Mularkey

Alan and Lynn Mularkey, former distributors of bread products manufactured by the defendant, Holsum Bakery (“Holsum”), appeal the district court’s partial summary judgment dismissing their claims under the Sherman Antitrust Act, 15 U.S.C. § 1 . The Mularkeys allege Holsum and its president, Ed Eisele, conspired to set resale prices, and that the Mularkeys were terminated for violating this policy. We affirm.

Section 1 of the Sherman Act prohibits “[ejvery contract, combination .... or conspiracy, in restraint of trade or com-merce_” In a § 1 case involving distributor termination, there must be evidence of a “ ‘contract, combination ... or conspiracy’ between the manufacturer and other distributors ” to fix prices. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 , 761, 104 S.Ct. 1464 , 79 L.Ed.2d 775 (1984) (emphasis added). A plaintiff is required to present evidence “that tends to exclude the possibility that the manufacturer and nonter-minated distributors were acting independently.” Id. at 764, 104 S.Ct. 1464 . This means more than showing the distributor acquiesced to the suggested price. It means as well that evidence must establish that (1) the distributor…