United States Court of Appeals

For the First Circuit

No. 21-1115

ROBERTO VÁZQUEZ-RAMOS; IRMA VÁZQUEZ-RAMOS; CONJUGAL PARTNERSHIP 

VÁZQUEZ-RAMOS; JAVIER E. COLÓN-IRIZARRY; ADVANCED UROLOGY GROUP, 

LLC; LUIS M. MUÑIZ-COLÓN; WEST UROLOGY GROUP PSC; JUAN M. COLÓNRIVERA; CARIBBEAN UROCENTRE, CSP,

Plaintiffs, Appellants,

v.

TRIPLE-S SALUD, INC.; HÉCTOR M. RODRÍGUEZ-BLÁZQUEZ; UROLOGICS, 

LLC; MSO OF PUERTO RICO, LLC; UROLOGIST, LLC,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Silvia Carreńo-Coll, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges,

and Woodlock,* District Judge.

Jorge Martínez-Luciano, with whom Emil Rodríquez-Escudero and 

M.L. & R.E. Law Firm were on brief, for appellants. 

César T. Alcover, with whom Carla S. Loubriel Carríon and 

Casellas Alcover & Burgos, PSC were on brief, for appellees 

Urologics, LLC; Urologist, LLC; and Héctor Rodríguez-Blázquez. 

Luis R. Roman-Negron, for appellee Triple-S Salud, Inc. 

Iván J. Lladó, with whom Ramón E. Dapena and Morell Cartagena 

& Dapena were on brief, for appellee MSO of Puerto Rico, LLC. 

* Of the District of Massachusetts, sitting by designation. 
December 8, 2022
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KAYATTA, Circuit Judge. This appeal arises from the 

dismissal under Federal Rule of Civil Procedure 12(b)(6) of an 

attempted antitrust challenge to what look to be standard exclusive 

dealing arrangements incident to the maintenance of closed health 

care networks. Such challenges rarely succeed, largely because 

such arrangements rarely pose significant harm to competition and 

are often pro-competitive. See, e.g., Stop & Shop Supermarket Co.

v. Blue Cross & Blue Shield of R.I., 373 F.3d 57, 62, 65-66 (1st 

Cir. 2004); U.S. Healthcare, Inc. v. Healthsource, Inc., 986 F.2d 

589, 595 (1st Cir. 1993); Cap. Imaging Assocs., P.C. v. Mohawk 

Valley Med. Assocs., Inc., 996 F.2d 537, 545-47 (2d Cir. 1993); 

B&H Med., L.L.C. v. ABP Admin., Inc., No. 02-73615, 2004 WL 

7347089, at *14 (E.D. Mich. Oct. 29, 2004), aff'd, 526 F.3d 257 

(6th Cir. 2008). That being said, the issue now is not whether 

the difficulty of prevailing on such claims is daunting. Rather, 

the only issue is whether the amended complaint does enough to 

"state a claim to relief that is plausible on its face." Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the following 

reasons, we find that, in part, it does. 
- 4 -

I.

We begin by summarizing the relevant aspects of the two 

public health insurance programs at issue before turning to 

plaintiffs' claims and the proceedings below. In so doing, we 

"accept[] all well-pleaded allegations of plaintiffs as true and 

afford[] all inferences in the plaintiffs' favor." Arroyo-Melecio

v. Puerto Rican Am. Ins. Co., 398 F.3d 56, 65 (1st Cir. 2005). 

A.

Prior to 1993, healthcare for medically indigent 

populations in Puerto Rico was largely provided through publicly 

owned facilities operated by local governments. In 1993, the 

Commonwealth sought to improve the provision of public healthcare 

on the island by passing Act 72, see P.R. Laws Ann. tit. 24, § 7001 

et seq. (1993), which privatized most healthcare facilities and 

created a new government-run healthcare plan (branded as Mi Salud 

at the time of the relevant events). See id. § 7025. Mi Salud 

operated as a public health insurance system funded mostly through 

Medicaid grants and funds collected from the Commonwealth and 

municipal governments. Act 72 also created the Puerto Rico Health 

Insurance Administration ("ASES," by its Spanish acronym), see id.

§ 7001, and delegated the administration of Mi Salud to that 

agency, see id. §§ 7003–04. 

To implement Mi Salud, ASES divided Puerto Rico into 

eight geographical regions and assigned a single private 
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healthcare insurer to each region. The agency then entered into 

contracts with the insurers to deliver the required services in 

the insurers' respective regions. The designated insurers in each 

region were tasked with contracting with healthcare providers to 

provide covered services to Mi Salud patients in the region. As 

relevant to this appeal, ASES retained defendant Triple-S Salud, 

Inc. ("Triple-S") as the Mi Salud insurer for the Western Region 

of Puerto Rico, an area encompassing over 200,000 medically 

indigent patients.1 

In conjunction with the federal government, the 

Commonwealth also operates a health insurance system called the 

Medicare Advantage Program (also known as Medicare Part C). 

Medicare Advantage provides coverage to qualified beneficiaries 

under the Medicare Act, 42 U.S.C. § 1395 et seq., which generally 

covers elderly and disabled individuals. Private insurers enter 

into contracts with the federal government to manage Medicare 

Advantage plans for people in Puerto Rico. Medicare y Mucho Más 

("MMM"), one such insurer, is one of the largest Medicare Advantage 

Program coverage facilitators in Puerto Rico. Defendant MSO of 

Puerto Rico, LLC ("MSO") is the administrator of the provider 

network for the Medicare Advantage population insured by MMM and 

1 In November 2018, Mi Salud was rebranded as Vital and 

abandoned the regional model. See Vázquez-Ramos v. Triple-S Salud, 

Inc., Civ. No.: 19-1527, 2020 WL 8513843, at *1 n.1 (D.P.R. 

Dec. 15, 2020). 
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contracts with physicians and healthcare providers to serve MMM's 

Medicare Advantage patients. 

B.

Plaintiffs are urologists and urology practices with 

offices in the Western Region of Puerto Rico. Until the summer of 

2015, plaintiffs were under contract with Triple-S to provide 

urology services to urology patients in the area. A subset of the 

plaintiffs -- Dr. Roberto Vázquez-Ramos, Dr. Javier Colón-Rivera, 

and Caribbean Urocentre, CSP ("Medicare Advantage plaintiffs") --

were also under contract with MSO to provide urology services to 

qualified MMM Medicare Advantage patients in Western Puerto Rico. 

In early 2015, unbeknownst to plaintiffs, Triple-S began 

conversations with Dr. Rodríguez-Blázquez, a competitor urologist, 

about having Dr. Rodríguez and companies owned by him 

(collectively, "Urologics") become the exclusive provider of 

urology services for Mi Salud patients in Western Puerto Rico. 

MSO had similar conversations with Urologics regarding MMM 

patients. After these conversations, Triple-S and MSO both 

declined to renew their contracts with various plaintiffs and 

instead both entered into separate agreements with Urologics for 

Urologics to become their exclusive urology provider in Western 

Puerto Rico. The amended complaint alleges two markets relevant 

to plaintiffs' claims: the market of Mi Salud patients in Western 

Puerto Rico and the market of MMM Medicare Advantage patients in 
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Western Puerto Rico. Plaintiffs claim that the exclusive dealing 

agreements excluded them from one or both of those markets in a 

manner that constitutes both an unlawful agreement under section 1 

of the Sherman Act, 15 U.S.C. § 1, and an unlawful acquisition and 

use of monopoly power under section 2 of the Sherman Act, id. § 2. 

Plaintiffs also allege parallel claims under the Commonwealth's 

competition and tort laws. In neither instance do plaintiffs 

allege any concerted action between Triple-S and MSO. 

Plaintiffs assert that the exclusive dealing 

arrangements have caused them to lose business and have made it 

more difficult for patients to obtain adequate urology services in 

Western Puerto Rico. Plaintiffs further contend that Mi Salud 

patients have received lower quality care following the TripleS/Urologics agreement due to Urologics' purported inability to 

sufficiently provide coverage to the region and to its alleged 

practice of prioritizing profits over efficacy in its treatment 

decisions.2 

2 Urologics contends that ASES -- as the agency empowered to 

hear and resolve grievances over administration of the Mi Salud 

program -- has exclusive primary jurisdiction to resolve 

plaintiffs' claims as to the quality of urology services provided 

to Mi Salud patients. We have explained previously that "the 

primary jurisdiction doctrine has little to do" with federal 

antitrust cases "and it certainly does not go to the subject matter 

jurisdiction of the federal court." Arroyo-Melecio, 398 F.3d at 

73; see also P.R. Mar. Shipping Auth. v. Fed. Mar. Comm'n, 75 F.3d 

63, 67 (1st Cir. 1996). In any event, issues of patient care play 

no dispositive role in our decision concerning the sufficiency of 

plaintiffs' pleading. 
- 8 -

The district court granted defendants' motion to dismiss 

plaintiffs' amended complaint. First, the court held that 

plaintiffs lacked antitrust standing -- a prudential requirement 

designed to ensure that plaintiffs are the proper parties to bring 

federal antitrust claims. See Vázquez-Ramos v. Triple-S Salud, 

Inc., Civ. No.: 19-1527, 2020 WL 8513843, at *3 (D.P.R. Dec. 15, 

2020). Second, and in the alternative, the district court 

concluded that the amended complaint failed to state a claim under 

either section 1 or section 2 of the Sherman Act. See id. at *4-5. 

Finally, having dismissed all the federal claims, the district 

court declined to exercise supplemental jurisdiction over 

plaintiffs' remaining Commonwealth law antitrust and tort claims 

and dismissed those claims without prejudice. See id. at *5-6. 

Dissatisfied with this outcome, plaintiffs timely appealed. 

II.

We review a motion to dismiss de novo. Arroyo-Melecio, 

398 F.3d at 65. Before delving into the merits of plaintiffs' 

claims, we first consider whether plaintiffs have standing to 

proceed with their federal antitrust action. 

Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 

26, create private causes of action for violations of federal 

antitrust law.3 To bring such claims, plaintiffs must not only 

3 Section 4 establishes that "any person who shall be injured 

in his business or property by reason of anything forbidden in the 
- 9 -

meet the typical requirements of Article III standing but also the 

requirements of the so-called "antitrust standing" doctrine. See

Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 

Carpenters, 459 U.S. 519, 535 n.31 (1983). In this appeal, no 

defendant contests plaintiffs' Article III standing. Nor have we 

any doubts on that front. The only question is whether plaintiffs 

also have antitrust standing. 

The purpose of the antitrust standing doctrine is "to 

avoid overdeterrence" and to "ensure that suits inapposite to the 

goals of the antitrust laws are not litigated and that persons 

operating in the market do not restrict procompetitive behavior 

because of a fear of antitrust liability." Serpa Corp. v. McWane, 

Inc., 199 F.3d 6, 10 (1st Cir. 1999) (quoting Todorov v. DCH 

Healthcare Auth., 921 F.2d 1438, 1449 (11th Cir. 1991)). To 

further this purpose, we seek to ensure that the prospective 

antitrust plaintiff has suffered an injury of the kind antitrust 

laws were intended to prevent, such that the plaintiff is a proper 

party to bring a federal antitrust suit. To determine the 

existence of antitrust standing consistent with this purpose, we 

employ a six-factor test, assessing: 

antitrust laws may sue therefor . . . and shall recover threefold 

the damages by him sustained." 15 U.S.C. § 15(a). And section 16 

provides that "[a]ny person, firm, corporation, or association 

shall be entitled to sue for and have injunctive relief . . .

against threatened loss or damage by a violation of the antitrust 

laws." Id. § 26. 
- 10 -

(1) the causal connection between the alleged 

antitrust violation and harm to the 

plaintiff;

(2) an improper motive; 

(3) the nature of the plaintiff's alleged 

injury and whether the injury was of a 

type that Congress sought to redress with 

the antitrust laws ("antitrust injury"); 

(4) the directness with which the alleged 

market restraint caused the asserted 

injury; 

(5) the speculative nature of the damages; 

and 

(6) the risk of duplicative recovery or 

complex apportionment of damages. 

RSA Media, Inc. v. AK Media Grp., Inc., 260 F.3d 10, 14 (1st Cir. 

2001) (quoting Serpa, 199 F.3d at 10). 

Five of the above factors plainly point towards 

antitrust standing for plaintiffs in this case. The causal 

connection here is patent: The exclusive dealing arrangements 

plainly foreclose plaintiffs from selling their services to 

Triple-S and MSO. The motive, as alleged, is to improperly 

establish a monopoly for Urologics. The injury as alleged is 

direct. And damages seem calculable by establishing the value of 

lost sales. Conceivably, if consumers sued, there could be some 

double recovery, but that seems speculative at this point.

The remaining factor -- whether the injury is an 

"antitrust injury" -- is what gave the district court pause. The 

Supreme Court has defined an "antitrust injury" as "injury of the 

type the antitrust laws were intended to prevent and that flows 
- 11 -

from that which makes defendants' acts unlawful." Brunswick Corp.

v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 489 (1977). In other 

words, the alleged injury must be "the type of injury the antitrust 

violation would cause to competition." Sterling Merch., Inc. v. 

Nestlé, S.A., 656 F.3d 112, 121 (1st Cir. 2011). Lack of an 

antitrust injury is typically enough by itself to negate standing. 

See RSA Media, 260 F.3d at 14.

The district court concluded that plaintiffs failed to 

allege any antitrust injury that was caused by defendants' 

allegedly anticompetitive arrangements. See Vázquez-Ramos, 2020 

WL 8513843, at *3. With respect to the arrangement between TripleS and Urologics, the court acknowledged that, although "Triple-S 

was the only option in the Western Region of Puerto Rico [Mi Salud 

market]" and "[patients] in that market only had one choice of 

insurer and therefore only one choice of urologist," the only 

proper plaintiffs to bring an antitrust claim in that market "would 

be the patients who are allegedly receiving inferior services, 

i.e., the customers, not the individual doctors who lost out on 

business when their services were no longer desirable." Id. And, 

with respect to the arrangement between MSO and Urologics, the 

court explained that there were "many other MMM providers in 

addition to MSO available in Western Puerto Rico," so patients did 

not have only one insurer and one urologist to choose from. Id. 
- 12 -

This meant that "there was no antitrust injury as to MSO." Id.4 

For the following reasons, we disagree as to both of the challenged 

exclusive dealing arrangements -- between Triple-S and Urologics 

and between MSO and Urologics. 

A.

We consider first whether plaintiffs allege antitrust 

injury as a result of the exclusive dealing arrangement between 

Triple-S and Urologics. The amended complaint plainly alleges a 

closed provider network in which all Triple-S insureds who want to 

obtain urology services paid for by Triple-S must do business with 

Urologics. That is to say, during the time period covered by the 

exclusive dealing agreement, Urologics' competitors are excluded 

from competing in the alleged market of Triple-S's 200,000 insureds 

in Western Puerto Rico. Having been directly harmed by the alleged 

elimination of competition in that alleged market, they have 

plainly suffered an antitrust injury (assuming that the challenged 

agreement is itself an antitrust violation). Nor is this by any 

means surprising. The competitor of an entity granted exclusive 

rights to a market is routinely the plaintiff that brings an 

antitrust complaint as the party directly harmed by the elimination 

4 Although plaintiffs bring independent claims under 

section 1 and section 2 of the Sherman Act, each of the alleged 

exclusive dealing arrangements provides the foundation of both 

corresponding claims. Accordingly, whether plaintiffs adequately 

alleged antitrust standing as to each claim depends on the same 

analysis. We therefore address them together. 
- 13 -

of competition in the foreclosed market. SAS of P.R., Inc. v. 

P.R. Tel. Co., 48 F.3d 39, 44 (1st Cir. 1995) (explaining that a 

presumptively proper plaintiff in an antitrust suit includes "a 

competitor who seeks to serve [a threatened] market"). Thus, even 

though plaintiffs are not competitors of Triple-S themselves, they 

are competitors of Urologics and are suing in that capacity. 

None of this belies the district court's observation 

that the amended complaint also alleges that the challenged 

agreements harm patients as well. But we see no reason why the 

occurrence of that harm deprives plaintiffs of standing to sue for 

the economic effects of being foreclosed from selling services in 

an alleged market. In most exclusive dealing cases there will be 

someone like the patients here, i.e., someone who would have bought 

goods or services from plaintiff but for the exclusive dealing 

rights acquired by plaintiff's competitor. Indeed, the extent of 

such harm is relevant to determining whether the exclusive dealing 

arrangement is reasonable. See infra Section III(B)(1). If 

existence of such harm means that the vendor precluded from 

competing in the market cannot sue, then the exclusive arrangements 

most likely to be deemed unlawful cannot be challenged by those 

with the greatest incentive to sue. So, too, remedying any harm 

to consumers would not likely remedy the economic loss claimed by 

these plaintiffs. For these reasons, among others, the allegations 
- 14 -

that the exclusive dealing arrangement harmed patients do not 

provide a basis for denying standing to plaintiffs. 

Triple-S (not joined by Urologics) attempts one final 

argument, contending that there is no causal relationship between 

its decision to enter into an exclusivity agreement with Urologics 

and its decision not to renew its contracts with plaintiffs. Even 

assuming that Triple-S has no independent obligation to continue 

renewing its contracts with plaintiffs, that would not mean that 

Triple-S's decision to decline to renew those contracts is 

unrelated to its decision to enter into an allegedly 

anticompetitive agreement with Urologics. Indeed, as plaintiffs 

allege, the very purpose of the exclusive dealing arrangement 

between Triple-S and Urologics was to make Urologics Triple-S's 

sole urology provider in Western Puerto Rico. Given that goal, it 

should come as no surprise that Triple-S, in furtherance of its 

exclusivity arrangement with Urologics, declined to renew its 

contracts with plaintiffs. It is thus entirely plausible that 

Triple-S's decision not to deal with plaintiffs was causally 

related to its pact to deal exclusively with Urologics. 

In sum, at the motion to dismiss stage, the allegations 

in the amended complaint plausibly establish that those plaintiffs 

who could have serviced Triple-S's Mi Salud patients but for the 

exclusive arrangement between Triple-S and Urologics have 

antitrust standing to challenge that arrangement. 
- 15 -

B.

As for the exclusive dealing arrangement between MSO and 

Urologics, the standing allegations in the amended complaint 

against MSO are nearly identical to those against Triple-S. The 

three Medicare Advantage plaintiffs claim that they were excluded 

from competing in a market for urology services for MMM's Medicare 

Advantage patients in Western Puerto Rico due to MSO's exclusivity 

arrangement with Urologics. As with Triple-S, the amended 

complaint alleges that the Medicare Advantage plaintiffs suffered 

monetary losses as a result. Those losses, no less than the ones 

alleged by foreclosed Mi Salud providers, appear on their face to 

be of the type that the antitrust laws were intended to address. 

As far as the district court's conclusion that there 

were alternative purchasers of MMM services in Western Puerto Rico, 

MSO acknowledges that the district court was in error when it 

stated that there are other MMM facilitators in addition to MSO. 

MMM works exclusively with MSO. As MSO explains in its briefing 

before this court, there are nevertheless other Medicare Advantage 

insurers (i.e., competitors of MMM) that operate in Western Puerto 

Rico. Plaintiffs do not contest this point. However, the 

significance of other available buyers of plaintiffs' services 

bears more on the degree of market foreclosure, and less (if at 

all) on whether the alleged foreclosure gives rise to antitrust 

injury. 
- 16 -

In their briefing on antitrust standing, the Urologics 

and MSO defendants at various points also argue that the Medicare 

Advantage plaintiffs improperly defined the relevant market for 

their antitrust claims. Neither of these defendants, however, 

explain why the precise contours of the relevant market are 

relevant to assessing antitrust standing in this case as compared 

to the merits of those claims. Accordingly, we interpret 

defendants' market definition contentions as speaking to whether 

the Medicare Advantage plaintiffs adequately stated Sherman Act 

section 1 and section 2 claims, which we address next. 

III.

Satisfied that all plaintiffs have standing to bring 

their federal antitrust claims, we proceed to assess whether the 

amended complaint actually alleges antitrust claims. Our review 

remains de novo. Arroyo-Melecio, 398 F.3d at 65. 

Plaintiffs bring suit under two provisions of the 

Sherman Act: section 1, which proscribes contracts and 

conspiracies in restraint of trade; and section 2, which prohibits 

the monopolization or attempted monopolization of an area of trade. 

The district court held that plaintiffs failed to state a section 1 

claim or a section 2 claim based on either the exclusive dealing 

arrangement between Triple-S and Urologics or the arrangement 

between MSO and Urologics. Vázquez-Ramos, 2020 WL 8513843, at 

*4-5. We find that the district court erred in dismissing the 
- 17 -

claims involving Triple-S's arrangement with Urologics, but we 

agree with the district court that the claims involving MSO's 

arrangement must be dismissed. Our reasoning follows. 

A.

We start with an element common to both claims against 

both parties: market power. Given that the amended complaint 

alleges no per se violations of the Sherman Act, all of plaintiffs' 

antitrust claims require "proof that [defendants] exercise[] or 

could exercise a threshold degree of market power." Flovac, Inc.

v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016); see Ohio v. 

Am. Express Co., 138 S. Ct. 2274, 2285 (2018) (noting that "courts 

usually cannot properly apply the rule of reason" in a section 1 

claim "without an accurate definition of the relevant market"); 

Díaz Aviation Corp. v. Airport Aviation Servs., Inc., 716 F.3d 

256, 265 (1st Cir. 2013) (explaining that "monopoly power" in the 

context of a section 2 claim "is typically proven by defining a 

relevant market and showing that the defendant has a dominant share 

of that market"). To that end, plaintiffs must in due course 

"adduc[e] enough evidence to permit a reasonable factfinder to 

define the relevant market." Flovac, 817 F.3d at 853. The 

relevant market is "the area of effective competition," Am. 

Express, 138 S. Ct. at 2285 (quoting Walker Process Equip., Inc., 

v. Food Mach. & Chem. Corp., 382 U.S. 172, 177 (1965)), and 
- 18 -

includes both a "relevant geographic market" and a "relevant 

product market," Flovac, 817 F.3d at 853. 

Plaintiffs allege that the relevant market for the 

agreement between Triple-S and Urologics is the narrow market of 

Mi Salud's 200,000 insureds in Western Puerto Rico. If that were 

the relevant market, then we would arguably have a case in which 

the exclusive arrangement closes off 100% of the market -- enough 

to get an adjudicator's attention depending on duration, 

justification, and other factors bearing on whether the defendants 

effectively dominate the market. See ZF Meritor, LLC v. Eaton 

Corp., 696 F.3d 254, 271-72 (3d Cir. 2012); United States v. 

Dentsply Int'l, Inc., 399 F.3d 181, 191-97 (3d Cir. 2005). 

Conversely, defendants claim that the relevant market consists 

more broadly of all urology patients, whether insured by Triple-S 

or not, and not necessarily limited to Western Puerto Rico. There 

are other insurers, they allege, to whom plaintiffs may sell their 

services, as well as uninsured patients. 

In Stop & Shop Supermarket Co. v. Blue Cross & Blue 

Shield of Rhode Island, we confronted a similar antitrust challenge 

to a health insurer's closed provider network raised following 

partial summary judgment on claims of per se antitrust violations 

and a directed verdict on the rule of reason antitrust claim. 373 

F.3d 57 (1st Cir. 2004). We explained that "it was critical to 

any attack on [an] exclusive dealing arrangement . . . that 
- 19 -

plaintiffs establish a relevant market and harm within it." Id.

at 66. We further explained that the relevant market is the market 

for the "shut-out supplier," and is presumptively all customers, 

"not just that smaller sub-group consisting of customers insured 

by one or two insurers." Id. at 67; see also Flovac, Inc. v. 

Airvac, Inc., 84 F. Supp. 3d 95, 104 (D.P.R. 2015), aff'd, 817 

F.3d 849 (1st Cir. 2016) ("And where, as here, an antitrust 

plaintiff neglects to 'define its proposed relevant market with 

reference to the rule of reasonable interchangeability and crosselasticity of demand, or alleges a proposed relevant market that 

clearly does not encompass all interchangeable substitute products 

even when all factual inferences are granted in plaintiffs' favor, 

the relevant market is legally insufficient.'" (quoting City of 

New York v. Grp. Health Inc., 649 F.3d 151, 155 (2d Cir. 2011))). 

That being said, "well-defined submarkets may exist" 

inside a broad product market and may themselves "constitute 

product markets for antitrust purposes." Brown Shoe Co. v. United 

States, 370 U.S. 294, 325 (1962). The boundaries of a defined 

submarket are "determined by examining such practical indicia as 

industry or public recognition of the submarket as a separate 

economic entity, the product's peculiar characteristics and uses, 

unique production facilities, distinct customers, distinct prices, 

sensitivity to price changes, and specialized vendors." Id. 
- 20 -

In affirming judgment for defendants in Stop & Shop, we 

had the benefit of an evidentiary record including expert testimony 

on the subject of market definition. Our reliance on an 

evidentiary record in Stop & Shop was not aberrational. See U.S. 

Healthcare, Inc., 986 F.2d at 599 (noting that, "[i]n practice," 

the "question [of] how to define the product market is answered in 

antitrust cases by asking expert economists to testify" to issues 

including "[u]sage patterns, customer surveys, actual profit 

levels, comparison of features, ease of entry, and many other 

facts"); see also Morales-Villalobos v. García-Lloréns, 316 F.3d 

51, 55 (1st Cir. 2003) ("[T]he matter [of market definition] cannot 

be resolved on the face of the complaint."). 

Here, by contrast, we stand at the pleading threshold, 

with a record yet to be fleshed out with evidence and expert 

opinions. We therefore ask only whether the amended complaint 

alleges facts that plausibly delineate a relevant market. As to 

the Triple-S and Urologics arrangement, plaintiffs allege a market 

defined by the following characteristics: the geography delimited 

by ASES and Mi Salud (Western Puerto Rico), the indigency of the 

patients that qualifies them for Mi Salud and curtails their 

ability to seek healthcare elsewhere, and the reluctance of 

patients to travel long distances for medical care. 

Whether there is such a market remains to be seen. 

Perhaps there is no sufficient reason to segment out Mi Salud 
- 21 -

patients from those covered by other insurers, or those who are 

self-insured. Or perhaps many patients do travel between regions 

for services. The point for now is two-fold: Questions of fact 

remain about "the universe of products that are considered 

'reasonably interchangeable by consumers for the same purposes,'" 

Flovac, 817 F.3d at 854 (quoting United States v. E.I. du Pont de 

Nemours & Co., 351 U.S. 377, 395 (1956)); and we typically "do not 

require that the plaintiffs provide precise figures and 

calculations at the pleading stage," for "[r]equiring such a high 

burden would impose a nearly insurmountable bar for plaintiffs," 

In re Loestrin 24 Fe Antitrust Litig., 814 F.3d 538, 552 (1st Cir. 

2016); Morales-Villalobos, 316 F.3d at 55 (determining that, at

the motion to dismiss stage, it was not yet clear whether the 

market foreclosure was "a trivial percentage" or "nearly 

complete," and thus the matter of market definition could not "be 

resolved on the face of the complaint" because defining the 

relevant geographic market "depends on circumstances"). 

As to the claims against MSO, the amended complaint 

alleges as the market the MMM Medicare Advantage population of 

Western Puerto Rico. The foregoing analysis applies equally to 

this alleged market -- "the matter . . . cannot be resolved on the 

face of the complaint." Morales-Villalobos, 316 F.3d at 55. 

Whether that market definition provides any foundation for the 
- 22 -

claims against MSO on the merits is a matter we will separately 

address. 

Accordingly, we find that the amended complaint 

adequately alleges a relevant market for purposes of parrying a 

motion to dismiss as to both challenged exclusive dealing 

arrangements. Whether the amended complaint in both instances 

also alleges the other required elements of the asserted antitrust 

claims is a matter to which we turn next, addressing separately 

the two challenged arrangements. 

B.

1.

The amended complaint meets the requirements for stating 

a Sherman Act section 1 claim against Triple-S and Urologics. A 

section 1 claim has two components: "First, there must be 

concerted action"; and "[s]econd, the actors' agreement must 

involve either restrictions that are per se illegal or restraints 

of trade that fail scrutiny under the rule of reason." Euromodas, 

Inc. v. Zanella, Ltd., 368 F.3d 11, 16 (1st Cir. 2004). Section 1 

also prohibits "only unreasonable restraints." Leegin Creative 

Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 885 (2007) 

(quoting State Oil Co. v. Khan, 522 U.S. 3, 10 (1997)). 

As to the first component, and contrary to what 

defendants claim, the arrangements as alleged plainly involve 

concerted action: Urologics agreed to concede "certain discounts 
- 23 -

in favor of Triple-S, on account of the exclusive provider status 

that was being granted" and to "split" certain savings alleged to 

result from providing inferior and even harmful services. Indeed, 

the reciprocity established by the agreement resulted in lower 

prices for the insured patients, and thus for the insurer, and 

will likely be touted by defendants as evidence that the agreement 

is pro-competitive. In any event, the point for present purposes 

is that the pleading alleges facts that plausibly establish 

concerted action. 

Moving to the second component, plaintiffs do not allege 

any per se illegality. Accordingly, all parties agree that a rule 

of reason analysis is appropriate for assessing the exclusive 

dealing arrangement at issue. Under the rule of reason, courts 

engage in a "fact-specific assessment of 'market power and market 

structure . . . to assess the [restraint]'s actual effect' on 

competition." Am. Express, 138 S. Ct. at 2284 (alteration in 

original) (quoting Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 

752, 768 (1984)). The purpose of this inquiry is to distinguish 

between restraints of trade "that are harmful to the consumer and 

restraints stimulating competition that are in the consumer's best 

interest." Leegin, 551 U.S. at 886. 

Typically, courts apply a burden-shifting framework to 

determine whether a restraint violates the rule of reason. See

Am. Express, 138 S. Ct. at 2284; see also Phillip E. Areeda & 
- 24 -

Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust 

Principles and Their Application ¶ 1820a (5th ed. 2021). First, 

the plaintiff must "prove that the challenged restraint has a 

substantial anticompetitive effect that harms consumers in the 

relevant market." Am. Express, 138 S. Ct. at 2284. Then, the 

burden shifts to the defendant to demonstrate "a procompetitive 

rationale for the restraint." Id. Finally, the burden shifts 

back to the plaintiff to establish that "the procompetitive 

efficiencies could be reasonably achieved through less 

anticompetitive means." Id. Importantly, applying this framework 

usually requires some fairly detailed facts, the ascertainment of 

which is often beyond the scope of a Rule 12(b)(6) inquiry. See

PLS.Com, LLC v. Nat'l Ass'n of Realtors, 32 F.4th 824, 839–40 (9th 

Cir. 2022) (explaining that "whether the alleged procompetitive 

benefits of [the challenged restraint] outweigh its alleged 

anticompetitive effects is a factual question that the district 

court cannot resolve on the pleadings"); see also E. Food Servs., 

Inc. v. Pontifical Cath. Univ. Servs. Ass'n, 357 F.3d 1, 5 (1st 

Cir. 2004) (describing the assessment as a "fact-intensive 

process"). 

As recounted in greater detail above, plaintiffs allege 

that the exclusive dealing arrangement between Triple-S and 

Urologics has shut them out of a plausibly relevant market 

entirely. The result of this exclusion has been an elimination of 
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their ability to compete and an alleged reduction in the quality 

of urology services for Mi Salud patients in Western Puerto Rico. 

Taking the allegations in the amended complaint as true, plaintiffs 

have, for pleading purposes, demonstrated "reduced output . . . 

[and] decreased quality in the relevant market," which constitute 

"[d]irect evidence" of anticompetitive effects. PLS.Com, LLC, 32 

F.4th at 834 (quoting FTC v. Ind. Fed'n of Dentists, 476 U.S. 447, 

460 (1986)). We reiterate that "[i]t is not for the court to 

decide, at the pleading stage, which inferences are more plausible 

than other competing inferences"; rather, we may "only accept as 

true all factual allegations contained in a complaint, make all 

reasonable inferences in favor of the plaintiff, and properly 

refrain from any conjecture as to whether conspiracy allegations 

may prove deficient at the summary judgment or later stages." 

Evergreen Partnering Grp. v. Pactiv Corp., 720 F.3d 33, 45 (1st 

Cir. 2013). To do otherwise would "frustrate the purpose of 

antitrust legislation and the policies informing it." Id. at 47. 

As an alternative argument, Urologics points to a Letter 

of Intention and Confirmation of Preliminary Agreement between 

Triple-S and Urologics and to a participating physician agreement 

that contains a clause granting either party the right to terminate 

the agreement without cause on thirty days' notice. Urologics 

contends that the termination clause of the latter is incorporated 

into the former. If that were so, any possible market constraint 
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would likely be de minimis. U.S. Healthcare, 986 F.2d at 596. 

But the cross-referencing language to which Urologics points 

refers to the incorporation of "obligations," and thus arguably 

not rights.5 So whether either party retains the right to terminate 

the exclusive dealing arrangement on short notice remains to be 

seen. 

To be sure, at subsequent stages in this litigation, 

plaintiffs' claim that the challenged arrangement harms 

competition in a relevant market may prove to be overblown, or 

defendants might well show that the exclusive dealing arrangement 

between Triple-S and Urologics actually has a procompetitive 

effect. But at this stage, we are obliged to "accept[] all wellpleaded allegations of the plaintiffs as true and afford[] all 

inferences in the plaintiffs' favor." Arroyo-Melecio, 398 F.3d at 

65. 

We therefore conclude that plaintiffs have stated a 

Sherman Act section 1 claim based on the exclusive dealing 

arrangement between Triple-S and Urologics. 

2.

We next assess whether plaintiffs adequately plead a 

Sherman Act section 2 claim against Triple-S and Urologics. The 

5 The clause reads: "any obligation that arises from the 

contract of a participating provider . . . [will] also be 

applicable to this agreement" (emphasis supplied). 
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key questions for establishing a section 2 violation are whether 

the plaintiff has demonstrated that one of the defendants possessed 

"monopoly power in the relevant market" and whether that defendant 

acquired or maintained that power by "improper means." Town of 

Concord v. Bos. Edison Co., 915 F.2d 17, 21 (1st Cir. 1990); see 

also Arroyo-Melecio, 398 F.3d at 66 (explaining that a section 2 

claim "requires monopoly or near monopoly power in some market, 

and a wrongful exclusionary act designed to enhance such power in 

that market or to achieve an improper advantage in another market" 

(quoting Town of Norwood v. New Eng. Power Co., 202 F.3d 408, 420-

21 (1st. Cir. 2000))). 

We assume for the purposes of the motion to dismiss, as 

with the section 1 claim, that the relevant market for the 

section 2 claim is Mi Salud patients needing urological care in 

Western Puerto Rico. Plaintiffs allege that Urologics is the sole 

provider of urology services to Mi Salud patients in Western Puerto 

Rico, giving it monopoly power in the relevant market and leaving 

patients with only one choice of provider. Plaintiffs also allege 

that Urologics acquired this monopoly power not through any skill 

or merit but through improper means, namely an anticompetitive 

exclusive dealing arrangement with Triple-S that was designed to 

monopolize the relevant market and keep plaintiffs from competing 

in that market. We have noted that "exclusive dealing" is an 

improper means of maintaining monopoly power for the purposes of 
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section 2. See Fraser v. Major League Soccer, L.L.C., 284 F.3d 

47, 61 (1st Cir. 2002) ("In section 2 cases, the wrongful act is 

usually one designed to exclude competitors from the market (e.g., 

predatory price, exclusive dealing)."). Together, these 

allegations are sufficient, at the pleading stage, to establish a 

plausible section 2 claim against Triple-S and Urologics. 

Triple-S and Urologics argue in response that there can 

be no section 2 violation because Triple-S's position as the 

exclusive insurer for the Mi Salud program in Western Puerto Rico 

was conferred to it by the government of Puerto Rico through a 

contract with ASES. That is, they contend that Triple-S's monopoly 

power was the product of state action rather than any allegedly 

anticompetitive conduct involving the defendants. This argument, 

however, misses a crucial detail. Plaintiffs' amended complaint 

does not target only the monopoly power held by Triple-S as the 

sole insurer in the relevant market. Rather, plaintiffs point to 

the alleged monopoly held by Urologics as the sole provider of 

urology services in that market. It is this monopoly power over 

the provision of urology services that was allegedly created by 

the exclusive dealing agreement between Triple-S and Urologics. 

Accordingly, defendants' arguments that identify Triple-S as the 

relevant holder of monopoly power miss the mark. 
- 29 -

C.

The Medicare Advantage plaintiffs' challenge to the 

exclusive dealing agreement alleged to exist between MSO and 

Urologics fares less well. As the reader may recall, the Medicare 

Advantage plaintiffs define the market in which they compete as 

limited to Medicare Advantage patients in one area of Puerto Rico 

(Western Puerto Rico). Their amended complaint, though, does not 

allege that MSO controls a substantial portion of that market. 

Rather, plaintiffs point only to MSO's alleged control of physician 

contracts with MMM, which plaintiffs in turn describe as "one of 

the largest Medicare Advantage providers in Puerto Rico." This 

misalignment between the relevant market as defined in the amended 

complaint and the allegations of MMM's size in a much wider market 

eschewed by the amended complaint leaves the amended complaint

well short of alleging at least some facts making it plausible 

that plaintiffs will present a "showing of foreclosure of 

substantial dimensions" that is "the essential basis . . . for an 

attack on an exclusivity clause." U.S. Healthcare, Inc., 986 F.2d 

at 596-597; see Am. Express, 138 S. Ct. at 2284 (plaintiffs must 

demonstrate that defendant's decision to exclusively purchase from 

one provider could possibly have "a substantial anticompetitive 

effect that harms consumers in the relevant market"). Simply put, 

the amended complaint does not allege facts plausibly pointing to 
- 30 -

any substantial degree of foreclosure of the alleged market.6 As 

such, it fails to allege a violation of either sections 1 or 2 of 

the Sherman Act. See, e.g., E. Food Servs, 357 F.3d at 8-9. 

IV.

We therefore reverse the district court's order 

dismissing plaintiffs' federal antitrust claims concerning the 

arrangement between Triple-S and Urologics, and affirm the 

district court's order dismissing plaintiffs' federal antitrust 

claims concerning the arrangement between MSO and Urologics. 

Because we find that the federal claims of the plaintiffs who 

challenge the Triple-S/Urologics arrangement were improperly 

dismissed, we also vacate the district court's decision to decline 

to exercise supplemental jurisdiction over the Commonwealth law 

claims of those plaintiffs. The parties will bear their own costs.

6 Even as to this different, wider market, plaintiffs' 

allegation is the equivalent of saying that there are an uncertain 

number of potential purchasers in the market, with some unknown 

number being among the largest, and MMM is just one of those.