Podiatrist Ass'n, Inc. v. La Cruz Azul De Puerto Rico, Inc.

United States Court of Appeals
For the First Circuit

No. 01-2718

THE PODIATRIST ASSOCIATION, INC., ET AL.,
Plaintiffs, Appellants,

v.

LA CRUZ AZUL DE PUERTO RICO, INC. AND TRIPLE-S, INC.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Kevin G. Little, with whom Law Offices of David Efron was on
brief, for appellants.
Gilberto J. Marxuach-Torrós, with whom Arturo J. García-Solá
and McConnell Valdés were on brief, for appellee La Cruz Azul de
Puerto Rico.
Luis A. Oliver-Fraticelli, with whom Fiddler, Gonzalez &
Rodriguez LLP was on brief, for appellee Triple-S, Inc.

June 12, 2003
 SELYA, Circuit Judge. This antitrust case requires us to

examine the structure and operation of health-care delivery in an

era marked by a bewildering array of insurer and provider

arrangements. The plaintiffs, appellants here, represent the

interests of podiatrists in Puerto Rico. They sued La Cruz Azul de

Puerto Rico (Blue Cross) and Triple-S, Inc. (Triple-S) in the

federal district court complaining, inter alia, that the defendants

had conspired with medical doctors to exclude podiatric care from

their standard benefits packages during the period from 1995 to

1999. The district court concluded that the plaintiffs had offered

insufficient evidence that physicians controlled the plans'

policymaking functions with respect to either insurance benefits or

reimbursement rates (and, therefore, had offered insufficient

evidence of concerted action). Accordingly, the court granted

summary judgment in the defendants' favor. Relatedly, the court

dismissed a Lanham Act claim against Blue Cross. The plaintiffs

appeal from these determinations. We affirm.

I. BACKGROUND

Except for the Lanham Act count (as to which the

allegations of the amended complaint control), we glean the

relevant facts from the summary judgment record. We draw all

reasonable inferences in the plaintiffs' favor. Griggs-Ryan v.

Smith, 904 F.2d 112, 115 (1st Cir. 1990). Our recital begins with

a roster of the protagonists, proceeds to detail the plaintiffs'

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claims and the facts upon which they rely, and then summarizes the

district court's main holdings.

A. The Protagonists.

The plaintiffs include the Podiatrist Association (a non-

profit trade association), a number of practicing podiatrists,

their spouses, and their conjugal partnerships. Inasmuch as the

podiatrists are the real parties in interest, we shall discuss the

matters sub judice as if they were the sole plaintiffs.

Podiatrists are licensed health-care providers in Puerto

Rico (as elsewhere). They afford medical care to the foot and

lower extremities. Podiatrists attend four-year schools of

podiatric medicine. Those who successfully complete the curriculum

are awarded D.P.M. degrees and become doctors of podiatric

medicine. Once admitted to practice, podiatrists provide services

that are similar to those offered by some medical doctors, so that

the two groups compete against each other for certain patients.

One court has suggested that podiatrists can furnish comparable

services at lower costs. See Hahn v. Or. Physicians' Serv., 868

F.2d 1022, 1032 (9th Cir. 1988). Along this line, the plaintiffs'

amended complaint alleges, albeit without supporting evidence, that

podiatrists offer services that are not only "of equal or better

quality" than those provided by medical doctors but also "generally

less expensive."

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 The defendants are Puerto Rico's two major providers of

health-care insurance.1 They do not contest the plaintiffs'

allegation that Triple-S enjoys roughly 36% of Puerto Rico's health

insurance market and Blue Cross enjoys roughly 25% of that market.

Triple-S is a for-profit corporation. From 1995 forward,

its board of directors has been composed of nineteen members, eight

of whom are medical doctors. The other members include a dentist,

hospital officials, and community representatives. The board has

complete control over corporate policymaking, and all changes in

the benefits packages and reimbursement rates established by

Triple-S are subject to board approval. The executive committee,

which exercises responsibility over corporate policies between

board meetings, consists of seven board members. Since 1995, three

of those members — the president, vice-president, and secretary —

have been medical doctors. The medical director, who reports to

the board, is required by the corporation's bylaws to have an M.D.

degree.

1
Describing the defendants' product line as "insurance" is
somewhat of a misnomer. The McCarran-Ferguson Act, 15 U.S.C. §§
1011-1015, exempts "the business of insurance" from federal
antitrust laws. Id. § 1012(b). The Supreme Court has recognized,
however, that benefit plans, although typically marketed as health
insurance, more closely resemble pre-payment plans in which the
primary objective is not to shift the risk of loss, but, rather, to
provide health-care services to subscribers. See Group Life &
Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 214-15 (1979); see
also Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 127-29
(1982). In the aftermath of Royal Drug, courts have freely
subjected companies like Blue Cross and Triple-S to antitrust
scrutiny.

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 Blue Cross has a more complicated corporate history.

Before 1998, it functioned as a non-profit corporation. Its

twenty-eight board members included seven medical doctors, seven

hospital executives, and fourteen subscriber representatives. Blue

Cross became a for-profit corporation in 1998. Upon its conversion

to for-profit status, Blue Cross established a fourteen member

board of directors. All the members represented subscribers; none

of them were medical doctors. In November of that year,

Independence Holdings, a wholly-owned subsidiary of Independence

Blue Cross, acquired a majority of its shares. At that time, the

board was pared to seven members (none of whom are medical

doctors).

When it functioned as a non-profit, Blue Cross had a fees

and contracts committee that was responsible for proposing and

evaluating benefits packages and reimbursement policies. The

committee consisted of eight members: two medical doctors, two

hospital executives, and four subscriber representatives. Blue

Cross also maintained a medical advisory committee composed of

three medical doctors (all of whom doubled in brass as board

members). Despite the existence of these committees, all major

decisions concerning benefits and reimbursement rates remained

subject to the board's approval.

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 B. The Plaintiffs' Allegations.

The plaintiffs' amended complaint mounts two kinds of

claims. The first set, involving alleged antitrust violations, are

rooted in Section 1 of the Sherman Act, 15 U.S.C. § 1, and a

parallel local-law provision, 10 P.R. Laws Ann. § 258 (1997). In

a related vein, the plaintiffs charged both defendants with having

engaged in unfair business practices in violation of Section 43(a)

of the Lanham Act, 15 U.S.C. § 1125(a), and Article 1802 of the

Civil Code, 31 P.R. Laws Ann. § 5141 (1990).

The plaintiffs' antitrust claims start with the premise

that the defendants have favored medical doctors by excluding

podiatrists, podiatric care, and ancillary services essential to

podiatric care from their basic health insurance coverages; that

even when podiatric care is covered, the defendants reimburse

podiatrists at lower rates than those paid to medical doctors for

comparable services; and that many patients who are in need of foot

care turn to medical doctors rather than podiatrists. The

plaintiffs further aver that this favoritism is no accident: in

their view, the defendants and the internal decisionmaking

processes used to formulate their benefits packages have been

dominated by medical doctors, so that the discrimination that

permeates the plans' activities is the outgrowth of a conspiracy

that has placed anticompetitive restraints on trade. These

restraints operate, the plaintiffs say, to increase prices

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(diverting patients to more expensive treatment, i.e., treatment by

medical doctors), decrease output (driving some patients to forgo

podiatric care altogether), and curtail podiatrists' earnings.

In support of these antitrust claims, the plaintiffs

point to the following evidence. First, they remark that

physicians have served on the defendants' boards of directors and

have occupied key decisionmaking positions within the defendants'

organizational structures. In contrast, no podiatrist has ever

participated in either defendant's governance apparatus. Second,

the plaintiffs identify specific meetings in which the defendants'

exclusionary benefits policies were discussed and approved. They

assert that those meetings were dominated by physicians.

The second type of claim mounted by the plaintiffs

accuses the defendants of making false representations regarding

the quality of podiatric care. In this regard, the plaintiffs

allege that the defendants spread misinformation to subscribers

regarding the competency of podiatrists, the relative

professionalism of podiatrists vis-à-vis medical doctors, and the

limited availability of reimbursement for podiatric care. The

plaintiffs claim that these disparaging comments caused them both

economic loss and reputational damage.

The current dispute is emblematic of the nationwide

conflict between physicians and other participants in the health-

care market. See, e.g., Flegel v. Christian Hosp., 4 F.3d 682 (8th

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Cir. 1993); Bhan v. NME Hosps., Inc., 929 F.2d 1404 (9th Cir.

1991); Va. Acad. of Clinical Psychologists v. Blue Shield, 624 F.2d

476 (4th Cir. 1980). Podiatrists have long been part of this

conflict. In the past, they have accused physicians of employing

anticompetitive means to place hospital staff privileges beyond

their reach, e.g., Cooper v. Forsyth County Hosp. Auth., Inc., 789

F.2d 278, 279 (4th Cir. 1986), battled with physician-dominated

boards to determine what podiatric services qualify for Medicare

reimbursement, e.g., Conn. State Med. Soc'y v. Conn. Bd. of Exam'rs

in Podiatry, 524 A.2d 636, 637-38 (Conn. 1987), and fought against

perceived conspiracies to exclude podiatric care from insurance

coverage, e.g., Hahn, 868 F.2d at 1024-25. Consequently, we are

able to view the current hostilities through the prism of a

significant body of case law.

C. Travel of the Case.

The plaintiffs sued on December 9, 1999, and filed an

amended complaint on March 28, 2000. Shortly thereafter, Blue

Cross moved for summary judgment with respect to the antitrust

claims and for dismissal of the remaining claims. The district

court permitted the plaintiffs to undertake discovery on the issues

raised in the summary judgment motion. While those motions were

pending, Triple-S moved for summary judgment on all claims asserted

against it. The parties appear to have assumed that discovery

could go forward on the issues framed by this motion.

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 On September 19, 2001, the district court, in two

parallel opinions, granted substantially all the relief requested

by the defendants. See Podiatrist Ass'n, Inc. v. Cruz Azul de

P.R., Inc., No. 99-2336 (D.P.R. Sept. 19, 2001) (unpublished);

Podiatrist Ass'n, Inc. v. Triple-S, Inc., No. 99-2336 (D.P.R. Sept.

19, 2001) (unpublished). In each instance, the court focused its

antitrust analysis on the issue of whether physicians controlled

the particular defendant's benefits policies and concluded that the

plaintiffs had failed to show such control. The court also granted

summary judgment for Triple-S on the Lanham Act count. As to Blue

Cross, the court determined that the plaintiffs had failed to state

an actionable Lanham Act claim and granted that defendant's motion

to dismiss. Moreover, the court determined that issue had not

properly been joined on certain claims against Triple-S, see infra

Part II(C), and left those claims for later resolution.

Having disposed of most of the causes of action asserted

under federal law, the court declined to exercise supplemental

jurisdiction over the claims asserted under Article 1802 of the

Civil Code. Those claims were dismissed without prejudice. See 28

U.S.C. § 1367(c); see also Martinez v. Colon, 54 F.3d 980, 990 (1st

Cir. 1995) (upholding dismissal without prejudice of pendent local-

law claims when the district court determined "far in advance of

trial that no legitimate federal question existed"). After the

plaintiffs dropped the residuum of potential federal claims against

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Triple-S (a matter to which we shall return), this timely appeal

ensued.

II. ANALYSIS

On appeal, the plaintiffs hawk several assignments of

error. First, they challenge the district court's resolution of

the "physician control" issue. Second, they maintain that the

lower court evaluated only one of a myriad of antitrust theories

set forth in their amended complaint. Finally, they contend that

the court improperly granted Blue Cross's motion to dismiss the

Lanham Act claim. We first confront the arguments relating to the

antitrust claims and then discuss the district court's disposition

of the Lanham Act claim.2

A. The Principal Antitrust Claim.

Section 1 of the Sherman Act prohibits "[e]very contract,

combination . . . or conspiracy, in restraint of trade." 15 U.S.C.

§ 1. That language establishes two prerequisites for a Section 1

claim. First, the plaintiff must show concerted action between two

or more separate parties. Monsanto Co. v. Spray-Rite Serv. Corp.,

465 U.S. 752, 761 (1984). Second, the plaintiff must show that

such action unreasonably restrains trade. Nynex Corp. v. Discon,

Inc., 525 U.S. 128, 133 (1998). The district court restricted its

analysis to the first of these prerequisites, finding insufficient

2
The plaintiffs do not appeal the entry of summary judgment in
favor of Triple-S on the Lanham Act claim. Consequently, we limit
our Lanham Act discussion to the claim against Blue Cross.

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evidence to support the plaintiffs' allegation that the defendants'

benefits policies were born out of concerted action. We test this

conclusion against the summary judgment standard.

1. The Standard of Review. The role of summary judgment

is "to pierce the pleadings and to assess the proof in order to see

whether there is a genuine need for trial." Garside v. Osco Drug,

Inc., 895 F.2d 46, 50 (1st Cir. 1990) (quoting Fed. R. Civ. P. 56

advisory committee's note). Thus, summary judgment is appropriate

as long as "the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c).

We afford plenary review to orders granting or denying

summary judgment. Garside, 895 F.2d at 48. Like the district

court, we "must view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party's favor." Griggs-Ryan, 904 F.2d at 115.

Despite this favorable presumption, the evidence relied upon by the

party opposing summary judgment must suffice to show a genuine

issue of material fact, that is, a bona fide dispute about a fact

that has the potential of affecting the outcome of the case under

the applicable law. United States v. One Parcel of Real Prop.

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(Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st

Cir. 1992).

To be sure, the Supreme Court has cautioned that, in

antitrust cases, "dismissals prior to giving the plaintiff ample

opportunity for discovery should be granted very sparingly." Hosp.

Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 746 (1976)

(discussing Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473

(1962)). This does not mean, however, that summary judgment is

unavailable in antitrust cases. See First Nat'l Bank v. Cities

Serv. Co., 391 U.S. 253, 289-90 (1968); see also Texaco P.R., Inc.

v. Medina, 834 F.2d 242, 247 (1st Cir. 1987) (noting that "the

courts, including the Supreme Court, now more freely approve" the

use of summary judgment in such cases). More to the point, the

doctrine has no force in cases in which the plaintiff has been

afforded sufficient opportunity for discovery. See, e.g.,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-87 (1986). This is such a case.

2. Sufficiency of the Evidence. Against this backdrop,

we turn to the plaintiffs' basic allegation: that the evidence

supports a finding of an anticompetitive conspiracy between and

among those physicians who served on the defendants' boards and the

defendants themselves. This allegation does not get them very far,

for the Supreme Court has largely dismissed the possibility of an

intraenterprise conspiracy as a basis for liability under Section

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1 of the Sherman Act. See Copperweld Corp. v. Independence Tube

Corp., 467 U.S. 752 (1984); see also VII Phillip E. Areeda &

Herbert Hovenkamp, Antitrust Law ¶ 1470 (2d ed. 2003) (describing

as "universally accepted" the proposition that "a corporate officer

cannot conspire with his own corporation"). In other words,

agreements between two or more actors who operate within and for

the benefit of a single economic enterprise do not satisfy the

concerted action requirement of Section 1. Copperweld, 467 U.S. at

769.

That does not end our inquiry, for the Copperweld Court

intended to exempt conduct from the rigors of Section 1 only when

the actors, collectively, "pursue[] the common interests of the

whole rather than interests separate from those of the corporation

itself." Id. at 770. A different analysis is required when the

alleged coconspirators, regardless of their status, pursue

interests that diverge from those of the enterprise itself.

Sullivan v. Nat'l Football League, 34 F.3d 1091, 1099 (1st Cir.

1994); VII Areeda & Hovenkamp, supra, ¶¶ 1471a, 1471e2. This

nuance does not help the plaintiffs in this case because they have

not submitted any evidence suggesting that physicians on either

board have their own agendas or harbor private economic interests

distinct from those of the corporations themselves. Inasmuch as

nothing in the record lends support to a conclusion that those

physicians acted as independent, self-interested economic agents,

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the plaintiffs have not articulated a claim that involves anything

more than activity occurring within a single enterprise. As we

have said, such a claim falls within the sphere of Copperweld

preclusion (and, accordingly, fails to articulate a viable

antitrust claim).

In a variation on this theme, the plaintiffs argue that

physicians controlled the defendants and their benefits policies,

so that each defendant was little more than a corporate carapace

housing a conspiracy among physicians. According to this argument,

the defendants' benefits policies were products of the antecedent

conspiracy.

This argument focuses our attention on the issue of

physician control. After all, when competing health-care providers

challenge an insurer's benefits policies, alleging exclusionary

practices instigated by physicians, those providers must make a

threshold showing that the physicians effectively control the

health-care plan. Hahn, 868 F.2d at 1029; Pa. Dental Ass'n v. Med.

Serv. Ass'n, 745 F.2d 248, 256 (3d Cir. 1984); Va. Acad. of

Clinical Psychologists, 624 F.2d at 481. This is as it should be,

for a health insurer's actions can reflect an agreement in

restraint of trade among physicians only if, and to the extent

that, the insurer is an instrumentality of the physicians'

concerted action. See VII Areeda & Hovenkamp, supra, ¶ 1475a.

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 The district court characterized the inquiry as one

involving whether the physicians operated a "structural conspiracy"

within the defendants' corporate skeletons. It examined the makeup

of the defendants' boards and the identity of key decisionmakers.

Based on this appraisal, the court ruled that the record did not

contain evidence adequate to establish that physicians either

dictated the defendants' benefits policies or otherwise exercised

the requisite degree of control. The plaintiffs challenge this

assessment.

The inquiry into whether an organization represents, or

is a reflection of, the concerted action of conspiring economic

actors is a functional one. See United States v. Sealy, Inc., 388

U.S. 350, 352-53 (1967) ("[W]e look at substance rather than form

. . . [and] we are moved by the identity of the persons who act,

rather than the label of their hats."). Thus, the preferred

approach — and the one that we adopt — is to examine the

composition of a corporation's board to determine whether a

particular group has exercised (or has the ability to exercise)

majority control. See, e.g., Hahn, 868 F.2d at 1030; Pa. Dental

Ass'n, 745 F.2d at 258; Va. Acad. of Clinical Psychologists, 624

F.2d at 480.

Regarding Triple-S, the plaintiffs managed to establish

nothing more than that physicians held eight of the nineteen seats

on the board. That is a minority position — and plainly not enough

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to show control. The corporate bylaws make manifest that board

action requires a majority vote, and the physicians simply do not

constitute a majority. Nor can they achieve control under the

extant circumstances; the bylaws specify that at least ten of the

nineteen board members must at all times be non-physicians.

The plaintiffs' fallback position covers a great deal of

ground. They asseverate that physicians have enough representation

on the board to influence board decisions; that physicians play

important roles when Triple-S formulates its restrictive benefits

policies; that many key executives of Triple-S, including the board

chair and medical director, are physicians; and that physicians

occupy three of seven seats on the executive committee. This is a

mixture of unsupported conclusions and marginally relevant (but

ultimately unconvincing) facts.

The first two statements are argumentative. The mere

fact that physicians have some input into Triple-S's decisionmaking

processes does not show control. See, e.g., Barry v. Blue Cross,

805 F.2d 866, 868-69 (9th Cir. 1986); Pa. Dental Ass'n, 745 F.2d at

258. Without hard proof that physician input metamorphosed into

physician dominance — and the summary judgment record contains none

— these exhortations do not advance the plaintiffs' cause.

The second two statements are factual, but not probative.

It is true that certain of Triple-S's ranking executives are

medical doctors and that three of them serve on its executive

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committee. But such facts, without more, prove very little. See

Pa. Dental Ass'n, 745 F.2d at 258 (discounting the influence of

physicians serving on certain committees when corporate bylaws

vested ultimate control in the board); see also Barry, 805 F.2d at

868-69 (employing the same reasoning when company rules placed

ultimate control elsewhere).

Here, there is no "more." The plaintiffs have wholly

failed to show how the placement of these individuals translates

into control. Equally as important, they have not shown how their

placement suffices to overcome the significance and role of the

board. The corporate bylaws state unambiguously that all business

decisions and policy changes are subject to board approval, and

nothing in the record suggests that the board relinquished this

authority. Absent some probative evidence that board approval was

a rubber stamp — an ingredient that is lacking here — the antitrust

claim against Triple-S cannot stand.

The plaintiffs likewise have failed to adduce sufficient

evidence to suggest that Blue Cross is under physician control.

The record shows that, during the period from 1995 to 1998,

physicians constituted a distinct minority of the board (holding

seven out of twenty-eight seats). This was not fortuitous: both

the corporation's former bylaws and the relevant provisions of Law

152, 6 P.R. Laws Ann. § 43(1) (1994), demanded this minority

status. From 1998 forward, the possibility of physician control

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seems even more remote; the corporation became a for-profit entity,

and the board became a physician-free zone.

In a creative formulation, the plaintiffs attempt to

change the arithmetic by pointing out that physicians and hospital

executives collectively held half of the seats on Blue Cross's non-

profit board. This is mathematically accurate — the twenty-eight

member board included seven physicians and seven hospital

representatives — but legally irrelevant. The record is barren of

any evidence indicating that these two groups worked as a unit or

even that they shared common economic interests. Certainly, we

cannot infer as much in the absence of any proof. Physicians and

hospitals are in some respects natural enemies, squabbling over how

to divide the steadily shrinking portion of premium dollars that

insurers devote to provider reimbursement. See, e.g., Jeffrey E.

Harris, Regulation and Internal Control in Hospitals, 55 Bull. N.Y.

Acad. of Med. 88, 90-95 (1979) (discussing structural and

historical tensions pitting hospital administrators against medical

staff).

The plaintiffs' next initiative is to note that

physicians occupied certain ancillary offices, such as positions on

the fees and contracts committee and the medical committee. They

couple this with an assessment of the roles that these committees

played in Blue Cross's operations. From these facts, they argue

that physicians were responsible for the development of the

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insurer's policies. As with Triple-S, however, we can attach no

special significance to the unadorned fact of physician

participation on any committee. See Barry, 805 F.2d at 868-69; Pa.

Dental Ass'n, 745 F.2d at 258. This is especially true in light of

the bylaw provision that expressly grants the Blue Cross board "the

sole authority to set . . . the services to be offered to the

subscribers."

To sum up, the plaintiffs have failed to establish the

first foundational element of their argument. The defendants'

boards retained the ultimate say over their benefits policies and

reimbursement rates, and physicians were represented sparsely (if

at all) on these boards. By the same token, the plaintiffs have

not established that physicians exercised the requisite degree of

control over policymaking in any other fashion. Accordingly, the

district court did not err in granting summary judgment on the

plaintiffs' "structural conspiracy" antitrust claim.

Let us be perfectly clear. We base this ruling on the

plaintiffs' failure to muster evidence showing physician control.

We hasten to add, however, that for purposes of Section 1 of the

Sherman Act, control is a necessary but not a sufficient condition

for finding concerted action. See, e.g., Arizona v. Maricopa

County Med. Soc'y, 457 U.S. 332, 356 (1982); Broad. Music, Inc. v.

Columbia Broad. Sys., Inc., 441 U.S. 1, 22 (1979); see also VII

Areeda & Hovenkamp, supra, ¶ 1478. Even then, satisfying the

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concerted action requirement is but one precondition to

establishing a Section 1 violation. See, e.g., NCAA v. Bd. of

Regents, 468 U.S. 85, 98-101 (1984). This appeal, however, turns

on the question of whether physicians exercised the requisite

degree of control over the defendants to support a Section 1 claim.

Having answered that question in the negative, we take no view as

to whether any additional factors might independently preclude the

maintenance of an action under the statute.

B. The Puerto Rico Antitrust Claims.

The plaintiffs recast their Sherman Act claims as

separate causes of action under Puerto Rico's antitrust law, 10

P.R. Laws Ann. § 258. That statute prohibits "[e]very contract,

combination . . . or conspiracy in unreasonable restraint of trade

or commerce in the Commonwealth of Puerto Rico." Id. Because this

language mirrors the language of Section 1 of the Sherman Act, we

have treated the two provisions as coextensive. See Caribe BMW,

Inc. v. Bayerische Motoren Werke Aktiengesellschaft, 19 F.3d 745,

754 (1st Cir. 1994); see also Pressure Vessels v. Empire Gas, 137

P.R. Dec. 497, 508-20 (1994), 37 Offic. Trans. ___, ___ [Slip Op.

Offic. Trans. at 8-20] (examining Puerto Rico's antitrust statute

and articulating its equivalency to federal law). Hence, we apply

the reasoning elucidated above and affirm the district court's

entry of summary judgment for the defendants on these claims.

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 C. The Plaintiffs' Alternative Antitrust Theories.

The plaintiffs next contend that they presented three

alternative antitrust theories before the district court, namely,

(1) that the physician members of the defendants' boards were part

of an anticompetitive conspiracy that included non-physician board

members; (2) that there was a conspiracy among physicians who

influenced, though they did not control, the defendants and their

policies; and (3) that the defendants were parties to an

anticompetitive conspiracy among community-based medical doctors

who compete with podiatrists. These theories are viable, the

plaintiffs say, notwithstanding the absence of physician control

vis-à-vis the defendants. Consequently, the district court erred

in granting summary judgment on the antitrust claims.

To put these nascent claims into perspective, we examine

the record below. None of these additional theories is readily

apparent from a thoughtful reading of the amended complaint, and

neither Triple-S nor Blue Cross addressed them in their initial

summary judgment memoranda. The plaintiffs sought to widen the

playing field by mentioning the additional theories in their

oppositions to the defendants' motions. Triple-S disregarded these

allusions. Blue Cross, however, argued in a reply brief that none

of the three alternative theories, as stated, articulated a claim

upon which relief could be granted, and that, in all events, the

evidence did not support any of them.

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 In allowing Blue Cross's motion for summary judgment, the

district court deemed these alternative theories to be within the

umbrella of the plaintiffs' "structural conspiracy" claim. The

court did, however, entertain the possibility that the third theory

amounted to a separate claim but ruled that the plaintiffs' failure

to provide any semblance of detail doomed it. The court handled

the matter differently in regard to Triple-S. Because that

defendant, unlike Blue Cross, had not responded to the plaintiffs'

belated exposition, the district court allowed the alternative

theories to survive as against Triple-S. The plaintiffs later

stipulated to dismissal without prejudice of the residuum of these

claims vis-à-vis Triple-S. We must deal, therefore, only with the

three alternative theories as they affect Blue Cross.

This motley need not detain us long. The first

alternative theory suggests the existence of a physician-dominated

conspiracy that included non-physicians (and, thus, constituted a

majority of the Blue Cross board sufficient to exercise control).

But this theory is not anchored in the record. The plaintiffs have

neither identified a single non-physician participant in this

alleged cabal nor otherwise furnished even a scintilla of

evidentiary detail. Because the claim relies solely on unsupported

conjecture, it cannot withstand summary judgment. See Medina-Munoz

v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

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 The plaintiffs' second alternative theory suggests that

a minority coalition of physicians unduly influenced the

formulation of Blue Cross's benefits packages. That claim is

factually unsupported, and we swiftly discard it based on the logic

previously articulated. See supra Part II(A)(2).

The third alternative theory, like the first two, is a

barebones allegation wrapped in the gossamer strands of speculation

and surmise. The plaintiffs have neither identified a single

physician outside Blue Cross who is part of the alleged conspiracy

nor pinpointed any agreement with such a physician that might

violate Section 1. Because this theory lacks evidentiary support,

it was not a barrier to the entry of summary judgment.

The plaintiffs attempt to confess and avoid. They blame

the dearth of evidence on a denial of discovery and complain that

summary judgment was premature because they had insufficient

opportunity to flesh out these alternative theories and pursue

supporting evidence through discovery. A careful perscrutation of

the record belies this plaint. The district court's discovery

order embraced any and all antitrust theories including, by

definition, the embedded formulations that the plaintiffs belatedly

found lurking in the penumbra of the amended complaint. We explain

briefly.

Blue Cross's motion for brevis disposition broadly

requested the entry of summary judgment on the "[p]laintiffs'

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claims under Section 1 of the Sherman Act and Article 2 of Puerto

Rico's antitrust statute." Blue Cross did not limit this prayer to

any particular antitrust theory, but, rather, sought to scotch the

antitrust claims as a whole. The district court's ensuing order

matched the scope of Blue Cross's motion; it permitted discovery,

without limitation, as "to the issues raised in [Blue Cross's]

motion for summary judgment on the antitrust claims."

Consequently, to the extent that the amended complaint raised

alternative theories of antitrust liability, the plaintiffs had

adequate opportunity to discover facts in support of them. They

cannot now complain that the lack of evidence in the record should

be excused. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d

576, 585 (1st Cir. 1994).

We add one final note. Had the plaintiffs genuinely

believed that they had been unfairly limited in the availability of

discovery, they had an obligation to bring the matter to the

district court's attention by means of a timely motion under Fed.

R. Civ. P. 56(f). See Mass. Sch. of Law at Andover, Inc. v. Am.

Bar Ass'n, 142 F.3d 26, 44-45 n.15 (1st Cir. 1998); Resolution

Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st

Cir. 1994). In the absence of such a motion — and none was filed

here — a subsequent complaint of denied discovery will ordinarily

be rejected. See, e.g., Corrada Betances v. Sea-Land Serv., Inc.,

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248 F.3d 40, 44 (1st Cir. 2001); Mass. Sch. of Law, 142 F.3d at 44.

This case falls well within that general proscription.

D. The Lanham Act Claim.

In pertinent part, Section 43 of the Lanham Act prohibits

the use of any communication "in commercial advertising or

promotion [that] misrepresents the nature, characteristics,

qualities, or geographic origin of . . . goods, services, or

commercial activities." 15 U.S.C. § 1125(a)(1)(B). The plaintiffs

assert in their amended complaint that Blue Cross violated this

statute when it "falsely disparaged the health care services

provided by podiatrists and actively encouraged patients to seek

services from medical doctors instead." Beyond this statement, the

plaintiffs make only the skimpy allegations that "patients have

falsely been told by [Blue Cross] that [it] cannot reimburse them

for podiatrist services because podiatrists are not 'real'

doctors," and that these misrepresentations were "disseminated

widely to patients who needed foot care." The amended complaint

contained no allegation or information regarding the means through

which these misrepresentations were communicated. Blue Cross moved

under Fed. R. Civ. P. 12(b)(6) to dismiss this claim, and the

district court obliged.

We afford plenary review to a district court's order of

dismissal for failure to state a claim upon which relief can be

granted. Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir.

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2002). In conducting that review, we must assume the truth of all

well-pleaded facts contained in the operative pleading (here, the

plaintiffs' amended complaint). Id. If "the factual averments do

not justify recovery on some theory adumbrated in the complaint,

then — and only then — can we affirm a dismissal for failure to

state an actionable claim." Rogan v. Menino, 175 F.3d 75, 77 (1st

Cir. 1999).

Despite this generous standard, we repeatedly have

cautioned that "Rule 12(b)(6) is not entirely a toothless tiger. .

. . The threshold for stating a claim may be low, but it is real."

Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989)

(internal citation omitted). The complaint must therefore set

forth "factual allegations, either direct or inferential,

respecting each material element necessary to sustain recovery

under some actionable legal theory." Gooley v. Mobil Oil Corp.,

851 F.2d 513, 515 (1st Cir. 1988); see also DM Research, Inc. v.

Coll. of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999)

(explaining that the complaint must "allege a factual predicate

concrete enough to warrant further proceedings").

Against this backdrop, we turn to the plaintiffs' Lanham

Act claim. The relevant statutory language prohibits

misrepresentations only in "commercial advertising or promotion."

This is a crucial limitation — and one that the district court

thought dispositive here. Accordingly, we must plot the boundaries

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of that phrase and then determine whether the plaintiffs'

allegations fall within those boundaries.

The courts have developed a four-part test to ascertain

which representations fall into the category of "commercial

advertising or promotion" for purposes of Section 43(a)(1)(B). The

test requires that a representation must (a) constitute commercial

speech (b) made with the intent of influencing potential customers

to purchase the speaker's goods or services (c) by a speaker who is

a competitor of the plaintiff in some line of trade or commerce and

(d) disseminated to the consuming public in such a way as to

constitute "advertising" or "promotion." See Proctor & Gamble Co.

v. Haugen, 222 F.3d 1262, 1273-74 (10th Cir. 2000); Coastal

Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735

(9th Cir. 1999); Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1384

(5th Cir. 1996); Gordon & Breach Sci. Publishers v. Am. Inst. of

Physics, 859 F. Supp. 1521, 1536 (S.D.N.Y. 1994).3

While the Lanham Act's commercial disparagement provision

covers more than classic advertising campaigns, it is nonetheless

3
Although this test bears the imprimatur of several respected
courts, the Seventh Circuit has expressed "serious doubts about the
wisdom of displacing the statutory text in favor of a judicial
rewrite with no roots in the language Congress enacted . . . for
when the Lanham Act was adopted there were no constitutional limits
on the regulation of commercial speech." First Health Group Corp.
v. BCE Emergis Corp., 269 F.3d 800, 803 (7th Cir. 2001). Since the
phrase "commercial advertising or promotion" appears in the text of
the statute itself and all the courts agree on its approximate
scope, we need not resolve that tension here.

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aimed at specific forms of communication. See, e.g., First Health

Group Corp. v. BCE Emergis Corp., 269 F.3d 800, 803-04 (7th Cir.

2001); Seven-Up, 86 F.3d at 1384; Gordon & Breach, 859 F. Supp. at

1534-35. To constitute advertising or promotion, commercial speech

must at a bare minimum target a class or category of purchasers or

potential purchasers, not merely particular individuals. See

Seven-Up, 86 F.3d at 1384-86 (collecting cases); see also First

Health, 269 F.3d at 803 ("Advertising is a form of promotion to

anonymous recipients, as distinguished from face-to-face

communication."); 4 J. Thomas McCarthy, McCarthy on Trademarks and

Unfair Competition § 27:102 (4th ed. 2003) ("A cause of action for

commercial disparagement requires that the disparaging statement

about another's product be published . . . ."). Thus, to pass the

pleading threshold in a Lanham Act § 43(a)(1)(B) case, a plaintiff

at the very least must identify some medium or means through which

the defendant disseminated information to a particular class of

consumers. See Ultra-Temp Corp. v. Advanced Vacuum Sys., Inc., 27

F. Supp. 2d. 86, 91 (D. Mass. 1998); see also 4 McCarthy, supra, §

27:24 (noting that identifying a false or misleading statement that

was made in "commercial advertising or promotion" is a pleading

requirement for a product disparagement claim). The plaintiffs'

allegations here lack this critical component; they do not

implicate the use of any particular advertising or promotional

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medium. This omission opened the Lanham Act count to dismissal

under Rule 12(b)(6). See Gooley, 851 F.2d at 515.

The plaintiffs, in their appellate brief, belatedly

endeavor to plug this hole. They claim for the first time that

"[w]hen prospective patients contact [Blue Cross] inquiring about

foot care," Blue Cross representatives habitually "disparag[e]

podiatrists as not being 'real doctors.'" We need not decide

whether this method of responsive communication would fall under

the rubric of "commercial advertising or promotion" within the

meaning of the Lanham Act or whether such a statement, if

articulated in the amended complaint, would have satisfied the

pleading requirements. It is elementary that a plaintiff cannot

constructively amend his complaint with an allegation made for the

first time in an appellate brief. Royal Bus. Group, Inc. v.

Realist, Inc., 933 F.2d 1056, 1066 (1st Cir. 1991); Dartmouth Rev.,

889 F.2d at 22. Thus, the argument has been waived. McCoy v.

Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) ("It is

hornbook law that theories not raised squarely in the district

court cannot be surfaced for the first time on appeal."); Clauson

v. Smith, 823 F.2d 660, 666 (1st Cir. 1987) (similar; collecting

cases).

III. CONCLUSION

We need go no further. Suffice it to say that close

scrutiny of the record reveals that the district court

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appropriately granted the defendants' dispositive motions on both

the antitrust and commercial disparagement claims. The plaintiffs

may have a remedy in the marketplace, the Puerto Rico legislature,

or the local courts, but for aught that appears they do not have

one in the domain of the federal judiciary.

Affirmed.

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