Abraham v. Intermountain Health Care Inc.

F IL E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
September 6, 2006
U N IT E D ST A T E S C O U R T O F A PP E A L S
Elisabeth A. Shumaker
Clerk of Court
T E N T H C IR C U IT

JA M ES M . A BR AH A M, A D V ANTAGE
EYE CARE; TERRY H. BERNER;
BERN ER EY E CLINIC; BLAINE F.
BIRD; ROBERT S. BRIGGS; PARK
C ITY V ISIO N CEN TER ; TR AER G.
CA YW OO D; BILL G. CO DN ER; OR EM
EYE CLINIC; CRAIG J. CUTLER;
W ASATCH VISION CLINIC; DANE F.
DANSIE; LA NNY F. DUCLOS; No. 05-4043
LIN CO LN J. D Y G ER T; B RA D LEY V.
FELLO WS; M A TH EW G . FIN DLAY;
M URRAY VISIO N CENTER; KEVIN J.
FRO M M ; OPTO M ETR IC PH YSICIANS;
JA M ES L. FR OST; O PTIC AL
ASSOCIATES; PAUL D. GELLER;
A PPLE C ON TA CT LEN S C ENTER; ROY
R. GIBSON ; RO BERT F. GR AY ; DA LE
F. HARDY; RICHARD W . HART;
KENNETH H. HOO TON; RICH
HEM PHERY S; FAM ILY V ISION CA RE;
JOD IE JOH NSO N; RIVERTON FAM ILY
EY E CARE; M ICH AEL JUD KINS;
RO BERT W . KELLER; TOD D E.
K IM BALL; SU G A RH O U SE V ISION
CLINIC; SHAUN D. LARSEN; M OB ILE
EY E CARE OF UTA H; TO DD J. LEW IS;
KEITH W. LINFORD; DAV ID R.
M ASIHDAS, doing business as Utah Eye
A ssociates; R OLA N D K . M O NSON; EYE
CLINIC A ND CO NTA CT LENS CEN TER
OF U TAH VA LLEY; CH ELLE NICK LE;
O A K RID G E O PTO M ETR Y; K ERRY A.
O K ELBER RY ; H A RA LD E. O LAFSSON;
D A N IEL W. PA CE; PA U L A . PAXMAN;
M OU NTA IN V IEW EYE CAR E; SCOTT
D . PETER SO N ; WA L TER G.
PETERSON ; GR EG M . PICK ETT;
PHILLIP A. PLOTHOW ; RUSSELL W .
PURDY; DAV IS EYECARE CENTER;
ALA N T. REES; JAM ES D. SARG ENT;
JEFFREY H. SEEHOLZER; SEEHOLZER
V ISIO N CEN TER ; FR AN K A .
SID D O W A Y ; G A RY C. SLA U GH;
O G D EN V ISIO N CEN TER ; D AVID A.
SM ITH; SOUTH VA LLEY EYECARE
C EN TER ; D O U G LA S R . SM ITH;
BOUNTIFUL VISION PLAZA; ROBERT
M . W ILKES; BO UN TIFUL EYE CAR E;
RO BERT P. W OO LDRIDG E;
STA N D A RD O PTIC AL; U TA H COUNTY
OPTOM ETRIC PHYSICIA NS,

Plaintiffs - Appellants,

v.

INTERM OUN TAIN HEALTH CARE
IN C.; IHC HEALTH SERVICES, IN C.;
IH C H EA LTH PLA N S, IN C.; IHC
B EN EFIT A SSU RA N CE C OM PANY,
INC .; CO REY A. M ILLER; DA VID E.
B RO D STEIN ; C OU N TR Y H ILLS EYE
CENTER,

Defendants - Appellees.

A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
FO R T H E D IST R IC T O F U T A H
(D . C t. N o. 2:01-C V -919-J)

Daniel L. Berman, Berman & Savage, Salt Lake City, Utah (Peggy A. Tomsic,

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Tomsic Law Firm, LLC, Salt Lake City, Utah, with him on the briefs), appearing
for A ppellant.

Richard W . Casey, Howrey, L.L.P., Salt Lake City, Utah (Gary F. Bendinger and
John H. Bogart, Howrey, L.L.P., Salt Lake City, Utah; James S. Jardine and John
M ackay, Ray, Quinney & Nebeker, Salt Lake City, Utah; Thomas R . Karrenberg
and Nathan B. W ilcox, Anderson & Karrenberg; and W illiam G . Kopit and
Patricia W agner, Epstein, Becker & Green, P.C., W ashington, DC, with him on
the brief) appearing for Appellees.

Before T A C H A , Chief Circuit Judge, PO R FILIO , Circuit Judge, and
JO H N SO N , District Judge. *

T A C H A , Chief Circuit Judge.

This appeal is the result of certain Utah optometrists’ decade-long effort to

become panel providers for the largest managed health care company in the state.

In 2001, the optometrists ultimately filed suit against Intermountain Health Care,

Inc. (“IHC”) and others, alleging that IHC’s exclusion of optometrists from its

network of providers violates §§ 1 and 2 of the Sherman Act. The D istrict Court

granted summary judgment in favor of the Defendants on all claims. W e take

jurisdiction under 28 U.S.C. § 1291 and AFFIRM .

I. B A C K G R O U N D

A. The Parties and Players

*
The Honorable W illiam P. Johnson, District Judge of the United States
District Court for the District of New M exico, sitting by designation.

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 1. The Plaintiffs

The Plaintiffs are forty-nine optometrists who practice along Utah’s

W asatch Front 1 and their affiliated professional organizations, as w ell as Standard

Optical Company, an eye clinic on the W asatch Front that employs optometrists.

Optometrists sell optical hardware, such as glasses and contact lenses, and have

been permitted under U tah law to perform the full scope of non-surgical eye care

(“NSEC”) since 1991. All optometrists w ho are parties to this suit are therapeutic

optometrists, which means they are authorized to prescribe prescription drugs in

addition to performing NSEC and selling hardware.

2. The D efendants

W e begin with IHC, the largest managed care company in Utah. IHC began

as an nonprofit association of hospitals in 1975. In the mid-1980s IH C vertically

integrated its hospitals and began to offer prepaid health services from IHC

facilities and physicians through managed care organizations. IH C’s health

service products— also called managed care plans— are provided through IHC’s

wholly-owned subsidiary, IHC Health Plans, Inc. In the mid-1990s, IHC added a

physicians’ division and formed IHC Health Services, Inc. That entity operates

health care facilities and directly employs physicians and other health care

1
The W asatch Front refers to Salt Lake, Davis, W eber, Cache, Utah, and
western Summit counties.

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providers. IHC and its affiliates now own and operate nineteen acute care

hospitals and six surgical centers in Utah. Nine of these hospitals and five of

these surgical centers are located on the W asatch Front.

The D efendants also include two ophthalmologists— Corey A. M iller, M .D .

and David A. Brodstein, M .D.— and their respective professional corporations.

Like optometrists, ophthalmologists sell optical hardware and perform the full

scope of N SEC. They therefore compete with optometrists for the sale of these

goods and services. Unlike optometrists, however, ophthalmologists are licensed

physicians and are authorized in Utah to perform surgical eye care (“SEC”) in

addition to NSEC. Accordingly, ophthalmologists frequently have staff privileges

at hospitals, which enables them to use the hospital to perform eye surgery. 2

Though not a party to this action, Eye Network of Utah (“EN U”) figures

prominently in this case. ENU is a network of vision care providers; its

m em bership comprises exclusively ophthalmologists under contract with an IHC

managed care plan. Dr. M iller and Dr. Brodstein were managers of EN U during

the period relevant to this appeal. The members of ENU, as w ell as all of IH C’s

panel ophthalmologists, are horizontally positioned competitors w ith respect to

2
For the sake of clarity, we will collectively refer to the IHC-affiliated
entities as “IHC.” W e will refer to Drs. M iller and Brodstein and their
professional corporations as “defendant opthalmologists.” W e will refer to the
collective group of defendants— IHC, IHC Health Plans, Inc., and IH C Health
Services, Inc., and the defendant ophthalmologists— as “Defendants.”

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each other (in the provision of SEC and NSEC and in the sale of optical

hardware) and with respect to optometrists (in the provision of NSEC and the sale

of optical hardware).

B. Background Facts

IHC administers four managed care plans that furnish health care services,

including SEC and NSEC, to an enrollee in exchange for periodic prepaid

premiums. The plans seek to limit costs (and therefore premiums) by: (1)

designating the individual health care providers (“panel providers”) from whom

enrollees may seek treatment; and (2) managing access to and the type of care

enrollees may obtain. IHC then reimburses panel providers for services provided

to enrollees. Because panel providers accept lower payments for their services to

IHC enrollees in exchange for increased patient volumes directed to them as a

panel provider, costs may decline and premiums may decrease when provider

panels become smaller and more exclusive. Therefore, IHC limits the number of

health care providers with whom it contracts. 3 These contracts are governed by

written agreements, and all IHC’s panel providers— whether physicians like

ophthalmologists or so-called “ancillary providers” like optometrists— sign the

same agreement.

3
Utah law explicitly permits this practice. See Utah Code Ann. § 31A-8-
105(2) (stating that “organizations may . . . furnish health care through providers
which are under contract with the organization”).

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 IHC’s presence in the market for managed care— that is, the market for

managed care plans— is significant, estimated by some to consist of sixty percent

of total managed care plan enrollees on the W asatch Front. Although IHC’s

enrollees may patronize a health care provider w ho is not an IH C panel provider,

plan benefits will generally not be paid when the enrollee does so. As such,

IHC’s panel providers only theoretically compete w ith non-panel providers

because the practicalities of life dissuade most IHC enrollees from obtaining

health services from non-panel providers. See Abraham v. Intermountain Health

Care, Inc., 394 F. Supp. 2d 1312, 1318 (D . Utah 2005).

Besides IHC’s presence in the market for managed care plans, it also has a

significant presence in the market for hospital and surgical facilities on the

W asatch Front. It controls approximately 51% to 55% of that market. Although

IH C has employed some physicians directly, for the most part health care is

provided only through its managed care subsidiaries.

W ith one exception, all of IHC’s panel providers of eye care on the

W asatch Front are ophthalmologists. In contrast, all competing managed care

companies on the W asatch Front have both ophthalmologists and optometrists on

the list of available providers of NSEC. Indeed, all the optometrists in this case

serve on IHC’s competitors’ panels. Not surprisingly, then, optometrists on the

W asatch Front have for more than a decade entreated IHC to list them as

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providers on its managed care plans. In fact, in 1995 there were several

indications that IHC intended to include optometrists on its provider panels, as

they typically charge approximately twenty percent less for NSEC than do

ophthalmologists. Ultimately, however, no optometrists were paneled. IHC’s

director of provider relations explained that whenever IHC tries to add

optometrists to its provider panels, the ophthalmologists “w rite all kinds of letters

and [make] phone calls and raise such a stink” that IHC decides not to do it each

time it is proposed.

The crux of the Plaintiffs’ claims is the existence of an agreement between

IHC and its panel ophthalmologists designed to preserve for ophthalmologists the

exclusive ability to provide N SEC to an estimated sixty percent of the region’s

managed care enrollees while simultaneously increasing IHC’s dominance in the

market for the provision of hospital and surgical facilities. M ore specifically, the

Plaintiffs claim that in exchange for IHC’s agreement not to panel optometrists,

IHC’s panel ophthalmologists agreed to refer their patients to IHC hospitals and

surgical facilities— as opposed to facilities owned and operated by IHC’s

competitors— when those patients needed SEC. Needless to say, IHC and the

defendant ophthalmologists deny the existence of any such quid pro quo. M ore

facts will come as needed.

C. Procedural History

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 The Plaintiffs filed suit against the Defendants in November 2001, alleging

violations of §§ 1 and 2 of the Sherman Act, see 15 U.S.C. §§ 1, 2. They sought

damages under § 4 of the Clayton Act, see 15 U.S.C. § 15(a), 4 as well as

injunctive relief under § 16 of the Clayton Act, see 15 U.S.C. § 26. 5 All of the

Plaintiffs’ claims are based on the same general conduct. As explained above,

they first allege that IHC and the defendant ophthalmologists conspired to exclude

optometrists as a class from IHC’s provider panels— conduct that, according to

the Plaintiffs, constitutes an illegal horizontal group boycott in violation of § 1.

They also allege that IHC unlawfully tied the sale of its managed care plans to the

provision of SEC and N SEC in violation of § 1. Finally, the Plaintiffs allege IH C

and the defendant ophthalmologists conspired and attempted to monopolize the

market for surgical facilities in violation of § 2.

The District Court granted summary judgment in favor of all D efendants.

W ith regard to the group boycott claim, the court held that the Plaintiffs failed to

establish the existence of a conspiracy and that they had shown no “discrete

4
Section 4 provides that “any person who shall be injured in his business or
property by reason of anything forbidden in the antitrust laws may sue
therefor . . . and shall recover threefold the damages by him sustained, and the
cost of suit, including a reasonable attorney’s fee.” 15 U.S.C. § 15(a).
5
Section 16 provides that “[a]ny person . . . shall be entitled to sue for and
have injunctive relief . . . against threatened loss or damage by a violation of the
antitrust laws . . . under the same conditions and principles . . . [usually employed
by] courts of equity.” 15 U.S.C. § 26.

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‘antitrust injury’ to themselves flowing from any adverse impact upon

competition resulting from the defendants’ alleged misconduct.” Abraham, 394

F. Supp. 2d at 1326 (emphasis omitted). As to the tying claim, the D istrict Court

held that the Plaintiffs failed to establish that two separate products existed such

that the sale of one could be tied to the sale of the other. M ore specifically, the

District Court concluded that IHC markets only a single product— namely, “access

to health care”— and that the Plaintiffs’ attempt to carve that product into its

individual service components (e.g., SEC and NSEC) w as unavailing. See id. at

1319–20. Finally, with regard to the monopolization claims, the D istrict Court

concluded that the Plaintiffs lacked standing because they neither competed nor

sought to compete in the surgical facilities market and that any injury they

suffered was therefore only an indirect result of the allegedly anticompetitive

conduct on the part of the Defendants. See id. at 1318.

II. SE C T IO N 1 C L A IM S

A. Group Boycott

Section 1 of the Sherman Act provides that “[e]very contract, combination

in the form of trust or otherwise, or conspiracy, in restraint of trade or comm erce

among the several States . . . is declared to be illegal.” 15 U.S.C. § 1. A

conspiracy involves “tw o or more entities that previously pursued their own

interests separately . . . combining to act as one for their comm on benefit.”

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Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769 (1984). W hen

two formerly separate entities combine for their common benefit, their activity is

“fraught with anti-competitive risk” because it “deprives the marketplace of the

independent centers of decisionmaking that competition assumes and demands.”

Id. at 768–69. On the other hand, “unilateral conduct, regardless of its anti-

competitive effects, is not prohibited” by § 1 of the Sherman Act. M otive Parts

Warehouse v. Facet Enter., 774 F.2d 380, 386 (10th Cir. 1985). It is therefore

critical to distinguish between unilateral and concerted action in proving a

violation of § 1.

The heart of the Plaintiffs’ § 1 claim is that IHC, at the behest of several of

its panel ophthalmologists— including Drs. M iller and Brodstein— unlaw fully

excluded optometrists from its provider panels, and that this exclusion injured

both com petition, generally, and the Plaintiffs, specifically. Of course, if IHC

acted independently in excluding optometrists, IH C would not be liable under § 1.

See M onsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984) (“A

manufacturer . . . generally has a right to deal, or refuse to deal, with whomever it

likes, as long as it does so independently.”); United States v. Colgate & Co., 250

U.S. 300, 307 (1919). Such is the case “[e]ven where a single firm’s restraints

directly affect prices and have the same economic effect as concerted action

might have.” Fisher v. City of Berkeley, 475 U .S. 260, 266 (1986). There is also

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no dispute that if panel ophthalmologists conspired with each other and then with

IH C to restrain trade, then such conduct is actionable under § 1. See Todorov v.

DCH Healthcare Auth., 921 F.2d 1438, 1455 (11th Cir. 1995) (hospital and

medical staff are separate legal entities capable of conspiring with each other);

Cooper v. Forsyth County Hosp. Auth., Inc., 789 F.2d 278, 282 (4th Cir. 1986)

(M otz, J., concurring) (“Section 1 of the Sherman Act clearly prohibits members

of a medical-dental staff from agreeing with one another to coerce a hospital’s

trustees to deny privileges to members of a competing profession for the purpose

of furthering their economic self-interest.”). In this w ay, “[l]iability will only

attach to agreements designed unreasonably to restrain trade.” Todorov, 921 F.2d

at 1455. The question before us is whether there is sufficient evidence of such an

agreement between IHC and its panel ophthalmologists to survive summary

judgment.

Although the traditional summary judgment standard applies to antitrust

cases, the analysis is altered somewhat when— as is the situation here— the

plaintiff relies solely on circumstantial evidence to prove concerted action. See

Rossi v. Standard Roofing, Inc., 156 F.3d 452, 465 (3d Cir. 1998). In that case,

“antitrust law limits the range of permissible inferences from ambiguous evidence

in a § 1 case.” M atsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

588 (1986). “[C]onduct as consistent with permissible competition as with illegal

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conspiracy does not, standing alone, support an inference of antitrust conspiracy.”

Id. Accordingly, to survive summary judgment, a plaintiff must present “evidence

‘that tends to exclude the possibility’ that the alleged conspirators acted

independently.” Id. (quoting M onsanto, 465 U.S. at 764); Reazin v. Blue Cross &

Blue Shield of Kan., 899 F.2d 951, 963 (10th Cir. 1990). That is, the antitrust

plaintiff must present evidence that the alleged conspirators “had a conscious

comm itment to a common scheme designed to achieve an unlawful objective.”

M onsanto, 465 U.S. at 764 (quotation omitted).

As the Third Circuit has explained:

The Supreme Court’s concerns about permitting the inference of a
conspiracy from ambiguous circumstantial evidence in the antitrust
context stem from its conclusion that mistakes by an overzealous
judiciary would be “especially costly . . . chill[ing] the very conduct
the antitrust laws are designed to protect.” M atsushita, 475 U.S. at
594; M onsanto, 465 U.S. at 763; Big Apple BM W, 974 F.2d [1358,]
1363 (“Care must be taken to ensure that inferences of unlawful
activity drawn from ambiguous evidence do not infringe upon
defendant’s freedom, so long as it acts independently, to refuse to
deal.”) (citing Colgate & Co., 250 U.S. 300 (1919)). For this
reason, the plausibility of an antitrust plaintiff’s claim is important.
“[I]f the factual context renders [the plaintiff’s] claim
implausible— if the claim is one that simply makes no economic
sense— [a plaintiff] must come forward with more persuasive
evidence to support [its] claim than would otherwise be necessary.”
M atsushita, 475 U.S. at 587 (citations omitted). Relatedly, in
evaluating whether a genuine issue for trial exists, the antitrust
defendants’ economic motive is highly relevant. “[I]f[ the
defendants] had no rational economic motive to conspire, and if their
conduct is consistent with other, equally plausible explanations, the
conduct does not give rise to an inference of conspiracy.” Id. at 596.
M oreover, even with a plausible motive to conspire, ambiguous

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 conduct will not create a triable issue of fact with respect to the
existence of a conspiracy. See id. at 597 n.21.

Rossi, 156 F.3d at 466.

To establish a conspiracy between IHC and the defendant ophthalmologists,

the Plaintiffs in this case make the following allegations in light of the undisputed

facts:

Ophthalmologists have a long history of trying to limit competition between

themselves and independent optometrists. This tension increased in 1991, when

Utah passed new legislation authorizing optometrists to engage in the full scope

of NSEC. The only group to oppose the legislation was the Utah Ophthalmology

Society (“UOS”); Dr. M iller was the chairman of UOS’s legislative committee at

that time.

Due in part to the 1991 legislation, in 1995 IHC began studying whether to

add optometrists to its provider panels. Drs. M iller and Brodstein— both of whom

were already IHC providers— worked vigorously with each other and with other

panel ophthalmologists to discourage IHC from paneling optometrists. Indeed,

the record is replete with evidence of their efforts, which the ophthalmologists

felt were necessary in order to retain their share of NSEC patients and optical

hardware purchasers.

Of course, a conspiracy among the ophthalmologists alone could not

effectuate their plan to horde the provision of NSEC and optical hardware.

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Paneling decisions at IHC are made by IHC’s Preferred Provider Strategic

Committee— no members of which are ophthalmologists. Therefore, the

ophthalmologists had to devise some way to convince IHC not to panel their

competitors. To establish this indispensable part of the alleged conspiracy, the

Plaintiffs emphasize that ophthalmologists had repeated discussions with IHC

urging it to panel only ophthalmologists. For example, in November 1995, Todd

Kimball, one of the plaintiff optometrists in this case, met with IHC to discuss the

possibility of paneling optometrists. Several ophthalmologists w ere also in

attendance, and they were openly hostile to Dr. Kimball. Two months later, in

January 1996, Dr. Brodstein wrote a letter on behalf of EN U to IHC. The letter

noted IH C’s interest in paneling optometrists but went on to explain that in

ENU’s view an ophthalmologist-led network of providers that only included

optometrists insofar as they were employed by and acted under the supervision of

ophthalmologists was “essential to maintain the high quality of care provided by

IH C.” 6 In other w ords, it did not w ant independent optometrists on IH C’s panels.

The ophthalmologists were successful; independent optometrists were not

paneled. C.D. Richards, the M edical D irector for IHC’s Health Plans, Inc.,

explained to Dr. Kimball that the decision was made because “[t]he physicians do

6
ENU’s internal memoranda, however, reveal less concern over the quality
of care than concern about the possibility that independent optometrists might
dilute the volume of business conducted by the ophthalmologists.

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not want you on the panel at this time.” A memo between M r. Richards and

another employee further elucidates IHC’s decision:

POLITICS SHOULD NOT CONTROL PANEL DECISION: There
are many providers who do not get added to our panels because of
the politics associated with hospitals and provider relationships. A
good example is optometrists. Our members want to see them; they
do not create any anti-selection; they are cost effective; and yet they
are not added because the ophthalmologists at the hospitals don’t
want the competition.

At first blush, it might appear as though IHC and its panel ophthalmologists

acted in concert to exclude optometrists from IHC’s provider panels— thereby

establishing that element of a § 1 claim. Indeed, it is clear that IHC excluded

optometrists because of the actions of its panel ophthalmologists. But simply

because IH C acted in response to ophthalmologists’ complaints is not enough to

establish the concerted action requirement. To the contrary, it is well-established

in antitrust cases that a manufacturer’s exclusion of a buyer-distributor in

response to another buyer-distributor’s complaints is insufficient as a matter of

law to establish conspiracy, see M onsanto, 465 U.S. at 763; accordingly, that IH C

chose not to panel optometrists because its ophthalmologists lobbied IHC for that

decision does not indicate that IHC and the ophthalmologists acted in concert

within the meaning of § 1. The Supreme Court explained the rationale behind this

rule in M onsanto:

Permitting an agreement to be inferred merely from the
existence of complaints, or even from the fact that

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 termination came about “in response to” complaints,
could deter or penalize perfectly legitimate conduct. As
M onsanto points out, complaints about price-cutters are
natural— and from the manufacturer’s perspective,
unavoidable— reactions by distributors to the activities
of their rivals. Such complaints, particularly where the
manufacturer has imposed a costly set of nonprice
restrictions, arise in the normal course of business and
do not indicate illegal concerted action. M oreover,
distributors are an important source of information for
manufacturers. In order to assure an efficient
distribution system, manufacturers and distributors
constantly must coordinate their activities to assure that
their product will reach the consumer persuasively and
efficiently. To bar a manufacturer from acting solely
because the information upon which it acts originated as
a price complaint would create an irrational dislocation
in the market. In sum, to permit the inference of
concerted action on the basis of receiving complaints
alone and thus to expose the defendant to treble damage
liability would both inhibit management’s exercise of
independent business judgment and emasculate the terms
of the statute.
465 U.S. at 763–64 (quotation marks, citations, and alteration omitted).

Accordingly, the Plaintiffs must present additional evidence— evidence that

tends to exclude the possibility that IHC was acting independently and not

pursuant to an agreement with the ophthalmologists. To this end, the Plaintiffs

assert that optometrists are a lower-cost alternative to ophthalmologists w hen it

comes to NSEC because optometrists generally charge twenty percent less than

ophthalmologists for the same N SEC and, according to a 1999 study conducted by

IH C, IHC might save $300,000 to $400,000 per year on the provision of NSEC if

it added optometrists to its panels. Specifically, the study noted that industry

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experts estimate that fifty percent of routine eye exams are performed by

optometrists; that IHC’s panel ophthalmologists employ optometrists to perform

NSEC for them; and that IHC pays ophthalmologists (for services performed by

their employee-optometrists) at a higher rate than it would have to pay

optometrists for the same service if the optometrists were directly included on the

provider panel. Accordingly, the study recommended that IHC list optometrists

on its provider panels if they were willing to accept reimbursement at a rate

tw enty percent less than the rate IH C pays to ophthalmologists.

In addition, the Plaintiffs contend that IHC had a motive to conspire with

the panel ophthalmologists. IHC, as a vertically integrated health care system,

seeks to maximize the use of its hospitals and surgical facilities. The Plaintiffs

contend that the panel ophthalmologists were able to coerce IHC to exclude

optometrists from its provider panels by promising that they (the

ophthalmologists) would use IHC’s hospital and surgical facilities to serve a

substantial portion of their discretionary patients (i.e., those patients who are not

IH C enrollees). In this w ay, both IHC and the panel ophthalmologists w ould

benefit: IHC would profit by increasing the utilization of (and, accordingly,

payment for) its facilities, and the ophthalmologists would profit by preventing

lower-cost optometrists from competing with them for NSEC.

There is no direct evidence of such collusion; IHC’s provider agreement

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does not limit w here a panel provider refers his or her non-IHC patients.

Nevertheless, the Plaintiffs argue that such quid pro quo is implicit in the

following paragraph of the provider agreement:

Termination in Connection with Reappointment. Provider
understands and agrees that HPI or an Affiliated M anaged Care Plan
may terminate Provider from participation with its M embers at the
time of or in connection with the recredentialing/reappointment
process. Such termination may be based on (i) business or
competitive reasons relating to H PI’s or any Affiliated M anaged Care
Plans’ business, (ii) Provider’s adherence to efficient managed care
principles and practices, (iii) utilization of IHC related providers and
facilities, (iv) affiliation with competing organizations, or (v) other
reasons, whether specified in this A greement or not.

(emphasis added). Further, the record reveals that panel ophthalmologists, all of

whom have hospital privileges at regional hospitals not associated with IHC,

often utilize IH C’s hospital and surgical facilities for their discretionary patients.

And when one ophthalmologist failed to adequately direct his discretionary

patients to IHC’s surgical facilities, IHC refused to reappoint him to its panel of

providers.

For its part, IHC counters that it unilaterally implemented a policy

preferring physicians over other health care providers because physicians have

hospital staff privileges. According to IHC, this is a cost-effective means to

implement regular peer review, quality control, and basic credentialing. 7 On the

7
W hen granting hospital privileges to physicians, the hospitals verify the
(continued...)

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other hand, it is undisputed that IHC has recognized a need to panel other types of

ancillary providers who do not possess hospital privileges at IHC hospitals.

Indeed, IHC has paneled psychologists, social workers, physical therapists, and

podiatrists despite their lack of hospital privileges. But IHC contends that it has

not needed to panel optometrists in urban areas, such as the W asatch Front, where

there are sufficient panel ophthalmologists to fulfill all enrollees’ eye care needs,

including NSEC. As support for this contention, IHC points to the fact that it has

paneled optometrists in other geographic markets where ophthalmologists cannot

meet the needs of its enrollees. For example, though no optometrists are paneled

to serve enrollees on the W asatch Front specifically, throughout Utah IHC has

paneled thirty optometrists.

IHC also notes that all its panel providers are subject to the termination of

privileges provision cited above— it is not a provision specific to

ophthalmologists. In other words, IHC could terminate privileges of any panel

provider if he or she failed to adequately use IHC’s facilities— it did not need to

agree to exclude optometrists in order to bring that pressure to bear on

ophthalmologists. M oreover, Dr. M iller, who derives approximately sixteen

7
(...continued)
applicant’s health care training, education, malpractice insurance, as well as
investigate the applicant’s background. By preferring providers with staff
privileges, IHC suggests that it avoids unnecessary credentialing costs and
duplicative efforts.

-20-
percent of his annual income from services provided to IHC enrollees, has, since

1985, performed most of his surgeries at the Intermountain Surgical Center as a

matter of convenience. IHC acquired that building in 1995. Therefore, that he

performs the majority of his surgeries at an IHC facility is not the result of a

conspiracy between IHC and the ophthalmologists, but Dr. M iller’s longstanding

practice.

Finally, IHC contends that limiting the size of the panel allows IH C to

negotiate lower payments to the panel providers since their patient volume will

increase. In fact, there is substantial empirical evidence that selective contracting

allows managed care companies to contain health care costs— the more restrictive

the panel, the lower the cost of the premium to the subscriber.

As noted above, “antitrust law limits the range of permissible inferences

from ambiguous evidence in a § 1 case,” M atsushita, 475 U.S. at 588, and we

hold that the Plaintiffs have not presented enough evidence from which a jury

may infer an antitrust conspiracy. There is simply nothing in the record tending

to show that IHC excluded optometrists in exchange for an agreement by its panel

ophthalmologists to direct their discretionary patients to IHC facilities. Rather,

the Plaintiffs’ argument simply assumes the existence of concerted action because

panel ophthalmologists complained to IHC about paneling optometrists, because

IHC responded to those complaints by not paneling optometrists, and because

-21-
panel ophthalmologists refer some of their discretionary patients to IHC facilities

in accordance with IHC’s provider agreement. Notably absent is evidence of a

link betw een the second and third circumstances.

That optometrists provide lower-cost NSEC does not alter the analysis.

Although the Plaintiffs have provided evidence that IHC may have saved money

in the provision of NSEC by paneling optometrists, the Plaintiffs have failed to

provide evidence to show that on the whole, IH C’s decision is against their

economic interests. The financial consequences of adding optometrists is m ulti-

dimensional given both the economics of managed care and the vertically

integrated nature of IHC’s business. IHC has provided a legitimate rationale for

its decision, and, as we noted earlier, “conduct as consistent with permissible

competition as with illegal conspiracy does not, standing alone, support an

inference of antitrust conspiracy.” Id.

Our holding today finds support in our case law as well as that of other

circuits. In Todorov v. DCH Healthcare Authority, for example, the plaintiff

neurologist argued that the hospital conspired with the radiologists on its staff to

exclude the plaintiff from performing services that he w as qualified to perform

but that were traditionally performed exclusively by the radiologists. 921 F.2d

1438, 1444–45 (11th Cir. 1991). The radiologists, who had an economic

incentive to limit the number of health care providers performing such services,

-22-
could not achieve this objective on their own. Therefore, several of the

radiologists recommended to the hospital that the plaintiff’s request for privileges

be denied. Id. at 1443. The hospital, in fact, followed such recommendation and

denied the plaintiff privileges. Id. at 1444. The Eleventh Circuit held that there

was insufficient evidence of a conspiracy between the radiologists and the

hospital to survive summary judgment, stating that although “[t]hese facts suggest

that the hospital may have conspired with the physicians[,] . . . they do not . . .

exclude the possibility that the hospital acted unilaterally, and procompetitively,

in denying him the privileges he requested.” Id. (emphasis added); see also

World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1475 (10th Cir. 1985)

(dealer’s complaints about a price-cutting competitor and seller’s action in

response does not tend to exclude the possibility of independent conduct).

In Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia,

the plaintiff clinical psychologists raised nearly identical concerns as the

optometrists in this case— the defendant insurers refused to pay for services

rendered by psychologists, although they paid for identical services when billed

through a psychiatrist. 624 F.2d 476, 478 (4th Cir. 1980). W hile there was

evidence that contact between the Neuropsychiatric Society of Virginia (“NSV ”)

and the defendants was “particularly close,” that the NSV recommended to the

defendants that they terminate direct payments to psychologists, and that Blue

-23-
Shield implemented that recommendation, the Fourth Circuit held that there was

no evidence of an agreement between the two entities. See id. at 478, 483. The

court noted that “absent some form of coercion,” it is not illegal for a seller of

services “to make recommendations aimed at persuading [the buyer of such

services] to adopt its proposal.” Id.

In Cooper v. Forsyth County Hospital, the plaintiff podiatrists sought

surgical privileges at the defendant hospital. 789 F.2d 278, 279 (4th Cir. 1986).

The hospital’s bylaws, however, restricted surgical privileges to physicians. Id.

Nevertheless, the hospital undertook a review of the bylaws to determine whether

they should be changed to allow the podiatrists surgical privileges. Id.

Orthopedists, who performed the majority of foot surgery at the hospital, objected

to amendment of the bylaws. Id. Ultimately, the proposal was rejected. Id.

Relying on M onsanto, the court found that the circumstantial evidence of a

conspiracy— contacts, communications, and the mere opportunity to

conspire— constituted “insufficient evidence from which to infer an

anticompetitive conspiracy.” Id. at 281.

A concurring opinion in Cooper proffered the following analysis:

Section 1 of the Sherman Act clearly prohibits members of a
medical-dental staff from agreeing with one another to coerce a
hospital’s trustees to deny privileges to members of a competing
profession for the purpose of furthering their economic self-interest.
A jury could properly infer the existence of such an unlawful
agreement from evidence of threats made to the trustees of mass

-24-
 resignations by the members of the medical-dental staff and the
absence of demonstrably sound reasons relating to the quality of
patient care underlying the defendants’ actions.

Id. at 282 (M otz, J., concurring) (emphasis added).

Our ow n case law also reflects a concern that something more than mere

acquiescence to a competitor’s complaints about a price-cutter be present to infer

a conspiracy. In Reazin v. Blue Cross & Blue Shield of Kansas, Inc., for example,

the defendants terminated a relationship w ith a hospital regarded as a low -cost

provider of quality healthcare when other regional hospitals agreed to reduce their

maximum allowable payments (“M APs”). 899 F.2d 951. In finding sufficient

evidence of a conspiracy, we did not rest on evidence of a motive or opportunity

to conspire. Id. at 963. Instead, we relied on evidence that the decision to seek

reduced M APs from the regional hospitals and the decision to terminate the

plaintiff’s contract was “related,” as well as evidence that the competitors’

reduced rates were conditioned on the termination of the plaintiff’s

contract— both of which tended to exclude the possibility of independent conduct.

Id. at 964.

Here, the record reflects that IHC prefers to panel health care providers

who have staff privileges at IHC hospitals. Ophthalmologists, by law, can

perform more procedures than optometrists. Therefore, even if IHC were to

include optometrists on its provider panels, it would still need to panel

-25-
ophthalmologists. This fact, coupled with IHC’s procompetitive justification for

limiting the number of paneled health care providers— that is, limiting the number

of providers performing a given service increases the volume of patients each

provider sees, which, in turn, enables IHC to negotiate lower reimbursement rates

to the panel providers— suggests that IHC may have acted independently in

deciding not to panel optometrists on the W asatch Front. Although it is tempting

to treat the Plaintiffs’ evidence in this case as sufficient evidence of a conspiracy

to survive summary judgment, the only permissible inference to be drawn from it

is that IHC responded to the ophthalmologists’ complaints by deciding not to

panel optometrists. There is no evidence to suggest that the ophthalmologists

threatened a mass resignation, see Cooper, 789 F.2d at 282 (M otz, J., concurring),

that the ophthalmologists conditioned their rates on the exclusion of the

optometrists, see Reazin, 899 F.2d at 964, or that the ophthalmologists in any way

coerced IH C to exclude optometrists, see Va. Acad. of Clinical Psychologists, 624

F.2d at 483. In the absence of these types of “plus” factors, to permit an

inference of antitrust conspiracy on the basis of IHC’s response to complaints

“and thus to expose the defendant to treble damage liability[,] would both inhibit

management’s exercise of independent business judgment and emasculate the

terms of the [the Sherman Act].” M onsanto, 465 U.S. at 764 (quotations

-26-
omitted). 8

B. Tying Arrangement

The Plaintiffs next argue that IHC unlawfully tied the sale of NSEC to the

sale of IH C managed care plans. This claim strikes at the heart of an entire

industry devoted to the efficient distribution of health care. Although there are

many conceptual hurdles to holding that such an arrangement amounts to a

violation of the antitrust laws— indeed, as the Plaintiffs would have it, the

arrangement at issue amounts to a per se violation of the antitrust laws— there is

nothing in our jurisprudence to indicate that managed care companies and the

products they sell should be treated any differently than participants and products

in other industries.

“A tying arrangement is ‘an agreement by a party to sell one product but

only on the condition that the buyer also purchase a different (or tied) product.’”

Eastman Kodak v. Image Technical Servs., Inc., 504 U.S. 451, 461 (1992)

(quoting N. Pac. R. Co. v. United States, 356 U.S. 1, 5–6 (1958)). Tying

arrangements are unlawful “[b]ecause they deny competitive access to the tied

8
The Defendants also argue that the Plaintiffs lack standing to assert their
group boycott claim under § 1. W e need not address that issue, however, as we
conclude that the Plaintiffs failed to present sufficient evidence of a conspiracy.
See Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1030 (10th Cir. 2002) (declining
to address whether plaintiffs suffered an antitrust injury for purposes of standing
when claims were resolved on other grounds).

-27-
product market on the basis of the seller’s leverage in the tying product market,

and force buyers to forego free choice between sellers.” Ohio-Sealy M attress

M fg. Co. v. Sealy, Inc., 585 F.2d 821, 834 (7th Cir. 1978). In this case, the

Plaintiffs allege that IHC tied the sale of managed care plans in Utah (the “tying”

product) to the provision of NSEC (the “tied” product). In other words, the

Plaintiffs contend that purchasing an IHC managed care plan also requires the

buyer to purchase NSEC only from an IHC panel ophthalmologist, rather than

from a different source such as an optometrist. The District Court concluded that

the Plaintiffs failed to establish the existence of two separate products, which is a

necessary prerequisite to a finding of an illegal tie. See Sports Racing Servs., Inc.

v. Sports C are C lub of Am ., 131 F.3d 874, 886 (1997) (citing Eastman Kodak, 504

U.S. at 462). The court concluded that IHC “only market[s] a single product:

access to health care priced to subscribers and paid to health care providers

according to prior arrangements made with those providers.” Abraham, 394 F.

Supp. 2d at 1319–20.

W hether products can be considered distinct “turns not on the functional

relation betw een them, but rather on the character of the demand for the two

items.” Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 19 (1984),

abrogated on other grounds by Ill. Tool Works Inc. v. Indep. Ink, 126 S. Ct. 1281

(2006). That is, “the mere fact that two items are complements, that ‘one . . . is

-28-
useless without the other’ does not make them a single ‘product’ for purposes of

tying law.” United States v. M icrosoft Corp., 253 F.3d 34, 86 (D.C. Cir. 2001)

(quoting Jefferson Parish, 466 U.S. at 19) (alteration in original; internal citation

omitted). Given this backdrop, the Plaintiffs contend that managed care plans in

Utah and NSEC are separate products because “there is separate consumer

demand for such eye care services” apart from the sale of managed care plans.

Indeed, IHC admits that there a substantial consumer demand for optometric

services apart from the sale of managed care plans. There is also evidence that

IHC’s enrollees want to patronize optometrists rather than IHC panel

ophthalmologists for NSEC and that enrollees sometimes visit optometrists— and

pay for services out of their own pocket— rather than visiting one of IHC’s panel

ophthalmologists. Therefore, the Plaintiffs argue that managed care plans and

NSEC are two products.

On the other hand, in the only case with similar facts to those at issue here,

the Ninth Circuit held to the contrary. In Klamath-Lake Pharmaceutical Ass’n v.

Klamath M edical Service Bureau, 701 F.2d 1276, 1289 (9th Cir. 1983), the

plaintiff claimed a tie between a health plan’s pharmacy benefits and restrictions

on the pharmacies enrollees could use to reap the plan’s benefits. The Ninth

Circuit held that the benefits and the restrictions were one product, reasoning

that:

-29-
 Insureds, the consumers, certainly did not consider these as two
separate products. In deciding whether to buy the pharmacy benefit,
they made just one decision, comparing the expected cost of the
benefit plus copayments for drug purchases against the expected cost
of drugs bought at the independent pharmacies. The risk insureds
sought to transfer was the risk of high pharmacy bills. The product
these consumers sought was a means by which they could satisfy
their drug needs on favorable terms. Their purchase of drugs in the
required manner was the consummation of the pharmacy benefit, not
an unwanted and unnecessary product tied to the desired product.

Id. at 1290; see also De M odena v. Kaiser Found. Health Plan, Inc., 743 F.2d

1388, 1396 (9th Cir. 1984) (rejecting the premise that “a drug plan and the drugs

provided under that plan are separate commodities.”).

It has been suggested, however, that Klamath-Lake sweeps too broadly:

Th[e] reasoning [in Klamath-Lake] implies that any bundling of
health insurance with the provision of medical goods and services is
a single product. For all such insurance, the consumer choosing a
plan compares its premium plus expected copayments against the
expected cost of buying the covered medical goods and services from
independent suppliers. And the purchase of the medical goods and
services from the plan is the consummation of the insurance benefit.
But this logic is far too sweeping. For any tie, a rational buyer
compares the expected cost of the bundle to the expected cost of
buying the items unbundled elsewhere. And, having contracted for
the bundle, receiving the bundle is the consummation of the buyer’s
contract. Thus, literally applied, the courts’ logic suggests that all
ties involve single products.

10 Phillip E. Areeda & Herbert Hovencamp, Antritrust Law ¶ 1745g4 (2004)

(hereinafter “Areeda & Hovencamp”).

W e agree with this analysis. Although powerful economic reasons may

justify the bundling of medical insurance with the provision of the goods and

-30-
services that fall within the plan’s parameters, 9 such bundling does not transform

the managed care plan itself and the provision of its benefits into a single product.

Our analysis, however, does not end there. It is undisputed that IHC does

not sell NSEC and that “the essential characteristic of an invalid tying

arrangement lies in the seller’s exploitation of its control over the tying product to

force the buyer into the purchase of the tied product.” Jefferson Parish, 466 U.S.

at 12. Although it is critical to a tying claim that the seller forced a buyer to

purchase the tied product in order to get the tying product, “it is not critical that

the buyer have purchased the tied product directly from the seller.” Sports Racing

Servs., 131 F.3d at 887. Because the alleged tying arrangement at issue involves

the sale of the tied product by a third party— namely, panel

ophthalmologists— distinct from the sale of the tying product, we must evaluate

IH C’s economic interest in the sale of the tied product. We have explained:

An illegal tie may be found where the seller of the tying product does
not itself sell the tied product but merely requires the purchaser of
the tying product to buy the tied product from a designated third

9
Professor Areeda suggests, for example, that such integration can reduce
transaction costs, reduce the incentive to overconsume “that otherwise results
when the insured patient or physician can order any medical goods and services
they wish without regard for cost because the [traditional] insurer reimburses all
costs,” and it reduces utilization of expensive and excessive testing. 10 Areeda &
Hovencamp, Antitrust Law ¶ 1745g4. Furthermore, such bundling can reduce the
cost to enrollees as the managed care company rightly assumes that though it
provides access to a host of medical services, a majority of enrollees will not
utilize them all.

-31-
 party rather than from any other competitive source that the buyer
might prefer.
However, where a third party is involved in selling the tied
product to the plaintiff, most courts have required that the tying
product seller have a direct economic interest in the sale of the tied
product before an illegal tying arrangement will be found.
Courts that have imposed the economic interest requirement
when the tied and tying products are sold by different, unrelated
sellers have done so generally on the grounds that if the tying
product seller does not have an economic interest in the sale of the
tied product, the seller is not attempting to invade the alleged tied
product or service market in a manner proscribed by section 1 of the
Sherman Act.

Sports Racing Servs., 131 F.3d at 887–88 (internal citations and quotation

omitted).

Unlike the cases in which courts have held the “economic interest”

requirement satisfied because the seller of the tying product receives an economic

benefit from the sale of the tied product, see, e.g., id. at 888 (seller of racing

services received economic benefit from third party sale of race cars); Thom pson

v. M etro. M ulti-List, Inc., 934 F.2d 1566, 1570–72 (11th Cir. 1991) (defendant

multi-listing service required real estate brokers w anting to use the service to join

branch of realtor organization in which service may have had an interest), Ohio-

Sealy, 585 F.2d at 833–34 (licensor of mattress trademark required licensee-

manufacturers to purchase mattress component from a particular source and

licensor received a percentage of component sales), in this case, IHC receives no

economic benefit from the sale of NSEC. To the contrary, IHC reimburses its

-32-
panel ophthalmologists each time they provide NSEC. Far from profiting from

the sale of NSEC, IHC expends money when NSEC is sold. W e therefore

conclude that IHC has no economic interest in the sale of N SEC. The Plaintiffs’

tying claim fails for this reason. 1 0 See Beard v. Parkview Hosp., 912 F.2d 138,

140–44 (6th Cir. 1990) (no tying arrangement where hospital required its patients

to purchase radiology services from third party from whom hospital received no

economic benefit); White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 104 (4th

Cir. 1987) (no tying arrangement where hospital required CT scans to be

interpreted by specific group of radiologists and where hospital did not compete

in the market for interpretations of CT scans and did not receive any of the

radiologists’ fee for their interpretations); Robert’s Waikiki U-Drive, Inc. v.

Budget Rent-A-Car Sys., Inc., 732 F.2d 1403, 1407–08 (9th Cir. 1984) (no tying

arrangement where airline offered low er-priced tickets if the purchaser also

rented a car from a particular company because there was no evidence the airline

had an economic interest in car rentals).

III. SE C T IO N 2 C L A IM S

10
The Plaintiffs also allege that IHC unlaw fully tied the sale of SEC— in
addition to NSEC— to its managed care plans. Two types of parties have standing
to challenge illegal tying arrangements— “the purchasers who are forced to buy
the tied product to obtain the tying product . . . and the competitor w ho is
restrained from entering the market for the tied product.” Sports Racing Servs.,
131 F.3d at 887. As the Plaintiffs neither purchase nor provide SEC, they lack
standing to assert this claim.

-33-
 In contrast to § 1 of the Sherman Act, which reaches only concerted action,

§ 2 extends both to concerted and unilateral conduct. Under that section, “[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

comm erce . . . shall be deemed guilty of a felony.” 15 U.S.C. § 2. The Plaintiffs

allege that IHC attempted to monopolize the surgical facilities market on the

W asatch Front. 1 1 Specifically, the Plaintiffs allege that IHC leveraged its power

in the managed care market to increase its power in the surgical facilities market:

because health care providers desire to be included on IHC provider

panels— which serve a substantial portion of the population of the W asatch

Front— those providers are willing to agree to send as many patients as possible to

IHC surgical facilities in exchange for paneling. This, in turn, has the effect of

increasing IHC’s presence in the surgical facilities market. W e agree with the

District Court that the Plaintiffs lack standing— with respect to both its request

for damages under § 4 of the Clayton Act as well as its request for injunctive

relief under § 16 of the Clayton Act— to pursue this claim.

The concept of “antitrust standing,” which extends to suits arising under

11
The Plaintiffs also contend that IHC and its panel ophthalmologists
conspired to monopolize the market for surgical facilities. Because we held in
section II.A that the Plaintiffs failed to present sufficient evidence of a
conspiracy, this claim likewise fails.

-34-
both § 4 and § 16 of the Clayton Act, is distinct from that of constitutional

standing. See B-S Steel of Kan., Inc. v. Tex. Indus., Inc., 439 F.3d 653, 666 (10th

Cir. 2006). The threshold inquiry in analyzing whether a plaintiff may pursue an

antitrust claim is that of “antitrust injury.” Id. at 667; Todorov, 921 F.2d at 1449.

An antitrust injury is an “injury of the type the antitrust laws w ere designed to

prevent and that flows from that which makes defendants’ acts unlawful.” B-S

Steel, 439 F.3d at 667 (quotations omitted). The Plaintiffs carry the burden to

make this demonstration. See Hairston v. Pac. 10 Conference, 101 F.3d 1315,

1321 (9th Cir. 1996).

In this case, the Plaintiffs make no attempt to delineate any injury they

have suffered or will suffer that is associated with IHC’s dominance in the

surgical facilities market, let alone explain how that injury is “of the type the

antitrust laws were designed to prevent and that flows from that which makes

defendants’ acts unlawful.” 1 2 Associated Gen. Contractors of Cal., Inc. v.

12
Significantly, the Plaintiffs do not allege that part of the monopolization
attempt involved the quid pro quo discussed in Part I.A . supra. Instead, the
Plaintiffs simply contend that IHC agreed to panel ophthalmologists in exchange
for an agreement to refer patients needing surgery to IH C surgical facilities.
M oreover, to the extent that the Plaintiffs’ argument could be construed in such a
way, their claim fails because such allegedly anticompetitive conduct does not
result in a dangerous probability of successfully monopolizing the surgical
facilities market. See Colo. Interstate Gas Co. v. Natural Gas Pipeline Co. of
Am ., 885 F.2d 683, 693 (10th Cir. 1989) (stating that to state a claim for
attempted monopolization, a plaintiff must show that there is a dangerous
(continued...)

-35-
Carpenters, 459 U.S. 519, 535 n.31 (1983). Indeed, the Plaintiffs completely fail

to discuss how IHC’s purported plan to monopolize the surgical facilities market

bears any relation to the practice of optometry or any other interest the Plaintiffs

could possibly allege w as invaded as a result of that plan. Rather, the Plaintiffs’

argument on this point simply assumes the existence of standing, as their briefing

on the matter is devoted exclusively to an examination of the elements of a § 2

claim. This is insufficient to meet the Plaintiffs’ burden.

M oreover, a plaintiff seeking damages under § 4 must also demonstrate that

it is an efficient enforcer of the antitrust laws. B-S Steel, 439 F.3d at 667;

Todorov, 921 F.2d at 1449, 1450. Factors to be considered in this analysis

include the directness or remoteness of the injury suffered by the plaintiff, which,

in turn, depends on the existence of other more directly-injured possible

12
(...continued)
probability that the defendant would achieve monopoly status in the relevant
market as the result of the predatory conduct alleged by the plaintiffs). During
the time period in which IHC was allegedly causing ophthalmologists to refer
substantially all of their discretionary patients for surgery at IHC facilities, eye
surgeries accounted for only a small proportion of surgeries at IHC
hospitals— between 6% and 7% — and amounted to less than 3% of IHC’s surgical
revenues. Despite the fact that IHC had, at the relevant time, a 51% to 55% share
of the surgical facilities market, there is no evidence to suggest that even
complete success in directing all SEC patients to IHC’s hospitals w ould result in
monopoly power in provision of surgical facilities. See Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 894 (10th Cir. 1991) (stating that monopoly
power is defined as “the ability to control prices and exclude competition”); Colo.
Interstate Gas Co., 885 F.2d at 694 n.18 (monopoly power generally exists when
defendant controls 70% to 80% share of the relevant market).

-36-
plaintiffs. See Todorov, 921 F.2d at 1451; Associated Gen. Contractors, 459 U.S.

at 542 (“The existence of an identifiable class of persons whose self-interest

would normally motivate them to vindicate the public interest in antitrust

enforcement diminishes the justification for allowing a more remote party [to

bring suit].”). The Plaintiffs here have “no natural economic self-interest” in

preserving competition in the market for surgical facilities. Daniel v. Am. Bd. of

Emergency M ed., 428 F.3d 408, 444 (2d Cir. 2005). On the other hand, other

regional providers of surgical facilities “have a direct and undivided economic

interest” in obtaining referrals to its hospitals and in ensuring that IHC is not

acting unlawfully in obtaining referrals to its facilities. See id. Though not an

exhaustive list, in this case it is clear that— at minimum— non-IHC surgical

facilities on the W asatch Front and consumers of surgical facilities on the

W asatch Front would be more directly harmed by IHC’s alleged attempt to

monopolize the market for surgical facilities. For this additional reason, the

Plaintiffs here lack standing.

V . O U T ST A N D IN G M O T IO N S

There are also two outstanding motions we must briefly address. The first

motion regards a protective order entered by the District Court pursuant to Fed. R.

Civ. P. 26(c). The protective order designates a part of the record below as

confidential, and in essence, subject to review only by counsel and the court as

-37-
needed for adjudication of the case. The order expressly states that its protections

“shall survive the termination of the litigation.” Following the entry of summary

judgment, the Defendants filed a motion to enforce the protective order, which a

panel of this court provisionally granted, reserving the issue for reconsideration

by the merits panel. The Plaintiffs’ motion for reconsideration of that ruling is

now before us. Generally, “[a]s long as a protective order remains in effect, the

court that entered the order retains the power to modify it, even if the underlying

suit has been dismissed.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d

1424, 1427 (10th Cir. 1990). “[M ]odification of a protective order, like its

original entry, is left to the discretion of the district court.” Id. The Plaintiffs did

not seek modification of the order in the D istrict Court, nor do they argue here

that the District Court abused its discretion in imposing the protective order in the

first place. Rather, they argue that the protective order automatically dissolved

during the final stages of pretrial preparations and accordingly there is nothing

left to enforce. This assertion is belied by the order’s own terms, which indicates

it was intended to “survive the termination of the litigation.” W e therefore deny

the motion to reconsider.

The Plaintiffs also filed a motion to supplement the record along with a

supplemental appendix. That motion is granted.

V I. C O N C L U SIO N

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 For the foregoing reasons, we conclude the Plaintiffs failed to present

evidence of a conspiracy between the defendant ophthalmologists and IHC that

tends to exclude the possibility of independent conduct. W e also conclude that

the Plaintiffs have failed to raise a genuine issue of fact on their tying claim

because they failed to show that IHC has an economic interest in the sale of

NSEC. Finally, we conclude that the Plaintiffs have failed to demonstrate

standing to assert their § 2 claims. W e therefore A FFIRM the D istrict Court’s

disposition of this matter.

-39-