iowa Telev. Co. v. Watonwan T.V. Impr. Ass’n, the supreme court
analyzed a contract between a local ABC affiliate, KAAL, and a broadcasting company,
Watonwan, which prevented Watonwan from broadcasting any signal that duplicated
KAAL’s network programming. 294 N.W.2d 297, 301 (Minn. 1980). When Wa tonwan
began carrying the signal of another ABC affiliate, KSTP, KAAL sued to enforce the non-
duplication provision, and Watonwan asserted that the provision constituted an invalid
refusal to deal. Id. at 302. The supreme court held that the non-duplication provision did

10
not constitute a refusal to deal on two principal bases . Id. at 307. First, the contract did
not target KTSP, but instead applied to any station carrying ABC network programming.
Id. Second, because KTSP could still broadcast its sign al using a carrier other than
Watonwan, it was not foreclosed from the relevant market. Id.
In Hough Transit, Ltd. v. Nat’l Famers Org., this court analyzed an exclusive milk-
hauling agreement between a dairy cooperative an d a former Hough Transit employee,
where Hough Transit asserted that the agreement constituted a refusal to deal. 472 N.W.2d
358, 359 (Minn. App. 1991). Relying on the analysis set forth in Watonwan, this court
held that the agreement did not constitute a refusal to deal under the s tatute on the same
two bases. Id. at 361. First, because the exclusive arrangement between the co-op and the
former employee prevented competition from all other haulers, it did not target Hough
Transit for exclusion. Id. Second, because Hough Transit was not prevented from hauling
for other dairy farmers, it was not foreclosed from the relevant market. Id.
Based on Watonwan and Hough, the district court granted U.S. Bank summary
judgment on TMT’s refusal-to-deal claim because the undisputed evidence established that
the allegedly collusive arrangement between U.S. Bank and UCR applied to all entities
seeking to purchase DDA portfolios from U.S. Bank, not just TMT, and TMT could still
purchase DDA portfolios from entities other than U.S. Bank.
TMT asks this court to look to federal antitrust law in order to distinguish Watonwan
and Hough when a refusal-to-deal claim is premised on commercial bribery. “Minnesota’s
antitrust laws are generally interpreted consistently with federal courts’ constructio n of
federal antitrust laws.” Minn. Twins P’ship v. State ex rel. Hatch , 592 N.W.2d 847, 851

11
(Minn. 1999). While there is no direct federal analogue of Minn. Stat. § 325D.53, subd.
1(3), the Supreme Court has analyzed federal refusal -to-deal claims under sections 1 and
2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (2012). See Times-Picayune Publ’g Co. v. United
States, 345 U.S., 594, 624-26, 73 S. Ct. 872, 889-90 (1953) (analyzing an asserted refusal-
to-deal claim under 15 U.S.C. § 1); see also Verizon Commc’n s Inc. v. Law Offices of
Curtis V. Trinko, LLP, 540 U.S. 398, 407-08, 124 S. Ct. 872, 878-79 (2004) (analyzing an
asserted refusal-to-deal claim under 15 U.S.C. § 2).
TMT’s argument overlooks two important aspects of federal antitrust law. As fully
set forth below, under the federal precedents identified by the parties, a claim for
commercial bribery is potentially actionable under the R obinson-Patman Act, 15 U.S.C.
§ 13(c) (2012), not sections 1 and 2 of the Sherman Act. Therefore, commercial bribery is
an entirely distinct claim from refusal to deal.
Furthermore, none of the federal cases identified by the parties have held that
commercial bribery constitutes the antitrust injury necessary to establish standing under
section 4 of the Clayton Act, 15 U.S.C. § 15(a) (2012), the section under which a litigant
must bring a private action for violation of the Robinson -Patman Act. Therefore, there is
no basis to distinguish the precedential approach to refusal-to-deal claims under state law
solely because a plaintiff’s claim is premised upon an allegation of commercial bribery.
See Lake George Park, L.L.C., v. IBM Mid -Am. Emps. Fed. Credit Union , 576 N. W.2d
463, 466 (Minn. App. 1998) (“This court, as an error correcting court, is without authority
to change the law.”), review denied (Minn. June 17, 1998).

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B. Commercial bribery under federal antitrust law
Commercial bribery is already potentially actionabl e under federal antitrust law.
Under section 2(c) of the Robinson-Patman Act:
It shall be unlawful for any person engaged in commerce, in
the course of such commerce, to pay or grant, or to receive or
accept, anything of value as a commission, brokerage, or other
compensation, or any allowance or discount in lieu thereof,
except for services rendered in connection with the sale or
purchase of goods, wares, or merchandise, either to the other
party to such transaction or to an agent, representative, or other
intermediary therein where such intermediary is acting in fact
for or in behalf, or is subject to the direct or indirect control, of
any party to such transaction other than the person by whom
such compensation is so granted or paid.

15 U.S.C. § 13(c). “Precision of expression is not an outstanding characteristic of the
Robinson-Patman Act . . . .” Automatic Canteen Co. of Am. v. FTC , 346 U.S. 61, 65, 73
S. Ct. 1017, 1020 (1953); see also Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels
& Resorts Worldwide, Inc., 369 F.3d 212, 218 (2nd Cir. 2004) (providing a n overview of
the interaction of the various clauses of the act).
Section 2(c) of the R obinson-Patman Act was enacted primarily to combat the
practice of dummy brokerages, Blue Tree Hotels, 369 F.3d at 221, but “[t]he sine qua non
of a § 2(c) violation . . . is an improper payment, i.e., a payment of a commission,
brokerage, or discount other than for services actually rendered.” Blue Tree Hotels , 369
F.3d at 223. In Blue Tree Hotels, the Second Circuit noted that other federal circuits had
held that section 2(c) proscribes commercial bribery, but did not actually decide if the
section applied because it held that the app ellant failed to establish that the purportedly
illicit payments constituted commercial bribery. Id. at 221.

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Even though the Second C ircuit did not address the applicability of section 2(c) to
a claim for commercial bribery, it noted that the Robinson -Patman Act does not provide a
private cause of action for treble damage s; instead, a claim must be pursued via section 4
of the Clayton Act, which authorizes private suits by “any person who shall be injured in
his business or property by reason of anything forbidden in the antitrust laws,” 15 U.S.C.
§ 15(a). Blue Tree Hotels, 369 F.3d at 218. “[A] private litigant seeking treble damages
for such a violation under § 4 of the Clayton Act must nevertheless allege an antitrust
injury.” Id. at 220.
“To establish antitrust injury, a private litigant must prove injury in i ts business or
property by reason of the violation and that the violation was at least a material cause of
the plaintiff’s injury. In other words, a plaintiff must show (1) an injury -in-fact; (2) that
has been caused by the violation; and (3) that is the type of injury contemplated by the
statute.” Blue Tree Hotels, 369 F.3d at 220 (quotations and citation omitted). Therefore,
under the Second Circuit’s approach, a plaintiff must not only state a claim for commercial
bribery, but must also demonstrate an antitrust injury in order to invoke the jurisdictional
provision of section 4 of the Clayton Act.
Unlike the Second C ircuit’s approach, the federal district court of I daho awarded
damages for commercial bribery under the Robinson -Patman Act, but dismissed claims
under sections 1 and 2 of the Sherman Act because of the lack of an antitrust violation.
Sterling Nelson & Sons, Inc. v. Rangen, Inc. , 235 F. Supp. 393 (D. Idaho 1964), aff’d on

14
other grounds, 351 F.2d 851 (9th Cir. 1965). 2 This approach appears to be called into
question by the more recent decision of the Second Circuit in Blue Tree Hotels.
In Sterling Nelson, the federal district court of Idaho found that Rangen violated
section 2(c) of the Robinson-Patman Act by bribing a state official to influence the state to
purchase all of its fish food from Rangen, to the detriment of Sterling Nelson. Id. at 398-
99. After reciting the general purpose of the Sherman Act set forth by the Supreme Court
in Apex Hosiery Co. v. Leader , 310 U.S. 469, 60 S. Ct. 982 (1940), t he district court
characterized the scheme as “a simple case of buying influence, sometimes called
commercial bribery, which is cognizable under the anti -trust laws only because of the
specific language of 15 U.S.C. § 13(c) . . . . The cas e falls short of proving actionable
wrongs under the Sherman Act.” Sterling Nelson, 235 F. Supp. at 400.
The federal district court of Idaho’s characterization is relevant because TMT asks
this court to alter its analysis of a specific type of antitrust claim—refusal to deal in
accordance with Minn. Stat. § 325D.53, subd. 1(3) —because of the presence of an
allegation of commercial bribery. Sterling Nelson specifically held that no violation of the
Sherman Act occurred, which is the closest federal analo gue to Minn. Stat. § 325D.53,
subd. 1(3).
The Ninth Circuit relied on this language from Sterling Nelson when affirming in
part the dismissal of claims under sections 1 and 2 of the Sherman Act premised on
commercial bribery. Calnetics Corp. v. Volkswagen of Am., Inc., 532 F.2d 674, 687 ( 9th

2 The Ninth Circuit’s opinion in Sterling Nelson was overruled on other grounds by Rotec
Indus. v. Mitsubishi Corp., 348 F.3d 1116, 1122 (9th Cir. 2003).

15
Cir. 1976). There, the Ninth C ircuit stated that “VW’s and Subsidiary’s claim of
commercial bribery, standing alone, does not constitute a violation of the Sherman Act.”
Id. The Ninth Circuit went on to clarify the impact of Sterling Nelson, stating:
VW’s and Subsidiary reliance on the Ninth Circuit
opinion in Sterling Nelson for the proposition that antitrust
claims may be based on commercial bribery is misplaced. This
court decided merely that, according to congressional intent, a
claim under [§] 2(c) of the Clayton Act, could be based on
commercial bribery. The district court holding in Sterling
Nelson that Sherman Act claims may not be predicated on
commercial bribery was never presented to the Ninth Circuit
for review . . . .

Id. Therefore, in the Ninth Circuit, a claim for commercial bribery is potentially actionable
under the Robinson -Patman Act (i.e. section 2(c) of the Clayton Act), but a claim for
commercial bribery, standing alone, does not state a cl aim under the Sherman Act. TMT
has not identified any analogous federal precedent where a refusal-to-deal claim was found
to be actionable under the Sherman Act due to an accompanying allegation of commercial
bribery. Thus, there is no basis to distingui sh Watonwan and Hough in light of federal
refusal-to-deal precedent.
C. Antitrust injury
As discussed above, if a claim for commercial bribery is actionable under federal
antitrust law, it is under section 2(c) of the Robinson-Patman Act. Also discussed above,
in order to maintain a private cause of action under the Robinson -Patman Act, a litigant
must establish an antitrust injury in accordance with section 4 of the Clayton Act . TMT
alleges that it suffered an antitrust injury as a result of UCR’s commercial bribery of Tate,
which it then attempts to use as the basis of its refusal -to-deal claim, despite the fact that

16
these are distinct aspects of antitrust law. TMT asserts that due to the illegal commercial
bribery scheme,3 it was prevented from competing for DDA portfolios offered for sale by
U.S. Bank. Even assuming that TMT has sufficiently alleged damages resulting from
commercial bribery, the federal caselaw does no t support TMT’s argument that it has
alleged the antitrust injury necessary to bring a private cause of action for violation of the
Robinson-Patman Act via section 4 of the Clayton Act.
The United States District C ourt for the southern district of New York discussed
under what aspects of the antitrust laws a claim for commercial bribery may arise in World
Wrestling Entm’t, Inc. v. Jakks Pac., Inc., 425 F. Supp. 2d 484, 517-23 (S.D.N.Y. 2006),
aff’d, 328 F. App’x 695 (2d Cir. 2009). Notably, the court distinguished an allegation of a
per se violation of section 1 of the Sherman Act from an allegation of an antitrust injury.
“The per se rule is a method of determining whether § 1 of the Sherman Act has been
violated, but it does not indicate whether a private plaintiff has suffered antitrust injury and
thus may recover damages under § 4 of the Clayton Act.” Id. at 519 (quoting Atl. Richfield
Co. v. USA Petrol. Co., 495 U.S. 328, 341-42, 110 S. Ct. 1884, 1893 (1990)).
TMT asserts that because a refusal to deal is a per se antitrust v iolation, the
allegation of that violation alone, especially an allegation premised upon a claim of
commercial bribery, is sufficient to excuse it from meeting the elements of a state -law
claim for refusal to deal, namely, targeting and market foreclosure. However, as the
Supreme Court made clear in Atl. Richfield, the allegation of a per se violation is

3 Minn. Stat. § 609.86 makes commercial bribery illegal under state law.

17
insufficient to convey a private right of action under the Clayton Act. Atl. Richfield, 495
U.S. at 341 -42, 110 S. Ct. at 1893 . Instead, the plaintiff must also establish an antitrust
injury.4
In World Wrestling Entm’t, the plaintiff (WWE) alleged that one of its employees
conspired with its licensing agent and an action-toy seller, among others, to ensure that the
toy seller obtained valuable licenses from WWE. Id. at 488-89, 515. The district court
characterized this arrangement as “an extensive and, if true, astounding commercial bribery
scheme.” Id. at 520. However, the district court held that the bribery scheme did not state
a claim for an antitrust injury, because even if the license-bidding process was rigged as a
result of the bribes paid to the employee, WWE was not compelled to accept the artificially
low bid. Id. at 522. “ Indeed, the allegations . . . are even more problematic for [WWE]
. . . because the Amended Complaint identifies competitors that were active in the bidding
process. . . .” Id. at 521. The same is true here, where TMT alleges that it was harmed as
a resu lt of the bribes paid by UCR to Tate, which allowed UCR access to inside
information. There is no allegation that U.S. Bank was forced to accept UCR’s bid instead
of TMT’s or the bids of other competitors.5 Therefore, TMT has not alleged the antitrust

4 Again, it is worth noting that TMT has not even alleged the existence of a per se refusal-
to-deal antitrust violation. As discussed above, the Ninth Circuit held that an allegation of
commercial bribery does not state a claim under the Sherman Act. Calnetics, 532 F.2d at
687. The United States District Court for the southern district of New York came to a
similar conclusion in World Wrestling Entm’t, 425 F. Supp. 2d at 522.
5 During oral argument , counsel stated that there were four or five bidders for the June
2011 DDA portfolio.

18
injury necessary to bring a commercial -bribery claim via section 4 of the Clayton Act for
violation of the Robinson-Patman Act.
In the civil federal litigation initiated by TMT that preceded the present state-court
action, the federal district court characterized the commercial-bribery scheme as follows:
Potillo’s [a principal of UCR] plea stated that Tate . . . would
provide information to Potillo concerning the highest bids for
the DDA Portfolios and the lowest minimum price U.S. Bank
would accept. Based on that information, Potillo would submit
bids that were slightly higher than the next highest bid and also
above the minimum bids deemed acceptable to U.S. Bank.
Potillo paid Tate for providing this information.

TMT Mgmt. Grp., LLC v. U.S. Bank Nat’l Assoc. , No. 14-4692, 2016 WL 730254 at *27
(D. Minn. Jan. 4, 2016). Nothing in this arrangement relates to an agreement not to deal
with TMT. Nothing in the bribery scheme prevented U.S. Bank from accepting a higher
bid from TMT.
Here, the alleged antitrust violation involves U.S. Bank’s refusal to deal, not UCR’s
conduct constituting commercial bribery. While TMT points to federal caselaw relating to
claims for commercial bribery, nothing in the cases discussed above establishes a basis for
excusing a plaintiff asserting a refusal -to-deal claim from establishing that it was singled
out for exclusion and was entirely foreclosed from the relevant market. Furthermore, as
the above cases show, a clai m of commercial bribery neither provides the antitrust injury
necessary to convey a private right of action under s ection 4 of the Clayton Act, nor is
commercial bribery actionable under sections 1 and 2 of the Sherman Act.
While TMT is correct that the presence of an allegation of commercial briber y
makes this case factually distinguishable from Watonwan and Hough, TMT does not

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present any authority that stands for the proposition that the normal analytic framework
applied to refusal-to-deal claims does not apply when a plaintiff asserts that the re fusal to
deal is the result of commercial bribery. If a federal antitrust claim based on commercial
bribery lies anywhere, it is pursuant to section 2(c) of the Robinson -Patman Act,6 not in a
state-law claim for refusal to deal. Therefore, we decline to distinguish Watonwan and
Hough in the m anner urged by TMT when the principal distinguishing fact is an
accompanying allegation of commercial bribery.
IV. Derivative claims
Finally, TMT argues that if this court remands either the promissory -estoppel or
refusal-to-deal claims, TMT’s derivative claims for respondeat superior, civil conspiracy,
and punitive damages should be reinstated, as TMT would once again have a tort claim to
support them. See DeRosa v. McKenzie, 936 N.W.2d 342, 347 n.5 (Minn. 2019). Because
we affirm the dismissal of the tort claims, the derivative liability-based claims necessarily
fail.
D E C I S I O N
The district court did not abuse its discretion by precluding TMT from introducing
oral statements allegedly made on behalf of U. S. Bank into evidence as a sanction for

6 We note that the federal district courts possess exclusive jurisdiction over claims arising
under section 4 of the Clayton Act. General Talking Pictur es Corp. v. De Marce , 279
N.W. 750, 753 (Minn. 1938) (“[T]he above -quoted provision of the Clayton Act,
supplementing a similar one in the Sherman Act (section 7, 15 U.S.C.A. §15 note), has
been widely construed by both state and federal courts to vest exclusive jurisdiction of
issues arising under the anti -trust laws in the federal courts alone.” ( citing Blumenstock
Bros. Advert. Agency v. Curtis Publ’g Co., 252 U.S. 436, 40 S. Ct. 385 (1920))).

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TMT’s fabrication of evide nce relating to an alleged oral statement. The district court
properly granted summary judgment to U.S. Bank on TMT’s promissory -estoppel claim
because TMT did not possess any admissible evidence of a clear and definite promise. The
district court also appropriately granted U.S. Bank summary judgment on TMT’s refusal -
to-deal claim because TMT did not establish the existence of a dispute of material fact as
to whether it was the sole target of the supposed exclusive agreement between U.S. Bank
and UCR or whether it was foreclosed from the entire DDA-portfolio market. Finally, the
dismissal of TMT’s derivative claims was appropriate following the dismissal of the tort
claims upon which they relied.
Affirmed.