PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1746

SD3, LLC; SAWSTOP LLC,

Plaintiffs – Appellants,

v.

BLACK & DECKER (U.S.) INC.; BLACK & DECKER CORPORATION; 

CHANG TYPE INDUSTRIAL CO., LTD.; DELTA POWER EQUIPMENT 

CORP.; HITACHI KOKI CO., LTD.; HITACHI KOKI USA LTD.; MAKITA 

CORPORATION; MAKITA U.S.A., INC.; MILWAUKEE ELECTRIC TOOL 

CORP.; ONE WORLD TECHNOLOGIES, INC.; OWT INDUSTRIES, INC.; 

ROBERT BOSCH GMBH; ROBERT BOSCH TOOL CORPORATION; RYOBI 

TECHNOLOGIES, INC.; STANLEY BLACK & DECKER, INC.; TECHTRONIC 

INDUSTRIES, CO., LTD.; TECHTRONIC INDUSTRIES NORTH AMERICA, 

INC.; PENTAIR WATER GROUP, INC.; EMERSON ELECTRIC COMPANY; 

PENTAIR, INC.,

Defendants – Appellees,

and

DEWALT INDUSTRIAL TOOLS; EMERSON ELECTRIC COMPANY, INC.; 

PENTAIR CORPORATION; PORTER-CABLE CORPORATION; SKIL POWER 

TOOLS,

Defendants.

----------------------------

AMERICAN ANTITRUST INSTITUTE; NATIONAL CONSUMERS LEAGUE,

Amici Supporting Appellants.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Claude M. Hilton, Senior 

District Judge. (1:14−cv−00191−CMH−IDD)
2

Argued: May 12, 2015 Decided: September 15, 2015

Before WILKINSON, AGEE, and WYNN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published 

opinion. Judge Agee wrote the opinion, in which Judge Wynn 

joined. Judge Wynn wrote a separate concurring opinion. Judge 

Wilkinson wrote an opinion concurring in part and dissenting in 

part. 

ARGUED: Joel Davidow, CUNEO GILBERT & LADUCA, LLP, Washington, 

D.C., for Appellants. James Scott Ballenger, LATHAM & WATKINS, 

LLP, Washington, D.C., for Appellees. ON BRIEF: Jonathan W. 

Cuneo, Matthew E. Miller, CUNEO GILBERT & LADUCA, LLP, 

Washington, D.C., for Appellants. John D. Harkrider, Richard B. 

Dagen, AXINN, VELTROP & HARKRIDER LLP, Washington, D.C., Bernard 

J. DiMuro, DIMURO GINSBERG PC, Alexandria, Virginia, for 

Appellees Stanley Black & Decker, Incorporated, Black & Decker 

(U.S.) Incorporated, and Black & Decker Corporation; Christopher 

S. Yates, Christopher B. Campbell, Aaron T. Chiu, LATHAM & 

WATKINS LLP, San Francisco, California, for Appellee Emerson 

Electric Company; Paul Devinsky, Stefan M. Meisner, MCDERMOTT 

WILL & EMERY LLP, Washington, D.C., for Appellees Hitachi Koki 

USA Ltd. and Hitachi Koki Co., Ltd.; Lee H. Simowitz, Elizabeth 

A. Scully, Katherine L. McKnight, BAKER & HOSTETLER LLP, 

Washington, D.C., for Appellees Makita USA Incorporated and 

Makita Corporation; David M. Foster, Washington, D.C., Layne E. 

Kruse, Eliot Fielding Turner, FULBRIGHT & JAWORSKI LLP, Houston, 

Texas, for Appellees Robert Bosch Tool Corporation and Robert 

Bosch GmbH; James G. Kress, BAKER BOTTS L.L.P., Washington, 

D.C., Scott W. Hansen, Steven P. Bogart, James N. Law, REINHART 

BOERNER VAN DEUREN S.C., Milwaukee, Wisconsin, for Appellees 

Milwaukee Electric Tool Corporation, One World Technologies, 

Incorporated, OWT Industries, Incorporated, Ryobi Technologies, 

Incorporated, Techtronics Industries Co., Ltd., and Techtronic 

Industries North America, Incorporated. Seth D. Greenstein, 

David D. Golden, CONSTANTINE CANNON LLP, Washington, D.C., for 

Amici Curiae.
3

AGEE, Circuit Judge:

SD3, LLC and its subsidiary, SawStop, LLC (together, 

“SawStop”), contend that several major table-saw manufacturers

conspired to boycott SawStop’s safety technology and corrupt a 

private safety-standard-setting process, all with the aim of 

keeping that technology off the market. Consequently, SawStop

sued nearly two dozen saw manufacturers and affiliated entities, 

alleging that they violated § 1 of the Sherman Antitrust Act, 15 

U.S.C. § 1. The district court dismissed SawStop’s amended 

complaint based on, among other things, its belief that SawStop 

had failed to plead facts establishing an unlawful agreement.

See SD3, LLC v. Black & Decker (U.S.), Inc., No. 11:14-cv-191, 

2014 WL 3500674 (E.D. Va. July 15, 2014). SawStop appealed. 

We agree with the district court that several parts of 

SawStop’s case cannot go forward. SawStop’s complaint does not 

plausibly allege any conspiracy to manipulate safety standards, 

so we affirm the district court’s decision to dismiss SawStop’s

claims concerning standard-setting. Likewise, the complaint 

fails to allege any facts at all against several corporate 

parents and affiliates, so we affirm the district court’s 

decision to dismiss all claims against those defendants. 

But as to the remaining defendants, SawStop has alleged 

enough to suggest a plausible agreement to engage in a group 

boycott. Although that claim may not prove ultimately 
4

successful at trial, or even survive summary judgment, the 

complaint offers enough to survive the defendants’ motion to 

dismiss. “[A] well-pleaded complaint may proceed even if it 

strikes a savvy judge that actual proof of those facts is 

improbable, and that a recovery is very remote and unlikely.”1 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Thus, we 

vacate the district court’s decision dismissing SawStop’s groupboycott claim and remand for further proceedings.

I. Background

A. Relevant Facts

This appeal concerns a decision on a motion to dismiss, so 

we draw the relevant facts only from allegations in SawStop’s 

complaint and from sources incorporated into that complaint. 

“In reviewing the dismissal of a complaint, we must assume all 

well-pled facts to be true and draw all reasonable inferences in 

favor of the plaintiff.” Cooksey v. Futrell, 721 F.3d 226, 234 

(4th Cir. 2013). Keeping that standard in mind, we now consider 

the relevant facts.

 1 We have omitted any internal quotation marks, alterations, 

emphasis, or citations here and throughout this opinion, unless 

otherwise noted.
5

1.

In the 1990s, SawStop’s founder, Dr. Stephen Gass, created

a form of “active injury mitigation technology” (“AIMT”) meant 

to prevent some hand and finger injuries on table saws. In 

basic terms, Gass’ technology “detects contact between a person 

and the blade and then stops and retracts the blade to mitigate 

injury.” J.A. 83 ¶ 60. When this system works as it should, a 

table-saw user who makes contact with the blade will suffer only 

a small nick rather than more serious injury. 

Gass and his co-inventors initially sought to capitalize on 

their invention by pursuing licensing agreements with the major 

table-saw manufacturers. The effort began in August 2000, when 

SawStop first took a “prototype table saw” to a trade show to 

publicly demonstrate the technology. J.A. 86 ¶ 66. That

demonstration spurred meetings with some table-saw

manufacturers, including S-B Power Tool Corp.; Black & Decker 

(U.S.), Inc.; Emerson Electric Company; and Ryobi Technologies, 

Inc. J.A. 86 ¶ 67. During these meetings, SawStop sought

royalties at “typical commercial rates” of about “8% of 

wholesale prices” in any license agreement. J.A. 86 ¶ 65.

The technology “impressed” the manufacturers. J.A. 87 

¶ 68. Ryobi, for instance, formed a team to determine whether 

it could incorporate SawStop’s technology into its products; 

Ryobi’s counsel wanted to adopt the technology “as fast as they 
6

[could].” J.A. 87 ¶ 69. S-B Power Tool likewise expressed 

interest in “going forward.” J.A. 88 ¶ 73. One Black & Decker 

U.S. employee told Gass that he felt a licensing agreement was 

“inevitable,” even though Black & Decker was “used to being able 

to crush little guys.” J.A. 88 ¶ 76. Emerson’s then-president

also held in-person meetings with SawStop to discuss a potential 

deal. J.A. 88-89 ¶ 77. Several manufacturers conducted 

technical studies to evaluate SawStop’s effectiveness in 

preventing table-saw accidents, which produced positive results. 

J.A. 87-88 ¶¶ 70, 74. 

Still, table-saw manufacturers also held reservations, one 

of which was product liability exposure. If some manufacturers 

adopted AIMT while others did not, then an issue could arise as 

to whether the non-adopters might be sued for producing an 

inherently unsafe product. J.A. 90 ¶ 81. But a lawyer for one 

defendant noted that the AIMT technology might be deemed 

infeasible, and therefore less relevant in product-liability 

suits, if it did not enter the market for some period. J.A. 87-

88 ¶ 72. 

Putting aside product liability, some saw manufacturers

held other concerns, including that engineering and cost factors 

could render the technology infeasible. By all accounts, 

SawStop had not yet tested its technology in the marketplace. 

That testing would take some time, and SawStop itself estimated 
7

that the device could not have been fully implemented on all 

table saws until as late as 2008. J.A. 92 ¶ 90. At least one 

industry insider also believed that SawStop’s AIMT could induce

consumers to dispense with other safety features. J.A. 87 ¶ 71. 

Furthermore, AIMT did not prevent certain other common table-saw 

injuries, like kickback. Id. 

SawStop’s licensing discussions did not produce any 

immediate results. One manufacturer, S-B Power Tool, ended 

licensing discussions in September 2001. J.A. 88 ¶ 75.

2.

In October 2001, table-saw manufacturers allegedly met and

“decide[d] how to respond, as an industry, to the SawStop 

[t]echnology.” J.A. 89 ¶ 80. The meeting occurred in 

conjunction with the annual meeting of the Power Tool Institute, 

a trade association. Like the broader annual meeting, the 

table-saw session drew representatives from across the industry, 

including S-B Power Tool; Ryobi; Makita USA, Inc.; Emerson; 

Porter-Cable Corp.; Hitachi Koki USA Ltd.; Black & Decker U.S.; 

and Milwaukee Electric Tool Corp. J.A. 89 ¶ 79. 

SawStop alleges that the October 2001 meeting gave birth to 

a group boycott against SawStop. The manufacturers first 

purportedly determined to take an “all” or “nothing” approach, 

in which all table-saw manufacturers would adopt SawStop’s 

technology or none would. J.A. 89-90 ¶ 80. Then, they
8

allegedly took the latter path: they “agree[d] not to purchase 

technology licenses from [SawStop] or otherwise implement AIMT.” 

J.A. 90 ¶ 80. “[N]o contrary views [were] articulated.” Id. 

By keeping SawStop out of the market, the manufacturers hoped 

that “it would remain . . . at least plausible for [them] to 

contend, in defending product liability lawsuits, that AIMT was 

not viable.” J.A. 90 ¶ 81. 

Ultimately, SawStop contends, the group boycott succeeded.

“[T]hose Defendants not yet in license negotiations with SawStop 

refrained from requesting a license, [while] Defendants who were 

already in negotiations found ways to abort them as 

opportunities arose.” J.A. 91 ¶ 85.

According to the complaint, it took only a matter of months 

for the few defendants who had been negotiating with SawStop to 

find ways to end those discussions. In January 2002, for 

instance, Ryobi had agreed to a non-exclusive licensing 

agreement with an initial 3% royalty and a 5% to 8% escalator 

clause. J.A. 91-92 ¶ 87. SawStop, however, identified a “minor 

ambiguity” in the agreement and asked Ryobi to correct the 

“error.” J.A. 92 ¶ 87. Although Ryobi’s counsel assured 

SawStop that would happen, Ryobi instead ended negotiations 

entirely; Ryobi stopped responding to SawStop’s communications,

and never explained its failure to communicate further. Id. 

Similarly, Emerson abruptly ended negotiations, “offering 
9

pretextual reasons for its lack of interest.” J.A. 92 ¶ 88. 

And Black & Decker U.S. offered a “disingenuous and not made in 

good faith” offer: a 1% royalty, paired with an indemnification

provision that would have placed liability on SawStop for 

“various risks.” J.A. 92 ¶ 89.

3.

Having failed to sign any manufacturer to a licensing 

agreement, SawStop turned to a private safety-standard-setting 

organization, Underwriters Laboratories, Inc. (“UL”), to advance 

the AIMT product. In December 2002, Gass submitted a proposal 

to UL suggesting that the organization modify its widely 

accepted safety standards to require AIMT on all table saws. 

J.A. 96 ¶ 104. UL in turn referred the proposal to Standards 

Technical Panel 745 (“STP 745”), a subgroup of UL that sets 

standards for table saws. J.A. 96 ¶ 104. 

SawStop’s proposal to modify the UL standards failed, and 

SawStop alleges that the failure traces to a second conspiracy, 

which we will term the “standard-rejection conspiracy.” In 

SawStop’s view, STP 745 was “under the firm control of the 

Defendants,” as its members comprised “either employees of the 

Defendants or . . . purportedly unaffiliated consultants . . . 

who are aligned with the Defendants.” J.A. 97 ¶ 106. Thus, the 

defendants allegedly “agreed to vote as a bloc” to “thwart” the 

proposal. J.A. 97 ¶ 105. After the vote, the defendants are 
10

said to have “promulgated falsehoods, factual distortions and 

product defamation” to ensure that STP 745 would not adopt any 

standard incorporating AIMT. J.A. 101 ¶ 123.

4.

Later, the defendants are alleged to have additionally 

conspired to develop their own safety standards, purportedly to 

impose unnecessary costs on SawStop and foreclose any wide 

adoption of AIMT. SawStop says that the defendants implemented 

this conspiracy in multiple stages. First, in October 2003, 

several defendants -- Black & Decker Corp.; Hitachi; Pentair, 

Inc.; Robert Bosch Tool Corp.; Robert Bosch GmbH; Ryobi; One 

World Technologies Inc.; and Techtronics Industries Co., Ltd. --

formed a joint venture to develop blade avoidance technology. 

J.A. 97 ¶ 109. SawStop maintains that this venture was a mere 

“smokescreen” to “fend off” intervention from the Consumer 

Products Safety Commission, a federal safety agency, and 

constituted an “act of fraudulent concealment.” Id. The

venture failed to produce any results. Later, in November 2004, 

four defendants -- Black & Decker Corp., Makita USA, Robert 

Bosch Tool Corp., and Techtronic Industries North America --

formed another joint venture. J.A. 98 ¶ 111. This venture, 

too, was alleged to be a fake effort “to develop a uniform blade 

guard standard to preclude quality competition on blade guard 
11

standards.” Id. Members of the Power Tool Institute also began 

work on a new blade guard design around the same time.

This third conspiracy, which we will call the “contrivedstandards conspiracy,” led to two standards changes adopted by 

UL in 2005 and 2007. The first change added certain antikickback devices. The second “specified that the blade guard 

should not be a hood, but rather a modular design with a topbarrier element and two side-barrier guarding elements.” J.A. 

99 ¶ 115. SawStop maintains that this second change is too 

designed-focused and ineffective; it deduces that the change 

must therefore serve an illegitimate purpose. 

SawStop further believes that the manufacturers are trying 

to extend the contrived-standards conspiracy abroad, as they 

“control” the International Electrotechnical Commission, the 

European counterpart to UL. J.A. 100 ¶ 122.

5.

SawStop maintains that all of the alleged conspiracies have 

continued through today, and the defendants purportedly 

communicate weekly “to maintain” the conspiracies. J.A. 100

¶ 121. Nonetheless, SawStop was eventually able to enter the 

market by making its own table saws employing AIMT in 2004. 

J.A. 95 ¶ 101. When SawStop filed its complaint, it sold three 

types of these saws. J.A. 95-96 ¶ 102. The company represented 

at oral argument that it now makes additional models. 
12

B. Proceedings Below

Based on the three purported conspiracies, SawStop filed a 

complaint in February 2014 in the U.S. District Court for the 

Eastern District of Virginia. The original three-count 

complaint against 22 separate defendants alleged that the 

manufacturer-defendants, conspiring with UL and the Power Tool 

Institute, violated § 1 of the Sherman Act. After the 

defendants moved to dismiss, however, SawStop filed a first

amended complaint -- the operative pleading on appeal --

dropping some defendants and adding three new counts under state 

law. For convenience, we refer to the first amended complaint 

as simply “the complaint.”

The district court dismissed SawStop’s complaint under 

Federal Rule of Civil Procedure 12(b)(6) after identifying a 

number of problems that it perceived in the facts alleged. 

First, “Plaintiffs’ conspiracy allegations [were] belied by 

their negotiating history with varying Defendants.” SD3, LLC, 

2014 WL 3500674, at *3. In the district court’s view, SawStop 

could not plausibly allege a refusal to deal when several 

defendants had actually offered to deal, and the facts alleged 

did not “tend[] to exclude” lawful explanations. Id. at *4. 

Second, SawStop failed to allege anything as to several 

defendants, instead choosing to lump them together in the 

complaint without explanation. Id. Third, SawStop did not 
13

allege “direct evidence” of agreement by referring to testimony 

from a Ryobi engineer, David Peot. The district court found 

that Peot’s testimony, when read in its full context, indicated

only that certain defendants launched a joint venture to develop 

technology to prevent table-saw accidents. Id. at *5. Fourth, 

SawStop had not established any harm from any of its alleged 

conspiracies because the “purported motivation for the alleged 

conspiracy is non-existent.” Id. And fifth, SawStop’s 

standard-setting conspiracies alleged nothing more than ordinary 

participation in trade groups, standard-setting organizations,

and joint ventures, which does not create antitrust liability. 

Id. at *6.

SawStop timely appealed, challenging the district court’s 

decision as to its three Sherman Act claims. SawStop does not 

address the district court’s decision to dismiss its three 

remaining state law claims. As to those claims, SawStop has 

forfeited review, and we do not consider them. See Powell v. 

Palisades Acquisition XVI, LLC, 782 F.3d 119, 127 (4th Cir. 

2014). We have jurisdiction under 28 U.S.C. § 1291. 

II. Standard of Review

“We review the district court’s grant of the defendants’ 

motion to dismiss de novo.” Johnson v. Am. Towers, LLC, 781 

F.3d 693, 706 (4th Cir. 2015). “[W]e accept as true all well-
14

pled facts in the complaint and construe them in the light most 

favorable to [SawStop].” United States v. Triple Canopy, Inc., 

775 F.3d 628, 632 n.1 (4th Cir. 2015). We do not, however,

“accept as true a legal conclusion couched as a factual 

allegation.” Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 

198 (4th Cir. 2014). Nor do we accept “unwarranted inferences, 

unreasonable conclusions, or arguments.” United States ex rel. 

Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 

(4th Cir. 2014). We can further put aside any “naked assertions 

devoid of further factual enhancement.” Id. 

III. Allegations Against Parents and Affiliates

We begin by addressing a problem common to all counts of 

the complaint. 

A plaintiff in a § 1 case cannot assemble some collection 

of defendants and then make vague, non-specific allegations 

against all of them as a group. At trial, a § 1 plaintiff will 

be required to make a “factual showing that each defendant 

conspired in violation of the antitrust laws.” AD/SAT, Div. of 

Skylight, Inc. v. Associated Press, 181 F.3d 216, 234 (2d Cir. 

1999); cf. United States v. Foley, 598 F.2d 1323, 1336 (4th Cir. 

1979) (examining whether a jury charge in a criminal antitrust 

case “require[d] a sufficient involvement by each defendant”). 

Thus, the complaint must forecast that factual showing, and if 
15

it fails to allege particular facts against a particular 

defendant, then the defendant must be dismissed. In other 

words, the complaint must “specify how these defendants [were] 

involved in the alleged conspiracy,” without relying on

“indeterminate assertions” against all “defendants.” In re 

Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 905 (6th 

Cir. 2009); see also Total Benefits Planning Agency, Inc. v. 

Anthem Blue Cross & Blue Shield, 552 F.3d 430, 436 (6th Cir. 

2008); In re Elevator Antitrust Litig., 502 F.3d 47, 50-51 (2d 

Cir. 2007).

Nevertheless, SawStop means to bring claims against some 

corporate parents -- including Hitachi Koki Co., Ltd.; Makita 

Corporation; and Chang Type Industrial Co., Ltd. -- even though 

no factual allegations are made against them. Instead, SawStop 

nakedly alleges only that all of the corporate subsidiaries are 

“dominated by, and [are] alter ego[s] of,” these corporate 

parents. J.A. 73-78. That allegation offers only a legal 

conclusion, and SawStop has alleged no facts suggesting the kind 

of unity of interests that we usually require a party to plead 

before permitting them to advance an alter ego theory. See, 

e.g., C.F. Trust, Inc. v. First Flight Ltd. P’ship, 306 F.3d 

126, 134 (4th Cir. 2002). “The fact that two separate legal 

entities may have a corporate affiliation does not alter [the] 

pleading requirement” to separately identify each defendant’s 
16

involvement in the conspiracy. In re Aluminum Warehousing 

Antitrust Litig., No. 13–md–2481 (KBF), 2015 WL 1344429, at *2 

(S.D.N.Y. Mar. 23, 2015). 

The complaint also fails to allege any facts pertaining to 

certain of the corporate subsidiaries. In discussing the 

alleged group boycott, for example, SawStop never mentions 

Techtronic Industries North America, Inc.; OWT Industries, Inc.; 

or Pentair Water Group, Inc. OWT Industries, Inc. and Pentair 

Water Group also go unmentioned in SawStop’s allegations as to 

the UL safety standards. A defendant obviously may not pursue 

an antitrust claim against a defendant who is not alleged to 

have done anything at all. Antitrust law doesn’t recognize 

guilt by mere association, imputing corporate liability to any 

affiliate company unlucky enough to be a bystander to its sister 

company’s alleged misdeeds.

SawStop tries to tie other defendants to the purported 

conspiracies with nothing more than conclusory statements, even 

though those defendants entered the table-saw industry well 

after these conspiracies allegedly began. Stanley Black & 

Decker, Inc., for instance, is purportedly liable because 

“persons speaking for [the company] have affirmed its 

understanding of the purpose of [the conspiracies], and agreed 

to participate in [them].” J.A. 99 ¶ 117. SawStop alleges the 

same as to Delta Power Equipment, Inc. J.A. 99 ¶ 116. 
17

“[U]nadorned conclusory allegations” like these are akin to no 

allegations at all. Vitol, S.A. v. Primerose Shipping Co., 708 

F.3d 527, 543 (4th Cir. 2013).

For these reasons, SawStop cannot proceed against all of 

the defendants. In particular, Hitachi Koki Co., Ltd.; Makita 

Corporation; Chang Type Industrial Co., Ltd.; OWT Industries, 

Inc.; Pentair Water Group, Inc.; Stanley Black & Decker, Inc.; 

and Delta Power Equipment, Inc. must be dismissed as to all 

counts. The group-boycott claim against Techtronic Industries 

North America, Inc. must also be dismissed. The district court 

correctly dismissed these defendants because, at least as to 

them, the “complaint was vague, never explained its case, and 

lumped [them] together without sufficient detail.” Bates v. 

City of Chicago, 726 F.3d 951, 958 (7th Cir. 2013).

We now consider whether SawStop has properly alleged an

antitrust conspiracy against the remaining manufacturers.

IV. Pleading a § 1 Conspiracy

Section 1 of the Sherman Antitrust Act prohibits “[e]very 

contract, combination . . ., or conspiracy in restraint of 

trade.” 15 U.S.C. § 1. “To establish a § 1 antitrust 

violation, a plaintiff must prove (1) a contract, combination, 

or conspiracy; (2) that imposed an unreasonable restraint of 
18

trade.” N.C. State Bd. of Dental Exam’rs v. FTC, 717 F.3d 359, 

371 (4th Cir. 2013). 

This appeal principally concerns the first element, the 

conspiracy. “[S]ection one’s prohibition against restraint of 

trade applies only to concerted action, which requires evidence 

of a relationship between at least two legally distinct persons 

or entities.” Robertson v. Sea Pines Real Estate Cos., 679 F.3d 

278, 284 (4th Cir. 2012). To be actionable, the defendants must 

have specifically made a “conscious commitment to a common 

scheme designed to achieve an unlawful objective.” Monsanto Co. 

v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984). Not even 

“conscious parallelism” is enough, Brooke Grp. Ltd. v. Brown & 

Williamson Tobacco Corp., 509 U.S. 209, 227 (1993), as 

“independent action is not proscribed by § 1,” Va. Vermiculite, 

Ltd. v. Historic Green Springs, Inc., 307 F.3d 277, 280 (4th 

Cir. 2002). 

Accordingly, a plaintiff bringing a § 1 claim must first 

plead an agreement to restrain trade. In Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 556 (2007), the Supreme Court explained

that such a plaintiff must plead “enough factual matter (taken 

as true) to suggest that [the requisite] agreement was made.” 

In other words, the complaint must contain “enough fact to raise 

a reasonable expectation that discovery will reveal evidence of 

illegal agreement.” Id. For this reason, “allegations of 
19

parallel conduct [on the part of the defendants] . . . must be 

placed in a context that raises a suggestion of a preceding 

agreement, not merely parallel conduct that could just as well 

be independent action.” Id. at 557. “[A] conclusory allegation 

of agreement at some unidentified point [also] does not supply 

facts adequate to show illegality.” Id.

At bottom, Twombly applies a long-held principle in 

antitrust law to the pleading stage: parallel conduct, standing 

alone, does not establish the required agreement because it is 

equally consistent with lawful conduct. The Twombly plaintiffs 

asked the Court to reject that idea and assume a conspiracy 

“exclusively” from action that seemed too coincidentally similar 

to be independent. Id. at 565 n.11. The Court refused, and for 

good reason. “Parallel conduct or interdependence,” after all,

is “just as much in line with a wide swath of rational and 

competitive business strategy unilaterally prompted by common 

perceptions of the market.” Id. at 554. Thus, the complaint in 

Twombly failed because it rested only on “descriptions of 

parallel conduct” that could be just as easily explained by 

“natural, unilateral reaction[s]” from each defendant. Id. at 

564, 566; see also Robertson, 679 F.3d at 289 (“Twombly required 

contextual evidence to substantiate a speculative claim about 

the existence and substance of a conspiracy.”).
20

For a § 1 claim to survive, then, a plaintiff must plead 

parallel conduct and something “more.” Twombly, 550 U.S. at 

557. That “more” must consist of “further circumstance[s]

pointing toward a meeting of the minds.” Id. Allegations could 

suffice, for instance, where a plaintiff demonstrates that the 

parallel behavior “would probably not result from chance, 

coincidence, independent responses to common stimuli, or mere 

interdependence unaided by an advance understanding among the 

parties.” Id. at 556 n.4. Often “characterized as ‘parallel 

plus’ or ‘plus factors,” Evergreen Partnering Grp., Inc. v. 

Pactiv Corp., 720 F.3d 33, 45 (1st Cir. 2013), these facts must 

be evaluated holistically, see Cont’l Ore Co. v. Union Carbide & 

Carbon Corp., 370 U.S. 690, 699 (1962) (cautioning courts not to 

“compartmentaliz[e] the various factual components” of an 

antitrust case). 

We do not take the approach that the dissent pursues, which 

seems to parse each “plus factor” individually and ask whether 

that factor, standing alone, would be sufficient to provide the 

“more.” Cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 

U.S. 308, 310 (2007) (explaining that “courts must consider the 

complaint in its entirety” to determine whether “all of the 

facts alleged, taken collectively,” give rise to relevant 

inferences, rather than asking “whether any individual 

allegation, scrutinized in isolation, meets that standard”). 
21

Actions that might seem otherwise neutral in isolation can take 

on a different shape when considered in conjunction with other 

surrounding circumstances. See William E. Kovacic, et al., Plus 

Factors and Agreement in Antitrust Law, 110 Mich. L. Rev. 393, 

426-34 (2011) (explaining why plus factors must be analyzed in 

groups or “constellations”).

Importantly, Twombly’s requirement to plead something 

“more” than parallel conduct does not impose a probability 

standard at the motion-to-dismiss stage. See Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). Courts must be careful, then, not to 

subject the complaint’s allegations to the familiar 

“preponderance of the evidence” standard. Text Messaging 

Antitrust Litig., 630 F.3d 622, 629 (7th Cir. 2010). When a 

court confuses probability and plausibility, it inevitably 

begins weighing the competing inferences that can be drawn from 

the complaint. But it is not our task at the motion-to-dismiss

stage to determine “whether a lawful alternative explanation 

appear[s] more likely” from the facts of the complaint. Houck 

v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 

2015). Post-Twombly appellate courts have often been called 

upon to correct district courts that mistakenly engaged in this 

sort of premature weighing exercise in antitrust cases. See, 

e.g., Evergreen Partnering Grp., 720 F.3d at 50; Erie Cnty., 

Ohio v. Morton Salt, Inc., 702 F.3d 860, 868-69 (6th Cir. 2012); 
22

Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 189 (2d 

Cir. 2012). 

Similarly, courts must be careful not to import the 

summary-judgment standard into the motion-to-dismiss stage. At 

summary judgment in a § 1 case, a plaintiff must summon 

“evidence tending to exclude the possibility of independent 

action.” Twombly, 550 U.S. at 554; see also Monsanto, 465 U.S. 

at 764; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 588 (1986). But the motion-to-dismiss stage concerns 

an “antecedent question,” Twombly, 550 U.S. at 554, and “[t]he 

‘plausibly suggesting’ threshold for a conspiracy complaint 

remains considerably less than the ‘tends to rule out the 

possibility’ standard for summary judgment,” Starr v. Sony BMG 

Music Entm’t, 592 F.3d 314, 325 (2d Cir. 2010). Thus, 

“[a]lthough Twombly’s articulation of the pleading standard for 

§ 1 cases draws from summary judgment jurisprudence, the 

standards applicable to Rule 12(b)(6) and Rule 56 motions remain 

distinct.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 

323 n. 21 (3d Cir. 2010). “[T]here is no authority . . . for 

extending the [Monsanto/Matsushita] standard to the pleading 

stage.” Erie Cnty., 702 F.3d at 869. Indeed, such an extension 

would be wholly unrealistic, as “a plaintiff may only have so 

much information at his disposal at the outset.” Robertson, 679 

F.3d at 291. Here, for instance, SawStop was three months into 
23

its case and had not conducted any discovery when the defendants 

moved to dismiss. We can hardly expect it to have built its 

entire case so early on.

We therefore consider whether the district court properly 

applied this plausibility-focused standard.

V. Group Boycott

SawStop initially alleges a group boycott, which generally 

constitutes a “concerted refusal[] by traders to deal with other 

traders.” Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 

207, 212 (1959). Most often, group boycotts involve “horizontal 

agreements among direct competitors” with the aim of injuring a 

rival. NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 135 (1998). 

This sort of “naked concerted refusal occurs when the defendants 

are not engaged in any significant integration of production or 

distribution, and the only rationale for the restraint is the 

elimination of additional, lower-cost, higher-quality, or more 

innovative output from the market.” Phillip E. Areeda & Herbert 

Hovenkamp, Fundamentals of Antitrust Law § 22.02a (4th ed. 2014 

supp.). “[S]uch agreements . . . cripple the freedom of traders 

and thereby restrain their ability to sell in accordance with 

their own judgment.” Kiefer-Stewart Co. v. Joseph E. Seagram & 

Sons, 340 U.S. 211, 213 (1951).
24

A.

The district court held that SawStop had not adequately 

alleged an agreement to boycott. However, in reaching that 

conclusion, the district court committed the two errors that we 

earlier cautioned against. 

First, it confused the motion-to-dismiss standard with the 

standard for summary judgment. The district court twice cited

Matsushita -- the case defining the “tends to exclude” standard 

for summary judgment -- as a basis for its ruling. See SD3, 

LLC, 2014 WL 3500674, at *3, 4. It then mistakenly dismissed 

certain claims because the facts alleged did not “tend[] to 

exclude” independent action. Id. at *4. It made explicit 

findings of fact -- including a finding that motive was “nonexistent” -- that were plainly contradicted by the terms of the 

complaint. See J.A. 89-90 ¶¶ 80-81 (alleging motive). The 

district court further required SawStop to definitively “show an 

agreement,” SD3, LLC, 2014 WL 3500674, at *3, rather than asking 

whether the allegations “plausibly suggest[ed]” such an 

agreement, Twombly, 550 U.S. at 557. And it erroneously looked 

to summary judgment cases to define the relevant standards. 

See, e.g., SD3, LLC, 2014 WL 3500674, at *3 (citing Gtr. 

Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 391, 

396 (7th Cir. 1993)). 
25

Second, the district court applied a standard much closer 

to probability than plausibility. For instance, the district 

court’s opinion adopts defendants’ characterizations of the 

licensing negotiations and then draws unsurprisingly adverse 

inferences against SawStop based on them. The district court 

noted, for example, that Emerson had made a pre-conspiracy offer 

to license, but believed that SawStop had made “no allegation 

that Emerson rescinded that offer.” SD3, LLC, 2014 WL 3500674, 

at *4. SawStop specifically alleged to the contrary that 

“Emerson cut off all license negotiations with SawStop, offering 

pretextual reasons for its lack of interest, and did not renew 

them.” J.A. 92 ¶ 88. In much the same way, it concluded that a 

“disingenuous” offer to license from Black & Decker USA was 

inconsistent with conspiracy, SD3, LLC, 2014 WL 3500674, at *4, 

without explaining why an offer that SawStop pled was intended 

to be rejected was unavoidably inconsistent with a refusal to 

license. On the whole, these inferences seem to have been 

colored by the district court’s belief that SawStop was “a 

technology with uncertain commercial viability and safety.” Id.

at *5. 

In short, the district court imposed a heightened pleading 

requirement -- but such a standard does not apply on a Rule 

12(b)(6) motion, even in an antitrust case. See Marucci Sports, 

L.L.C. v. Nat’l Collegiate Ath. Ass’n, 751 F.3d 368, 373 (4th 
26

Cir. 2014); W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 

F.3d 85, 98 (3d Cir. 2010). This heightened pleading standard 

was error. Instead, the district court should have asked 

whether SawStop has alleged parallel action and something “more” 

that indicates agreement, as Twombly provides.

Our de novo standard of review means that we can decide the 

matter without deference to the lower court. Thus, we may apply 

the appropriate, Twombly-based standard ourselves rather than 

remanding to the district court for another attempt of its own. 

See, e.g., Houck, 791 F.3d at 484-86; Triple Canopy, 775 F.3d at 

637-40. Further, we enjoy the benefit of the parties’ briefs, 

and can read and understand the complaint in the same way as 

could the district court. Thus, we proceed to consider whether 

SawStop has adequately alleged a group boycott. 

B.

A plaintiff establishes parallel conduct when it pleads 

facts indicating that the defendants acted “similarly.” 

Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 

F.2d 1224, 1243 (3d Cir. 1993); see also Hyland v. HomeServices 

of Am., Inc., 771 F.3d 310, 320 (6th Cir. 2014) (considering 

whether the defendants’ actions were “uniform”). 

SawStop adequately alleged parallel conduct. The similar 

or uniform actions alleged are obvious: none of the defendants 

ultimately took a license or otherwise implemented SawStop’s 
27

technology. As a result, SawStop could not pursue its initial 

business strategy of entering the market through a license 

agreement with a major table-saw manufacturer. Such actions are

classically anticompetitive, as “parallel action that excludes 

new entrants both facilitates price elevation and can slow 

innovation.” C. Scott Hemphill & Tim Wu, Price Exclusion, 122 

Yale L.J. 1182, 1185 (2013).

The manufacturers incorrectly insist that their conduct 

must be deemed dissimilar at this stage because some licensing 

negotiations continued after the conspiracy formed. The 

district court agreed. See SD3, LLC, 2014 WL 3500674, at *4 

(“The sequence of all of these events undermines the Plaintiffs’

group boycott allegations.”). So does the dissent.

But that argument misunderstands the nature of the alleged 

boycott, while again confusing “probability” with 

“plausibility.” The manufacturers could have achieved their

alleged objective of keeping SawStop off the market in any 

number of ways: they could refuse any licensing discussions at 

all, they could engage in spurious licensing discussions, see, 

e.g., J.A. 93 ¶ 94, they could sign a license agreement and then 

never implement it, or they could scare SawStop off with 

commercially unreasonable offers. All of these actions could be

consistent with the boycott’s ultimate alleged objective, 

exclusion from the marketplace. See Evergreen Partnering Grp., 
28

720 F.3d at 51 (faulting the district court for “improperly 

weigh[ing] [the] defendants’ alleged[ly] inconsistent 

responses”); Anderson News, 680 F.3d at 191 (holding that 

defendants’ “varied” actions during the initial stages of the 

alleged conspiracy did not render the existence of a conspiracy 

implausible).

SawStop never alleged that the manufacturers agreed on a 

common manner of preventing SawStop’s entry into the market. 

That’s not surprising. Commercially sophisticated parties like 

the defendants could well understand the red flags that would be 

raised from a blanket, total refusal to negotiate. See, e.g., 

Am. Tobacco Co. v. United States, 328 U.S. 781, 800-01 (1946) 

(detailing a price-fixing conspiracy in which the defendants 

used a variety of differing methods to achieve the same ultimate 

objective, an understood and settled price for tobacco). 

SawStop might have become suspicious if all of the defendants 

fled the negotiations en masse without any pretextual cover. 

But if the defendants employed different courses of action, then 

their conspiracy might better avoid detection. SawStop alleges 

they did exactly that. See J.A. 94 ¶ 96 (“Defendants 

fraudulently concealed the AIMT Boycott by, among other things, 

giving separate excuses for not taking a license[.]”); J.A. 95 

¶ 100 (“[SawStop]’s inquiries were met with silence, false 

denials . . . and misleading explanations[.]”).
29

The dissent, however, is unwilling to credit SawStop’s 

factual allegation that the different paths of negotiations were 

themselves part of the claimed conspiratorial ruse. It contends

that, in crediting SawStop’s allegation, we “underestimate[] the 

difficulty of getting a group of competitors to agree on a 

course of action that separate contract negotiations may or may 

not have shown to be in their best commercial interest.” 

Dissenting op. at 85. But the same thing could be said about 

most any alleged agreement between competing businesses -- and 

yet the law has never embraced a presumption against business 

agreements. Much of antitrust law is premised on such 

agreements. More importantly, we are in no position at this 

stage to make “estimates” of the sort the dissent posits. It 

should hardly need to be said again that we must proceed “on the 

assumption that all the allegations in the complaint are true 

(even if doubtful in fact).” Twombly, 550 U.S. 555. “Rule 

12(b)(6) does not countenance dismissals based on a judge’s 

disbelief of a complaint’s factual allegations.” Colon Health 

Ctrs. of Am., LLLC v. Hazel, 733 F.3d 535, 545 (4th Cir. 2013).

We must be careful not to rely on our own subjective

disbelief here, as even the acts that the manufacturers and the 

dissent say are dissimilar might also be read to suggest

deception. Ryobi and Emerson, for example, suddenly ended 

negotiations without sufficient explanation after proceeding all 
30

the way to a draft license agreement. See J.A. 92 ¶¶ 77, 87-88. 

This sort of abrupt and unexplained shift in behavior can 

suggest that a defendant’s acts were not entirely independent, 

as the shift came after the alleged October 2001 agreement to 

launch the boycott. See, e.g., Toys “R” Us, Inc. v. FTC, 221 

F.3d 928, 935 (7th Cir. 2000) (explaining that the defendants’ 

sudden “decision to stop dealing,” which was an “abrupt shift 

from the past,” provided more reason to infer a horizontal 

agreement). For its part, Black & Decker USA purportedly 

tendered only a “disingenuous” offer that was “not made in good 

faith.” J.A. 92 ¶ 89. Assuming that characterization is 

accurate (as we must), few benign purposes would be served by 

such an offer.

But the dissent would require more, even at this early 

stage of the proceedings; it would find “parallel conduct” only 

when defendants move in relative lockstep, achieving their 

common anticompetitive ends (exclusion) only by substantially 

identical means. So far as we can tell, this standard finds no 

support in any existing authority. 

The three decisions that the dissent cites do not support 

the proposed rule, as they all involved non-parallel “ends.” One 

involved inconsistent pricing in an alleged price-fixing 

conspiracy, see City of Moundridge v. Exxon Mobil Corp., 429 F. 

Supp. 2d 117, 131-32 (D.D.C. 2006), while another addressed 
31

wildly varying surcharges (in both amount and timing) in an 

alleged fuel-surcharge-fixing conspiracy, LaFlamme v. Societe 

Air France, 702 F. Supp. 2d 136, 151 (E.D.N.Y. 2010). The last, 

an appeal from a summary judgment decision, held only that the 

defendant had not established conscious parallelism on the part 

of one defendant; it assumed, however, that the actions alleged 

were parallel. See Cosmetic Gallery, Inc. v. Schoeneneman 

Corp., 495 F.3d 46, 54 (3d Cir. 2007). At best, these cases 

stand for an unremarkable proposition: parallel conduct must 

produce parallel results. And they further recognize the very 

point so hotly contested by the dissent: parallel conduct “need 

not be exactly simultaneous and identical in order to give rise 

to an inference of agreement.” LaFlamme, 702 F. Supp. 2d at 

151; cf. City of Moundridge v. Exxon Mobil Corp., Civil Action 

No. 04-940 (RWR), 2009 WL 5385975, at *5 (D.D.C. Sept. 30, 2009) 

(“Price-fixing can occur even though the price increases are not 

identical in absolute or relative terms.”).

Our own precedent does not support the dissent’s view. 

Take, for example, United States v. Foley, 598 F.2d 1323 (4th 

Cir. 1979), in which a group of real estate brokers were 

convicted of violating § 1 by conspiring to fix real estate 

commissions. It seems an understatement to say that the Foley

defendants did not move in any way close to perfect tandem: some 

defendants did not act to implement the commission-fixing 
32

agreement until months after it formed, while at least one 

defendant implemented the new commissions before the conspiracy 

formed. Id. at 1332-34. Still other defendants only 

“partially” joined, taking higher commissions when available but 

otherwise pursuing lower ones. Id. Had Foley been decided 

under the dissent’s framework, these “divergent paths to the 

same end” (higher commissions) would apparently have required 

reversal of the convictions. The Court, however, reached a 

different result -- it affirmed all nine criminal convictions 

after finding sufficient evidence of agreement. Id. at 1335. 

Foley, then, effectively rejects the dissent’s proposed 

methodology. 

Lastly, we disagree that the dissent’s definition is needed 

to avoid imposing antitrust liability on innocent activities. 

The dissent proceeds as if a finding of parallel conduct 

inexorably leads to liability. But Twombly’s foundational 

principle is that parallel conduct, standing alone, is not

enough to impose antitrust liability. In other words, the 

plaintiff’s initial showing of parallel conduct is only an 

initial step in a multi-step process. It is the additional 

steps required of an antitrust plaintiff that are meant to 

ensure that innocent business activities are not tarred as 

antitrust violations, whether at the motion-to-dismiss stage or 

later.
33

Thus, we think it plain that SawStop alleged parallel 

conduct. The remaining question is whether SawStop also pleads

the requisite “more” that “point[s] toward a meeting of the 

minds.” Twombly, 550 U.S. at 557.

C.

SawStop has alleged the “more” necessary to move its 

allegations of parallel conduct into the realm of plausibility.

The group-boycott claim pled in the complaint builds a 

detailed story. SawStop identifies the particular time, place, 

and manner in which the boycott initially formed, describing a 

separate meeting held for that purpose during the Power Tool 

Institute’s October 2001 annual meeting. See J.A. 89-90 ¶¶ 79-

81. The complaint names at least six specific individuals who 

took part in forming the boycott, noting which defendant each 

person ostensibly represented. See J.A. 89 ¶¶ 78-79. The 

complaint further tells us the means by which the defendants 

sealed their boycott agreement: a majority vote. See J.A. 89 

¶ 80. And the complaint then explains how the manufacturers 

implemented the boycott: refusing to respond to entreaties from 

SawStop, going silent after long negotiations, or offering only 

bad-faith terms that were intended to be rejected. Thus, 

“[u]nlike the plaintiffs in Twombly . . ., [SawStop] clearly has 

alleged an express agreement to restrain trade.” Watson Carpet 

& Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452, 457 
34

(6th Cir. 2011); cf. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 

514 (2002) (explaining that a Title VII complaint should not

have been dismissed where it “detailed the events leading to his 

termination, provided relevant dates, and included the ages and 

nationalities of at least some of the relevant persons involved 

with his termination”). 

Antitrust complaints, like SawStop’s, “that include 

detailed fact allegations as to the ‘who, what, when and where’ 

of the claimed antitrust misconduct not surprisingly survive 

dismissal.” William Holmes & Melissa Mangiaracina, Antitrust 

Law Handbook § 9:14 (2014 supp.); see also Carrier Corp. v. 

Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012); Kendall v. 

Visa U.S.A., Inc., 518 F.3d 1042, 1048 (9th Cir. 2008); cf.

Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 

(4th Cir. 2015) (“A complaint should not be dismissed as long as 

it provides sufficient detail about the claim to show that the 

plaintiff has a more-than-conceivable chance of success on the 

merits.”). Detail in a complaint of “further circumstances 

pointing toward a meeting of the minds” allays the suspicion 

that the plaintiff is merely speculating a conspiracy into 

existence from coincidentally similar action. Twombly, 550 U.S. 

at 557. That, after all, was Twombly’s principal concern. See

Swanson v. Citibank, N.A., 614 F.3d 400, 405 (7th Cir. 2010) (“A

more complex case [like one] involving . . . antitrust 
35

violations[] will require more detail, both to give the opposing 

party notice of what the case is all about and to show how, in 

the plaintiff’s mind at least, the dots should be connected.”).

The dissent contends that the complaint rests on a “casual 

presumption” of liability. But that view overlooks the

complaint’s detailed account of the alleged events -- an account 

that, again, we must take as true for Rule 12(b)(6) purposes. 

Instead, the dissent seems to rely on a series of factual 

suppositions that might “perhaps” explain the relevant parallel 

conduct. But that approach forces us to ignore the factual

allegations that form the heart of SawStop’s complaint: a 

particular meeting on a particular day with particular 

participants making a particular agreement that generated the 

conspiracy at issue. And by favoring its perception of the 

relevant events over the narrative offered by the complaint, the 

dissent makes the very mistake that the district court made,

recasting “plausibility” into “probability.”

The dissent underscores the weakness in its position by

mischaracterizing the factual allegations in SawStop’s complaint

as “conclusory” in an effort to avoid them. It may be that the 

dissent doesn’t believe the complaint’s detailed allegations, 

but that skepticism does not render the allegations

“conclusory.” See Iqbal, 556 U.S. at 681 (explaining 

allegations cannot be called “conclusory” merely because a judge 
36

views them as “extravagantly fanciful,” “unrealistic,” or 

“nonsensical”). Indeed, just two weeks after Twombly, the 

Supreme Court reversed one of our sister circuits for making 

much the same error. See Erickson v. Pardus, 551 U.S. 89, 90 

(2007) (reversing dismissal of a complaint as “conclusory” where 

the complaint alleged harm only by saying that prison officials 

“endanger[ed] his life” by taking away needed treatment). And, 

as a practical matter, demanding more than the particularized 

allegations that SawStop offered here would compel an antitrust 

plaintiff to plead evidence -- and we have already expressly 

refused to impose such a requirement. See Robertson, 679 F.3d 

at 291. 

In any event, we observe that SawStop not only alleges the 

“who, what, when, and where” in its complaint, but also the 

“why.” “[M]otivation for common action” is a key circumstantial 

fact. Einer R. Elhauge & Damien Geradin, Global Antitrust Law 

and Economics 837 (2007); see also Hyland, 771 F.3d at 320 

(listing “common motive to conspire” as a potential plus 

factor); Mayor & City Council of Balt. v. Citigroup, Inc., 709 

F.3d 129, 136 (2d Cir. 2013) (same). According to the 

complaint, the defendants here were motivated to conspire out of 

a fear of product-liability exposure: if one manufacturer 

adopted the technology, then non-adopting manufacturers could 

face liability exposure from their failure to employ AIMT. 
37

Thus, under SawStop’s theory, the manufacturers conceived a 

group boycott to keep AIMT off the market, thereby preventing 

its use as a design alternative in product-liability cases. And 

even though a complaint need not “forecast evidence” to support 

its theory, Robertson, 679 F.3d at 291, SawStop’s complaint does 

so by referencing testimony from Peot (the former Ryobi 

engineer), who agrees that non-adopting manufacturers “could” 

have been in “real legal trouble” if a major manufacturer had 

adopted AIMT. Transcript of Trial at 4-125, Osorio v. One World 

Techs. Inc., No. 06-CV-10725 (D. Mass. Feb. 25, 2010), ECF No. 

137 (cited at J.A. 89 ¶ 80). The complaint further describes 

statements in which Black & Decker’s counsel is alleged to have 

said that product liability could be lessened “if a couple of 

years passed without implementation of the SawStop 

[t]echnology.” J.A. 87 ¶ 72. 

The defendants insist that this alleged motive is 

implausible, and the dissent agrees. They theorize that, if 

SawStop’s theory of motive were true, one would have expected

all of the manufacturers to take a license once SawStop began 

making its own AIMT-equipped saws in 2004. The complaint 

indicates that course of events did not occur.

Once more, the manufacturers’ argument -- embraced by the 

dissent -- seems to misconstrue the complaint’s allegations. 

SawStop entered the market as a peripheral player. See
38

Appellant’s Br. 44 (“SawStop’s sales . . . did not even 

constitute 1% of total industry sales of table saws in the 

United States[.]”). Thus, the manufacturers were still 

conceptually able to argue that SawStop was peddling a fringe 

technology, as reflected in its “marginaliz[ed]” market 

position. See J.A. 90 ¶ 81; see, e.g., Osorio v. One World 

Techs., Inc., 659 F.3d 81, 87-88 (1st Cir. 2011) (describing 

defendant’s argument that SawStop’s technology was not viable). 

Indeed, the fact that the conspiracy did not include every

player in the table-saw industry implies that the conspirators 

were concerned with major manufacturers taking a license, not 

smaller ones. Thus, the defendants’ post-2004 actions -- which, 

in any event, are not fully discussed in the complaint -- are 

not much help in evaluating the manufacturers’ potential 

motives.

Even if the “who, what, where, when, and why” were not 

enough, the complaint also describes a number of communications 

among the defendants. Allegations of communications and 

meetings among conspirators can support an inference of 

agreement because they provide the means and opportunity to 

conspire. See, e.g., Evergreen Partnering Grp., Inc., 720 F.3d 

at 49; Hyland, 771 F.3d at 320; Mayor & City Council of Balt., 

709 F.3d at 136. Here, in addition to discussing the October 

2001 meeting where the alleged conspiracy formed, the complaint
39

describes phone calls, meetings, and discussions among the 

various conspirators. Such “allegation[s] identif[y] a 

practice, not illegal in itself, that facilitates [an antitrust 

conspiracy] that would be difficult for the authorities to 

detect.” Text Messaging, 630 F.3d at 628; accord Todd v. Exxon 

Corp., 275 F.3d 191, 213 (2d Cir. 2001); see also Sharon E. 

Foster, LIBOR Manipulation and Antitrust Allegations, 11 DePaul 

Bus. & Com. L.J. 291, 304 (2013) (“Facilitating practices . . . 

may evidence the plus factors necessary to establish the 

inference of an agreement.”). 

A market in which sales power is concentrated in the hands 

of the few can also facilitate coercion. See, e.g., Evergreen 

Partnering Grp., 720 F.3d at 48; Todd, 275 F.3d at 208; In re 

High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 656 

(7th Cir. 2002). Fewer “minds” must “meet” in a concentrated 

market. And the complaint implies that the table-saw market is 

so concentrated, as the defendants here purportedly control 85%

of that market. J.A. 81 ¶¶ 44, 48; see, e.g., Starr, 592 F.3d 

at 323 (listing the defendants’ control of 80% of the market as 

a relevant plus factor). Further, the complaint describes ways 

in which the manufacturers attempted to hide their actions, 

including a mutual agreement not to “leave a paper trail.” See

J.A. 93-94 ¶¶ 92-97. These alleged attempts by the 

manufacturers to hide their actions could suggest that the 
40

defendants knew their actions “would attract antitrust 

scrutiny,” Starr, 592 F.3d at 324; in other words, the alleged

facts suggest consciousness of guilt. Those actions give us 

further reason to conclude that a group boycott is plausibly 

alleged.2

D.

Generally, “[i]n addition to establishing a conspiracy, a 

successful plaintiff must also show . . . that the conspiracy 

produced adverse, anti-competitive effects within the relevant 

product and geographic market.” Terry’s Floor Fashions, Inc. v. 

Burlington Indus., Inc., 763 F.2d 604, 611 n.10 (4th Cir. 1985). 

In a viable complaint, “the plaintiff must allege, not only an 

injury to himself, but an injury to the market as well.” Agnew 

v. Nat’l Collegiate Ath. Ass’n, 683 F.3d 328, 335 (7th Cir. 

2012); accord Todd, 275 F.3d at 213. “Actual anticompetitive 

effects include, but are not limited to, reduction of output, 

 2 SawStop also argued that the complaint alleged sufficient 

direct evidence of a conspiracy to avoid dismissal. See

Robertson, 679 F.3d at 289 (holding that a complaint can state a 

§ 1 claim if it alleges “direct evidence” of the agreement 

itself); but see Am. Chiropractic Ass’n v. Trigon Healthcare, 

Inc., 367 F.3d 212, 226 (4th Cir. 2004) (indicating that

“smoking gun” direct evidence is “extremely rare in antitrust 

cases”). As SawStop’s complaint meets “Twombly’s requirements 

with respect to allegations of illegal parallel conduct,” 

Robertson, 679 F.3d at 290, we need not determine whether 

SawStop has adequately alleged direct evidence.
41

increase in price, or deterioration in quality.” Jacobs v. 

Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1339 (11th Cir. 2010).

In cases involving “per se” violations of the Sherman Act, 

however, this anti-competitive harm is essentially presumed. 

“[C]ertain agreements or practices” have such a “pernicious 

effect on competition” that they “are conclusively presumed to 

be unreasonable and therefore illegal without elaborate inquiry 

as to the precise harm” that they caused. TFWS, Inc. v. 

Schaefer, 242 F.3d 198, 209 (4th Cir. 2001). Claims that such 

agreements “lacked anticompetitive effects . . . are simply 

irrelevant.” In re Cardizem CD Antitrust Litig., 332 F.3d 896, 

909 (6th Cir. 2003).

Although the manufacturers contend that SawStop failed to 

allege anticompetitive harm, SawStop maintains that its alleged

group boycott violates the Sherman Act per se -- such that no 

separate allegations of harm were necessary. “[I]n some 

circumstances a group boycott may be considered a per se

violation.” Precision Piping & Instruments, Inc. v. E.I. du 

Pont de Nemours & Co., 951 F.2d 613, 617 n.4 (4th Cir. 1991). 

And the alleged agreement here comes close to the “paradigmatic 

boycott,” in which “a group of competitors” (here, the 

manufacturers) take “collective action” (here, the refusal to 

license or implement) that “may inhibit the competitive vitality 

of rivals” (here, SawStop). NYNEX Corp., 525 U.S. at 135; see 
42

also Nw. Wholesale Stationers, Inc. v. Pac. Stationery & 

Printing Co., 472 U.S. 284, 294 (1985) (explaining that per se 

illegal boycotts “often cut off access to a supply, facility, or 

market necessary to enable the boycotted firm to compete and 

frequently the boycotting firms possessed a dominant position in 

the relevant market”). 

Despite the facial appeal of SawStop’s per se argument, 

neither the manufacturer’s brief nor the district court’s 

opinion directly address it. The district court remarked only 

in passing that SawStop had “fail[ed] to establish a naked 

boycott organized for a concerted refusal to deal.” SD3, LLC, 

2014 WL 3500674, at *5. It did not discuss the issue further, 

and offered only a cursory citation to Northwest Wholesale. The 

manufacturers similarly assert, without explanation, that 

SawStop “failed to allege any per se violation of the Sherman 

Act.” Response Br. 58.

Because the issue of competitive harm is inadequately 

briefed, and because the district court’s opinion likewise gives 

us no guidance, we cannot decide that issue or affirm on that 

basis. If the manufacturers so choose, however, they may again 

raise the issue of competitive harm before the district court on 

remand so that it may fully consider and discuss the question 

with the benefit of proper argument.
43

E.

In sum, SawStop’s complaint is very different from the one 

seen in Twombly, which rested solely on “descriptions of 

parallel conduct and not on any independent allegation of actual 

agreement.” Twombly, 550 U.S. at 564; see also id. at 548 

(“[T]he question . . . is whether a § 1 complaint can survive 

when it alleges . . . certain parallel conduct . . . , absent 

some factual context suggesting agreement[.]” (emphasis added)). 

SawStop’s complaint alleges an actual agreement to boycott in 

detail and does not rely, as in Twombly, on parallel conduct 

alone. The dissent’s observation to the contrary is, 

respectfully, simply an inaccurate reading of Twombly. See

Dissenting Op. 75. In particular, the Supreme Court directly 

rejected the dissent’s reading of the Twombly complaint: 

“Although in form a few stray statements sp[oke] directly of 

agreement, on fair reading these [were] merely legal conclusions 

resting on the prior allegations.” Twombly, 550 U.S. at 564. 

The Supreme Court was explicit in finding that the Twombly

complaint did not contain “any independent allegation of actual 

agreement among the ILECs.” Id.

As to the district court, it erred by applying a summaryjudgment standard to SawStop’s group boycott claim and by 

confusing “plausibility” with “probability.” Again, because the 

complaint pleads parallel conduct in conjunction with 
44

“circumstance[s] pointing toward a meeting of the minds,” 

Twombly, 550 U.S. at 557, SawStop has adequately alleged the 

agreement needed to support a Sherman Act § 1 conspiracy. Of 

course, it remains to be seen whether SawStop has also 

adequately alleged any requisite harm to the market.

Our decision should not be mistaken for an endorsement of 

the ultimate merits of SawStop’s case. At this point, SawStop’s 

prospects for success are largely irrelevant, as “[a] lawsuit 

need not be meritorious to proceed past the motion-to-dismiss 

stage.” Ringgold-Lockhart v. Cnty. of Los Angeles, 761 F.3d 

1057, 1066 (9th Cir. 2014). In fact, “a well-pleaded complaint 

may proceed even if it strikes a savvy judge that actual proof 

of those facts is improbable, and that a recovery is very remote 

and unlikely.” Twombly, 550 U.S. at 556; accord Cardigan 

Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 89 (1st Cir. 2015); 

N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 

709 F.3d 109, 125 (2d Cir. 2013); cf. Iqbal, 556 U.S. at 681 

(“[W]e do not reject these bald allegations on the ground that 

they are unrealistic or nonsensical.”). To dismiss SawStop’s 

complaint because of some initial skepticism would be to 

mistakenly “collapse discovery, summary judgment[,] and trial 

into the pleading stages of a case.” Petro-Hunt, L.L.C. v. 

United States, 90 Fed. Cl. 51, 71 (2009).
45

Our decision also is not meant to afford SawStop a license 

for unlimited discovery. Like the dissent, we are well aware of 

the substantial cost that discovery in an antitrust case can 

impose, Twombly, 550 U.S. at 558-59, and recognize that the cost 

largely falls on the defendants. When not appropriately 

managed, that cost can have an extortionate effect, compelling 

some defendants to enter early settlements even in meritless 

suits. But we are neither the Advisory Committee on the Rules 

of Civil Procedure, nor the Supreme Court, nor Congress. We 

must take the rules as we find them.

District courts possess a number of tools -- including 

limitations on discovery or consideration of a timely motion for 

summary judgment -- to combat any sort of predatory discovery. 

See Federal Judicial Center, Manual for Complex Litigation

§ 30.1 (4th ed. 2004) (“Effective management of antitrust 

litigation requires identifying, clarifying, and narrowing 

pivotal factual and legal issues as soon as practicable[.]”). 

Although tools like these do not permit us to give the benefit 

of the doubt to groundless claims, Twombly, 550 U.S. at 559, 

they confirm that our antitrust jurisprudence cannot be driven 

solely by fears about the expense of modern antitrust 

litigation. We have faith that district courts possess both the 

will and the ability to make good use of available case-
46

management mechanisms, employing them as needed to preserve a 

level playing field -- particularly in antitrust cases.3 

VI. Standard-Setting Conspiracies

In addition to its group-boycott claim, SawStop alleges two 

separate but related conspiracies concerning private standardsetting -- the standard-rejection conspiracy and the contrivedstandards conspriacy. Industry particpants allegedly used their 

influence over UL to prevent the private organization from 

adopting AIMT as a required safety device. The defendants then 

purportedly encouraged UL to adopt other standards that imposed 

needless costs on SawStop and insulated the defendants from 

liability. 

We find that the complaint does not plausibly establish 

either conspiracy. Although the standard-rejection and 

contrived-standards conspiracies are separately alleged, they 

fail for the same fundamental reason: the facts alleged imply 

nothing beyond ordinary participation in lawful standard-setting 

processes. Thus, in contrast to its group-boycott claim, 

 3 Many of the same allegations that carry SawStop’s

complaint past a motion to dismiss –- the “who, what, when, and 

where” –- may substantially focus the discovery in a way that 

was not possible in Twombly. See id. at 560 n.6 (noting the 

difficulty and expense of discovery directed toward “some 

illegal agreement” “between unspecific persons” “at some point 

over seven years.”).
47

SawStop’s standards-focused conspiracies fail to allege the 

“more” necessary to raise an inference of agreement.

A.

Standard-setting organizations are voluntary membership 

organizations whose participants develop “technical 

specifications to ensure that products from different 

manufacturers are compatible with each other,” address certain 

threshold safety concerns, or serve other beneficial functions. 

Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 875 (9th Cir. 

2012). These organizations have enjoyed a rather complicated

relationship with antitrust law. “[M]embers of such 

associations often have economic incentives to restrain 

competition and [] the product standards set by such 

associations have a serious potential for anticompetitive harm.” 

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 

500 (1998); see also Soc’y of Mech. Eng’rs v. Hydrolevel Corp., 

456 U.S. 556, 571 (1982). As a result, “private standardsetting associations have traditionally been objects of 

antitrust scrutiny.” Allied Tube, 486 U.S. at 500. 

Still, such ventures can also have “decidedly 

procompetitive effects” by encouraging “greater product 

interoperability,” generating “network effects,” and building 

“incentives to innovate.” Princo Corp. v. Int’l Trade Comm’n, 

616 F.3d 1318, 1335 (Fed. Cir. 2010); accord Lotes Co., Ltd. v. 
48

Hon Hai Precision Indus. Co., 753 F.3d 395, 400 (2d Cir. 2014);

Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 308 (3d Cir. 

2007). “As a result, one can hardly infer anticompetitive 

intent to exclude from rule making alone[.] . . . Antitrust 

must therefore seek out the exceptional case, where rule making 

is used to facilitate collusion or the exclusion of rivals whose 

competitiveness or innovation threatens the relevant decision

makers.” Areeda & Hovenkamp, supra, § 22.06b.

Courts have found standard-setting organizations and their 

members to have violated the antitrust laws in some cases, but 

those cases are relatively few and far between. Of most 

relevance here, “an entity may be prosecuted for an antitrust 

violation on the basis of improper coercion of a standardssetting body.” Coalition for ICANN Transparency, Inc. v. 

VeriSign, Inc., 611 F.3d 495, 506 (9th Cir. 2010). Allied Tube

is the oft-cited example of that concept. In that case, the 

defendant deliberately packed a standard-setting panel with paid 

supporters who then banned a competing product. Allied Tube, 

486 U.S. at 496. Coalition for ICANN Transparency is another 

example. There, the Ninth Circuit found potential antitrust 

liability when a powerful corporation allegedly used vexatious 

litigation and financial pressure to coerce a standards 

organization into providing advantages to that defendant. 

Coalition for ICANN Transparency, 611 F.3d at 501, 506. 
49

The common thread in the few cases finding liability in the 

private standard-setting context is unique, external pressure 

applied to achieve an anti-competitive end. “[T]he principal 

concern has been the use of standards setting as a predatory 

device . . . ; normally there is a showing that the standard was

deliberately distorted by competitors of the injured party, 

sometimes through lies, bribes, or other improper forms of 

influence, in addition to a further showing of market 

foreclosure.” DM Research, Inc. v. Coll. of Am. Pathologists, 

170 F.3d 53, 57-58 (1st Cir. 1999). In other words, a plaintiff 

must ordinarily show that the standard-setting activity had a 

market-closing effect that was committed “through the use of 

unfair, or improper practices or procedures.” Clamp-All Corp. 

v. Cast Iron Soil Pipe Inst., 851 F.2d 478, 488 (1st Cir. 1998)

(Breyer, J.).

In the usual case, neither the standard-setting 

organization nor its participants will run afoul of antitrust 

law when they use ordinary processes to adopt unexceptional 

standards. It is “axiomatic that a standard setting 

organization must exclude some products, and such exclusions are 

not themselves antitrust violations.” Golden Bridge Tech., Inc.

v. Motorola, Inc., 547 F.3d 266, 273 (5th Cir. 2008); see also

Gtr. Rockford Energy & Tech. Corp., 998 F.2d at 396 (“The 

failure of a private, standard-setting body to certify a product 
50

is not, by itself, a violation of § 1.”); Plant Oil Powered 

Diesel Fuel Sys., Inc. v. ExxonMobil Corp., 801 F. Supp. 2d 

1163, 1193 (D.N.M. 2011) (holding that the plaintiff did not 

plausibly allege an antitrust conspiracy based on the 

defendant’s mere opposition to a particular standard). “To hold 

otherwise would stifle the beneficial functions of such 

organizations[.]” Golden Bridge Tech., 547 F.3d at 273. 

Similarly, it is not problematic, standing alone, for market 

participants to try to influence the standard-setting process 

through the organization’s ordinary procedures. See Clamp-All 

Corp., 851 F.2d at 488.

B.

SawStop never alleges that UL’s normal procedures were 

thwarted, or that the defendants engaged in some form of 

external misconduct. Instead, it asks us to infer malfeasance 

because some of the defendants’ representative served on the

relevant standard-setting panel. But SawStop provides no 

authority drawing that sort of naked inference, and we have 

found none. “Certifiers may reasonably believe that they can do 

their job properly (a job that benefits consumers) only if all 

interested parties are allowed to present proposals, frankly 

present their views, and vote.” Id. 

SawStop’s complaint takes issue with UL’s actions largely 

because the organization is alleged to have erred in rejecting
51

SawStop’s proposed standard and selecting another one. The 

unstated assumption of this argument is that, lacking a valid 

“technical” justification, the only remaining explanation must 

be an antirust conspiracy.

Even if UL’s ultimate decision can be called “wrong,” that 

mistake alone does not indicate concerted action to manipulate 

the result. “[S]tandard-setting bodies sometimes err,” but 

simple error creates no reason for liability without some 

further indication that the organization’s activities are 

“merely a ploy to obscure a conspiracy against competing 

producers.” Consol. Metal Prods., Inc. v. Am. Petroleum Inst., 

846 F.2d 284, 294 (5th Cir. 1988); see also DM Research, 170 

F.3d at 57 (“Merely to say that the standards are disputable or 

have some market effects has not generally been enough to 

condemn them as ‘unreasonable’ under the Sherman Act.”); Moore 

v. Boating Indus. Ass’ns, 819 F.2d 693, 711-13 (7th Cir. 1987) 

(finding no evidence of an actionable conspiracy despite the 

jury’s finding that the association was “unreasonable and 

arbitrary” in setting standards); cf. Brookins v. Int’l Motor 

Contest Ass’n, 219 F.3d 849, 854 (8th Cir. 2000) (“So long as 

IMCA made game-defining rules decisions based upon its purposes 

as a sports organization, an antitrust court need not be 

concerned with the rationality or fairness of those 

decisions.”); M & H Tire Co. v. Hoosier Racing Tire Corp., 733 
52

F.2d 973, 984 (1st Cir. 1984) (“We discern no duty to provide an 

absolutely objective or scientific basis for decision.”).

“[A]ntitrust is not concerned with whether a standard might be 

unreasonable as an abstract proposition.” Areeda & Hovenkamp, 

supra, § 22.06c.

If antitrust suits were permitted to go forward based 

solely on an allegation that the standard-setting body erred, 

courts would be cast into the role of standard-setting appellate 

bodies. Consol. Metal Prods., 846 F.2d at 297. Any 

disagreement big or small with the ultimate adoption of a safety 

standard would, to follow SawStop’s reasoning, create potential 

antitrust liability. “Not only would this tax the abilities of 

the federal courts, but fear of treble damages and judicial 

second-guessing would discourage the establishment of useful 

industry standards.” Id.

Beyond its error-based allegations, the complaint’s only 

assertions of concerted action are conclusory and non-specific: 

“a collective decision was made,” or the defendants “agreed to 

vote as a bloc,” or non-SawStop designs were a “smokescreen.” 

J.A. 96-97 ¶¶ 103, 105, 109. The complaint identifies no fact 

other than consistent votes against SawStop’s proposal (and for 

the other designs) to establish the alleged illegal agreements. 

That would be parallel conduct, but such conduct is equally 

consistent with legal behavior. After all, even if SawStop is 
53

right that technical reasons did not support the standardsetting organizations decisions, other non-anticompetitive 

explanations remain. See, e.g., Golden Bridge Tech., 547 F.3d 

at 272-73 (“[T]he existence of an independent financial motive 

to [change the standard] might be an independent reason for each 

Appellee company to support [the change].”); Advanced Tech. 

Corp., Inc. v. Instron, Inc., 925 F. Supp. 2d 170, 179 (D. Mass. 

2013) (dismissing a complaint where “[t]he crux of [the 

plaintiff’s] antitrust claim [wa]s simply that competitors in a 

market declined to support a standard that would promote another 

competitor’s technology”).

Lastly, we note that SawStop does not allege the sort of 

anticompetitive objectives that are ordinarily seen in standardsetting cases. Usually, standard-setting cases are brought when 

products are effectively excluded from the market by adopted 

safety standards. Here, SawStop largely complains that it could 

not use the standard-setting process to impose its own product

on everyone else. The anticompetitive harms of a “refusal to 

impose” are much harder to identify. Nothing that UL or the 

standards-setting groups did barred SawStop’s AIMT-equipped saws 

from the market, as SawStop’s entry into the competitive tablesaw market establishes. From all appearances, SawStop remains 

free to offer its saws with the UL seal of approval, along with 

its perceived market advantage of also offering AIMT on those 
54

saws. And if UL’s newer standards generate some additional 

costs, those costs are common to each member of the industry who 

chooses to make a UL-compliant table saw. We see nothing 

anticompetitive or exclusionary in that.

The district court thus did not err in granting the 

defendants’ motions to dismiss on the standard-setting claims.

VII.

For the reasons described above, the district court 

correctly dismissed the standard-setting claims as to all the 

defendants. The district court also correctly dismissed the 

group-boycott claims against Hitachi Koki Co., Ltd.; Makita 

Corporation; Chang Type Industrial Co., Ltd.; OWT Industries, 

Inc.; Pentair Water Group, Inc.; Stanley Black & Decker, Inc.; 

Delta Power Equipment, Inc.; and Techtronic Industries North 

America, Inc. However, the district court erred in dismissing 

the group-boycott claims against the remaining defendants. 

Therefore, the district court’s decision dismissing 

SawStop’s complaint is 

AFFIRMED IN PART, VACATED IN PART,

 AND REMANDED FOR PROCEEDINGS 

CONSISTENT WITH THIS OPINION.
55

WYNN, Circuit Judge, concurring:

“Judges ought to remember that their office is jus dicere, 

and not jus dare—to interpret law, and not to make law, or give 

law.” Francis Bacon, “Essay LVI: Of Judicature,” Essays (1625), 

reported in Richard Whately, Bacon’s Essays With Annotations 511 

(1857). Here, the judiciously well-reasoned majority opinion 

resists the temptation to move beyond our limited role and into 

the colorful realm of policy. Respectfully, the dissenting 

opinion strays beyond our limited review here and encroaches on 

policy issues best left to other branches of government. 

I.

First, rather than confront the issues actually in play, 

the dissenting opinion dresses up points of agreement as dire

rifts. The dissent asserts, for example, that plaintiffs “seek 

to achieve through litigation a monopoly for their product” and 

claims that the majority opinion “turns a blind eye” to 

“anticompetitive impulse[s]” driving SawStop’s claims. Post at 

70, 96. The dissenting opinion claims that the majority opinion 

“ignores all [the benefits of ventures such as standards setters 

and trade groups] in its rush to flatten pleading standards, 

make communications perilous, and consign antitrust law to 

isolationist ends.” Id. at 97. Thus, the dissent takes the 

policy view that today’s opinion will doom “American companies” 

to “competitive disadvantage at the very time global commercial 
56

interactions are becoming more commonplace.” Id. Nonsense 

(beyond the obvious problem that a competitive disadvantage is 

meaningful only in the context of a comparison with America’s 

global competitors, many of whom also have antitrust laws).

The majority opinion fully accords with the view that 

“[j]oint ventures, standard-setting organizations, and trade 

association meetings may allow individuals of different 

specialties to benefit from each other’s expertise. These fora 

may prove invaluable for efficient and effective product 

development.” Post at 96. As the majority opinion plainly 

states, “such ventures” can have “decidedly procompetitive 

effects by encouraging greater product interoperability, 

generating network effects, and building incentives to 

innovate.” Ante at 47 (quotation marks and citations omitted). 

The majority opinion in no uncertain terms affirms the district 

court’s dismissal of SawStop’s standards-setting-related claims—

a crucial fact relegated to a dissenting footnote.

Second, rather than address SawStop’s complaint as it is 

written, the dissenting opinion employs verbiage like 

“commercial interactions” to revise the complaint so as to omit 

the allegations of a secret agreement to refuse to deal. Again 

sounding in policy, the dissenting opinion asserts that the 

majority “drape[s] innocent commercial activity in sinister 

garb” because the complaint “hardly bespeaks a collective 
57

agreement not to deal.” Post at 67, 73. Thus, the dissenting 

opinion editorializes that due to the majority opinion, “HOLDING 

OR ATTENDING [A] TRADE ASSOCIATION MEETING WILL INCREASE YOUR 

EXPOSURE TO ANTITRUST SUITS.” Id. at 68 (emphasis added). 

Yet, when read with a judicious eye, SawStop’s complaint 

clearly alleges that Defendants entered into a secret agreement 

to refuse to deal at a trade association meeting—not just that 

Defendants “held” or “attended” such meetings. Indeed, the 

complaint plainly bespeaks a collective agreement not to deal. 

Specifically, the complaint alleges, among other things:

• “In conjunction with the [Power Tool Institute] annual 

meeting, a separate meeting of representatives of 

table saw manufacturers was held. Attendees at the 

meeting included, but were not necessarily limited to, 

Domeny (on behalf of SBTC and Bosch), Peot (on behalf 

of Ryobi, TIC and affiliates), Stanley Rodrigues (for 

Makita), Ray Mayginnes (for Emerson), David V. Keller 

(of Porter-Cable, who also spoke for Pentair and 

DICM), Steven Karaga (for Hitachi), and 

representatives of B&D and Milwaukee Electric. Mr. 

Domeny, at the time, was the Chair of the [Power Tool 

Institute]’s Product Liability Committee, and chaired 

the meeting.” J.A. 89 ¶ 79 (emphasis added). 

• “At the meeting, Mr. Domeny and the other participants 

expressed concerns that if one manufacturer adopted 

SawStop Technology, then all manufacturers would be 

subject to greater liability in future product 

liability cases. Mr. Peot shared this concern. 

[Power Tool Institute]’s table saw manufacturers 

determined at that meeting that they would decide how 

to respond, as an industry, to the SawStop Technology. 

A consensus was reached that (1) all should take a 

SawStop license and/or implement AIMT, or (2) none 

take it or otherwise implement AIMT; since if one or 

more took a license and/or offered a product with 

AIMT, the others would be more vulnerable to product 
58

liability. It was also agreed that collective action 

would proceed only if all, or at least a substantial 

majority, of participants voted to participate. 

Members also discussed developing something like 

SawStop Technology, without having to pay a royalty to 

Dr. Gass. The consensus reached by the attendees, 

with no contrary views articulated, was that industry 

members would collectively agree not to purchase 

technology licenses from Plaintiffs or otherwise 

implement AIMT.” J.A. 89-90 ¶ 80 (emphasis added and 

citations omitted).

• “The consensus reached at the meeting was based on a 

calculated economic determination that the 

manufacturers would, collectively, fare better by 

collectively agreeing to marginalize SawStop and AIMT, 

than by allowing the marketplace to determine whether 

any manufacturers did business with SawStop or 

otherwise implemented AIMT. The Defendants believed 

that bringing AIMT into the mass market would have 

catastrophic product liability consequences for them. 

Purchasers of their existing and prior inventories of 

table saws (and, perhaps, other products) would point 

to the viability of AIMT as evidence that other 

products were inherently unsafe because they lacked 

AIMT. Defendants believed that, in the short term, if 

SawStop was unable to obtain a major manufacturing 

partner, it would not be able to produce or market a 

meaningful quantity of saws with its AIMT – this way, 

the major manufacturers could continue to earn current 

profit margins on their existing inferior product 

lines without paying royalties to Plaintiffs, and it 

would remain (for the time being) at least plausible 

for the major manufacturers to contend, in defending 

product liability lawsuits, that AIMT was not viable. 

Thus, Defendants’ business calculation was that they, 

collectively, would fare better by marginalizing 

SawStop and AIMT, than by working with SawStop and/or 

otherwise adopting AIMT.” J.A. 90 ¶ 81.

• “It was agreed at the meeting and thereafter that all 

discussions concerning a collaborative response to 

SawStop would be confidential and concealed from 

persons other than [Power Tool Institute] members who 

manufactured table saws. It was further agreed that, 

going forward, information relevant to SawStop and 

table saw product liability defense issues would only 
59

be shared among those industry participants who 

affirmatively agreed to act collectively in response 

to SawStop.” J.A. 90 ¶ 82 (emphasis added).

• “At, or within a period of months following the 

October 2001 meeting, each of Defendants Bosch, Ryobi, 

Makita, Hitachi, Pentair, Emerson and Milwaukee 

Electric, and entities affiliated with them, had 

agreed to enter into a boycott (the ‘AIMT Boycott’) of 

SawStop’s intellectual property, by collectively (1) 

refusing to license SawStop technology, and (2) 

agreeing not to otherwise implement AIMT.” J.A. 90-91 

¶ 83 (emphasis added).

• “During this time frame, in which [Power Tool 

Institute]’s table saw manufacturers voted to respond 

collectively to SawStop Technology, those Defendants 

not yet in license negotiations with SawStop refrained 

from requesting a license, and the Defendants who were 

already in negotiations found ways to abort them as 

opportunities arose.” J.A. 91 ¶ 85 (emphasis added).

In other words, SawStop’s complaint alleges a specific meeting 

in which Defendants agreed to refuse to deal with SawStop and to 

keep that pact a secret. Around the same time, Defendants 

refrained from seeking SawStop’s technology or, if in licensing 

negotiations with SawStop, found ways to abort them. The 

dissenting opinion’s dismissive characterization of these 

detailed allegations as mere “conclusory assertions,” post at 

71, thus plainly misses the mark. 

On the contrary, SawStop’s allegations squarely conform to 

what we require Sherman Act § 1 plaintiffs to plead. “To 

establish a § 1 antitrust violation, a plaintiff must prove, and 

therefore plead, (1) a contract, combination, or conspiracy; (2) 

that imposed an unreasonable restraint of trade.” Robertson v. 
60

Sea Pines Real Estate Companies, Inc., 679 F.3d 278, 284 (4th 

Cir. 2012) (Wilkinson, J.) (quotation marks and citation 

omitted). Further, “Iqbal and Twombly do not require a 

plaintiff to prove his case in the complaint.” Id. at 291. 

Instead, the complaint “need only allege facts sufficient to 

state elements of the claim.” Id. (quotation marks and 

citations omitted). And at the Rule 12(b)(6) stage, which is 

where we are, the complaint is to be “construed liberally so as 

to do substantial justice.” Pub. Employees’ Ret. Ass’n of Colo. 

v. Deloitte & Touche LLP, 551 F.3d 305, 311 (4th Cir. 2009) 

(Wilkinson, J.) (quotation marks and citation omitted). 

In its revisionist account of SawStop’s allegations, the 

dissenting opinion essentially turns the Rule 12(b)(6) standard 

on its head. “A motion to dismiss under Rule 12(b)(6) tests the 

sufficiency of a complaint; importantly, it does not resolve 

contests surrounding the facts, the merits of a claim, or the 

applicability of defenses.” Republican Party of N.C. v. Martin, 

980 F.2d 943, 952 (4th Cir. 1992). Instead, “a well-pleaded

complaint may proceed even if it strikes a savvy judge that 

actual proof of the facts alleged is improbable and that a 

recovery is very remote and unlikely.” Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 556 (2007) (quotation marks and citation 

omitted).
61

Despite our crystal-clear mandate in reviewing this Rule 

12(b)(6) dismissal, the dissenting opinion nevertheless attacks 

the complaint in a light least favorable to SawStop, viewing the 

facts and reasonable inferences in the light most favorable to 

Defendants. For example, the dissenting opinion opines that 

“[i]gnoring the many practical reasons for declining [SawStop]’s 

offers, the majority hones in on the fear of product liability 

as the key motivation behind defendants’ alleged boycott.” Post

at 91. Yet, the majority opinion rightly focuses on the 

products liability reasoning—because SawStop specifically 

alleges it. See, e.g., J.A. 89-91. We are thus not at liberty 

to swap that pled reasoning out for other “practical reasons” we 

might make up out of whole cloth. A further example: The 

dissenting opinion asserts that “it was consistent with each 

manufacturer’s best interest to reject an expensive, unproven, 

undeveloped, and possibly unsafe technology. Each defendant 

could easily have arrived at this business decision on its own.” 

Post at 90. But SawStop alleges that they didn’t arrive at that 

decision independently. Instead, the complaint specifically 

alleges that Defendants expressly agreed to refuse to deal and 

to keep that agreement secret. See, e.g., J.A. 89-91. Ignoring 

such specific allegations to SawStop’s detriment is nothing shy 

of an all-out perversion of the generous lens through which we 
62

must view the complaint. Pub. Employees’ Ret. Ass’n of Colo., 

551 F.3d at 311. 

Finally, the dissenting opinion focuses on its own policy 

preferences, thereby abandoning this Court’s limited role—which 

is simply to assess whether SawStop plausibly alleges the 

elements of its Section 1 claim. Because the majority opinion 

sticks to its limited role, it steers clear of considering 

things like different “approach[es]” in a “globalized 

marketplace,” whether the word “‘conspiracy’ is bound to stoke 

paranoia,” or the appropriate amount of “lag time” in “product 

development.” Post at 66, 79, 91. 

The dissenting opinion sees itself in no way so bound and 

thus insists, for example, that “[h]ere, plaintiffs are the ones 

acting anti-competitively.” Post at 70. It is simply not our 

job in reviewing a Rule 12(b)(6) motion to assess which party’s 

conduct we deem more pro-competitive. In refusing to stick to 

our limited role, the dissenting opinion engages in breathtaking 

judicial activism. 

“As the Supreme Court has repeatedly emphasized, . . . 

Congress is the policymaker—not the courts.” In re Sunterra 

Corp., 361 F.3d 257, 269 (4th Cir. 2004). See also, e.g., 

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 

U.S. 1, 13-14 (2000) (“Achieving a better policy outcome . . . 

is a task for Congress, not the courts.”). It is thus 
63

inappropriate to suggest, for example, that, as a matter of law, 

a boycott conspiracy may not be motivated by liability concerns. 

Congress can pencil such categorical limitations into the 

Sherman Act; we cannot. 

The dissenting opinion embarks on yet another odyssey into 

policy, as well as assumptions untethered to reality, much less 

the complaint at issue here, when it asserts that “[t]hese days 

secrets are harder to keep. A secret is something that is held 

by only one. Or maybe two. But twenty-two? Managers everywhere 

must be relieved to learn from my concurring colleague that you 

can let twenty-two people in on a secret and have nothing leak 

out.” Post at 87. Yet in reviewing a complaint for Rule 

12(b)(6) purposes, we may not peer into a crystal ball and 

decide how many people we personally believe can keep a secret 

and kick complaints out of court on such a basis. 

Moreover, to the extent the dissenting opinion suggests 

that a large, multi-firm conspiracy by definition cannot exist, 

it is simply uninformed. Large antitrust conspiracies have not 

only existed but have been caught—a perfect example being the 

famous international vitamin scandal of the 1990s—which involved 

21 firms engaged in a conspiracy that lasted over a decade:

From 1988 to 1992 21 chemical manufacturers

headquartered in seven nations joined . . . vitamins 

cartels . . . . Sales by these cartels exceeded $30 

billion . . . . The pharmaceutical manufacturers 

involved became virtually addicted to the infusion of 
64

monopoly profits, giddy financial results that 

prompted the conspirators to continue their 

clandestine activities for up to 15 years. These 

illegal activities persisted in the face of [among 

other things] several public prosecutions of parallel 

conspiracies [and] multiple antitrust investigations . 

. . . The conspirators simply burrowed deeper and 

developed more elaborate methods of subterfuge.

John M. Connor, The Great Global Vitamins Cartels 8, available 

at http://ssrn.com/abstract=885968. 

In other words, large, multi-player conspiracies involving 

elaborate ruses can indeed exist as a matter of law and fact. 

And here, SawStop alleges that one did, and that it undertook a 

group boycott to freeze SawStop technology out of the 

marketplace. In refusing to accept those allegations, as we 

must at this stage, the dissenting opinion plainly oversteps its 

bounds.

II.

In sum, courts exist to resolve disputes, not to pervert 

procedural rules into swords with which to fight policy battles. 

And today, we do not confront whether SawStop should ultimately 

succeed on its boycott claim. Instead, we confront only 

whether, when viewing SawStop’s complaint with an unjaundiced 

eye and using the proper standard, we can say that it has made 

allegations sufficient to withstand a motion to dismiss for 

failure to state such a claim. It has. Accordingly, with all 
65

due respect for the dissenting view, I join in the judicious and 

well-reasoned majority opinion.
66

WILKINSON, Circuit Judge, concurring in part and dissenting in 

part:

The majority’s view of modern commerce is unfortunate. It 

takes an isolationist approach in which each business must all 

but lock itself in semi-solitary or risk the taint of antitrust 

claims. Whatever validity the isolationist approach may once 

have had, it is profoundly injurious in an increasingly 

interconnected, necessarily collaborative, and globalized 

marketplace. The majority rightly observes that agreement is the 

crux of an antitrust claim, but it has made mere communication 

the touchstone of liability. Ante at 29.

The majority rejects this as a statement of policy, ante at 

45, 56, but it is hardly that. It is rather a statement of 

consequences that flow from the majority’s refusal to follow the 

Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 

U.S. 544 (2007), which established pleading requirements for a 

Sherman Act Section 1 complaint. The Supreme Court lacks the 

institutional resources to ensure full compliance with its 

decisions. Among other things, it has room on its docket for a 

limited number of cases, and the Twombly decisions from the 

lower courts may be routinely pitched as pertaining to no more 

than the particulars of an individual complaint.

It just may be, however, that the institutional limitations 

at the Court impart institutional obligations on the courts of 
67

appeals to respect in fullest measure the highest Court’s 

approach. In this obligation, I believe the majority has 

defaulted. I shall show throughout how it has failed to follow 

Twombly at every turn. I would suggest, most respectfully, that 

the majority has committed basic conceptual errors and that the 

consequences of those errors, which the majority prefers not to 

face and to dismiss as policy, are regrettable. Most 

regrettable, however, is the treatment of a Supreme Court 

decision, even a controversial one, at the hands of this court. 

Among Twombly’s insights was that markets, every bit as 

much as conspiracies, play a significant role in governing 

commercial conduct. See 550 U.S. at 557. Twombly counsels that 

we not leap to pejorative explanations when legitimate business 

considerations are more likely at play. Id. at 554. The fact 

that Sherman Act conspiracies in restraint of trade do assuredly 

continue to exist does not mean that we should rush too quickly 

to drape innocent commercial activity in sinister garb.

The majority, however, adopts the reverse sequence. It 

fashions a template for the frustrated market participant: 

Whenever routine business decisions don’t go your way, for 

whatever reason, simply claim an industry conspiracy under the 

Sherman Act and the courts will infer malfeasance. But such 

casual presumptions of antitrust infractions can only chill 

communications among companies, which in turn may hinder product 
68

development, innovative joint ventures, and useful trade 

association conclaves. WARNING: HOLDING OR ATTENDING THIS TRADE 

ASSOCIATION MEETING WILL INCREASE YOUR EXPOSURE TO ANTITRUST 

SUITS.

The chilling effect is most acute when the majority 

considers independent market-driven behavior to be parallel 

conduct warranting antitrust scrutiny. Parallel industry conduct 

is, of course, the lynchpin of many a Sherman Act Section 1 

claim. The majority’s cardinal conceptual error lies in the 

adoption of an ends-based approach to parallel conduct in a 

circumstantial antitrust case. See infra Part II.A. The end of 

course is the fact that a plaintiff’s product was not adopted. 

But the products most likely to meet the end of rejection are 

those of the least utility or those that would cause the most 

expense. The majority thus uses its ends-based analysis to 

reward the least marketable products with the greatest 

possibility of litigation success. WARNING: FAILURE TO ADOPT 

THIS PRODUCT FOR WHATEVER REASON WILL INCREASE YOUR EXPOSURE TO 

ANTITRUST SUITS.

This treatment of ends and means in antitrust litigation 

undermines the Twombly decision. An analysis of means rather 

than ends is the most sensitive tool we possess to measure the 

plausibility of a complaint. See Twombly, 550 U.S. 544. And 

here, the means by which the so-called conspiracy was carried 
69

out paint a clear picture of non-parallel conduct. The complaint 

is the best evidence of that. After SD3 introduced its product, 

certain defendants entered into licensing negotiations that 

continued well after the alleged group boycott agreement. Some 

of them offered to license the technology, again after the 

supposed agreement, and were rebuffed by SD3. Other negotiations 

yielded no offers, with one defendant leaving the table saw 

industry altogether. The vast majority of named defendants are 

not even mentioned in SD3’s account of the supposedly “parallel” 

behavior. Their negotiation posture, which would seem well 

within plaintiffs’ knowledge, is nowhere set forth or detailed.

While the majority highlights cases in which plaintiffs 

successfully alleged parallel conduct, none of them features 

disparate actions such as these. If defendants’ behavior 

qualifies as parallel conduct, then plainly divergent actions 

among competitors in any field will now give rise to antitrust 

claims. This is but part and parcel of the majority’s attempt to 

impose a presumption of guilt on antitrust defendants who now 

must bear the burden of proving a negative when the burden 

properly lies with the party bringing the claim. 

It is no accident that Twombly itself was an antitrust 

decision. For what we confront in antitrust law is a perfect 

storm of treble damages, large discovery costs, and relaxed 

pleading standards. It is the three factors in combination that 
70

pose a threat to legitimate marketplace behavior. The Supreme 

Court in Twombly sought to calm the waters by addressing the 

latter two. The majority, however, adds to the turbulence by 

sanctioning complaints that would in all likelihood have failed 

even under pre-Twombly standards. Here, plaintiffs are the ones 

acting anti-competitively. They seek to achieve through 

litigation a monopoly for their product that neither the table 

saw market nor contractual negotiations would yield. The result, 

as noted, is that marketplace failures will increasingly lead to 

litigation success. And that is only the beginning of the 

difficulty.

The majority appears to believe that the full course of 

discovery is the proper mechanism for winnowing out meritless 

claims. In many fields, that observation would be correct. The 

bone of contention in federal civil litigation is most 

frequently over summary judgment versus trial. In antitrust law, 

however, the flashpoint is often over motions to dismiss versus 

summary judgment. For the Supreme Court has clearly recognized 

that in the area of antitrust it is the threat of steep 

litigation costs that produces deleterious consequences in and 

of itself, no matter who the victor in the antitrust marathon 

may ultimately prove to be.

As Twombly emphasized, discovery costs have escalated 

dramatically since the adoption of the Federal Rules. Twombly, 
71

550 U.S. at 558-60; see Brian T. Fitzpatrick, Twombly and Iqbal

Reconsidered, 87 Notre Dame L. Rev. 1621, 1638 (2012). 

Multiplying electronic and paper records, combined with 

increased regulatory obligations, have caused discovery costs to 

mount even further since the issuance of Twombly itself. Before 

we impose these climbing costs on companies, there must exist 

confidence that the claims leveled against them allege actual 

facts that make conspiracy and other illicit intentions 

plausible. SD3 fails to clear this bar, but still the majority 

just piles it on.

I.

A.

The majority’s approach to Twombly tells an old 

intermediate appellate story. The majority alights on a minor 

motif of that Supreme Court decision, while leaving its main 

point wholly unobserved. The Court made clear in Twombly, and 

reiterated in Iqbal, that a plaintiff must allege enough factual 

content in the complaint to render his legal claim for relief 

“plausible on its face” in order to survive a motion to dismiss 

under Rule 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(citing Twombly, 550 U.S. at 570). Plausibility requires “more 

than a sheer possibility that a defendant acted unlawfully.” Id.

(citation omitted). SD3’s complaint cannot clear this hurdle. 

Its conclusory assertions that defendants agreed to an industry-
72

wide “boycott” of its product are fully consistent with, and 

most plausibly reflect, independent and legitimate business 

decisions. Put simply, the majority proceeds as if Twombly were 

at most persuasive authority, and not very persuasive authority 

at that.

Twombly is particularly important here, for the Supreme 

Court in that case addressed the meaning of plausibility in the 

context of a conspiracy allegation based on descriptions of 

parallel conduct. The Court instructed that “when allegations of 

parallel conduct are set out in order to make a § 1 claim, they 

must be placed in a context that raises a suggestion of a 

preceding agreement, not merely parallel conduct that could just 

as well be independent action.” Twombly, 550 U.S. at 557. “Even 

‘conscious parallelism,’ a common reaction of ‘firms in a 

concentrated market that recognize their shared economic 

interests and their interdependence with respect to price and 

output decisions’ is ‘not in itself unlawful.’” Id. at 553-54 

(citations omitted). Nor should a court infer “that the 

companies had agreed among themselves to do what was only 

natural anyway.” Id. at 566. Thus, a plaintiff fails to 

adequately plead his claim that a defendant unlawfully conspired 

under Section 1 if there exists an “obvious alternative 

explanation” for the defendant’s conduct that renders the 
73

prohibited explanation implausible. Iqbal, 556 U.S. at 682 

(citation omitted); Twombly, 550 U.S. at 567.

This could not be more clear. In light of Twombly’s 

directives, SD3’s allegations fall well short of the 

plausibility requirement. The complaint hardly bespeaks a 

collective agreement not to deal. Instead, it most plausibly 

reflects typical market forces at work and rational business 

choices being made -- the kind of things that happen every day. 

Why did the manufacturers not adopt SD3’s product? Perhaps they 

realized the technology was too nascent to license, in short 

unproven. Perhaps it would not have been cost effective for the 

manufacturers to incorporate it. Or perhaps SD3’s incipient 

product actually increased the risk of injury to consumers. 

These varied market explanations may well have been different 

for different companies. They reflect business decisions of the 

most common and ordinary character. They are “obvious 

alternative explanations” and have not been sufficiently 

rebutted by any valid assertions of a preceding agreement to 

collude. All the behavior described by SD3 “was not only 

compatible with, but indeed was more likely explained by, 

lawful, unchoreographed free-market behavior.” Iqbal, 556 U.S. 

at 680 (quoting Twombly, 550 U.S. at 567).

In the majority’s eyes, however, the above discussion is 

all wasted effort, merely “practical reasons” and “factual 
74

suppositions” that must not be considered. Ante at 35, 61. 

Instead, we should take plaintiffs’ allegations at face value 

and call it a day. It is certainly true that we assume the truth 

of factual allegations at the motion-to-dismiss stage. Twombly, 

550 U.S. at 572 (citations omitted). Even after accepting 

plaintiffs’ claims as true, however, the court must further 

analyze whether those allegations are “plausible” under Twombly. 

Id. at 556. The majority refuses to undertake this second, more 

analytic step. My concurring colleague simply wishes it away. 

There is a time warp here, a nostalgia for the old pleading ways 

and days. Those earlier standards were easier on us, I admit. 

But our nostalgia now flies in the face of a controlling Supreme 

Court decision.

SD3’s boycott claim is not “plausible” for the same reasons 

Twombly’s was not plausible. SD3’s boycott claim is hardly 

distinguishable from the very allegations that the Supreme Court 

rejected in Twombly. According to the complaint in that case, 

defendants -- who, like the defendants here, owned a significant 

share of the market -- agreed to “engage in parallel conduct” 

and “prevent competitive entry.” Twombly, 550 U.S. at 550-51, 

550 n.1. The complaint charged that the defendants’ “‘compelling 

common motivation’ to thwart plaintiffs’ competitive efforts 

naturally led them to form a conspiracy.” Id. at 551. If these 

allegations sound familiar, it is because they almost perfectly 
75

parrot the claims made by SD3 in its complaint. SD3 argued that 

the defendants -- at least the few named defendants it actually 

bothered to discuss -- “agreed among themselves to collectively 

refuse” SD3’s licensing offers “based on a calculated economic 

determination” that they would fare better in the marketplace if 

SD3 were excluded. J.A. 71, 90. If Twombly’s complaint could not 

pass as well-pleaded, then SD3’s should not fare any better.

The majority claims that the complaint in Twombly “rested 

solely on descriptions of parallel conduct, and not on any 

independent allegation of actual agreement.” Ante at 43 

(citation and internal quotation marks omitted). This is simply 

incorrect. The majority overlooks the actual language in the 

Twombly complaint: “Defendants had compelling common motivations 

to include in their unlawful horizontal agreement an agreement 

that each of them would engage in a course of concerted conduct 

calculated to prevent effective competition from [plaintiffs] . 

. . .” Amended Complaint at ¶ 50, Twombly v. Bell Atl. Corp., 

313 F. Supp. 2d 174 (S.D.N.Y. 2003); see also id. at ¶ 51 

(noting that defendants “have agreed not to compete with one 

another”). To be sure, after Twombly complaints have sought 

length in the hope that courts would mistake such length for 

substance. But the substance here is thin gruel. The complaint’s 

allegation of an agreement is weaker than in Twombly, boiling 

down to a contention that the defendants met at a trade 
76

association meeting followed by the inconvenient fact for the 

majority that non-parallel conduct ensued.

In fact, the Twombly complaint was much stronger than the 

one in this case and it went much further. That complaint relied 

on evidence that defendants refused to provide plaintiffs with 

network connections and services of equal quality, that they 

billed plaintiffs’ customers in a manner to ruin plaintiffs’ 

customer relations, that they refused plaintiffs access to 

certain facilities and delayed the provision of network elements 

after plaintiffs had invested tens of billions of dollars. 

Twombly, 313 F. Supp. at 177-78. Despite this support for 

plaintiffs’ conspiracy allegations, the Court maintained that 

each defendant “had reason to want to avoid dealing with 

plaintiffs,” and each defendant “would attempt to keep 

plaintiffs out, regardless of the actions of the other” 

defendants. Twombly, 550 U.S. at 566. Defendants’ actions in 

Twombly, like defendants’ actions in this case, were “just as 

much in line with a wide swath of rational and competitive 

business strategy unilaterally prompted by common perceptions of 

the market.” Id. at 554 (citation omitted). Consequently, 

plaintiffs’ conspiracy claims in both cases “stop short of the 

line between possibility and plausibility.” Id. at 557 (citation 

omitted). If only the plaintiffs in Twombly could have called 

upon this court to refashion their complaint.
77

B.

But, insists the majority, “[t]o dismiss SawStop’s 

complaint because of some initial skepticism would be to 

mistakenly ‘collapse discovery, summary judgment[,] and trial 

into the pleading stages of a case.’ . . . District courts 

possess a number of tools . . . to combat any sort of predatory 

discovery.” Ante at 45-46 (citation omitted). That approach is 

astonishing, for it is precisely what Twombly warned against: 

“It is no answer to say that a claim just shy of a plausible 

entitlement to relief can, if groundless, be weeded out early in 

the discovery process . . . given the common lament that the 

success of judicial supervision in checking discovery abuse has 

been on the modest side.” Twombly, 550 U.S. at 559 (citation 

omitted).

The majority’s assurance that of course district courts can 

control discovery is the sort of appellate wand-waving that 

ignores every reality on the ground. Trial judges are busy; they 

must set priorities. Many understandably feel that time is 

better spent in trial or in dealing with dispositive motions to 

dismiss or for summary judgment than in wading into the big 

muddy of discovery disputes. There is the temptation, and it is 

again an understandable one, to say to the parties, “Folks, go 

work this out among yourselves.” The problem has become even 

more acute with the advent of e-discovery. Modern electronic 
78

devices generate and record a great variety and volume of 

information. It is now easier and faster to store evidence, 

which in turn has spawned greater opportunities for discovery 

requests and conflict. Regulatory mandates from governments at 

every level add to the store of both paper and electronic files. 

All of this makes companies more and more vulnerable to openended discovery requests. The majority pays no more than lip 

service to what has become a serious problem. Its casualness 

stands in contrast to the gravity of the Twombly Court’s 

concern.

To overlook this concern is to resurrect the dangers that 

Twombly sought to lay to rest. Conley v. Gibson was doubtless 

correct when decided. See 355 U.S. 41 (1957), abrogated by 

Twombly, 550 U.S. 544. It made sense to skip through the 

pleadings on the theory that discovery would somehow sort it all 

out. See id. at 47-48. But times have changed. Although the 

majority pooh-poohs “the expense of modern antitrust 

litigation,” ante at 46, it is altogether legitimate for the 

Supreme Court to take cognizance of the shifting interplay 

between causes of action (here Sherman Act Section 1 claims) and 

the Federal Rules (here those of pleading and discovery). Thus, 

the Court in Twombly sought to shield defendants from what it 

later described as the “heavy costs of litigation in terms of 

efficiency and expenditure of valuable time and resources” by 
79

allocating the plausibility burden to those who allege unlawful 

conduct. Iqbal, 556 U.S. at 685.

The Court understood what the majority does not: that an 

antitrust complaint is often too tempting to pass up. It 

provides a tantalizing weapon for parties whose business 

endeavors are going badly. The term “conspiracy” is bound to 

stoke paranoia, and to kindle an effort to pin on others the 

blame for business failures of one’s own. The treble damages 

awards of antitrust actions are a further temptation for 

floundering companies armed with the knowledge that defendants 

would rather settle than face the prospect of such damages, 

especially with the attendant high litigation costs. See

Twombly, 550 U.S. at 558-59. Twombly sought to reduce these 

dangers in language of no moment to the majority: “It is only by 

taking care to require allegations that reach the level 

suggesting conspiracy that we can hope to avoid the potentially 

enormous expense of discovery . . . .” Id. at 559. So much for 

that hope: the majority just loads it on.

II.

A.

With its inverted version of Twombly, the majority allows 

plaintiffs to contort normal marketplace behavior into a 

potential antitrust violation. Even by the majority’s diluted 

pleading standard, however, SD3’s group boycott claim fails as 
80

its complaint plainly alleges non-parallel conduct. The majority 

bases its contrary conclusion on an expansive definition of 

parallel conduct focused solely on a perceived uniformity of 

ends without regard to dissimilarity of means. The majority 

observes: “The similar or uniform actions alleged are obvious: 

none of the defendants ultimately took a license or otherwise 

implemented SawStop’s technology.” Ante at 26-27. The 

defendants’ vastly “different courses of action” are seen as 

part of some grand scheme to conceal the underlying conspiracy.

Ante at 28. By that logic, the majority would find parallel 

conduct as long as defendants all allegedly reached the same end 

-- not adopting a product -- regardless of how the dealings 

between plaintiffs and defendants proceeded or fell apart.

Such an ends-based focus misses the entire point of 

Twombly, which is to determine whether allegedly anticompetitive 

conduct “stems from independent decision or from an agreement, 

tacit or express.” Twombly, 550 U.S. at 553 (citation omitted). 

If defendants act in parallel whenever they arrive at the same 

general end or outcome, then parallel conduct will embrace 

independent but identical business decisions borne by market 

forces -- precisely the conduct that Twombly excluded from 

antitrust liability. In distinguishing horizontal conspiracies 

from innocuous coincidences, the means matter. That competitors 
81

travelled divergent paths to the same end reflects the absence, 

not the presence, of illicit coordination or agreement.

Certainly, direct evidence of a collusive end would amount 

to a plausible Section 1 claim. See American Chiropractic Ass’n 

v. Trigon Healthcare, Inc., 367 F.3d 212, 226 (4th Cir. 2004) 

(“Direct evidence in antitrust cases is explicit and requires no 

inferences to establish the proposition or conclusion being 

asserted.”). By contrast, when plaintiffs rely on circumstantial 

evidence of conspiracy, as in Twombly and the case at hand, the 

ends-based approach carries an unacceptably high risk of finding 

parallel conduct in wildly disparate behaviors motivated by 

independent economic concerns. With its over-inclusive sweep, 

the majority erodes the long-recognized right of one party not

to deal with another. Monsanto Co. v. Spray-Rite Service Corp., 

465 U.S. 752, 761 (1984). As long as competitors respond in the 

same way to an unappealing offer or product, a business’s 

refusal to deal now becomes part of parallel conduct potentially 

triggering antitrust liability.

The assumption running throughout the complaint is that 

SawStop was the only product anyone could have thought of 

adopting. No other business decision could have been reasonable. 

Therefore, defendants’ rejection of SawStop must have been part 

of a group boycott. Case closed. We are not told exactly why 

SD3’s product was demonstrably superior to other competing 
82

products in terms of cost effectiveness and safety, such that 

only one business decision with respect to it was conceivable. 

The naked assumption of its irresistible appeal and inevitable 

adoption operates in a comparative vacuum. But defendants faced 

comparative decisions. They had to weigh options. The majority’s 

ready acceptance of SD3’s unsupported superiority assumption is 

part of the fallacy of its ends-based perspective, namely that 

any ultimate refusal to adopt is nothing more than one more 

instance of parallel behavior.

A means-based analysis, one that focuses on the means by 

which the so-called conspiracy was carried out, is the most 

sensitive gauge of parallel conduct and complaint plausibility. 

The majority contends the dissent would find parallel conduct 

“only when defendants move in relative lockstep” or “by 

substantially identical means.” Ante at 30. Not so. A focus on 

means-based analysis comes nowhere close to requiring identical 

means. As circumstantial evidence of a conspiracy, the 

similarity of conduct lies along a spectrum. Beyond a certain 

point, starkly dissimilar means render a secret agreement among 

competitors less plausible. The majority dismisses this meansbased analysis, apparently because dissimilar means “might also 

be read to suggest deception” rather than independent business 

activity. Ante at 29. The majority thus sets a nifty trap: if 

defendants engage in similar means, it’s collusion; if they 
83

engage in dissimilar means, it’s deceit. Given those options, 

businesses should either keep to themselves or close up shop.

For good reason then, courts have shied away from the 

majority’s ends-driven conception of parallel conduct and 

instead required more specific similarities. See, e.g., Cosmetic 

Gallery, Inc. v. Schoeneman Corp., 495 F.3d 46, 54 (3d. Cir. 

2007) (deeming uniform refusal to sell insufficient to show 

conscious parallelism because one distributor decided not to 

deal prior to the alleged agreement); LaFlamme v. Societe Air 

France, 702 F. Supp. 2d 136, 151 (E.D.N.Y. 2010) (casting doubt 

on parallel conduct claim where defendants engaged in disparate 

strategies at different times); City of Moundridge v. Exxon 

Mobil Corp., 429 F. Supp. 2d 117, 131-32 (D.D.C. 2006) 

(expressing skepticism towards an allegation of parallel conduct 

based on evidence that defendants did no more than exchange 

information). Although the majority insists these cases 

foundered on findings of “non-parallel ends,” their common 

failing was in fact patently disparate means. Ante at 30-31 

(emphasis added) (internal quotation marks omitted).

Turning to the means here, there is simply nothing parallel 

about separate licensing discussions proceeding along separate 

timetables with different results and different motivations. SD3 

alleges that defendants collectively agreed not to license its 

technology in October 2001. J.A. 89-90. Defendants then 
84

supposedly “found ways to abort” the negotiations and conceal 

their agreement by “giving separate excuses.” J.A. 91, 94. As 

stated in the complaint, however, three defendants continued to 

negotiate with SD3 after October 2001 while the fourth, Bosch, 

ended negotiations a month before and restarted discussions 

years later. J.A. 88, 92. Ryobi sent a signed non-exclusive 

licensing agreement to SD3 in January 2002 -- three months after

the so-called collective refusal to deal. J.A. 91-92. The 

contract offered a 3% royalty initially that would increase to 

5%-8% if the technology proved successful on the market. J.A. 

91-92. SD3 refused to accept what appear to be generous terms 

based on a minor wording issue. J.A. 92. Emerson offered the 

same royalty rate as Ryobi and participated in negotiations for 

several months after October 2001, eventually ending talks and 

leaving the table saw industry altogether the following year. 

J.A. 56-57, 97. Six months after the alleged refusal to deal, 

Black & Decker offered SD3 a licensing agreement with a 1% 

royalty. J.A. 92. SD3 balked at what it considered unreasonably 

stingy terms for its untested and undeveloped technology. Id. If 

all this is parallel conduct and evidence of a refusal to deal, 

well then anything will qualify.

And yet, despite all this, the agreement is repeatedly 

characterized as a refusal to deal. E.g., ante at 27-28. How can 

this be? Defendants did deal and did offer to purchase SD3’s 
85

technology. How were the eighteen defendants not discussed in 

the complaint supposed to deal when, insofar as the complaint is 

concerned, they were never even approached?

In short, all four discussed defendants were willing to 

deal with SD3 but their negotiations broke down at various times 

for various reasons, not least because SD3 demanded more than 

defendants were willing to offer. The record shows no refusal to 

deal, much less parallel means to that end. It is not plausible 

to think that the defendants’ disparate actions were somehow a 

carefully choreographed plan to exclude SD3 from the market. By 

supposing it possible, the majority severely underestimates the 

difficulty of getting a group of competitors to agree on a 

course of action that separate contract negotiations may or may 

not have shown to be in their best commercial interest. It would 

be quite a feat of stage management, moreover, to have some of 

those competitors actually extend generous but different 

licensing offers at different times to the very party that was 

the subject of the supposed group boycott. This is the type of 

claim on the far margins of conceivability that Twombly

condemned.

The Hail Mary nature of SD3’s complaint is underscored by 

the fact that only four of twenty-two named defendants are even 

so much as discussed in the allegations (the “twenty-two” figure 

comes from the original complaint as one defendant somehow 
86

failed to appear in the amended version). Compare J.A. 30 

(original complaint) with J.A. 70 (amended complaint). Indeed, 

even the majority chides plaintiffs for “assembl[ing] some 

collection of defendants and then mak[ing] vague, non-specific 

allegations against all of them as a group.” Ante at 14.

Even plaintiffs appear to realize how tenuous their claim 

of parallel conduct is. In contrast to the original complaint, 

SD3’s amended complaint collapses its description of the various 

negotiations and timelines to create an illusion of uniformity. 

Compare J.A. 55-58 (original complaint) with J.A. 88-93 (amended 

complaint). While the original version details each of the 

discussed defendant’s negotiation history in a separate section, 

plaintiffs’ second effort weaves those divergent strands into 

one vague narrative, obscuring dates and distinctions along the 

way. Id.

This attempt at obfuscation hardly inspires confidence in 

SD3’s promise that discovery will bolster its claims. Even with 

its artful redrafting, however, SD3 falls short of the bare 

minimum required for alleging a group boycott. To hold otherwise 

is to use antitrust law to badly skew the market forces normally 

at play in contract negotiations. From now on, defendants 

decline to deal with an entity proposing any new design feature 

of product development at their peril. They also cannot refuse 

to purchase a product in the course of licensing negotiations 
87

because that too, under the majority’s rubric, is grounds for 

possible antitrust liability if others arrive independently at a 

similar business judgment. Again, SD3’s attempt to achieve 

through litigation more than what markets or contracts would 

ever independently confer is precisely the kind of abuse of 

Sherman Act claims that Twombly sought to prohibit.

B.

The majority believes that all the non-parallel behavior 

and disparate means of proceeding were hatched in secret. The 

concurrence makes much of the fact that the meeting among table 

saw manufacturers was “secret.” Ante at 56-58. In fact, no fewer 

than four times does the concurring opinion refer to the alleged 

agreement not to deal as a “secret agreement” or a “pact [kept] 

secret.” Id. This is manifestly a cover for the fact that my 

concurring colleague is unable to point to the traces of an 

agreement, hoping, I suppose, that a fishing expedition will 

unearth them.

But there is a larger problem here. These days secrets are 

harder to keep. A secret is something that is held by only one. 

Or maybe two. But twenty-two? Managers everywhere must be 

relieved to learn from my concurring colleague that you can let 

twenty-two people in on a secret and have nothing leak out.

We also run into a significant collective action difficulty 

here. The larger the alleged conspiracy, the larger the number 
88

of alleged participants that need to be brought into line both 

as to the object and execution of the conspiracy as well as the 

need to keep it secret. The vast number of antitrust cases 

involve a much smaller number of conspirators, and it is telling 

that my concurring friend must venture back to the 1990s even to 

find an inapposite situation. The concurrence again labels the 

dissent’s discussion of collective action problems a foray into 

policy. It is not. It is an inquiry into plausibility, which 

Twombly absolutely requires that we undertake. The failure to do 

this is but one more example of the majority’s failure to follow 

that decision.

C.

Assuming, though only for the sake of argument, that 

plaintiffs had properly alleged parallel conduct, the amended 

complaint still fails to show the “something more” needed to 

turn conscious parallelism into a plausible conspiracy. Twombly, 

550 U.S. at 560. The majority contends that the “more” necessary 

to nudge SD3’s group boycott claim across the goal line is the 

complaint’s identification of “the particular time, place, and 

manner in which the boycott initially formed, describing a 

separate meeting [among table saw manufacturers] held for that 

purpose during the Power Tool Institute’s October 2001 annual 

meeting.” Ante at 33 (citation omitted). This, we are told, is 

“the heart of SawStop’s complaint.” Ante at 35.
89

But perfectly lawful trade association meetings do in fact 

take place on a particular day at a particular time for a 

particular purpose. And the majority’s assertion that table saw 

manufacturers broke off in a “separate meeting” in the course of 

a larger trade convention is nothing more than a description of 

ordinary conduct. Indeed, it would be unusual for a bar 

association meeting, health care convention, or any other 

industry-wide gathering not to break out into more specialized 

subgroups to discuss matters of common interest. We need not 

coin the term “breakout discussion liability” to note that these 

sessions have long been a staple of business and professional 

life, and the majority has now made even this form of 

communication more perilous.

Courts have recognized behavior contrary to defendants’ 

economic interests as a plus factor for showing concerted 

action. See, e.g., Hyland v. HomeServices of America, Inc., 771 

F.3d 310, 320 (6th Cir. 2014). It is hard to see how any 

defendant in this case acted against its economic interest. SD3 

boldly asserts that, but for the boycott, all table saw 

manufacturers would have licensed its technology. J.A. 92. There 

is little support for such inflated self-confidence. Plaintiffs 

conceded that any licensing agreements could not have taken 

effect until 2004, and that its technology would not have been 

fully implemented until 2008 -- years after it demanded 
90

industry-wide acceptance. J.A. 92. Defendants were also 

concerned that the new technology could actually increase hand 

injuries, discourage the use of blade guards, and fail to 

address “kickback” injuries. J.A. 87, 101. Despite the lukewarm 

reception, SD3 set its royalty rate at approximately 8% of 

wholesale prices, a costly gamble for manufacturers operating on 

often thin and always uncertain profit margins. Response Br. 1; 

J.A. 86. For all these reasons, it was consistent with each 

manufacturer’s best interest to reject an expensive, unproven, 

undeveloped, and possibly unsafe technology. Each defendant 

could easily have arrived at this business decision on its own.

One recalls the World’s Fairs at the end of the nineteenth 

and beginning of the twentieth century. They were held almost 

annually, most often serving as the epicenter for a brisk 

competition among participating countries to produce the most 

creative and technologically advanced exhibitions. It was then, 

as now, a time of unusual inventiveness. The fairs were humming 

with booths, tables, exhibits, and displays all designed to show 

off new technologies and create a buzz about new products. Some 

of those products succeeded spectacularly; a far larger number 

cratered. The point is simply that manufacturers should be able 

to take into account the time it takes, after the initial hype, 

for an invention to become one of practical and marketable 

utility that would not expose consumers to injury or 
91

manufacturers to liability. The majority, however, takes no 

cognizance of lag time, which not only exists, as it always has, 

in product development but in the most highly touted medical 

discoveries. Yet consciousness of lag time is something no 

prudent business is without.

Ignoring the many practical reasons for declining SD3’s 

offers, the majority hones in on the fear of product liability 

as the key motivation behind defendants’ alleged boycott. Ante

at 37-39. This, we are told, is the “why.”1 Ante at 37. 

Defendants counter that no manufacturer rushed to adopt SawStop 

technology even after SD3 began producing its own saws in 2004. 

Response Br. 32. The majority answers on plaintiffs’ behalf: 

SD3 remained too small a player in the table saw market to pose 

a significant threat in products liability suits. Ante at 38. 

Yet the earlier products liability cases involving SawStop 

technology focused on the “mechanical feasibility,” not the 

 1 In making this point, the majority credits scraps of 

testimony from David Peot cherry-picked by SD3 while it ignores 

the district court’s diligent review of the full trial 

transcript. Ante at 37. When read in full, Peot’s testimony 

focused on defendants’ joint venture, formed years after the 

alleged group boycott. J.A. 134-40. Far from revealing a 

collective refusal to deal, Peot clarified that defendants 

planned “to use whatever technology we felt would be best to 

prevent table saw accidents. There were no limitations that I 

can remember one way or the other.” J.A. 140. This discrepancy 

is emblematic of plaintiffs’ attempt to conjure a conspiracy and 

of the majority’s willingness to overlook the holes in the 

narrative.
92

market share, of a “safer alternative design.” Osorio v. One 

World Technologies Inc., 659 F.3d 81, 85 (1st Cir. 2011) 

(citation omitted). Different design features anywhere in use 

are routinely used comparatively in products liability 

litigation. SD3’s entry into the market should have put 

defendants at a serious disadvantage in products liability 

suits. J.A. 90. And yet still defendants refused to bite at 

SD3’s product. Either they were never motivated by product 

liability concerns in the first place or those concerns were 

outweighed by other drawbacks (too costly, ineffective, or 

unsafe) to licensing SawStop technology.

Of course, if manufacturers miscalculate in failing to 

adopt safer technologies, products liability lies in wait. But 

products liability and antitrust law each serve different and 

valid interests. Nothing is to be gained by scrambling them in a 

way that has the two bodies of law working at cross purposes 

such that manufacturers are forbidden, on pain of antitrust 

liability, from discussing and weighing product liability 

concerns.

D.

By casting product liability concerns as the driver of 

anticompetitive conduct, the majority risks curtailing 

communication critical to technological development. We would 

seemingly want manufacturers to be concerned about products 
93

liability. Products liability law exists to make businesses 

cognizant of the risks their products create and to encourage 

them to take steps to avoid such liability. Open and honest 

dialogue among competitors can help locate product 

vulnerabilities and formulate solutions, hopefully leading to 

improved consumer safety. But the majority forces the defendants 

into yet another a double bind: They face product liability 

suits either for refusing to use what SD3 alleges is a safer 

product or for adopting an untested product that could well fail 

to work as advertised. The industry would have been foolish not 

to discuss the risks either way. It makes little sense to dampen 

such discussions prematurely with the specter of antitrust 

liability.

Working together, whether cooperating in a joint venture or 

simply exchanging information at a trade association meeting, 

can not only save industry participants -- and therefore 

consumers -- time and money but can also spawn innovations that 

no participant could have achieved alone. Given the speed at 

which product development now moves and the increased 

specialization of many industries, “much innovation today is 

likely to require lateral and horizontal linkages as well as 

vertical ones.” Thomas M. Jorde & David J. Teece, Rule of Reason 

Analysis of Horizontal Arrangements: Agreements Designed to 

Advance Innovation and Commercialize Technology, 61 Antitrust 
94

L.J. 579, 590 (1993). Particularly for smaller firms with 

limited resources or in patent-heavy industries, professional 

conclaves offer an efficient means of acquiring information. In 

an ever more complex world, sharing information becomes vital to 

the holistic perspectives so crucial for highly specialized 

companies to keep pace. To that end, sharing information assists 

American industry in the increasingly competitive global 

marketplace. 

To take but one example, industry-wide coordination has 

been a driving force for technological progress in American 

semiconductor manufacturing. In 1987, semiconductor producers 

established a consortium that pooled resources and gathered 

information from across what was then a stagnant industry. 

Thomas M. Jorde & David J. Teece, Innovation, Cooperation and 

Antitrust, 4 Berkeley Tech. L.J. 1, 35 (1989). Since then, 

semiconductor manufacturers not only reduced the size of their 

circuits -- from 500 nanometers (nm) to 45 nm -- but they also 

more than quadrupled the number of transitors, or amplifiers, in 

semiconductor chips. Rahul Kapoor & Patia J. McGrath, Unmasking 

the Interplay Between Technology Evolution and R&D 

Collaboration: Evidence from the Global Semiconductor 

Manufacturing Industry, 1990-2010, 43 Res. Pol’y 555, 559 

(2014).
95

Standard-setting bodies offer similar advantages. See

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 

500-01 (1988). Compatibility standards make markets more 

efficient by making parts interchangeable, benefitting both 

producers and consumers who want to change products or shop 

around. Joseph Farrell & Garth Saloner, Standardization, 

Compatibility, & Innovation, 16 Rand J. Econ. 70, 70-71 (1985). 

And properly devised safety standards both provide consumers 

some guarantee of minimum safety and encourage producers to 

adopt safer albeit more expensive features, buoyed by the hope 

that consumers may realize these products are more expensive 

because they are safer to use. The standards thus help to 

prevent cheaper, shoddy or unsafe products from undercutting 

manufacturers trying to protect consumer welfare. These and many 

other benefits to consumers and competition alike can accrue 

from standardization.

I commend the majority for recognizing some of the virtues 

of standard-setting organizations.2 Ante at 48. In doing so, 

however, it gets caught in a contradiction: the majority 

acknowledges the monopolistic aims in plaintiffs’ standard-

 2 I thus concur in Part VI of the majority opinion 

dismissing SD3’s challenge to the actions of the standardsetting organization, Underwriters Laboratories, Inc. (UL). I 

also concur in Part III rejecting SD3’s claims against a number 

of defendants simply lumped into a conspiracy through nothing 

more than conclusory allegations.
96

setting conspiracy claim but turns a blind eye to the same 

anticompetitive impulse driving SD3’s group boycott allegation. 

Compare ante at 51-54 with ante at 37. Its opinion fails to 

comprehend the totality of what SD3 aims to achieve here.

When taken in its entirety, plaintiffs’ use of antitrust 

law strikes at the heart of even the most constructive 

horizontal cooperation. I recognize that collaboration may shade 

into collusion, the very evil that the Sherman Act was designed 

to prevent. See, e.g., Am. Soc’y of Mech. Eng’rs, Inc. v. 

Hydrolevel Corp., 456 U.S. 556 (1982) (finding liability where 

competitors incorrectly declared product unsafe to exclude it 

from market); Radiant Burners, Inc. v. Peoples Gas Light & Coke 

Co., 364 U.S. 656 (1961) (finding valid cause of action when 

competitors excluded innovative product from market through nonobjective safety standards).

And yet many minds may be better than one. Joint ventures, 

standard-setting organizations, and trade association meetings 

may allow individuals of different specialties to benefit from 

each other’s expertise. These fora may prove invaluable for 

efficient and effective product development. Those efficiencies 

in turn generate reduced costs of doing business that can then 

be passed along to the consumer in the form of reduced prices 

and better products. Some forms of collaborative endeavors, in 

other words, are not so inherently conspiratorial that their 
97

benefits can be overlooked. The majority ignores all this in its 

rush to flatten pleading standards, make communications 

perilous, and consign antitrust law to isolationist ends. It is 

an odd time for the majority to assume a more isolationist 

stance. It raises the risk that antitrust law will render 

American companies comparatively incommunicative and thus at a 

competitive disadvantage at the very time global commercial 

interactions are becoming more commonplace.

III.

I have seldom read a complaint where so many defendants 

were named in the complaint (twenty-two) and so few were 

actually discussed (four). I have seldom seen a complaint in 

which a supposed group boycott fell apart for so many reasons 

and in so many directions. Even applying the most generous 

assumptions, one is hard pressed to find a plausible group 

boycott claim in defendants’ divergent and market-explicable 

conduct. After all, SD3 has not been excluded from the 

marketplace. Its SawStop technology is currently available 

through its own production. Though it would have liked to corner 

the market through the industry’s leading manufacturers and 

standard-setting organization, it had no right to establish what 

was in effect a monopoly all its own. SD3 aims to force all 

manufacturers, through its group boycott claim, to adopt its 
98

technology at its prices and to have the industry’s standardsetting organization do the same.

It is disappointing that such a skimpy complaint pressing 

such anticompetitive ends should be allowed to traduce the 

Twombly standard and coopt antitrust law for the precise 

monopolistic purposes that the Sherman Act was designed to 

prevent. The fallout will disable American companies from all 

sorts of cooperative communication, from the most innocuous to 

the most productive. If the complaint had spun even a remotely 

plausible narrative of impermissible collusion, I should have 

been the first to wave it through the Twombly gates. See, e.g., 

Robertson v. Sea Pines Real Estate, 679 F.3d 278 (4th Cir. 

2012). But I cannot conspire with my colleagues in the demise of 

the Twombly decision. For the reasons stated above, I 

respectfully dissent.