U.S. ANCHOR MFG., INC., PLAINTIFF, COUNTERCLAIM DEFENDANT, APPELLEE, CROSS-APPELLANT,

v.

RULE INDUSTRIES, INC., DEFENDANT-APPELLANT, CROSS-APPELLEE, TIE DOWN, INC., A/K/A TIE DOWN ENGINEERING, INC., DEFENDANT, COUNTERCLAIM PLAINTIFF, APPELLANT, CROSS-APPELLEE, WILLIAM CHAPMAN, COUNTERCLAIM DEFENDANT

PER CURIAM: This case involves an appeal from a jury verdict imposing civil liability for alleged predatory pricing in violation of antitrust laws.

More specifically, appellants Rule Industries, Inc. (“Rule”) and Tie Down Engineering, Inc. (“Tie Down”), defendants below, appealed the district court’s denial of their motions for judgment notwithstanding the verdict on claims by U.S. Anchor Manufacturing, Inc. (“U.S. Anchor”) that Rule and Tie Down attempted and conspired to monopolize the United States market for light weight fluke-style anchors for small boats by means of below-cost pricing intended to drive out competition. U.S. Anchor cross-appealed the district court’s order of a directed verdict on its state law claims arising from the same factual allegations.

In an opinion published at 7 F. 3d 986 (11th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2710, 129 L.Ed.2d 837 (1994), we reversed the denial of defendants’ motions for judgment notwithstanding the verdict on the federal claims and rendered judgment for the defendants thereon.

As to the state law claims, we held that U.S. Anchor adequately stated in its complaint valid claims for damages as a result of a conspiracy in restraint of trade and intentional interference with business relations.

Because we found.confusion in the decisions of the Georgia courts regarding certain dispositive issues, we certified the following questions for consideration by the Supreme Court of Georgia: 1.

Does a general release under Georgia law discharge liability for injury caused by subsequent acts in the course of a scheme or conspiracy that was ongoing at the time the release was executed but unknown to the releasing party? 2.

Does a general release under Georgia law discharge liability for injury caused by tortious conduct already committed that was unknown to the releasing party at the time the release was executed? 3.

Does the tort of intentional interference with business relations encompass predatory pricing below some measure of the defendant’s costs? 4.

If the answer to question³ is yes, then in a case of actionable predatory pricing below some measure of cost by a conspiracy or a single defendant, what is the appropriate measure of the defendants’ costs?

In answer to our first question, the Supreme Court of Georgia held “that a general release under Georgia law does not discharge liability for injury caused by subsequent acts in the course of a scheme or conspiracy that was ongoing at the time the release was executed.” U.S. Rule Industries, Inc., 443 S.E. 2d 833, 835 (1994).

Concerning the second question, the Supreme Court of Georgia held that, “in order to discharge liability for already committed, but unknown tortious conduct, a general release must in some manner so specify.”

Id. at 836 (citations omitted).

Because the release in question does not specify an intention to discharge liability for undiscovered conduct and because a general release is ineffective to discharge liability for subsequent acts, we hold that there is no contractual bar to U.S. Anchor’s claims.

In answer to the third question concerning the viability of a tort of intentional interference with business relations based on predatory pricing by a single defendant below some measure of that defendant’s costs, the supreme court held “that below-cost pricing by a single defendant is not improper in the absence of some other unlawful element and, thus, is not encompassed by the tort of intentional interference with business relations.”

Id. at 836.

Therefore, U.S. Anchor’s claim of intentional interference must fail unless it can show the existence of a conspiracy or some other unlawful action by one of the defendants.

Because the supreme court answered the third question in the negative, the court did not answer the fourth certified question.

In fight of the Supreme Court of Georgia’s opinion, attached hereto as an appendix, we vacate the district court’s grant of a directed verdict on the state law claims and remand this case for further proceedings consistent with the opinion of the Supreme Court of Georgia.

VACATED and REMANDED.

APPENDIX [Editor’s Note: Published at 443 S.E. 2d 833.] In the Supreme Court of Georgia Decided: May 16, 1994. S94Q0409. U.S. ANCHOR MANUFACTURING, INC. v. RULE INDUSTRIES, INC. et al.

CARLEY, Justice.

In November, 1986, Rule Industries, Inc. (Rule) brought suit against U.S. Anchor Manufacturing, Inc. (U.S. Anchor), alleging infringement of certain trademarks and copyrights.

On March 19, 1986, the parties executed a settlement agreement, providing, in part, that each party released the other from any and all actions, demands, claims or causes of action whatsoever, which now exist or which may arise in the future, as a result of events which occurred prior to the execution of [this] Settlement Agreement, including, without limitation, any claims which were or could have been presented by way of complaint or counterclaim in [the trademark action].

In November, 1986, U.S. Anchor brought the instant suit in federal court against Rule and Tie Down Engineering, Inc. (Tie Down), alleging, among other things, that they violated federal law by attempting and conspiring to monopolize the U.S. market for light weight fluke-style anchors for small boats by means of below-cost pricing intended to drive out competition. U.S. Anchor also asserted state law claims.

The trial court denied cross-motions for summary judgment. U.S. Rule Industries, Inc., 717 F.Supp. 1565 (N.D.Ga.1989).

The trial court later granted Rule’s and Tie Down’s motions for directed verdict on the state law claims and entered judgment on the jury’s verdict in favor of U.S. Anchor for the attempted monopolization and conspiracy counts.

Rule and Tie Down appealed the denial of their motions for j.n.o.v. and new trial, and U.S. Anchor cross-appealed the directed verdict on its state law tort claims.

The United States Court of Appeals for the Eleventh Circuit reversed on the federal law claims, holding that there was no dangerous probability of success in any attempt to achieve monopoly power, U.S. Rule Industries, Inc., 7 F. 3d 986, 1001 (11th Cir.1993), and that there was insufficient evidence to support a finding of conspiracy under federal law, which requires evidence excluding the possibility that the defendants acted independently or legitimately. U.S. Anchor, 7 F. 3d at 1002.

As to the state law claims, the U.S. Court of Appeals held that U.S. Anchor adequately raised tort claims for both conspiracy in restraint of trade and intentional interference with business relations. U.S. Anchor, 7 F. 3d at 1002-1003.

The U.S. Court of Appeals declared that the novel questions presented are whether below-cost pricing can satisfy the improper action element of [intentional interference with business relations] and whether low prices, standing alone, can constitute a prohibited inducement of the plaintiff’s customers. [Cit.] U.S.

Anchor, supra at 1003.

Expressing “some doubt as to whether intentional interference with business relations is a distinct cause of action from the tort of conspiracy in restraint of trade,” the U.S. Court of Appeals stated that, “while it appears settled that predatory pricing by a group or conspiracy is actionable, we have found no Georgia author- ’ ity addressing predation by a single defendant acting unilaterally.” U.S. Anchor, 7 F. 3d at 1003-1004.

The U.S. Court of Appeals retained pendent jurisdiction over the state law claims, but certified the following four questions of law to this court: 1.

Does the tort of intentional interference with business relations encompass predatory pricing below some measure of the defendant’s costs? 4.

If the answer to Question³ is yes, then in a ease of actionable predatory pricing below some measure of cost by a conspiracy or a single defendant, what is the appropriate measure of the defendant’s costs? U.S.

Anchor, 7 F. 3d at 1005-1006. 1.

The first question focuses on a conspiracy which continues beyond the execution of a general release and which causes injury, not by the continuing effect of pre-release acts, but rather by new post-release acts. “A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. [Cit.] ‘ “Accurately speaking, there is no such thing as a civil action for conspiracy.

There is an action for damages caused by acts pursuant to a formed conspiracy, but none for the conspiracy alone.

While the crime of conspiracy may be committed without doing any overt act in pursuit of the combination, no civil liability is incurred for the conspiracy, but only for the overt acts of the conspirators.” [Cit.] “Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action....” (Cits.)’ [Cits.]” [Cit.] (Emphasis in original.) First Fed.

Sav. Bank v. Hart, 185 Ga.App. 304, 305(2), 363 S.E. 2d 832 (1987).

See also Brown & Allen v. Jacobs’ Pharmacy Co., 115 Ga. 429, 433, 41 S.E. 553 (1902).

It follows that a document containing language which is construed to discharge liability for injury caused only by previously occurring acts does not, by its terms, discharge liability for injury caused by subsequent acts merely because those acts resulted from a previously existing scheme or conspiracy.

See Eatonton Oil & Auto Co. v. Greene County, 53 Ga.App. 145(2), 185 S.E. 296 (1936).

Compare Lewis v. Schlenz, 161 Ga.App. 222, 224(1), 291 S.E. 2d 55 (1982); Ivey v. Ivey, 234 Ga. 532(1), 216 S.E. 2d 827 (1975).

Therefore, in answer to the first question, we hold that a general release under Georgia law does not discharge liability for injury caused by subsequent acts in the course of a scheme or conspiracy that was ongoing at the time the release was executed.