                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 14-2561
                       ___________________________

                                 Insulate SB, Inc.

                      lllllllllllllllllllll Plaintiff - Appellant

                                          v.

      Advanced Finishing Systems, Inc.; Airtech Spray Systems; Barnhardt
Manufacturing Company; C.H. Reed, Inc.; C.J. Spray; Coast Industrial Systems,
Inc.; Coatings Holdings, Ltd.; Demilec (USA), LLC; Dove Equipment Co., Inc.;
 Endisys Fluid Delivery Systems; Golden State Paint Corporation; Graco Inc.;
Graco Minnesota Inc.; Jack DeMita, in his individual capacity; Intech Equipment
 & Supply, LLC; Marco Group International, Inc.; MCC Equipment & Service
 Center; Specialty Products, Inc.; Spray Foam Nation, (registered under Energy
  Independence Inc.); Spray Foam Systems, LLC; Spray-Quip, Inc.; Ultimate
                                   Linings, Ltd.

                    lllllllllllllllllllll Defendants - Appellees
                                     ____________

                   Appeal from United States District Court
                  for the District of Minnesota - Minneapolis
                                 ____________

                            Submitted: May 12, 2015
                             Filed: August 13, 2015
                                 ____________

Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.
                             ____________
RILEY, Chief Judge.

       Insulate SB, Inc., a purchaser of fast-set spray foam equipment (FSE), filed this
antitrust class action alleging FSE manufacturer Graco Inc. and its subsidiary Graco
Minnesota Inc. (Graco) and a number of FSE distributors (Distributors) (collectively,
appellees) conspired to restrain trade in violation of federal antitrust law, see 15
U.S.C. § 1, et seq., and numerous state antitrust and consumer protection laws.
Insulate claims these conspiracies kept Graco’s competitors out of the market,
allowing Graco and the Distributors to charge artificially high prices. The district
court1 dismissed the action on the pleadings, and with appellate jurisdiction under
28 U.S.C. § 1291, we affirm.

I.     BACKGROUND2
       Graco manufactures FSE and sells it to distributors, who then resell on the open
market to consumers like Insulate. Because there is no direct market for FSE,
distributors are key to its sale. Insulate purchased FSE from defendant distributor
Intech Equipment & Supply, L.L.C. and claims Graco’s anticompetitive practices
forced it to pay an artificially high price. In 2005, Graco purchased a competing FSE
manufacturer, Gusmer Corp., thus achieving a 65% share of the North American FSE
market, and in 2008, Graco purchased competitor GlasCraft, Inc., raising its market
share “to above 90%.”

      Insulate alleges at some point “Graco agreed with its Distributors individually
and collectively to enter into exclusive dealing arrangements for the purpose of


      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
      2
        Because this case was disposed on a motion to dismiss, we state the well-pled
facts as alleged in the complaint. See Zayed v. Assoc. Bank, N.A., 779 F.3d 727, 730
(8th Cir. 2015).

                                          -2-
keeping new and potential entrants out of the FSE market.” Insulate further alleges
“key Distributors” assisted Graco in advancing its anticompetitive scheme. In
October 2007, Graco sent a letter to its distributors citing the “best efforts” clause in
its distributor agreements and expressing its preference that distributors refrain from
adding non-Graco products. The letter stated:

             It is our opinion that taking on an additional competitive product
      line may significantly reduce the “best efforts” of a Graco distributor to
      sell our Graco and Gusmer product lines. Graco realizes that a business
      owner must make independent decisions regarding product lines
      competitive to Graco and Gusmer product offerings. . . .

            Should a distributor add a competitive product line, it will result
      in an immediate review of our business relationship and may impact
      access to specific products, changes in addendum status or possible
      elimination of our distributor agreement. . . .

             This position has been adopted by us unilaterally.

       Insulate contends these distributor agreements kept potential competitor Gama
Machinery USA, Inc. from entering the FSE market. In January 2009, Foampak,
Inc.—a Graco distributor not named as a defendant—considered carrying Gama
products but chose not to after Graco executives met with Foampak’s president and
threatened to end its distributorship. “Considering it a better decision for its business,
Foampak acquiesced.” In February 2012, Graco sent a letter to its distributors
“reminding” them to not carry Gama products. Insulate alleges exclusive dealing
agreements allowed Distributors to “charge Contractors anticompetitive prices for
[FSE] and control geographic distribution areas and exclude new distributors from
such areas.”

       In March 2008, Graco sued Gama alleging, among other things, theft of trade
secrets, and Gama counterclaimed alleging, among other things, Graco had


                                           -3-
unilaterally monopolized the FSE market in violation of Sherman Act Section 2,
15 U.S.C. § 2.

       In 2013, the United States Federal Trade Commission (FTC) also drafted a
complaint against Graco accusing Graco of unlawfully acquiring its competitors in
violation of Clayton Act Section 7, id. § 18. Graco and the FTC entered a consent
agreement which confirmed Graco would not engage in any practice “that has the
purpose or effect of achieving Exclusivity with any Distributor.” The consent
agreement did “not constitute an admission by [Graco] that the law ha[d] been
violated,” and Graco emphasizes “the FTC did not allege” that Graco’s activities were
unlawful.

       On June 14, 2013, after learning of the FTC complaint, Insulate filed the instant
suit. Insulate claimed Graco and a collection of FSE distributors, through
“agreements in restraint of trade,” conspired to reduce competition in violation of the
Sherman Act, the Clayton Act, and numerous states’ antitrust and consumer
protection laws. The district court granted the appellees’ motions to dismiss, finding
(1) Insulate’s federal claims were barred by the statute of limitations; (2) Insulate had
failed to state a claim on its federal causes of action; (3) Insulate, as a California
resident, could not bring state law claims for states other than California; and
(4) Insulate had not met the California antitrust statute of limitations and failed to
state a claim under California’s Unfair Competition Law.3 Insulate appeals.




      3
       The district court also denied Insulate’s request for injunctive relief on its
federal antitrust claims. We do not reach the district court’s statute of limitations
decisions.

                                          -4-
II.    DISCUSSION
       A.      Federal Antitrust Claims
               1.    Federal Antitrust Standing
       “[T]he focus of the doctrine of ‘antitrust standing’ is somewhat different from
that of standing as a constitutional doctrine.” Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 535 n.31 (1983); cf. NicSand,
Inc. v. 3M Co., 507 F.3d 442, 449 (6th Cir. 2007) (en banc) (describing the doctrine
of antitrust standing as more rigorous than Article III standing and explaining courts
“must[] reject claims under [Federal Rule of Civil Procedure] 12(b)(6) when antitrust
standing is missing”). To bring a federal antitrust claim, “a private plaintiff must
demonstrate that he has suffered an ‘antitrust injury’ as a result of the alleged conduct
of the defendants.” In re Canadian Import Antitrust Litig., 470 F.3d 785, 791 (8th
Cir. 2006). An “antitrust injury” is an “injury of the type the antitrust laws were
intended to prevent . . . that flows from that which makes defendants’ acts unlawful.”
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). “[T]he
Supreme Court [has] held that a remote or ‘indirect’ purchaser was not a person
injured” under federal antitrust law. In re Midwest Milk Monopolization Litig., 730
F.2d 528, 529 (8th Cir. 1984) (citing Ill. Brick Co. v. Illinois, 431 U.S. 720, 735
(1977)).

       The appellees claim Insulate, as an indirect purchaser of FSE, lacks standing
to bring its antitrust claims. Our court has suggested that indirect purchasers may
bring an antitrust claim if they allege the direct purchasers are “party to the antitrust
violation” and join the direct purchasers as defendants. Campos v. Ticketmaster
Corp., 140 F.3d 1166, 1170-71 & nn.3-4 (8th Cir. 1998). We now hold as much.
Because Insulate’s complaint alleges conspiracies between Graco and the Distributors
and names the Distributors as defendants, Insulate has adequately established it has
antitrust standing.




                                          -5-
            2.     Failure to State a Claim
       The presence of antitrust standing does not answer the distinct question
whether Insulate has sufficiently stated a claim under Federal Rule of Civil Procedure
12(b)(6). Cf. Hutterville Hutterian Brethren, Inc. v. Sveen, 776 F.3d 547, 554 (8th
Cir. 2015).

       “We review de novo the district court’s grant of a motion to dismiss under Rule
12(b)(6).” Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766,
768 (8th Cir. 2012).4 “[A] plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal marks omitted).

       Given “the unusually high cost of discovery in antitrust cases,” id. at 558, “the
limited ‘success of judicial supervision in checking discovery abuse[,]’ and ‘the threat
[that] discovery expense will push cost-conscious defendants to settle even anemic
cases . . . ,’ the federal courts have been reasonably aggressive in weeding out

      4
        On appeal, Insulate asks this court to take judicial notice of a number of
documents concerning the FTC and Gama actions—including the FTC complaint and
related documents, the district court’s order denying summary judgment to Graco in
the Gama suit, and a transcript of a deposition taken in the Gama suit—that Insulate
believes are “supportive of the plausibility of [its] claims.” Federal Rule of Evidence
201(b) allows this court to take judicial notice of public documents for the purpose
of noting undisputed adjudicative facts, but judicial notice is inappropriate to the
extent Insulate offers these documents for the “truth of the matters within them and
inferences to be drawn from them–matters which [Graco] disputes.” Kushner v.
Beverly Enters., 317 F.3d 820, 832 (8th Cir. 2003). We thus grant Insulate’s motion
for judicial notice of these documents to the extent we note the existence of and basic
facts surrounding these actions, but we decline to consider the documents as evidence
Graco actually engaged in any anticompetitive conduct alleged therein.

      Insulate’s motion to supplement the record is denied.
                                          -6-
meritless antitrust claims at the pleading stage,” NicSand, 507 F.3d at 450 (second
alteration in original) (quotation omitted) (quoting Twombly, 550 U.S. at 559). Cf.
In re Text Messaging Antitrust Litig., 630 F.3d 622, 625-26 (7th Cir. 2010) (“When
a district court by misapplying the Twombly standard allows a complex case of
extremely dubious merit to proceed, it bids fair to immerse the parties in the
discovery swamp . . . and by doing so create irrevocable as well as unjustifiable harm
to the defendant.”).

       On appeal, Insulate challenges the dismissal of three federal antitrust claims:
(1) conspiracy to restrain trade through the use of exclusionary agreements in
violation of Sherman Act Section 1; (2) “attempt and conspiracy to” “acquire,
maintain, and enhance Graco’s monopoly power” in violation of Sherman Act Section
2; and (3) “use of exclusionary contracts to substantially lessen competition” in
violation of Clayton Act Section 3.5 As relevant to this case, the critical element of
each claim is concerted action—i.e., the existence of a contract or conspiracy. See
15 U.S.C. §§ 1, 2, 14. “[T]o satisfy the concerted action requirement, the plaintiff
must demonstrate that the defendants shared a ‘unity of purpose or a common design
and understanding, or a meeting of the minds.’” Impro Prods., Inc. v. Herrick, 715
F.2d 1267, 1273 (8th Cir. 1983) (quoting Am. Tobacco Co. v. United States, 328 U.S.
781, 810 (1946)). Pleading only “parallel conduct” or other conduct “merely
consistent with [an] agreement” is not sufficient to show a conspiracy. Twombly, 550
U.S. at 557 (emphasis added).

      Insulate can satisfy the concerted action requirement by showing “two or more
persons entered into either an express or implied agreement.” Impro, 715 F.2d at
1273 (discussing Sherman Act claims); see also In re Wholesale Grocery Prods.
Antitrust Litig., 752 F.3d 728, 734 (8th Cir. 2014); Roland Mach. Co. v. Dresser

      5
       Insulate also brought a price-fixing claim against all defendants and
monopolization and unlawful acquisition claims solely against Graco but has
expressly abandoned these claims on appeal.
                                         -7-
Indus., Inc., 749 F.2d 380, 392 (7th Cir. 1984) (“In order to prevail on its [Clayton
Act] section 3 claim, [the plaintiff] will have to show . . . that there was an agreement,
though not necessarily an explicit agreement.”). Insulate claims to have pled the
existence of both express anticompetitive contracts and implied exclusivity
agreements. After a thorough review of the complaint, we conclude Insulate has not
pled “enough factual matter (taken as true) to suggest that an agreement was made,”
Twombly, 550 U.S. at 556.

                     a.     Written Exclusivity Agreements
        Insulate, quoting Insignia Systems, Inc. v. News America Marketing In-Store,
Inc., 661 F. Supp. 2d 1039, 1062 (D. Minn. 2009), argues the “Appellees entered into
written exclusive dealing contracts” that are “‘sufficient to establish a contract or
conspiracy for the purposes of . . . exclusive dealing claims.’” (Alteration in original).
The complaint does not support this argument. Insulate appears to rely on Graco’s
2007 letter as evidence of these “written exclusive dealing contracts.” Because the
complaint does not allege the Distributors signed any agreement consenting to the
letter’s terms or otherwise expressly agreed to its terms, there was no “‘meeting of the
minds,’” Impro, 715 F.2d at 1273 (quoting Am. Tobacco, 328 U.S. at 810), so the
letter alone cannot constitute a written exclusive-dealing contract.

        Insulate additionally suggests Graco and the Distributors’ preexisting
distributorship contracts are express contracts not to compete because, in its 2007
letter, Graco referenced the contracts’ “best efforts clause.” Graco’s unilateral
announcement of its decision not to supply distributors who also sell competing
products did not transform a prior innocuous distributor agreement into a contract for
exclusive dealing. See, e.g., United States v. Colgate & Co., 250 U.S. 300, 307
(1919) (determining a manufacturer’s later request that its products not be sold below
certain prices did not transform preexisting sales agreements between the
manufacturer and its distributors into agreements not to compete); Concord Boat



                                           -8-
Corp. v. Brunswick Corp., 207 F.3d 1039, 1058 (8th Cir. 2000) (explaining, although
defendant’s discount program may have created “de facto exclusive dealing
arrangements,” the discount agreements themselves “were not exclusive contracts”).

       Even though the complaint contains several conclusory references to a contract,
the alleged facts do not suggest Graco entered into explicit exclusivity agreements
with any of the Distributors. See Twombly, 550 U.S. at 555 (“[A] plaintiff’s
obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions.” (internal marks omitted)).

                    b.     Implied Agreements
       Insulate, pointing to Graco’s 2007 and 2012 letters and some distributors’
resulting compliance, proposes the “Appellees’ conduct provides . . . circumstantial
evidence of anticompetitive agreements.”6 However, in both the 2007 and 2012
letters, Graco simply stated its policy of not selling to distributors who also sold
competitors’ products.

      The federal antitrust laws “do[] not restrict the long recognized right of [a]
manufacturer engaged in an entirely private business, freely to exercise his own
independent discretion as to parties with whom he will deal; and, of course, he may
announce in advance the circumstances under which he will refuse to sell.” Colgate,
250 U.S. at 307. Under the “Colgate doctrine,” “[a] manufacturer . . . generally has
a right to deal, or refuse to deal, with whomever it likes, as long as it does so


      6
        Insulate’s complaint states the appellees entered into both an overarching hub-
and-spoke conspiracy and multiple small conspiracies between Graco and each of its
distributors. The parties dispute whether Insulate adequately alleged a hub-and-spoke
conspiracy. Because we conclude Insulate’s complaint does not sufficiently allege
any conspiracy—whether widespread or on an individual basis—we do not reach this
issue.

                                          -9-
independently.” Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761-63
(1984) (citing Colgate, 250 U.S. at 307); accord Corner Pocket of Sioux Falls, Inc.
v. Video Lottery Techs., Inc., 123 F.3d 1107, 1111-12 (8th Cir. 1997). Indeed, a
“manufacturer can announce its [policy] in advance and refuse to deal with those who
fail to comply. And a distributor is free to acquiesce in the manufacturer’s demand
in order to avoid termination.” Monsanto, 465 U.S. at 761.

       To allege the existence of a conspiracy adequately, Insulate must present
something beyond the mere fact that Graco stated its policy and the Distributors
complied. In United States v. Parke, Davis & Co., 362 U.S. 29 (1960), the Supreme
Court explained that plaintiffs can prove concerted action by showing a manufacturer
took some action “beyond mere announcement of his policy and the simple refusal
to deal[ and] employ[ed] other means which effect adherence to his” policies. Id. at
44; see, e.g., Monsanto, 465 U.S. at 765 (holding defendant’s attempts to force its
distributors to comply with its resale price policy went beyond the Colgate doctrine’s
limits); Parke, Davis, 362 U.S. at 33-36, 45 (deciding a company that policed the
implementation of its resale price policy and individually met with each of its
wholesalers and retailers to ensure compliance exceeded Colgate). Yet Colgate
protects a manufacturer who communicates a policy and then terminates distribution
agreements with those who violate that policy. See Colgate, 250 U.S. at 307; Roland,
749 F.2d at 393 (“The mere announcement of [an exclusive-dealing] policy, and the
carrying out of it by canceling [a] noncomplying dealer, would not establish an
agreement.”); see also, e.g., Lovett v. Gen. Motors Corp., 998 F.2d 575, 577, 579 (8th
Cir. 1993) (explaining the plaintiff’s evidence that a manufacturer decreased its
supply to a noncompliant distributor and told the distributor to “reconsider” its
noncompliant activities was not sufficient to support the jury’s finding of a
conspiracy and reversing the district court’s denial of judgment as a matter of law to
the manufacturer).




                                        -10-
       Attempting to distinguish Colgate, Insulate maintains the appellees took
actions to enforce their agreements that went “‘beyond [the] mere announcement of
[a] policy and the simple refusal to deal,’” quoting Parke, Davis, 362 U.S. at 44. But
the complaint does not describe any conduct suggesting an agreement between Graco
and the Distributors. While the complaint makes some vague references to concerted
action among “key Distributors,” Insulate does not provide any factual allegations
beyond the bare conclusion that there was a conspiracy. The complaint does not
allege when the agreements occurred or even identify which of the distributors named
as defendants—if any—are among the “key Distributors” who were party to the
agreements. Without some supporting factual allegations, these conclusions are
insufficient. See Twombly, 550 U.S. at 557 (“[A] conclusory allegation of agreement
at some unidentified point does not supply facts adequate to show illegality.”); In re
Elevator Antitrust Litig., 502 F.3d 47, 50-51 (2d Cir. 2007) (per curiam) (dismissing
plaintiff’s complaint because the complaint generally recounted antitrust violations
“without any specification of any particular activities by any particular defendant; it
is nothing more than a list of theoretical possibilities, which one could postulate
without knowing any facts whatever” (quotation and marks omitted)); accord
Twombly, 550 U.S. at 565 n.10 (doubting whether a complaint “mention[ing] no
specific time, place, or person involved in the alleged conspiracies” would adequately
state a claim).

       The only allegations in the complaint that come close to suggesting a
conspiracy are those concerning Foampak. The complaint avers Graco, after learning
Foampak was considering taking on a competitive product line, flew two “top
executives” to Foampak’s headquarters to meet with Foampak executives. At this
meeting, Graco threatened to end Foampak’s distributorship, so Foampak chose not
to carry a competitive product. Insulate compares Graco’s actions here to similar
behavior in Monsanto, which the Supreme Court found exceeded the Colgate
doctrine’s limits. See Monsanto, 465 U.S. at 765 (explaining Monsanto’s multiple
attempts to force distributor compliance with its resale price policy by threatening

                                         -11-
termination and “complain[ing] to [a] distributor’s parent company” were sufficient
to support the jury’s finding of an agreement).

      Assuming Insulate’s complaint sufficiently alleges an agreement between
Foampak and Graco, Insulate cannot challenge this conspiracy because it has not
named Foampak as a defendant. See Campos, 140 F.3d at 1170-71 & nn.3-4. The
complaint does allege Foampak had “communications with fellow Distributors,”
broadly implying these other distributors may have been part of the alleged Graco-
Foampak conspiracy. But again Insulate does not identify any other distributor by
name, suggest when these communications occurred, or provide any other specific
factual allegation that would create an inference that an agreement was made.7

       Ultimately, Insulate’s complaint fails sufficiently to allege concerted action.
The complaint repeatedly asserts Graco and an unnamed set of distributors generally
conspired to restrain trade, but these assertions are not enough. “[A] naked assertion
of conspiracy . . . gets the complaint close to stating a claim, but without some further
factual enhancement it stops short of the line between possibility and plausibility of
entitlement to relief.” Twombly, 550 U.S. at 557 (internal marks omitted). Insulate
has not provided the “factual enhancement” necessary to move its complaint forward.




      7
        Insulate additionally references Graco’s dealings with the FTC, suggesting we
should infer Graco’s wrongdoing from the FTC’s investigation and consent
agreement. The FTC’s complaint, however, alleged Graco unlawfully acquired
competitors under Clayton Act Section 7, conduct not relevant to the conspiracy
claims alleged here. Further, the FTC consent agreement explicitly stated Graco had
made no admission of guilt. We thus decline to presume Graco violated federal
antitrust laws based on the mere existence of this settlement of a different antitrust
dispute.

                                          -12-
      B.      State Law Claim
              1.     Minnesota Antitrust Claim
       Insulate appeals the dismissal of its claim under the Minnesota Antitrust Law
of 1971, Minn. Stat. § 325D.49 et seq., contending the district court erroneously
concluded Insulate, as a non-citizen of Minnesota, could not bring this claim.
Assuming without deciding Insulate can bring a claim under Minnesota antitrust law,
we affirm the dismissal because Insulate failed to state its claim adequately. See
Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005) (“We may affirm the district
court’s dismissal on any basis supported by the record.”). Because “Minnesota
antitrust law is generally interpreted consistently with federal antitrust law,” Lorix v.
Crompton Corp., 736 N.W.2d 619, 626 (Minn. 2007) (en banc), and Insulate agrees
our analysis of its federal claims also applies to its Minnesota claim, Insulate’s
Minnesota antitrust claim also must be dismissed for failure to state a claim.8

            2.     California Claims
      Insulate appeals the dismissal of its California antitrust and unfair competition
claims.




      8
        Minnesota law differs from federal law in one material respect: Minnesota
allows indirect purchasers to sue manufacturers for antitrust violations. See Lorix,
736 N.W.2d at 626-27. Minnesota still imposes some “prudential limits” on antitrust
plaintiffs, including a showing of proximate cause. Id. at 631. Assuming Insulate has
alleged an anticompetitive agreement between Graco and Foampak, Insulate still
lacks standing under Minnesota law to challenge this agreement because it only
purchased FSE from Intech and has not pled any injury traceable to a Graco-Foampak
conspiracy. To the extent Insulate alleges in its brief a Minnesota monopolization
claim against Graco individually, there is nothing in the pleadings or record
mentioning this claim, and we will not consider that claim for the first time on appeal.
See Horras v. Am. Capital Strategies, Ltd., 729 F.3d 798, 803 n.3 (8th Cir. 2013).



                                          -13-
       As with its Minnesota claim, Insulate has failed to state a claim under
California’s Cartwright Antitrust Act, Cal. Bus. & Prof. Code § 16700 et seq. “A
long line of California cases has concluded that the Cartwright Act is patterned after
the Sherman Act and both statutes have their roots in the common law.
Consequently, federal cases interpreting the Sherman Act are applicable to problems
arising under the Cartwright Act.” Marin Cnty. Bd. of Realtors, Inc. v. Palsson, 549
P.2d 833, 835 (Cal. 1976) (in bank); see also Corwin v. Los Angeles Newspaper Serv.
Bureau, Inc., 484 P.2d 953, 959 (Cal. 1971) (in bank) (“[F]ederal decisions
interpreting section 3 [of the Clayton Act] are applicable to section 16727 [of the
Cartwright Act].”). Because Insulate has not sufficiently pled a claim under federal
antitrust law, Insulate also has not stated a claim under the Cartwright Act. See, e.g.,
nSight, Inc. v. PeopleSoft, Inc., 296 Fed. App’x 555, 557 n.3 (9th Cir. 2008)
(unpublished memorandum) (“nSight’s monopolization and attempted
monopolization claims under the Cartwright Act fail for the same reasons as its
[Sherman Act] Section 2 claim.”).

       Insulate similarly has failed to state a claim under California’s Unfair
Competition Law (UCL), Cal. Bus. & Prof. Code § 17200 et seq. The UCL
“prohibits unfair competition, including unlawful, unfair, and fraudulent business
acts.” Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937, 943 (Cal. 2003).
The district court found Insulate failed to state a claim under the UCL’s unlawful
prong because Insulate did not allege a violation of the antitrust laws. Insulate now
claims the appellees engaged in both unlawful and unfair business practices.

       As discussed above, Insulate has not sufficiently pled the appellees violated
any antitrust law and thus has no claim under the UCL’s unlawful prong. See Davis
v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1168, 1171 (9th Cir. 2012) (explaining
“[t]o be ‘unlawful’ under the UCL, the [defendant’s] advertisements must violate
another ‘borrowed’ law” and affirming the dismissal of the plaintiff’s UCL claim



                                         -14-
because he failed to plead adequately a violation of California’s False Advertising
Law (quoting Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tele. Co., 973 P.2d
527, 539-40 (Cal. 1999))).

       Insulate also failed to plead a violation of the UCL’s unfair prong. In the
antitrust context, “the word ‘unfair’ . . . means conduct that threatens an incipient
violation of an antitrust law, or violates the policy or spirit of one of those laws
because its effects are comparable to or the same as a violation of the law, or
otherwise significantly threatens or harms competition.” Cel-Tech, 973 P.2d at 544.
Here, Insulate has only pled actions consistent with Graco’s “right to deal, or refuse
to deal, with whomever it likes,” Monsanto, 465 U.S. at 761, which is not unfair
conduct. See Orchard Supply Hardware LLC v. Home Depot USA, Inc., 967 F. Supp.
2d 1347, 1364 (N.D. Cal. 2013) (“[A]cts permissible under antitrust laws ‘cannot be
deemed unfair under the unfair competition law,’ at least not where a plaintiff alleges
that the acts are unfair for the same reason it argues that they violate antitrust law.”
(quoting Chavez v. Whirlpool Corp., 113 Cal. Rptr. 2d 175, 184 (Cal. Ct. App.
2001))).

III.  CONCLUSION
       While “it is one thing to be cautious before dismissing an antitrust complaint
in advance of discovery, [it is] quite another to forget that proceeding to antitrust
discovery can be expensive.” Twombly, 550 U.S. at 558 (internal citation omitted).
Insulate has not pled sufficient facts to allow its case to proceed to discovery. We
affirm the dismissal of Insulate’s claims.
                       ______________________________




                                         -15-
