PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-1693

 

HOWARD HESS DENTAL LABORATORIES

INCORPORATED and PHILIP GUTTIEREZ

d/b/a DENTURES PLUS,

on behalf of themselves and all others similarly situated,

 Appellants

v.

DENTSPLY INTERNATIONAL, INC.

 

No. 08-1694

 

JERSEY DENTAL LABORATORIES,

f/k/a Howard Hess Dental Laboratories Incorporated

and PHILIP GUTTIEREZ, d/b/a Dentures Plus,

on behalf of themselves and all others similarly situated,

 Appellants

v.
2

DENTSPLY INTERNATIONAL, INC.; ACCU BITE, INC.;

ADIUM DENTAL PRODUCTS, INC.;

ARNOLD DENTAL SUPPLY COMPANY;

ATLANTA DENTAL SUPPLY COMPANY;

BENCO DENTAL COMPANY;

BURKHART DENTAL SUPPLY COMPANY;

DARBY DENTAL LABORATORY SUPPLY CO., INC.;

DENTAL SUPPLIES AND EQUIPMENT, INC.;

EDENTALDIRECT.COM, INC.,

as successor to Crutcher Dental, Inc.,

d/b/a Larry Hyman, as Assignee for the Benefit of

Creditors of EdentalDirect.Com, Inc.;

HENDON DENTAL SUPPLY, INC.;

HENRY SCHEIN, INC., and its affiliates

including, without limitation, Zahn Dental Co., Inc.;

IOWA DENTAL SUPPLY CO.;

JAHN DENTAL SUPPLY COMPANY;

JB DENTAL SUPPLY CO., INC.;

JOHNSON & LUND CO., INC.;

KENTUCKY DENTAL SUPPLY COMPANY, INC.,

a/k/a KDSC Liquidation Corp.;

MARCUS DENTAL SUPPLY CO.;

MOHAWK DENTAL CO., INC.;

NOWAK DENTAL SUPPLIES, INC.;

PATTERSON DENTAL COMPANY,

its subsidiaries, predecessors, successors, assigns,

affiliates and related companies;

PEARSON DENTAL SUPPLIES, INC.;

ZILA, INC., as successor to Ryker Dental of Kentucky, Inc.

 
Honorable Paul S. Diamond, United States District *

Judge for the Eastern District of Pennsylvania, sitting by

designation.

3

On Appeal from the United States District Court

for the District of Delaware

(D.C. Nos. 1-99-cv-00255 and 1-01-cv-00267)

District Judge: Honorable Sue L. Robinson

 

Argued January 27, 2010

Before: FUENTES and FISHER, Circuit Judges,

and DIAMOND, District Judge.

*

(Filed: April 16, 2010 )

Thomas A. Dubbs (Argued)

Richard Joffe

Labaton Sucharow

140 Broadway

New York, NY 10005

Counsel for Appellants

Eric J. McCarthy

Margaret M. Zwisler (Argued)

Latham & Watkins

555 11th Street, N.W., Suite 1000

Washington, DC 20004

Counsel for Dentsply International, Inc.
4

Walter H. Drane, Jr.

Potter, Anderson & Corroon

1313 North Market Street, 6th Floor

P.O. Box 951

Wilmington, DE 19801

Counsel for Accu Bite, Inc.,

Hendon Dental Supply, Inc.,

and Henry Schein, Inc.

Dorothy A. Hickok

Paul H. Saint-Antoine (Argued)

Drinker, Biddle & Reath

18th & Cherry Streets

One Logan Square

Philadelphia, PA 19103

Darryl A. Parson

Drinker, Biddle & Reath

1100 North Market Street, Suite 1000

Wilmington, DE 19801

Counsel for Benco Dental Co.

Patricia L. Enerio

Proctor Heyman

1116 West Street

Wilmington, DE 19801

Counsel for Burkhart Dental Supply Co.

Henry E. Gallagher, Jr.

Connolly, Bove, Lodge & Hutz

1007 North Orange Street
5

P.O. Box 2207

Wilmington, DE 19899

Counsel for Darby Dental Laboratory

Supply Co., Inc.

Antoinette D. Hubbard

James J. Maron

Maron, Marvel, Bradley & Anderson

1201 North Market Street, Suite 900

Wilmington, DE 19801

Counsel for Pearson Dental Supplies, Inc.

William J. Wade

Richards, Layton & Finger

One Rodney Square

920 North King Street

Wilmington, DE 19899

Margaret M. Zwisler

Latham & Watkins

555 11th Street, N.W., Suite 1000

Washington, DC 20004

Counsel for Patterson Dental Company

C. Scott Reese

Cooch & Taylor

824 Market Street Mall, Suite 1000

P.O. Box 1680

Wilmington, DE 19899-1680

Counsel for JB Dental Supply Co., Inc.
6

 

OPINION OF THE COURT

 

FISHER, Circuit Judge.

These two antitrust cases, brought by two dental

laboratories against an artificial tooth manufacturer and many of

its dealers, are before us for the second time. In the first of the

two cases, we must decide whether the District Court properly

denied the plaintiffs’ motion for summary judgment on their

monopolization claim against the manufacturer as well as the

Court’s denial of the plaintiffs’ motion for reconsideration of its

summary judgment ruling and subsequent dismissal of their

complaint. In the second case, we must decide whether the

District Court properly dismissed the plaintiffs’ conspiracy to

restrain trade and conspiracy to monopolize claims against both

the manufacturer and its dealers for failure to state a claim.

Although for slightly different reasons than those articulated by

the District Court, we agree with the District Court’s

conclusions and will affirm its rulings.

I.

These appeals arise from two related antitrust cases filed

in the United States District Court for the District of Delaware:

Howard Hess Dental Laboratories, Inc. v. Dentsply

International, Inc. (“Hess”) and Jersey Dental Laboratories v.
These cases were brought as putative class actions but 1

have never been certified as such.

7

Dentsply International, Inc. (“Jersey Dental”). Because we set 1

forth the factual background of both cases in great detail in a

prior appeal, see Howard Hess Dental Labs. Inc. v. Dentsply

Int’l, Inc., 424 F.3d 363 (3d Cir. 2005) (“Hess I”), we recite here

only those facts required for the resolution of this appeal.

The plaintiffs in both cases are two dental laboratories

(referred to in this opinion as the “Plaintiffs”). One of the

defendants in both Hess and Jersey Dental, Dentsply

International, Inc., manufactures artificial teeth, among other

things, which it sells to the Plaintiffs and other laboratories

through a network of authorized dealers (referred to in this

opinion as the “Dealers”), several of which are named

defendants only in Jersey Dental. The Plaintiffs use Dentsply’s

artificial teeth to make dentures. In both cases, the Plaintiffs

essentially allege that Dentsply “foreclosed its competitors’

access to [D]ealers by explicitly agreeing with some [D]ealers

that they will not carry certain competing brands of teeth and by

inducing other [D]ealers not to carry those competing brands of

teeth” and that Dentsply, “by agreement [with] its [D]ealers, . . .

set[] the [D]ealers’ resale prices.” Hess I, 424 F.3d at 367. In

so doing, the Plaintiffs allege, Dentsply “caused [the] Plaintiffs

to purchase Dentsply’s teeth at artificially high prices and lose

profits from unrealized sales of Dentsply’s competitors’ teeth.”

Id.
8

The Plaintiffs brought the Hess suit against Dentsply in

1999, alleging several antitrust conspiracies and seeking both

monetary and injunctive relief. The District Court granted

Dentsply’s subsequent motion for summary judgment on the

Plaintiffs’ damages claim, concluding that the Plaintiffs lacked

standing under Illinois Brick Co. v. Illinois, 431 U.S. 720

(1977). In 2001, the Plaintiffs brought the Jersey Dental suit

against Dentsply as well as several of its Dealers, again alleging

several antitrust conspiracies and again asking for damages and

injunctive relief, and the District Court again dismissed the

Plaintiffs’ damages claims on the basis of Illinois Brick. The

District Court also denied the Plaintiffs’ motion for leave to

amend their complaint, concluding that the proposed amendment

would be futile. The Plaintiffs thereafter brought an

interlocutory appeal in this Court.

On appeal, we affirmed in part and reversed in part. Hess

I, 424 F.3d 363. We held that in Hess the Plaintiffs could not

recover damages under a coconspirator exception or a control

exception to Illinois Brick and could not recover non-overcharge

damages. In Jersey Dental, we held that the Plaintiffs did not

have statutory standing to recover lost profits damages but that

they did have statutory standing to recover damages from

Dentsply for its alleged price-fixing conspiracy with its Dealers.

While we adopted a “limited” general coconspirator exception

to Illinois Brick, we found that exception inapplicable to the

Plaintiffs, and thus concluded that they could not pursue

damages under the coconspirator exception. Hess I, 424 F.3d at

383-84. In summary, we held that the Plaintiffs could not

recover any damages in Hess and most damages in Jersey

Dental. We concluded that the Plaintiffs did have standing
The District Court also granted the motions of several of 2

the Dealers in Jersey Dental to dismiss the amended complaint

9

under the coconspirator exception for overcharge damages

“caused by the alleged retail price-fixing conspiracy, although

not for the alleged exclusive-dealing conspiracy.” Id. at 384

(footnote omitted).

On remand, the Plaintiffs filed a five-count amended

complaint in Jersey Dental. In Count One, they re-alleged their

conspiracy to restrain trade claim under Section 1 of the

Sherman Act. Counts Two and Three asserted conspiracies to

monopolize under Section 2 of the Sherman Act against the

Dealers and Dentsply, respectively. Count Two sought damages

as well as injunctive and declaratory relief while Count Three

sought only injunctive and declaratory relief. Counts Four and

Five asserted conspiracies to restrain trade under Section 1 of

the Sherman Act against the Dealers and Dentsply, respectively,

again seeking both damages as well as injunctive relief as to the

Dealers and only injunctive and declaratory relief as to

Dentsply. Motion practice ensued. In Jersey Dental, the

Dealers moved to dismiss Counts Two and Four of the amended

complaint under Federal Rule of Civil Procedure 12(b)(6), as

did Dentsply as to Counts Three and Five. In Hess, the

Plaintiffs moved for summary judgment on their monopolization

claim under Section 2 of the Sherman Act against Dentsply.

The District Court denied the Plaintiffs’ summary judgment

motion in Hess and granted both the Dealers’ and Dentsply’s

respective motions to dismiss in Jersey Dental, and dismissed

Counts Two through Five of the amended complaint. Howard 2
for lack of personal jurisdiction and improper venue. That

portion of the District Court’s ruling is not at issue here.

10

Hess Dental Labs., Inc. v. Dentsply Int’l, Inc., 516 F. Supp. 2d

324 (D. Del. 2007) (“Howard Hess I”).

The Plaintiffs in Hess subsequently filed what they styled

as a motion to supplement the record and to amend the District

Court’s summary judgment ruling, asking for permission to

provide the District Court with evidence to show the existence

of anticompetitive injury. Meanwhile, in Jersey Dental the

Plaintiffs moved for certification of appealability of the District

Court’s dismissal of their claims in the amended complaint. In

ruling on the motion to amend and the motion for certification,

Howard Hess Dental Labs., Inc. v. Dentsply Int’l, Inc., Nos.

99-255 & 01-267, 2008 U.S. Dist. LEXIS 1487 (D. Del. Jan. 8,

2008) (“Howard Hess II”), the District Court construed the

motion to amend as one for reconsideration and denied it,

finding that the Plaintiffs’ proposed evidence was not relevant.

The District Court granted the motion for certification and

certified for appeal the dismissal of Counts Two through Five of

the amended complaint in Jersey Dental. The District Court in

Hess noted that “the parties, through their litigation strategies,

have made it awkward procedurally to close the case for

purposes of appellate review, Dentsply having failed to file

either a motion to dismiss or a motion for summary judgment.”

Howard Hess II, 2008 U.S. Dist. LEXIS 1487, at *13-14. The

Court therefore “order[ed] the parties to either enter a stipulation

or, if they are unable to come to agreement, to both submit

proposed orders to accomplish closure of Hess, either through
11

dismissal or through the entry of judgment.” Id. at *14. In

response to the District Court’s order, Dentsply moved for the

dismissal of the Hess complaint. The Plaintiffs opposed that

motion but, to “accommodate” an appeal as they put it, echoing

the District Court’s directive, submitted a proposed order

dismissing the complaint with prejudice. The District Court

approved that order and dismissed the complaint in Hess.

The Plaintiffs have filed timely notices of appeal in both

cases. In Hess, they challenge the District Court’s denial of

their summary judgment motion on Count Two’s

monopolization claim, denial of their motion for

reconsideration, and dismissal of their complaint. In Jersey

Dental, they challenge the District Court’s various grounds for

dismissal of Counts Two through Five for failure to state a

claim.

II.

The District Court had jurisdiction under 28 U.S.C.

§ 1331 and we have jurisdiction under 28 U.S.C. § 1291.

Our review of the District Court’s denial of summary

judgment is plenary. Chambers v. Sch. Dist. of Phila. Bd. of

Educ., 587 F.3d 176, 181 (3d Cir. 2009). We apply the same

test the District Court should have used. Oritani Sav. & Loan

Ass’n v. Fidelity & Deposit Co. of Md., 989 F.2d 635, 637 (3d

Cir. 1993). Summary judgment is appropriate when “the

pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any
12

material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c).

We review a denial of a motion for reconsideration for

abuse of discretion, but we review the District Court’s

underlying legal determinations de novo and factual

determinations for clear error. Max’s Seafood Café v.

Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).

Our review of the District Court’s dismissal under Rule

12(b)(6) is plenary. Nationwide Life Ins. Co. v. Commonwealth

Land Title Ins. Co., 579 F.3d 304, 307 (3d Cir. 2009). While

“[a]ntitrust claims . . . are subject to the notice-pleading standard

of Federal Rule of Civil Procedure 8(a)(2), . . . [s]uch claims

must . . . allege facts sufficient to raise a right to relief above the

speculative level.” Broadcom Corp. v. Qualcomm Inc., 501

F.3d 297, 317 (3d Cir. 2007) (citations omitted). That is, the

“complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citing

Twombly, 550 U.S. at 556).

III.

Our analysis is bifurcated. We begin with the District

Court’s rulings in Hess and turn next to its rulings in Jersey

Dental.
13

A. Hess

1. Denial of the Motion for Summary Judgment

In Hess, Count Two of the Plaintiffs’ complaint asserted

a monopolization claim in violation of Section 2 of the Sherman

Act and sought an injunction essentially to prevent Dentsply

from both imposing exclusive dealing agreements on the

Dealers and retaliating against those Dealers that do not submit

to Dentsply’s demands.

Section 2 of the Sherman Act imposes liability on

“[e]very person who shall monopolize, or attempt to

monopolize, or combine or conspire with any other person or

persons, to monopolize any part of the trade or commerce

among the several States[.]” 15 U.S.C. § 2. A private party may

pursue injunctive relief against “threatened loss or damage”

stemming from a violation of Section 2. 15 U.S.C. § 26. To

meet their initial summary judgment burden on their claim for

injunctive relief, the Plaintiffs had to show “(1) threatened loss

or injury cognizable in equity; (2) proximately resulting from the

alleged antitrust violation.” McCarthy v. Recordex Serv., Inc.,

80 F.3d 842, 856 (3d Cir. 1996) (citations omitted). “[T]he

initial question is . . . ‘whether [the Plaintiffs] ha[ve] raised a

genuine issue of material fact sufficient to show a threat of

antitrust injury’ if [Dentsply] engage[s] in future violations of

the type alleged.” B-S Steel of Kan., Inc. v. Tex. Indus., Inc.,

439 F.3d 653, 668 (10th Cir. 2006) (quoting R.C. Bigelow, Inc.

v. Unilever N.V., 867 F.2d 102, 107 (2d Cir. 1989)). In other

words, to meet their burden the Plaintiffs had to “demonstrate a

significant threat of injury from an impending violation of the
14

antitrust laws or from a contemporary violation likely to

continue or recur.” Zenith Radio Corp. v. Hazeltine Research,

Inc., 395 U.S. 100, 130 (1969) (citations omitted).

The Plaintiffs sought to meet their burden primarily by

relying on the doctrine of collateral estoppel and this Court’s

decision in United States v. Dentsply International, Inc., 399

F.3d 181 (3d Cir. 2005) (“Dentsply” or the “Government

Case”). There the United States sued Dentsply for

monopolization in violation of Section 2. This Court reversed

the district court’s post-trial judgment for Dentsply and

remanded with instructions to grant the injunctive relief sought

by the government. Id. at 197. We concluded that Dentsply

both possessed monopoly power in the artificial tooth market

and had used that power to foreclose competition. Id. at 196.

Our conclusion was predicated primarily on Dentsply’s adoption

of “Dealer Criterion 6,” a policy that prohibited dealers from

“add[ing] further tooth lines [other than those purchased from

Dentsply] to their product offering” and that was enforced

against most Dealers. Id. at 185 (quotation marks omitted).

In their summary judgment motion in Hess, the Plaintiffs

argued that our holding in the Government Case that Dentsply

had engaged in anticompetitive practices compelled an inference

of antitrust injury to the Plaintiffs. The District Court disagreed,

concluding that while such an inference was certainly plausible,

a determination of injury-in-fact to the Plaintiffs was not

necessary to our decision in the Government Case. As a
Because the applicability vel non of collateral estoppel 3

is a question of law, we ordinarily exercise plenary review over

a district court’s collateral estoppel analysis. See Cospito v.

Attorney Gen. of the United States, 539 F.3d 166, 171 (3d Cir.

2008) (per curiam); Delaware River Port Auth. v. Fraternal

Order of Police, 290 F.3d 567, 572 (3d Cir. 2002). However,

where, as here, a plaintiff seeks to collaterally estop a defendant

from relitigating an issue from previous litigation in which the

defendant was a party but the plaintiff was not, our review is

limited to deciding whether the district court abused its

discretion. See Jean Alexander Cosmetics, Inc. v. L’Oreal USA,

Inc., 458 F.3d 244, 248 (3d Cir. 2006); Smith v. Holtz, 210 F.3d

186, 199 n.18 (3d Cir. 2000); Raytech Corp. v. White, 54 F.3d

187, 190 (3d Cir. 1995).

15

consequence, the District Court found that collateral estoppel

did not apply.3

Under the doctrine of collateral estoppel, “once an issue

is actually and necessarily determined by a court of competent

jurisdiction, that determination is conclusive in subsequent suits

based on a different cause of action involving a party to the prior

litigation.” Montana v. United States, 440 U.S. 147, 153 (1979)

(citations omitted). The following four elements are required

for the doctrine to apply: “(1) the identical issue was previously

adjudicated; (2) the issue was actually litigated; (3) the previous

determination was necessary to the decision; and (4) the party

being precluded from relitigating the issue was fully represented

in the prior action.” Szehinskyj v. Attorney Gen. of the United

States, 432 F.3d 253, 255 (3d Cir. 2005) (citation omitted).
16

For interrelated reasons, we do not find that any of the

first three elements required for collateral estoppel is met here.

But most significantly, we do not find that the third element is

satisfied. See Hawksbill Sea Turtle v. Fed. Emergency Mgmt.

Agency, 126 F.3d 461, 475 (3d Cir. 1997) (“the application of

collateral estoppel is inappropriate” if any one element is not

met). The Restatement describes that element as follows:

If issues are determined but the judgment is not

dependent upon the determinations, relitigation of

those issues in a subsequent action between the

parties is not precluded. Such determinations

have the characteristics of dicta, and may not

ordinarily be the subject of an appeal by the party

against whom they were made. In these

circumstances, the interest in providing an

opportunity for a considered determination, which

if adverse may be the subject of an appeal,

outweighs the interest in avoiding the burden of

relitigation.

Restatement (Second) of Judgments § 27 cmt. h (1982). “[I]n

determining whether the issue was essential to the judgment, we

must look to whether the issue was critical to the judgment or

merely dicta.” Nat’l R.R. Passenger Corp. v. Pa. Pub. Util.

Comm’n, 288 F.3d 519, 527 (3d Cir. 2002) (internal quotation

marks and citation omitted).

Applying these standards to this case, we do not find that

any inference of anticompetitive injury to the Plaintiffs was

essential to our determination that Dentsply had committed an
17

antitrust violation. The Plaintiffs’ claim for injunctive relief

hinges on whether they have established antitrust injury. To

establish as much, they had to show injury “of the type the

antitrust laws were designed to prevent and that flows from that

which makes [Dentsply’s] acts unlawful.” Cargill, Inc. v.

Monfort of Colo., Inc., 479 U.S. 104, 113 (1986) (quoting

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489

(1977)). In the Government Case, we had to decide, in relevant

part, whether Dentsply’s conduct was anticompetitive. To that

end, our analysis had two focal points: first, whether Dentsply

possessed monopoly power; and second, whether Dentsply used

that power to edge out competition. See Dentsply, 399 F.3d at

186-87. Our finding that Dentsply’s conduct led to price

increases in the relevant market did not require us to find that

anyone other than Dentsply’s competitors was injured. Put

another way, we did not need to conclude that any upstream

purchasers, such as the Plaintiffs, were threatened with injury.

Simply because such a conclusion may be gleaned from the

Government Case does not mean that it was essential to our

holding. Cf. Lynne Carol Fashions, Inc. v. Cranston Print

Works Co., 453 F.2d 1177, 1183 (3d Cir. 1972) (“[P]arties

should be estopped only on issues they actually deem important,

and not on incidental matters.”). Under these circumstances, the

District Court did not abuse its “broad discretion” in concluding

that Dentsply should not be precluded from defending itself

against the Plaintiffs’ claim for injunctive relief. See Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979).

In addition to declining to collaterally estop Dentsply, the

District Court concluded that the Plaintiffs did not meet their

summary judgment burden because they made no showing of
18

antitrust injury. The Court reasoned that because the

Government Case injunction already prohibited Dentsply from

pursuing the very conduct that gave rise to the Plaintiffs’ claim,

the Plaintiffs had to “demonstrate a need for further,

non-duplicative measures to those already in place.” Howard

Hess I, 516 F. Supp. 2d at 335 (footnote omitted). In the District

Court’s view, the Plaintiffs failed to present any evidence of a

threat of future injury and therefore fell short of that mark.

In United States v. Borden Co., 347 U.S. 514 (1954), the

Supreme Court held that a private litigant’s award of an antitrust

injunction against a defendant does not operate as a bar to the

government’s right to pursue its own injunction against the same

defendant, explaining that the injunctive relief afforded private

litigants “supplements government enforcement of the antitrust

laws” and that private and public antitrust injunctions “were

designed to be cumulative, not mutually exclusive.” Id. at 518

(citations omitted); see also id. at 519 (“Different policy

considerations govern each of these. They may proceed

simultaneously or in disregard of each other. In short, the

Government’s right and duty to seek an injunction to protect the

public interest exist without regard to any private suit or

decree.” (internal citation omitted)).

The Plaintiffs argue that the District Court “attempted to

maneuver around [Borden] on the ground that, in Borden, unlike

here, it was the private plaintiff rather than the Government who

was first to obtain the requested relief.” (Appellants’ Br. 32

(record citation omitted).) In their view, under the antitrust laws

“relief may be granted to private plaintiffs based on the same

threat that justified a prior grant of similar injunctive relief to
19

the Government.” (Id. at 33.) It is true that Borden refused to

say that the existence of one type of injunction, public or

private, cannot at least be taken into account by a trial judge in

weighing whether a subsequent plaintiff, whether public or

private, has shown the requisite antitrust injury. See 347 U.S. at

520. But we do not understand Borden, or any other antitrust

authority, to require the Plaintiffs to have established a need for

an injunction that was “non-duplicative,” in the District Court’s

words, as Borden makes clear that private and public injunctions

may exist concomitantly. See also N.J. Wood Finishing Co. v.

Minn. Mining & Mfg. Co., 332 F.2d 346, 350 (3d Cir. 1964).

Although the law is clear that public and private antitrust

injunctions may coexist without regard for one another, nothing

in Borden intimates that a private litigant is relieved of its

evidentiary burden of showing an entitlement to injunctive relief

when the government has already obtained its own injunction.

We said as much in Mid-West Paper Products Co. v.

Continental Group, Inc., 596 F.2d 573 (3d Cir. 1979). There the

district court granted summary judgment for the defendants on

the antitrust claims of private plaintiffs, effectively holding that

the plaintiffs were not entitled to an injunction. We reversed.

We disagreed with the defendants’ contention that “remand

[was] unnecessary because . . . it [was] evident that the plaintiffs

[were] not entitled to injunctive relief.” Id. at 594 n.85. In our

view, the plaintiffs were not “necessarily foreclosed from

injunctive relief by the mere pendency of the government and

direct purchaser suits for similar remedies[.]” Id. Under

Borden, we thought the plaintiffs’ injunction claim could go

forward if they were “able to establish a ‘significant threat of

injury’ under general equity principles.” Id. (quoting Borden,
20

347 U.S. at 519). We further suggested that the district court

could “consider whether any meaningful difference exists in the

present case ‘with respect to the parties capable of enforcing’

the injunction, or whether the reality here is that ‘one injunction

is as effective as 100, and concomitantly, that 100 injunctions

are no more effective than one[.]’” Id. (quoting Hawaii v.

Standard Oil Co., 405 U.S. 251, 261 (1972)).

For purposes of this appeal, two important principles

emerge from Mid-West Paper. First, under Borden a trial court

faced with an injunction request may factor into its equitable

analysis the effect of another injunction on the plaintiff’s

showing of injury. Therefore, the District Court’s consideration

of the Government Case injunction in its assessment of the

Plaintiffs’ right to injunctive relief was not impermissible per se.

While the District Court likely ascribed too much weight to the

Government Case injunction in assessing the Plaintiffs’ right to

their own injunction, the Court clearly also found that the

Plaintiffs failed to meet their burden of presenting evidence to

show that they were entitled to such relief. And that brings us

to Mid-West Paper’s second important principle: a plaintiff

bears the obligation of presenting evidence demonstrating injury

even where another injunction is already in place. There can be

no doubt that the Plaintiffs left that obligation unfulfilled. As

they did before the District Court, the Plaintiffs refer us to

several factors that, in their view, show why an injunction is

necessary. Significantly, however, the Plaintiffs have packaged

those factors as mere arguments, not evidence. That approach

does not carry the day at summary judgment. Cf. Thornton v.

United States, 493 F.2d 164, 167 (3d Cir. 1974).
21

The Plaintiffs claim, for instance, that the term of the

Government Case injunction – seven and one-half years – is not

long enough to ensure that they will not suffer harm. They

assert that Dentsply still retains monopolistic market share

despite that injunction and will be able to resume its

anticompetitive practices once the injunction expires because,

according to them, the market for artificial teeth is relatively

stagnant. But even assuming that an antitrust defendant’s

“ability” to engage in anticompetitive conduct were, standing

alone, enough to justify injunctive relief, the Plaintiffs’

prognosis of Dentsply’s future conduct is unsupported by record

evidence. In any event, if the Plaintiffs are threatened with

antitrust injury at or near the end of the Government Case

injunction’s term, nothing prohibits them from petitioning a

court for relief at that point. The Plaintiffs also rely on the

alleged nationwide presence of 7,000 dental laboratories that are

“better situated to monitor Dentsply’s exclusive dealing

practices[.]” (Appellants’ Br. 38.) Tellingly, the Plaintiffs cite

no authority for the proposition that a plaintiff may avoid its

obligation of showing injury merely by claiming to be a more

effective antitrust policeman than the government, and we are

aware of no such authority. Cf. Massachusetts v. Microsoft

Corp., 373 F.3d 1199, 1245 (D.C. Cir. 2004). Similarly, the

Plaintiffs request that Dentsply be prohibited “from attending

any meeting or phone call between any dental dealer and any

dental laboratory” (Appellant’s Br. 40-41), but have elected not

to provide any evidence that any such meetings or phone calls

are now injuring them or will soon do so. Finally, the Plaintiffs

point to Dentsply’s purported unrepentance regarding its past

conduct as a basis for injunctive relief. They assert that

“Dentsply still refuses to acknowledge the wrongful nature of its
22

conduct.” (Appellants’ Br. 44 (internal quotation marks

omitted).) The antitrust laws, however, afford no relief on that

basis alone. Cf. Sec. & Exch. Comm’n v. Bonastia, 614 F.2d

908, 912 (3d Cir. 1980). In a nutshell, the various examples of

alleged injury the Plaintiffs have brought to our attention are

purely speculative and thus are insufficient to justify an award

of injunctive relief. See, e.g., City of Pittsburgh v. West Penn

Power Co., 147 F.3d 256, 269 (3d Cir. 1998).

A review of their pleadings before the District Court

reflects that the Plaintiffs for the most part sought to meet their

summary judgment burden simply by telling the District Court

what they did not need to do. Specifically, in their moving

papers the Plaintiffs asserted that they did not need to prove

irreparable injury; did not have to show that they had standing

to sue for damages; and were not barred from obtaining

injunctive relief merely because the government had already

secured one against Dentsply. Importantly, following remand

from this Court’s prior appeal, there is no hint in the record that

the Plaintiffs sought to engage in any additional discovery or

made any effort to introduce any factual material for the District

Court to consider. The Plaintiffs’ strategy betrays a

misunderstanding of the summary judgment stage of litigation.

A party moving for summary judgment must clear two hurdles

to meet its initial burden. It must show that (1) there are no

genuine questions of material fact and (2) the party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); see

McCarthy, 80 F.3d at 847. By telling the District Court what

they did not need to establish, the Plaintiffs did not leap high

enough. Accordingly, we will affirm the District Court’s denial
Neither party contests the District Court’s interpretation 4

of the Plaintiffs’ motion as one for reconsideration, and thus we

accept that interpretation as correct.

23

of the Plaintiffs’ motion for summary judgment on their

monopolization claim against Dentsply.

2. Denial of the Motion for Reconsideration

After the District Court denied their motion for summary

judgment, the Plaintiffs asked the Court to amend its summary

judgment ruling and for permission to supplement the record

with evidence that, in their view, demonstrated the antitrust

injury the District Court had found wanting. The District Court

construed the motion as one for reconsideration and denied it,

concluding that the evidence the Plaintiffs were seeking to

introduce would be relevant only if they had shown that

Dentsply’s anticompetitive conduct would likely recur.4

Because they had failed to make such a showing, the District

Court reasoned, reconsideration was unwarranted.

“The purpose of a motion for reconsideration . . . is to

correct manifest errors of law or fact or to present newly

discovered evidence.” Max’s Seafood Café, 176 F.3d at 677

(quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.

1985)). “Accordingly, a judgment may be altered or amended

if the party seeking reconsideration shows at least one of the

following grounds: (1) an intervening change in the controlling

law; (2) the availability of new evidence that was not available

when the court granted the motion for summary judgment; or
24

(3) the need to correct a clear error of law or fact or to prevent

manifest injustice.” Id. (citation omitted).

The stated aim of the Plaintiffs’ motion was to submit the

very evidence the District Court had found they had failed to

present in their summary judgment motion. However, “new

evidence,” for reconsideration purposes, does not refer to

evidence that a party obtains or submits to the court after an

adverse ruling. Rather, new evidence in this context means

evidence that a party could not earlier submit to the court

because that evidence was not previously available. See De

Long Corp. v. Raymond Int’l, Inc., 622 F.2d 1135, 1139-40 (3d

Cir. 1980), overruled on other grounds by Croker v. Boeing Co.,

662 F.2d 975 (3d Cir. 1981) (en banc). Nothing in the record

suggests that the evidence the Plaintiffs sought to present postsummary judgment was unavailable to them when they filed

their summary judgment motion. Under these circumstances,

the District Court did not abuse its discretion in denying the

Plaintiffs’ motion for reconsideration, and we therefore will not

upset that ruling. See Harsco, 779 F.2d at 909 (district court

correctly did not consider affidavit filed after summary

judgment was granted because it “was available prior to the

summary judgment”).

3. Dismissal of the complaint

After denying the Plaintiffs’ motion for an injunction and

their motion for reconsideration, the District Court noted the

procedurally “awkward” posture of the case. Howard Hess II,

2008 U.S. Dist. LEXIS 1487, at *14. That awkwardness,

according to the District Court, stemmed from the fact that the
25

denial of the Plaintiffs’ summary judgment motion effectively

barred them from pursuing their claim, thus placing their suit on

a dead-end road. As a consequence, the District Court directed

the parties to “submit either a stipulation or competing orders in

Hess and Jersey Dental in order to accommodate a consolidated

appeal.” Id. at *16. Dentsply thereafter moved to dismiss the

complaint with prejudice in light of that order. The Plaintiffs

opposed Dentsply’s motion but submitted their own proposed

order dismissing the complaint while purporting to reserve their

right to appeal any dismissal. The District Court approved that

order, thereby dismissing the complaint with prejudice and

denying Dentsply’s motion to dismiss as moot.

We see no error in the District Court’s action. Ordinarily,

a district court’s denial of a motion for summary judgment

means only that there remain genuine questions of material fact

for resolution by the fact finder. See Kutner Buick, Inc. v. Am.

Motors Corp., 868 F.2d 614, 619 (3d Cir. 1989). But here the

District Court denied the Plaintiffs’ summary judgment motion

because it found that there were no genuine questions of

material fact. To the extent the Plaintiffs thought that the

District Court’s denial of their summary judgment motion

entitled them to pursue their claims any further, they were

mistaken, as a plaintiff asserting antitrust claims does not get to

a jury simply by filing a complaint and hoping for the best. Cf.

Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S.

451, 467-69 (1992); Town Sound & Custom Tops, Inc. v.

Chrysler Motors Corp., 959 F.2d 468, 481 (3d Cir. 1992) (en

banc). The District Court concluded that the Plaintiffs could not

prevail on their claim for injunctive relief against Dentsply and,

as we explained earlier, we agree with that conclusion. And
26

because the Plaintiffs could go no further on that claim, we

likewise agree with the District Court’s dismissal of their

complaint. The Plaintiffs have given us no compelling reason

to disturb that disposition. Accordingly, we will affirm the

District Court’s dismissal of the complaint in Hess.

B. Jersey Dental

In Jersey Dental, the Plaintiffs alleged a conspiracy to

monopolize in violation of Section 2 of the Sherman Act in

Counts Two and Three of their amended complaint and a

conspiracy to restrain trade in violation of Section 1 in Counts

Four and Five. A Section 2 conspiracy claim has four elements:

(1) an agreement to monopolize; (2) an overt act in furtherance

of the conspiracy; (3) a specific intent to monopolize; and (4) a

causal connection between the conspiracy and the injury alleged.

See, e.g., United States v. Yellow Cab Co., 332 U.S. 218, 224-25

(1947); Am. Tobacco Co. v. United States, 328 U.S. 781, 788,

809 (1946). A plaintiff asserting a Section 1 claim also must

allege four elements: “(1) concerted action by the defendants;

(2) that produced anti-competitive effects within the relevant

product and geographic markets; (3) that the concerted actions

were illegal; and (4) that it was injured as a proximate result of

the concerted action.” Gordon v. Lewistown Hosp., 423 F.3d

184, 207 (3d Cir. 2005) (citations omitted).

The District Court dismissed all four counts on several

grounds. The Court dismissed Counts Three and Five, which

sought injunctive relief against Dentsply, for the same reasons

it denied the Plaintiffs’ summary judgment motion in Hess. The

Court dismissed Counts Two and Four, to the extent they sought
In their briefs, the Plaintiffs do not impugn the District 5

Court’s dismissal of their claims for injunctive relief against

Dentsply as asserted in Counts Three and Five to the extent the

Court found that the Plaintiffs lacked standing to pursue those

claims given their failure to allege facts demonstrating antitrust

injury. As such, the Plaintiffs have waived any contest to that

portion of the District Court’s ruling. See Holk v. Snapple

Beverage Corp., 575 F.3d 329, 337 n.5 (3d Cir. 2009).

The defendants argue that the Plaintiffs should be 6

judicially estopped from claiming, as they do in their amended

complaint, that the Dealers were Dentsply’s equals in the alleged

conspiracy because of the Plaintiffs’ previous allegations in

27

damages from the Dealers, on the basis of Illinois Brick,

concluding that the coconspirator exception of that case did not

apply because Dentsply and the Dealers were not coequal

participants in the conspiracy. The District Court also dismissed

Counts Two and Three, against the Dealers and Dentsply,

respectively, based on its determination that the Plaintiffs did

not sufficiently allege the element of specific intent on the part

of the Dealers. Finally, the Court found that the dismissal of

Counts Two through Five was proper because of the Plaintiffs’

failure to adequately allege the agreement element of the Section

1 and Section 2 claims asserted in those counts. The Plaintiffs

dispute nearly all of the District Court’s conclusions. Given 5

these overlapping alternative holdings, we find it most

expeditious to begin with the District Court’s finding as to the

agreement element of Counts Two through Five, and then move

on to the other portions of the District Court’s ruling.6
these proceedings that Dentsply coerced the Dealers into

participating in its anticompetitive practices. The doctrine of

judicial estoppel “bar[s] a party from taking contradictory

positions during the course of litigation.” G-I Holdings, Inc. v.

Reliance Ins. Co., 586 F.3d 247, 261 (3d Cir. 2009) (citations

omitted). One of the threshold requirements for judicial

estoppel is a finding of bad faith on the part of the party against

whom the doctrine is invoked. Chao v. Roy’s Constr., Inc., 517

F.3d 180, 186 n.5 (3d Cir. 2008). The applicability vel non of

judicial estoppel is fact-specific. McNemar v. Disney Store,

Inc., 91 F.3d 610, 613 (3d Cir. 1996). Here, although Dentsply

invoked the doctrine before the District Court, the District Court

made no mention of it, and we ordinarily do not consider issues

not addressed by the district court in the first instance. See, e.g.,

In re Montgomery Ward & Co., 428 F.3d 154, 166 (3d Cir.

2005). We see no reason to depart from that rule here, as we

cannot decide, based on this record and with no findings by the

District Court, whether the Plaintiffs have exhibited bad faith.

Cf. Reliance Ins., 428 F.3d at 166 & n.25.

28

1. Allegation of an agreement

The District Court found the dismissal of Counts Two

through Five warranted in part based on its conclusion that the

Plaintiffs did not adequately allege an agreement among

Dentsply and the Dealers. The Plaintiffs seek to revive their

conspiracy claims essentially by reference to their allegations

that “every Dealer agreed to the same plan – Dealer Criterion

6”; that “every Dealer knew that every other Dealer agreed, or

would agree, to this same plan”; and that “it . . . was obvious to
The standard for a Section 2 violation is “the more 7

stringent monopoly standard[,]” Eastman Kodak Co. v. Image

Technical Servs., Inc., 504 U.S. 451, 481 (1992), but only

insofar as the practices constituting the alleged violation are

concerned, not the existence of an agreement.

29

each Dealer that – only if all of the other Dealers complied –

would the purpose of Dealer Criterion 6 be achieved.”

(Appellants’ Br. 68-69.)

Section 1 claims are limited to combinations, contracts,

and conspiracies, and thus always require the existence of an

agreement. See In re Ins. Brokerage Antitrust Litig., 579 F.3d

241, 267 (3d Cir. 2009). Section 2 claims, in contrast, do not

require an agreement except where, as here, the specific charge

is conspiracy to monopolize. See Copperweld Corp. v.

Independence Tube Corp., 467 U.S. 752, 767 n.13 (1984).

Therefore, the viability of the Plaintiffs’ Section 1 and Section

2 claims in Counts Two through Five turns on whether the

Plaintiffs have adequately alleged an agreement among Dentsply

and the Dealers. See Englert v. City of McKeesport, 872 F.2d

1144, 1150 (3d Cir. 1989); Fragale & Sons Beverage Co. v.

Dill, 760 F.2d 469, 473-74 (3d Cir. 1985). To allege such an 7

agreement between two or more persons or entities, a plaintiff

must allege facts plausibly suggesting “a unity of purpose or a

common design and understanding, or a meeting of minds in an

unlawful arrangement.” Copperweld, 467 U.S. at 771

(quotation omitted); see also, e.g., Sunkist Growers, Inc. v.

Winckler & Smith Citrus Prods. Co., 370 U.S. 19, 29-30 (1962).
30

The amended complaint in this case alleges a two-tiered

conspiracy. First, it alleges that the defendants conspired to

“maintain Dentsply’s monopoly of the manufacture of artificial

teeth and/or premium artificial teeth for sale in the United

States, to restrain trade for the sale of artificial teeth and/or

premium artificial teeth in the United States by the

implementation of an exclusive dealing arrangement, and to

exclude Dentsply’s competitors from the markets for such teeth

in the United States[.]” (App. 435.) Second, it alleges that the

defendants conspired “to sell such teeth to dental laboratories at

anticompetitive prices determined by Dentsply and agreed to by

the Dealer Defendants.” (Id.) To carry out this conspiracy,

Dentsply allegedly has sold teeth to the Dealers on the condition

“that [the Dealers] restrict their dealings with rival

manufacturers[.]” (Id. at 452.) The Dealers, the Plaintiffs

allege, “knew that this exclusive dealing arrangement was and

is an illegal restraint of trade designed to maintain Dentsply’s

monopoly.” (Id. at 440.)

In our review of the amended complaint, we understand

the Plaintiffs to allege a hybrid of both vertical and horizontal

conspiracies. (See, e.g., id. at 435 (“Defendants, each with all

of the others, have entered into two interrelated conspiracies[.]”

(emphasis added).) That sort of conspiracy, sometimes dubbed

a “hub-and-spoke” conspiracy, see, e.g., Impro Prods., Inc. v.

Herrick, 715 F.2d 1267, 1279 (8th Cir. 1983), has a long history

in antitrust jurisprudence, see, e.g., Interstate Circuit, Inc. v.

United States, 306 U.S. 208 (1939). Such a conspiracy

involves a hub, generally the dominant purchaser

or supplier in the relevant market, and the spokes,
31

made up of the distributors involved in the

conspiracy. The rim of the wheel is the

connecting agreements among the horizontal

competitors (distributors) that form the spokes.

Total Benefits Planning Agency, Inc. v. Anthem Blue Cross &

Blue Shield, 552 F.3d 430, 435 n.3 (6th Cir. 2008); see also 2

Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An

Analysis of Antitrust Principles and Their Application, ¶ 1426,

at 188 n.11 (2d ed. 2000); ABA Section of Antitrust Law,

Antitrust Law Developments 24 (6th ed. 2007).

Here, even assuming the Plaintiffs have adequately

identified the hub (Dentsply) as well as the spokes (the Dealers),

we conclude that the amended complaint lacks any allegation of

an agreement among the Dealers themselves. The amended

complaint states only in a conclusory manner that all of the

defendants – Dentsply and all the Dealers included – conspired

and knew about the alleged plan to maintain Dentsply’s market

position. The amended complaint alleges, for instance, that

“Dentsply made clear to each . . . dealer that every other

Dentsply dealer was . . . required to agree to the same exclusive

dealing arrangement, and that every other Dentsply dealer had

so agreed.” (App. 442.) Iterations of this allegation are

sprinkled throughout the amended complaint. (E.g., id. at 443,

451, 454, 456, 458-59.) But to survive dismissal it does not

suffice to simply say that the defendants had knowledge; there

must be factual allegations to plausibly suggest as much. See

Twombly, 550 U.S. at 564. There are none here. In other words,

the “rim” connecting the various “spokes” is missing. Cf. Total
32

Benefits Planning, 552 F.3d at 436; Toys “R” Us, Inc. v. F.T.C.,

221 F.3d 928, 934-36 (7th Cir. 2000).

Instead of underscoring factual allegations plausibly

suggesting the existence of an agreement, the Plaintiffs invite us

to infer that the Dealers were aware of each other’s involvement

in the conspiracy because, as market participants, they all knew

that Dentsply was the dominant player in the artificial tooth

market and because they all had an economic incentive to create

and maintain a regime in which Dentsply reigned and the

Dealers did its bidding. In that regime, the Plaintiffs tell us, the

Dealers would all benefit from Dentsply’s policies because they

would all be able to charge dental laboratories artificially

inflated prices for teeth in their various regions of operation.

We do not disregard the logical appeal of this argument.

Certainly, the objective of many antitrust conspiracies is to

control pricing with an eye to increasing profits. But simply

because each Dealer, on its own, might have been economically

motivated to exert efforts to keep Dentsply’s business and

charge the elevated prices Dentsply imposed does not give rise

to a plausible inference of an agreement among the Dealers

themselves. Cf. Twombly, 550 U.S. at 566 (noting the “logic”

of the complaint’s allegation of an agreement but finding it

insufficient because it did not suggest actual joint action).

Notwithstanding Twombly’s requirement that an antitrust

plaintiff state “enough fact to raise a reasonable expectation that

discovery will reveal evidence of illegal agreement[,]” id. at 556

(footnote omitted), the Plaintiffs’ allegations do not offer even

a gossamer inference of any degree of coordination among the

Dealers. Those allegations are not “placed in a context that

raises a suggestion of a preceding agreement” among the
The Plaintiffs rely on Fineman v. Armstrong World 8

Industries, Inc., 980 F.2d 171 (3d Cir. 1992), where the district

court directed a verdict for the defendant on a Section 1

conspiracy claim, finding insufficient evidence that the

defendant distributors shared the defendant manufacturer’s

purpose of eliminating the plaintiff’s business and rejecting

Fineman’s argument that “[S]ection 1 co-conspirators are held

liable for their joint commitment to an unlawful purpose

whether or not their motives for making that commitment are

different.” Id. at 212. We disagreed with the district court’s

“novel approach[,]” id., and held that “although vertically

aligned co-conspirators must share a commitment to a common

scheme which has an anticompetitive objective, they need not

share an identical motive for engaging in concerted action in

violation of [S]ection 1 of the Sherman Act[,]” id. at 215. In

addition to the fact that Fineman reached us in an entirely

different procedural posture, nothing in that case excuses the

Plaintiffs from alleging an agreement between Dentsply and the

Dealers. At most, Fineman could provide a defense for the

Plaintiffs if Dentsply argued that no agreement could exist

because its motives were unaligned with the Dealers’.

33

Dealers. Id. at 557. Instead, they do no more than intimate

“merely parallel conduct that could just as well be independent

action.” Id. As a consequence, the Plaintiffs have fallen short

of their pleading obligations.8

Before both the District Court and us, the Plaintiffs have

tried to hedge their bets. They argue that even if they have not

adequately alleged an overarching conspiracy between and
34

among Dentsply and all of its Dealers, they at least have

adequately alleged several bilateral, vertical conspiracies

between Dentsply and the Dealers. There is arguably some

support for what amounts to a “rimless” conspiracy. See

Kotteakos v. United States, 328 U.S. 750, 755 (1946); Dickson

v. Microsoft Corp., 309 F.3d 193, 203 (4th Cir. 2002).

However, we need not weigh in on the alternative theory the

Plaintiffs now press, for even assuming it is legally viable or

even relevant here, the Plaintiffs cannot pursue it under the

circumstances of this case because the amended complaint

cannot be fairly understood to allege the existence of several

unconnected, bilateral, vertical conspiracies between Dentsply

and each Dealer. While pleading in the alternative is, of course,

authorized by the Federal Rules of Civil Procedure, see Fed. R.

Civ. P. 8(a)(3); see also Langer v. Monarch Life Ins. Co., 966

F.2d 786, 802 (3d Cir. 1992), we have an obligation to read

allegations not in isolation but as a whole and in context, see

Chabal v. Reagan, 822 F.2d 349, 357 (3d Cir. 1987); Pace Res.,

Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1026 (3d Cir. 1987).

As we read the amended complaint, we see no indication of the

Plaintiffs’ intention to allege that every single agreement

between Dentsply and each Dealer had anticompetitive effects.

All throughout the amended complaint are substantially similar

variations on the allegation that the “Defendants have agreed,

each with all of the others, to implement an exclusive dealing

arrangement[.]” (App. 439 (emphasis added).) Indeed, the

amended complaint is rife with additional references to “the

conspiracy” between “[t]he Defendants, . . . each with all of the

others[.]” (E.g., id. at 446, 451 (emphasis added).) These

allegations are just not the stuff of several mini-agreements

lacking a horizontal tether. In other words, the Plaintiffs simply
The Plaintiffs argue that the District Court erroneously 9

applied a heightened pleading standard by requiring them to

allege not only that the Dealers knew that Dentsply would

achieve a monopolistic position but, additionally, that they

35

did not draft their amended complaint to encompass their

alternative legal theory. In short, the Plaintiffs are bound by the

four corners of their amended complaint, which clearly seeks to

allege one conspiracy to which Dentsply and all of the Dealers,

as a collective, were parties. To the extent the Plaintiffs are

recasting their allegations in an effort to circumvent a motion to

dismiss, we must reject that approach. See Leegin Creative

Leather Prods. v. PSKS, Inc., 551 U.S. 877, 907-08 (2007); In

re New Motor Vehicles Canadian Exp. Antitrust Litig., 533 F.3d

1, 5 (1st Cir. 2008).

The Plaintiffs have failed to allege any facts plausibly

suggesting a unity of purpose, a common design and

understanding, or a meeting of the minds between and among

Dentsply and all of the Dealers. Accordingly, we will affirm the

District Court’s determination that the Plaintiffs have failed to

adequately allege the agreement element of their Section 1 and

Section 2 claims.

2. Allegation of Specific Intent

The District Court dismissed the conspiracy to

monopolize claims asserted in Counts Two and Three on the

alternative ground that the Plaintiffs failed to adequately allege

specific intent on the part of the Dealers. Specific intent is an 9
“wanted” Dentsply to obtain a monopoly, thereby “confus[ing]

motive with intent.” (Appellants’ Br. 81-83.) We agree that no

authority of which we are aware mandates the conclusion that a

defendant’s intent to violate the antitrust laws is negated if the

defendant was coerced into committing a violation. It is well

settled that at the summary judgment stage a court may dispose

of an antitrust conspiracy claim in “the absence of any plausible

motive to engage in the conduct charged[.]” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 596 (1986). We

recognize that some courts have made motive-type

determinations in antitrust cases at the pleading stage. See, e.g.,

TV Commc’ns Network, Inc. v. Turner Network Television, Inc.,

964 F.2d 1022, 1026-27 (10th Cir. 1992). Other courts,

however, have disavowed that approach. See, e.g., Jung v. Ass’n

of Am. Med. Colleges, 300 F. Supp. 2d 119, 159 (D.D.C. 2004).

We need not decide here which line of cases has it right.

36

essential element of a conspiracy to monopolize claim.

Bonjorno v. Kaiser Aluminum & Chem. Corp., 752 F.2d 802,

807 (3d Cir. 1984). It means “an intent which goes beyond the

mere intent to do the act.” Aspen Skiing Co. v. Aspen Highlands

Skiing Corp., 472 U.S. 585, 602 (1985) (discussing specific

intent in the attempt to monopolize context) (quoting United

States v. Aluminum Co. of Am., 148 F.2d 416, 432 (2d Cir.

1945)). In other words, the defendant must have “intended to

achieve an illegal monopoly.” Joseph P. Bauer & William H.

Page, II Kintner’s Federal Antitrust Law § 14.40, at 423 (2002)

(footnote omitted); see also Times-Picayune Pub. Co. v. United

States, 345 U.S. 594, 626 (1953); Am. Tobacco Co., 328 U.S. at

809. Specific intent in the antitrust context may be inferred
As the Plaintiffs correctly note, the agreement element 10

of their conspiracy claims arguably is not negated by their

allegation that the Dealers may have been coerced into

submitting to Dentsply’s pricing policies. See Perma Life

Mufflers, Inc. v. Int’l Parts Corp., 392 U.S. 134, 142 (1968);

Albrecht v. Herald Co., 390 U.S. 145, 150 & n.6 (1968). But

37

from a defendant’s unlawful conduct. See, e.g., Advo, Inc. v.

Phila. Newspapers, Inc., 51 F.3d 1191, 1199 (3d Cir. 1995).

Here, the Plaintiffs point us to their allegations that the

defendants “have acted with the specific intent to unlawfully

maintain a monopoly[,]” (App. 452); that “the intended effect of

th[e] exclusive dealing arrangement . . . has been the elimination

of any and all competition[,]” (id. at 440); and that the

defendants “knew that this exclusive dealing arrangement was

and is an illegal restraint of trade designed to maintain

Dentsply’s monopoly[,]” (id.). In essence, the Plaintiffs allege

that Dentply’s pricing policies were unlawful, that the Dealers

knew as much, and that they signed on to those policies knowing

full well they were unlawful. But that allegation, in its many

iterations, is conclusory. There are no facts behind it, so it does

not plausibly suggest knowledge of unlawfulness on the

Dealers’ part. We could feasibly infer the Dealers’ specific

intent to further Dentsply’s monopolistic ambitions if the

Plaintiffs had stated enough factual matter to suggest some

coordination among the Dealers, something to suggest that they

knew that Dentsply was spearheading an effort to squash its

competitors by pressing the Dealers into its service and keeping

prices artificially inflated. We have already determined, 10
that argument does not relieve the Plaintiffs of their obligation

to state “sufficient factual matter . . . [that] ‘state[s] a claim to

relief that is plausible on its face’” as to the specific intent

element of their Section 2 claims. Iqbal, 129 S. Ct. at 1949

(quoting Twombly, 550 U.S. at 570).

38

however, that the Plaintiffs’ allegations that the Dealers

conspired with Dentsply are deficient, so we cannot infer the

Dealers’ specific intent from their mere participation in the

conspiracy, as the Plaintiffs urge. In fact, the only actual

conduct the Plaintiffs have alleged on the part of the Dealers is

that each one of them, acting on its own, signed a bilateral

dealing agreement with Dentsply. The only plausible inference

from that conduct is that each Dealer sought to acquire, retain

and/or increase its own business. Significantly, the antitrust

laws do not prohibit such conduct. See, e.g., U.S. Steel Corp. v.

Fortner Enters., Inc., 429 U.S. 610, 612 n.1 (1977). At bottom,

the Plaintiffs’ allegations of specific intent rest not on facts but

on conclusory statements strung together with antitrust jargon.

It is an axiom of antitrust law, however, that merely saying so

does not make it so for pleading-sufficiency purposes. See

Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation to provide

the grounds of his entitlement to relief requires more than labels

and conclusions, and a formulaic recitation of the elements of a

cause of action will not do[.]” (internal quotation marks,

alteration and citation omitted)).

Because we find that the Plaintiffs failed to sufficiently

allege specific intent, we agree with the District Court’s

dismissal of Counts Two and Three on this ground.
39

3. Application of Illinois Brick

In addition to finding that the Plaintiffs did not

adequately allege specific intent or an agreement, the District

Court dismissed Counts Two and Four under Illinois Brick. The

Court recognized that Hess I did not address whether the

Plaintiffs could pursue damages claims against the Dealers

because the Dealers were not parties to that suit. The District

Court concluded, however, that Illinois Brick’s general

coconspirator exception did not apply here because the Plaintiffs

did not allege facts to show that the Dealers were in fact

coconspirators with Dentsply.

The Plaintiffs fault the District Court’s consideration of

any exception at all to Illinois Brick. In the Plaintiffs’ view,

Illinois Brick is inapposite because they buy directly, not

indirectly, from the Dealers. But that circumstance is immaterial

because the amended complaint does not adequately allege that

the Dealers are members of a conspiracy with Dentsply. As we

explained in Hess I, the Plaintiffs could come within Illinois

Brick’s coconspirator exception only if the Dealers were

precluded from asserting claims against Dentsply because their

participation in the conspiracy was “truly complete.” Hess I,

424 F.3d at 383. As we have already concluded, however, the

amended complaint does not give rise to a plausible inference

that the Dealers’ involvement in the conspiracy was truly

complete. Therefore, to state a viable claim against the Dealers,

the Plaintiffs must come within the coconspirator exception – or

some other exception – to Illinois Brick. Because they have

failed to do so, the Plaintiffs in essence are asserting their claims

against the Dealers as mere middlemen. This they cannot do.
40

See, e.g., Kansas v. UtiliCorp United Inc., 497 U.S. 199, 204,

207 (1990); Kendall v. Visa U.S.A., Inc., 518 F.3d 1042,

1044-50 (9th Cir. 2008); McCarthy, 80 F.3d at 855.

The Plaintiffs also argue that, even assuming the District

Court’s application of Illinois Brick was correct as to their

request for overcharge damages, the Court made no finding as

to their request for lost profits. In Hess I, we explained that

“[w]hen antitrust violators cause prices to increase through

monopolization, a price-fixing conspiracy, or exclusionary

conduct, the harm they cause members of the distribution chain

comes in two forms: (1) overcharges paid for goods actually

purchased; and (2) lost profits resulting from the lost

opportunity to buy and resell a greater volume of goods.” 424

F.3d at 373 (footnote and citations omitted). After canvassing

various sources on the subject, we held that the Plaintiffs did not

have standing to recover lost profits from Dentsply. Our

rationale for barring lost profits damages was based mostly on

the Plaintiffs’ status as indirect purchasers vis-à-vis Dentsply.

See id. at 375. We also explained that lost profits damages are

widely “disfavored” and cited approvingly from a law journal

article by Judge Easterbrook in which he argued that overcharge

damages, as opposed to lost profits damages, “should be the

basis of all [antitrust] damages.” Id. (quoting Frank H.

Easterbrook, Treble What?, 55 Antitrust L.J. 95, 101 (1986))

(quotation marks omitted and alteration in original). The

Plaintiffs acknowledge that portion of our holding but assert that

we have “not had any occasion to rule on whether lost profits

damages may be recovered from the Dealers.” (Appellants’ Br.

59.)
The Plaintiffs contend that the defendants cannot 11

complain that they were caught unawares by their request for

lost profits damages. That may be so, but the doctrine of waiver

does not serve as a surprise-avoidance mechanism alone. It

41

Although Hess I admittedly did not categorically bar lost

profits damages in this circuit, we need not explore this issue

any further in this case. In this Court, issues that are not

“specifically presented to the District Court” ordinarily are

waived on appeal, see Pension Benefit Guar. Corp. v. White

Consol. Indus., Inc., 215 F.3d 407, 418-19 & n.14 (3d Cir. 2000)

(collecting cases); see also In re Ins. Brokerage Antitrust Litig.,

579 F.3d at 262; Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir.

2005), and there is no evidence in the record that the Plaintiffs

specifically litigated in the District Court whether they may

recover lost profits damages from the Dealers. It is true that we

have the “discretionary power to address issues that have been

waived[,]” Bagot, 398 F.3d at 256 (citations omitted), and we

sometimes exercise that power “when prompted by exceptional

circumstances[,]” Selected Risks Ins. Co. v. Bruno, 718 F.2d 67,

69 (3d Cir. 1983) (citations omitted). But no such

circumstances are attendant here. A substantial part of Hess I

was dedicated to an analysis of whether the Plaintiffs could

recoup lost profits damages from Dentsply. See 424 F.3d at

373-76. We concluded that they could not do so. Id. at 376.

Despite how central both that analysis and that conclusion were

to Hess I, the Plaintiffs did not leverage our discussion to

persuade the District Court on remand to allow them to seek

such damages from the Dealers, electing instead to broach this

issue in the District Court in only the broadest terms.11
ensures that a particular issue is given a full airing, permitting

each party to present its views and the trial court to make an

initial determination. Most important for our purposes, the

doctrine allows us to review both those views and that

determination in arriving at our own considered judgment.

42

Accordingly, under these particular circumstances we are

convinced that a waiver finding is appropriate. See, e.g., In re

Stone & Webster, Inc., 558 F.3d 234, 241 n.8 (3d Cir. 2009).

VI.

For the foregoing reasons, we will affirm the District

Court’s rulings in their entirety.