Howard Hess Dental Laboratories Inc. v. Dentsply International, Inc.

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.
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.

2
 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.

*
Honorable Paul S. Diamond, United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.

3
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

4
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.

5
 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.

6
Dentsply International, Inc. (“Jersey Dental”).1 Because we set
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.

1
These cases were brought as putative class actions but
have never been certified as such.

7
 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

8
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.2 Howard

2
The District Court also granted the motions of several of
the Dealers in Jersey Dental to dismiss the amended complaint

9
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

for lack of personal jurisdiction and improper venue. That
portion of the District Court’s ruling is not at issue here.

10
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

11
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.

12
 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

13
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

14
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).

3
Because the applicability vel non of collateral estoppel
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
 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

16
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

17
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

18
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,

19
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).

20
 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

21
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

22
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

4
Neither party contests the District Court’s interpretation
of the Plaintiffs’ motion as one for reconsideration, and thus we
accept that interpretation as correct.

23
(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 post-
summary 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

24
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

25
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

26
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.5 Given
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

5
In their briefs, the Plaintiffs do not impugn the District
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).
6
The defendants argue that the Plaintiffs should be
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
 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

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
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).7 To allege such an
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).

7
The standard for a Section 2 violation is “the more
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
 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,

30
 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

31
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

32
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

8
The Plaintiffs rely on Fineman v. Armstrong World
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
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

34
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.9 Specific intent is an

9
The Plaintiffs argue that the District Court erroneously
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
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

“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
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.10 We have already determined,

10
As the Plaintiffs correctly note, the agreement element
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
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.

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
 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.

39
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.)

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 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

11
The Plaintiffs contend that the defendants cannot
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

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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.

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.

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