Appellate Case: 23-1344 Document: 59 Date Filed: 01/21/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 21, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
ASSOCIATION OF SURGICAL ASSISTANTS,
Plaintiff - Appellant,
v. No. 23-1344
NATIONAL BOARD OF SURGICAL TECHNOLOGY AND SURGICAL ASSISTING; ASSOCIATION OF SURGICAL TECHNOLOGISTS,
Defendants - Appellees. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:22-CV-02363-MEH) _________________________________
Robert D. Lantz, Lantz Law Group, Evergreen, Colorado, for Plaintiff-Appellant.
John W. Mackay, Ray Quinney & Nebeker P.C., Salt Lake City, Utah (Brian R. Markley, Spencer Fane LLP, Overland Park, Kansas, and Jose A. Castro, Spencer Fane LLP, Denver, Colorado, with him on the brief) for Defendants-Appellees. _________________________________
Before TYMKOVICH, MATHESON, and McHUGH, Circuit Judges. _________________________________
TYMKOVICH, Circuit Judge. _________________________________
This case involves the certification process for two types of professionals who
assist surgeons in the operating room: Surgical Technologists and Surgical Assistants. Appellate Case: 23-1344 Document: 59 Date Filed: 01/21/2025 Page: 2
Technologists ensure a sterile and organized environment, while Assistants directly aid
the surgeon. Professional organizations serve each profession. The Association of
Surgical Technologists (AST) represents Technologists, and the Association of Surgical
Assistants (ASA) represents Assistants. The National Board of Surgical Technology and
Surgical Assisting (NBSTSA) is one of several certifying bodies for both Technologists
and Assistants.
Many states require Technologists and Assistants to maintain certifications to
practice their respective professions. Like other professional certifications, maintaining
these certifications requires either periodically logging enough continuing education
credits or retaking a certification exam. This lawsuit is about who can provide continuing
education services for recertifying NBSTSA certifications. To date, NBSTSA has only
authorized AST to administer continuing education services. ASA wants to join it as an
education provider.
After NBSTSA refused to authorize ASA to provide continuing education services
on its behalf, ASA sued NBSTSA and AST for antitrust violations and tortious business
interference. NBSTSA and AST moved to dismiss ASA’s Complaint. The district court
granted that motion.
We affirm. As the district court correctly explained, ASA fails to establish the
threshold requirement of an antitrust claim: the relevant market. Independently, it also
failed to plead a plausible conspiracy or valid antitrust injuries.
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I. Background
A. Surgical Assistant and Surgical Technologist – Certifications
Unless otherwise noted, we take the following material factual allegations as true
for purposes of reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where noted, and as the district court before
us did, we take judicial notice of public information that is not reasonably subject to
dispute. O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007)
(taking judicial notice of information on Northrop Grumman’s website and noting “[i]t is
not uncommon for courts to take judicial notice of factual information found on the world
wide web”).
Surgical Assistants are “advanced allied health practitioners” who aid a surgeon
with “wound closure, bleeding control, and other interoperative technical functions that
help the surgeons carry out a safe operation.” 1 Technologists, in contrast, “ensure a
sterile and organized environment.” 2 NBSTSA certifies both Assistants and
Technologists. Its certifications are called Certified Surgical First Assistant (CSFA) and
Certified Surgical Technologist (CST), respectively. To obtain either certification,
applicants must take an initial four-hour examination, and to renew a certification
1 Surgical First Assistant, MAYO CLINIC COLLEGE OF MEDICINE & SCIENCE, https://college.mayo.edu/academics/explore-health-care-careers/careers-a-z/surgical- first-assistant/ (last visited Dec. 9, 2024). 2 Surgical Technologist, MAYO CLINIC COLLEGE OF MEDICINE & SCIENCE, https://college.mayo.edu/academics/explore-health-care-careers/careers-a-z/surgical- technologist/ (last visited Dec. 9, 2024).
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applicants must complete a certain number of continuing education credits or retake the
examination. 3
Currently, ten states require an NBSTSA certification to practice as a Technologist
or Assistant. But NBSTSA—through AST (the professional association for
Technologists and co-defendant in this lawsuit)—lobbies for that number to increase.
FAC ¶ 15. Thus, while NBSTSA’s certifications remain voluntary in most states, “they
are nevertheless valuable” to Technologists and Assistants because “many employers
require” NBSTSA certification, “and such certifications are a pathway to higher pay and
upward mobility.” Ord. at 2; FAC ¶ 10. NBSTSA currently certifies 60,000
Technologists and Assistants across the nation and administers its certification exam to
roughly 11,000 candidates per year. FAC ¶ 11.
NBSTSA is not the only certifier of Assistants and Technologists. For Assistants,
the National Surgical Assistant Association (NSAA) and American Board of Surgical
Assistants (ABSA) offer competing certificates: the Certified Surgical Assistant (CSA)
and Surgical Assistant-Certified (SA-C). For Technologists, the National Center for
Competency Testing (NCCT) offer the Tech in Surgery (TS-C). The following table
summarizes these certifications:
3 Renewals & Recertification, NBSTSA, https://www.nbstsa.org/renewals- recertification (last visited Dec. 9, 2024); On Test Day, NBSTSA, https://www.nbstsa.org/test-day (last visited Dec. 31, 2024). Although ASA alleged “continuing education is mandatory for all CSTs and CSFAs,” FAC ¶ 13, that allegation is contradicted by NBSTSA’s website. On appeal, moreover, ASA does not dispute that CST and CSFA holders may recertify by retaking an exam. See, e.g., Aplt. Br. at 4, 16; Reply Br. at 7.
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Certifying Body Technologist certification Assistant Certification NBSTSA CST CSFA NSAA CSA ABSA SA-C NCCT TS-C
B. Certification Renewal / Recertification Services
NBSTSA requires its certificate holders to periodically renew their certifications.
Holders can renew two ways: (1) through completing continuing education credits or (2)
by retaking a certification exam. “Most renew” via continuing education credits. 4
According to ASA, NBSTSA has vested AST with sole authority to “approve, process,
and record [continuing education] credits”—which ASA calls “Recertification Services.”
FAC ¶¶ 14, 15. The crux of this lawsuit is who can provide these Recertification
Services.
Until December 2020, ASA and AST were affiliated, and ASA offered its
members Recertification Services through an agreement with AST. At the end of 2020,
ASA decided to separate from AST; aiming to create a distinct professional organization
to better serve Assistants. As alleged, providing Recertification Services is critical to a
professional organization’s ability to serve its members. FAC ¶ 20.
4 Id. (“Certificate holders are welcome to renew their CST or CSFA credential by testing. Most renew with AST approved continuing education credits submitted to” AST.).
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ASA alleges it contacted NBSTSA sometime in September 2021 requesting
authorization to provide Recertification Services. FAC ¶ 34. NBSTSA communicated
this request to AST. FAC ¶ 35. Allegedly, NBSTSA—together with AST—formulated
a response, which NBSTSA then unilaterally delivered. FAC ¶¶ 35–36. This response
gave ASA two options:
(1) it could negotiate with AST for AST to continue performing Recertification Services for its members, which would require an “additional cost” to those members (relative to the cost charged for AST members); or
(2) ASA could supply “substantial proprietary and financial information” to NBSTSA “without any indication the requested material was necessary or related to any process for ASA to become an authorized provider of Recertification Services for CSTs and/or CSFAs.” 5
Order at 3 (citing FAC ¶¶ 36–39).
Almost four months later, ASA emailed NBSTSA stating it intended to “move
forward” with the “approval process”—apparently a reference to option 2. Aple. Br. at 5.
See also FAC ¶¶ 40, 62. NBSTSA responded it had not set forth an “approval process”
and that its prior information request did not “define any process that ASA could or
should meet.” FAC ¶¶ 40, 63. Rather, it explained “the only real pathway” was for
ASA’s members to go through AST for Recertification Services. FAC ¶¶ 41, 63.
5 NBSTSA requested, among other things: (a) a business plan, (b) an explanation of how continuing education processing would work for non-ASA members, (c) information about ASA’s financial resources, (d) ASA’s plan for staffing continuing education services, (e) ASA’s IT security, and (f) ASA’s continuing education course library. Aplt. Br. at 5. ASA never provided any of this information. Id. at 6.
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As it stands, ASA cannot provide Recertification Services and its members must
pay additional sums to AST, over and above what AST charges its own members, for
these services. Id. at ¶ 49.
C. Lawsuit & Order Below
ASA responded by filing antitrust claims and a tortious interference claim against
NBSTSA and AST, alleging they are collectively conspiring to maintain a monopoly
over the market for Recertification Services and are improperly blocking ASA’s entry
into the same. 6 The district court dismissed ASA’s Complaint, concluding it failed to
6 The eleven claims ASA asserted are:
(1) 15 U.S.C. §§ 1 & 15 (restraint of trade);
(2) Id. (agreement in restraint of trade – unreasonable tying);
(3) 15 U.S.C. §§ 1 & 14 (unreasonable (rule of reason) forced tying);
(4) 15 U.S.C. §§ 2 & 15;
(5) 15 U.S.C. § 2 (monopolization of market for certifying CFSAs and CSAs);
(6) 15 U.S.C. § 2, (attempted monopolization of the CFSA and CSA accreditation market);
(7) 15 U.S.C. § 26 (seeking injunctive relief);
(8) Colorado Antitrust Act (CAA), Colo. Rev. Stat. § 6-4-104 (illegal restraint of trade or commerce);
(9) Colo. Rev. Stat. § 6-4-105 (monopolization and attempt to monopolize);
(10) Colo. Rev. Stat. § 6-4-113 (injunctive relief);
(11) Tortious interference with business relations and prospective business advantage.
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establish (1) the requisite market, (2) monopoly power and market power, (3) a
conspiracy between NBSTSA and AST, and (4) an antitrust injury.
For the reasons discussed below, we agree and so affirm.
II. Discussion
A. Legal Framework
We review dismissals under Fed. R. Civ. P. 12(b)(6) de novo. Brokers’ Choice of
Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104 (10th Cir. 2017). When reviewing
motions to dismiss, “[t]he question is whether, [taking] the allegations [as] true, it is
plausible and not merely possible that the plaintiff is entitled to relief under the relevant
law.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir.
2009). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
But “[p]roceeding to antitrust discovery can be expensive.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 558 (2007). So we “insist upon some specificity in pleading
before allowing a potentially massive factual controversy to proceed” in these cases. Id.
B. Relevant Market
One of the ways we insist upon specificity in antitrust pleadings is in defining the
relevant market. This is “a threshold requirement” for antitrust claims brought under
section 2 of the Sherman Act because it “provides the framework against which
economic power can be measured.” Campfield v. State Farm Mut. Auto. Ins. Co., 532
8 Appellate Case: 23-1344 Document: 59 Date Filed: 01/21/2025 Page: 9
F.3d 1111, 1118 (10th Cir. 2008) (“Failure to allege a legally sufficient market is cause
for dismissal of [§ 2] claim[s].”).
ASA also brings claims under section 1 of the Sherman Act. FAC ¶¶ 8–11.
“Most claims under § 1 are subject to the ‘rule of reason,’ which requires us to analyze
the relevant market power of the defendants and therefore requires the plaintiff to allege a
valid market.” Id. at 1119. But for “per se violations,” a “failure to allege a relevant
market is not fatal.” Id.; see also Ohio v. Am. Express Co., 585 U.S. 529, 543 n.7 (2018)
(when alleging horizontal restraints on trade, the Supreme Court has concluded plaintiffs
do “not need to precisely define the relevant market.”).
To plead a plausible per se violation, plaintiffs must allege a conspiracy between
competitors to engage in “price fixing, group boycott, or exclusive dealing
arrangement[s].” Campfield, 532 F.3d at 1119. ASA does not argue it was relying on a
theory that excused it from defining the relevant market, nor does our review of its
complaint suggest that it has. For that reason, we interpret all ASA’s antitrust claims as
requiring a valid market definition. 7
Identifying the relevant market enables courts to measure economic power by
compelling antitrust plaintiffs to identify entities that compete, and thereby to analyze the
alleged anticompetitive conduct restraining trade. Telecor Commc’ns, Inc. v. Sw. Bell
7 ASA’s Clayton Act claim (Count III) is predicated on the rule of reason, FAC ¶ 11, and so also requires a valid product market. Campfield, 532 F.3d at 1119 (claims subject to the “‘rule of reason’ . . . require[] the plaintiff to allege a valid market”); Diaz v. Farley, 215 F.3d 1175, 1182 (10th Cir. 2000) (“The Supreme Court has developed two main analytical approaches for determining whether a defendant’s conduct unreasonably restrains trade: the per se rule and the rule of reason.”).
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Tel. Co., 305 F.3d 1124, 1130 (10th Cir. 2002) (citing SCFC ILC, Inc. v. Visa USA, Inc.,
36 F.3d 958, 966 (10th Cir. 1994)). Put another way, without reference to a legally
sufficient market as a reference point, courts cannot analyze whether a defendant is
monopolizing anything.
The relevant market comprises two sub-markets: (1) the product market and (2)
the geographic market. Green Country Food Mkt., Inc. v. Bottling Grp., LLC, 371 F.3d
1275, 1282 (10th Cir. 2004). We consider each in turn.
1. Product Market
“A plaintiff cannot arbitrarily choose the product market relevant to its claims;
instead, the plaintiff must justify any proposed market by defining it with reference to the
rule of reasonable interchangeability and cross-elasticity of demand.” Buccaneer Energy
(USA) Inc. v. Gunnison Energy Corp., 846 F.3d 1297, 1313 (10th Cir. 2017).
Product demand is “elastic” if its rising price causes consumers to purchase less of
it. Campfield, 532 F.3d at 1118. And cross-price elasticity of demand exists between
two products if the rising price of product A relative to product B causes consumers to
substitute the relatively cheaper B for A. See id. The inference is that products A and B
compete in the same market if they are reasonable substitutes for “which they are
produced – price, use and qualities considered.” Buccaneer Energy (USA) Inc., 846 F.3d
at 1313. 8
8 If the rising price of Whoppers relative to Big Macs, for example, causes consumers to prefer Big Macs over Whoppers, cross-price elasticity of demand exists between the hamburgers, and they are considered reasonably interchangeable
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On appeal, ASA advances one product market definition: “providing, approving,
processing and recording continuing education credits for CST and CSFA holders”
nationwide. 9 Aple. Br. at 14; Aplt. Br. at 13. This product market definition cabins the
relevant market to: (1) providing continuing education services for (2) NBSTSA’s
certifications. The consequence of accepting this narrow definition is that NBSTSA’s
certifications are not the “product”— AST’s Recertification Services are. ASA’s position
is no other products compete in the Recertification Services “market” since AST is the
only body authorized by NBSTSA to provide them.
The problem for ASA is both that certifications exist which compete against
NBSTSA’s and certificate holders have an alternative renewal option for their NBSTSA
certification: retaking the certification exam. Yet ASA’s Complaint makes no reference
to the rule of reasonable interchangeability or cross-price elasticity of demand between
these alternatives. “Where the plaintiff fails to define its proposed relevant market with
reference to the rule of reasonable interchangeability and cross-elasticity of
demand . . . even when all factual inferences are granted in plaintiff’s favor, the relevant
substitutes. In that circumstance, an antitrust claim directed against McDonald’s for its Big Mac would have to establish the relevant product market with reference to Burger King’s Whopper. 9 The district court observed that ASA “appears to have abandoned” this definition since it did not address it in its Response in Opposition to the Motion to Dismiss. Ord. at 11–12. We agree with ASA, however, that it preserved the definition since it defined “Recertification Services” as having the definition proffered here, and then used that definition throughout its briefing. On appeal, NBSTSA and AST concede that ASA did not abandon this definition. Aple. Br. at 18.
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market is legally insufficient and a motion to dismiss may be granted.” Campfield, 532
F.3d at 1118. This deficiency is glaring considering ASA’s own website, which states
“[o]ur association seeks to unite professionals from diverse backgrounds, including”
CSFA, CSA, and SA-C certificate holders “to advance the allied health profession of
surgical assisting.” 10 If ASA is actively seeking to unite the profession, servicing these
alternative certifications is a natural competitive pathway.
ASA admits it has defined the market so narrowly that no substitutes exist. Reply
Br. at 5 (“If a market limited to providing Recertification Services to CSFA and CST
holders is determined to be too narrow or unworkable, then so be it, but the market that is
the subject of this dispute is limited to CSFA and CST holders.”). ASA is correct that no
one besides AST provides Recertification Services—as it has defined it—for NBSTSA’s
CSFA and CST certifications. But ASA cannot define itself out of having to deal with
the competition; its proposed market definition is too narrow, and so is legally untenable.
This is because “a [company’s] own products do not themselves comprise a relevant
product market.” Green Country Food Mkt, Inc., 371 F.3d at 1282. See also TV
Commc’ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1025 (10th
Cir. 1992) (“[A] company does not violate the Sherman Act by virtue of the natural
monopoly it holds over its own product.”).
That is not to say downstream services for a company’s products can never
comprise a relevant secondary product market. “[I]n rare circumstances,” the “products
10 ASA, https://www.surgicalassistant.org/ (last visited Dec. 9, 2024).
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of a single manufacturer” may “constitute a relevant product market.” Green Country
Food Mkt., Inc., 371 F.3d at 1283 (citing Eastman Kodak Co. v. Image Tech. Servs., Inc.,
504 U.S. 451, 481–82 (1992)). Eastman Kodak concerned the secondary market for the
servicing of Kodak copy machines. Like NBSTSA and AST, Kodak argued it could
never have a monopoly over its own product. But the Court determined “[t]he relevant
[product] market for antitrust purposes is determined by the choices available to Kodak
equipment owners.” Id. at 481–82. “Because service and parts for Kodak equipment are
not interchangeable with other manufacturers’ service and parts, the relevant market from
the Kodak equipment owner’s perspective is composed of only those companies that
service Kodak machines.” Id. at 482. “Accordingly, only those companies that serviced
Kodak machines comprised the relevant product market.” Green Country Food Mkt.,
Inc., 371 F.3d at 1283.
ASA, however, makes no attempt to analogize its situation to that in Eastman
Kodak. Abiding by the principle of party presentation, we will not hypothesize for ASA
how its situation might be like that presented there. Nat’l Aeronautics & Space Admin. v.
Nelson, 562 U.S. 134, 147 n.10 (2011) (“[C]ourts do not sit as self-directed boards of
legal inquiry and research.”). See also Rocky Mountain Gun Owners v. Polis, 121 F.4th
96, 113 (10th Cir. 2024) (“[W]e follow the principle of party presentation.”).
Finally, ASA argues the procedural posture cuts in favor of reversal since “courts
hesitate to grant motions to dismiss for failure to plead a relevant product market.” Nat’l
Institute of First Assisting, Inc. v. Ass’n of Operating Room Nurses, Inc., No 19-cv-
01444-TMT, 2020 WL 8189594, at *7 (D. Colo. Sept. 11, 2020); see also Todd v. Exxon
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Corp., 275 F.3d 191, 199–200 (2d Cir. 2001) (“Because market definition is a deeply
fact-intensive inquiry, courts hesitate to grant motions to dismiss for failure to plead a
relevant product market.”). But see Campfield, 532 F.3d at 1118 (“Failure to allege a
legally sufficient market is cause for dismissal of the claim”); Queen City Pizza, Inc. v.
Domino’s Pizza, Inc., 124 F.3d 430, 436–37 (3d Cir. 1997) (“Where the plaintiff fails to
define its proposed market with reference to the rule of reasonable interchangeability and
cross-elasticity of demand . . . even when all factual inferences are granted in plaintiff’s
favor, the relevant market is legally insufficient and a motion to dismiss may be
granted.”). While hesitation may be prudent in close cases, where—as here—a plaintiff
facially fails to plausibly allege a relevant market, dismissal is warranted. See also Reply
Br. at 5 (“If a market limited to providing Recertification Services to CSFA and CST
holders is determined to be too narrow or unworkable, then so be it.”).
We agree with the district court that ASA’s failure to address competing
certification entities, their certificates, and the option to recertify via reexamination
renders its product market definition “legally insufficient.” Campfield, 532 F.3d at 1118
(defining the relevant market is “a threshold requirement” for antitrust claims).
Consequently, ASA’s antitrust claims fall short. 11
11 We conclude ASA’s Colorado antitrust claims fail for the same reason its federal claims do. Colo. Rev. Stat. § 6-4-119 (“It is the intent of the general assembly that, in construing [the Colorado Antitrust Act], the courts shall use as a guide interpretations given by the federal courts to comparable federal antitrust laws”); Four Corners Nephrology Assocs., P.C. v. Mercy Med. Ctr. of Durango, 582 F.3d 1216, 1220 (10th Cir. 2009) (analyzing Colorado Antitrust Act claims consistent with federal precedent). ASA does not argue for a different approach here, and we see no reason to adopt one.
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2. Geographic Market
Having failed to plead a legally sufficient product market, ASA’s other pleading
requirements also fail. Recall, for example, that the relevant “market” comprises both the
product market and geographic market.
“Geographic market” refers to a product market’s geographic scope, and is defined
as “the narrowest market which is wide enough so that products from adjacent
areas . . . cannot compete on substantial parity with those included in the market.”
Westman Comm’n Co. v. Hobart Int’l, Inc., 796 F.2d 1216, 1222 (10th Cir. 1986). In
other words, a geographic market is “the area of effective competition” for a given
product market. Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1026 (10th Cir. 2002). ASA
asserts the geographic market for Recertification Services is “nationwide.” Aplt. Br. at
16.
While a small minority of states require NBSTSA’s certifications to work as an
Assistant or Technologist, most do not. And reexamination is an option even in those
states that do. As the district court aptly stated, “[t]he differences in state laws call into
question whether the various certificates compete on substantial parity with each other,
nationwide.” Ord. at 14.
We agree that ASA’s failure to establish a sufficient product market necessarily
means it also failed to define a legally sufficient geographic market.
C. Monopoly/Market Power
While failing to establish the threshold market dooms ASA’s antitrust claims, that
is not its only problem. Establishing monopoly or market power is also a prerequisite for
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ASA’s antitrust claims. See Buccaneer Energy (USA) Inc., 846 F.3d at 1311 (a Sherman
Act § 1 claim under the rule of reason requires showing market power in the relevant
market); Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398,
407 (2004) (Sherman Act § 2 claims for monopolization/attempted monopolization
require proof of monopoly power in the relevant market); Ill. Tool Works Inc. v. Indep.
Ink, Inc., 547 U.S. 28, 46 (2006) (“[I]n all cases involving a tying arrangement, the
plaintiff must prove that the defendant has market power in the tying product.”).
Monopoly power requires “the power to control prices and the power to exclude
competition.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114, 1123
(10th Cir. 2014). Market power requires either or. Reazin v. Blue Cross & Blue Shield of
Kan., Inc., 899 F.2d 951, 967 (10th Cir. 1990). While market share is relevant to either
inquiry, it alone is “insufficient to establish market power.” Buccaneer Energy (USA)
Inc., 846 F.3d at 1315, 1318. Rather, assessing market and monopoly power
“necessitates an examination of market share, barriers to entry, the number of competitors
in the market, market trends, and other relevant considerations.” Id. at 1315.
Because ASA has failed to plead a legally sufficient market, it is impossible to
assess whether AST and NBSTSA have monopoly or market power in the relevant
market.
D. Conspiracy
We also conclude ASA’s Complaint independently fails because it has not alleged
a plausible conspiracy between NBSTSA and AST. “The essence of a claim of violation
of Section 1 of the Sherman Act is the agreement itself,” Champagne Metals v. Ken-Mac
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Metals, Inc., 458 F.3d 1073, 1082 (10th Cir. 2006), which must be “designed
unreasonably to restrain trade.” Abraham v. Intermountain Health Care Inc., 461 F.3d
1249, 1257 (10th Cir. 2006).
The “crucial question is whether the challenged anticompetitive conduct stems
from independent decision or from an agreement, tacit or express.” Twombly¸ 550 U.S.
at 553. The facts showing such an agreement can be direct or circumstantial. Llacua v.
W. Range Ass’n, 930 F.3d 1161, 1174 (10th Cir. 2019). But a “conclusory allegation of
agreement at some unidentified point does not supply facts adequate to show illegality.”
Twombly, 550 U.S. at 557. “The Twombly Court was particularly critical of complaints
that mentioned no specific time, place, or person involved in the alleged conspiracies.”
Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
The focus of ASA’s conspiracy allegations are that the “October 22, 2021, letter
and the subsequent February 23, 2022, correspondence demonstrate[] Defendants agreed
to cause NBSTSA to effectively boycott ASA.” FAC ¶ 96. These allegations do not
permit us to reasonably infer a conspiracy existed between NBSTSA and AST. As the
district court properly found, “[o]ne is a letter from NBSTSA alone, on NBSTSA
letterhead signed by NBSTSA executives, and the other is an email from NBSTSA
alone.” Ord. at 18. What is more, “[n]either mention any purported exchange or
conversation with AST or plausibly indicate that NBSTSA was taking anything other
than independent action rather than concerted action.” Id.
ASA argues that when read conjunctively with six other allegations
contextualizing this correspondence, it has pled a plausible conspiracy. Christy Sports,
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LLC, 555 F.3d at 1192 (allegations must be “plausible and not merely possible”). In
doing so, ASA directly states the inference it asks the court to draw: that NBSTSA and
AST colluded to “develop[] a response” together. Aplt. Br. at 22–23. But the Complaint
contains inadequate basis or support for this conclusory assertion. TV Commc’ns
Network, Inc., 964 F.2d at 1026 (internal citations omitted) (“‘[B]uzz words’ do[] not
supply the factual circumstances necessary to support [plaintiff’s] conclusory
allegations.”). See also Hall v. Bellmon, 935 F.2d 1106, 1109–110 (10th Cir. 1991)
(“Conclusory allegations without supporting factual averments are insufficient to state a
claim.”); Twombly, 550 U.S. at 556–57 (a “conclusory allegation of agreement at some
unidentified point does not supply facts adequate to show illegality.”).
Allegations of conspiracy based on circumstantial evidence are “not plausible if in
light of common economic experience the alleged conduct is equally likely to result from
independent action.” Llacua, 930 F.3d at 1175; see also id. at 1179 (conspiracy
allegations “must tend[] to exclude the possibility of independent action.”) (internal
quotation marks omitted). Valid business justifications explain why NBSTSA might not
want a relationship with ASA—including because ASA never provided NBSTSA the
business information it requested. ASA’s circumstantial and conclusory allegations are
insufficient to establish a plausible conspiracy. Multistate Legal Stud., Inc. v. Harcourt
Brace Jovanovich Legal & Pro. Publ’ns, Inc., 63 F.3d 1540, 1556 (10th Cir. 1995)
(“[A]mbiguous conduct that is as consistent with permissible competition as with illegal
conspiracy does not by itself support an inference of antitrust conspiracy.”).
18 Appellate Case: 23-1344 Document: 59 Date Filed: 01/21/2025 Page: 19
This is an insurmountable problem for ASA, because all its antitrust claims are
factually predicated on a conspiratorial agreement between AST and NBSTSA. Aplt.
App’x at 37 (Count I: “by agreement”); id. at 38 (Count II: alleging an “Agreement in
Restraint of Trade); id. at 41 (Count III: “NBSTSA in conjunction with AST”); id. (Count
IV: “By agreement”); id. at 43 (Count V: “Through their anticompetitive conduct
described herein, namely forced tying”); id. (Count VI: “Defendants have created and are
attempting to maintain a monopoly to and for the benefit of AST”); id. at 45 (Count VIII:
“Defendants, by agreement”); id. at 46 (Count IX: “By agreement”). 12
ASA’s failure to plead a plausible conspiracy independently dooms its
Complaint. 13
E. Antitrust Injury
Finally, we also agree with the district court that ASA failed to plead an antitrust
injury.
“An antitrust injury is an injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendant’s acts unlawful.” Reazin, 899 F.2d at 962 n.15 (quotation omitted). The Sherman Act was designed to protect market participants from anticompetitive behavior in the marketplace. See Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 530 (1983). Thus, “[t]he antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s
Counts VII and X are claims for injunctive relief predicated on ASA’s 12
federal and state antitrust claims, and so rise and fall with those claims.
Having dismissed all ASA’s federal claims with prejudice, the district court 13
declined to exercise supplemental jurisdiction over its remaining state tort claim. Ord. at 20. ASA flags no error with that determination, and we discern none.
19 Appellate Case: 23-1344 Document: 59 Date Filed: 01/21/2025 Page: 20
behavior.” Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990).
Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091, 1124–25 (10th Cir. 2005)
(cleaned up).
The relief ASA seeks reveals its lack of injury: an order forcing NBSTSA into a
business relationship with it. Aplt. Br. at 6 (ASA wants NBSTSA to provide it
“guidelines, criteria, or any other pathway for ASA to become an independent and
accredited provider of continuing education to its members.”) (quoting FAC ¶ 43). See
also FAC ¶¶ 89, 112 (seeking an order “compelling NBSTSA to provide ASA with
specific criteria required for ASA to apply for accreditation and requiring NBSTSA to
give objective consideration to ASA’s application for accreditation.”). Declining to enter
a business relationship with a nascent startup is not a cognizable antitrust injury.
Further, this regime would first require the court to determine what “criteria”
NBSTSA would need to consider in order to evaluate a business relationship with ASA
and then whether NBSTSA “objective[ly]” considered those criteria—all with the
presumable end of making ASA an “independent and accredited provider” of the
Recertification Services. FAC ¶ 43. ASA identifies no legal authority for such a regime,
and the court is aware of none. Atl. Richfield Co., 495 U.S. at 344 (“The antitrust injury
requirement ensures that a plaintiff can recover only if the loss stems from a competition-
reducing aspect or effect of the defendant’s behavior.”).
ASA also does not have a cognizable antitrust injury because it has not plausibly
alleged it has lost anything. It claims to be injured because its members must pay an
20 Appellate Case: 23-1344 Document: 59 Date Filed: 01/21/2025 Page: 21
additional fee for Recertification Services above and beyond what AST members must
pay. To the extent that means ASA experiences lower membership and associated fee
revenues, those harms are derivative of the harms to its members and its own failure to
innovate ways of serving those members. These derivative harms are not an antitrust
injury. Atl. Richfield Co., 495 U.S. at 344 (“[P]rocompetetive or efficiency-enhancing
aspects of practices that nominally violate the antitrust laws may cause serious harm to
individuals, but this kind of harm is the essence of competition and should play no role in
the definition of antitrust damages”) (citing William H. Page, The Scope of Liability for
Antitrust Violations, 37 Stan. L. Rev. 1445, 1460 (1985)). See also Tal v. Hogan, 453
F.3d 1244, 1258 (10th Cir. 2006) (no antitrust injury where plaintiff “was not a buyer or
seller in the affected market”); Sharp v. United Airlines, Inc., 967 F.2d 404, 408 (10th
Cir. 1992) (same where plaintiff’s claimed “losses” were “tangential to any alleged
harm.”). Nor has ASA addressed why it cannot provide Recertification Services for the
competing certifying entities, which would appear to provide an alternative competitive
pathway.
At the end of the day, antitrust laws “protect competition, not a competitor.”
SCFC ILC, Inc., 36 F.3d at 963, 972. While “our test seems onerous,” it is predicated on
the principle that potential competitors “might develop alternative channels” of business
benefiting consumers. In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. &
Antitrust Litig., 44 F.4th 959, 986–87 (10th Cir. 2022), cert. denied sub nom. Sanofi-
Aventis U. S., LLC v. Mylan, Inc., 143 S. Ct. 1748 (2023).
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ASA has not pled a cognizable antitrust injury. Those claims fail for this
additional reason.
III. Conclusion
For the reasons stated above, we affirm the district court’s dismissal with
prejudice of ASA’s Complaint pursuant to Rule 12(b)(6).