     18‐175‐cv
     IQ Dental Supply, Inc. v. Henry Schein, Inc.

 1

 2                                    In the
 3             United States Court of Appeals
 4                        For the Second Circuit
 5                                   ________
 6
 7                             AUGUST TERM, 2018
 8
 9                         ARGUED: SEPTEMBER 13, 2018
10                           DECIDED: MAY 10, 2019
11
12                                 No. 18‐175‐cv
13
14                           IQ DENTAL SUPPLY, INC.,
15                              Plaintiff‐Appellant,
16
17                                       v.
18
19    HENRY SCHEIN, INC., PATTERSON COMPANIES, INC., BENCO DENTAL
20                          SUPPLY COMPANY,
21                         Defendants‐Appellees.
22                              ________
23
24                Appeal from the United States District Court
25                   for the Eastern District of New York.
26                  No. 17‐cv‐4834 – Brian M. Cogan, Judge.
27                                 ________
28
29   Before: WALKER, JACOBS, and POOLER, Circuit Judges.
30                               ________
31
32      This case involves allegations that three large dental‐supply

33   distributors—Henry Schein, Inc., Patterson Companies, Inc., and
     2                                                        No. 18‐175‐cv

 1   Benco Dental Supply Company, Inc. (“the Defendants”)—conspired

 2   to violate the antitrust laws by engineering the boycott of an online

 3   distribution portal, SourceOne, Inc. (“SourceOne”), and dental

 4   manufacturers and suppliers associated with SourceOne. The

 5   Plaintiff, IQ Dental Supply, Inc. (“IQ”), is a competitor dental‐supply

 6   distributor that sold dental products through SourceOne’s online

 7   portals. IQ sued the Defendants in the United States District Court for

 8   the Eastern District of New York alleging violations of federal and

 9   state antitrust laws and asserting common law tort claims. The district

10   court (Cogan, Judge) dismissed IQ’s antitrust claims for lack of

11   antitrust standing and IQ’s tort claims for failure to state a claim. IQ

12   appeals that decision.

13       We affirm the district court’s dismissal of IQ’s claim that it has

14   antitrust standing to challenge the boycott of SourceOne and the state

15   dental associations (“SDAs”) that had partnered with SourceOne. As

16   to IQ’s claim that it has standing to challenge injury inflicted by the

17   direct boycott of its business, however, we find that IQ’s antitrust and

18   tort claims may go forward on these direct boycott allegations only.

19   Accordingly, we vacate in part the judgment of the district court and

20   remand the case for further proceedings consistent with this opinion.

21                                  ________
22
23                      LAWRENCE FOX, Duane Morris LLP, New York, NY
24                      (William B. Pollard, Amy C. Gross, Duane Morris
     3                                                       No. 18‐175‐cv

 1                      LLP, New York, NY; J. Manly Parks, Robert M.
 2                      Palumbos, Duane Morris LLP, Philadelphia, PA,
 3                      on the brief), for Plaintiff‐Appellant.

 4                      RICHARD C. GODFREY, Kirkland & Ellis LLP,
 5                      Chicago, IL (Barack S. Echols, Kirkland & Ellis
 6                      LLP, Chicago, IL; Colin R. Kass, Adrian Fontecilla,
 7                      Proskauer Rose LLP, Washington, DC; Bradley I.
 8                      Ruskin, Proskauer Rose LLP, New York, NY, on the
 9                      brief), for Defendant‐Appellee Henry Schein, Inc.

10                      James J. Long, Scott M. Flaherty, Briggs and
11                      Morgan, P.A., Minneapolis, MN, for Defendant‐
12                      Appellee Patterson Companies, Inc.

13                      Howard D. Scher, Thomas P. Manning, Samantha
14                      L. Southall, Buchanan Ingersoll & Rooney PC,
15                      Philadelphia, PA, for Defendant‐Appellee Benco
16                      Dental Supply Company.

17                                 ________
18
19   JOHN M. WALKER, JR., Circuit Judge.

20       This case involves allegations that three large dental‐supply

21   distributors—Henry Schein, Inc., Patterson Companies, Inc., and

22   Benco Dental Supply Company, Inc. (“the Defendants”)—conspired

23   to violate the antitrust laws by engineering the boycott of an online

24   distribution portal, SourceOne, Inc. (“SourceOne”), and of dental

25   manufacturers and suppliers associated with SourceOne. The

26   Plaintiff, IQ Dental Supply, Inc. (“IQ”), is a competitor dental‐supply

27   distributor that sold dental products through SourceOne’s online

28   portals. IQ sued the Defendants in the United States District Court for
     4                                                             No. 18‐175‐cv

 1   the Eastern District of New York alleging violations of federal and

 2   state antitrust laws and asserting common law tort claims. The district

 3   court (Cogan, Judge) dismissed IQ’s antitrust claims for lack of

 4   antitrust standing and IQ’s tort claims for failure to state a claim. IQ

 5   appeals that decision.

 6       We affirm the district court’s dismissal of IQ’s claim that it has

 7   antitrust standing to challenge the boycott of SourceOne and the state

 8   dental associations (“SDAs”) that had partnered with SourceOne. As

 9   to IQ’s claim that it has standing to challenge injury inflicted by the

10   direct boycott of its business, however, we find that IQ’s antitrust and

11   tort claims may go forward on these direct boycott allegations only.

12   Accordingly, we vacate in part the judgment of the district court and

13   remand the case for further proceedings consistent with this opinion.

14                                 BACKGROUND

15       There are only a small number of dental‐supply companies that

16   distribute products to dental practices. Three of those companies, the

17   Defendants, occupy approximately 80% of the dental‐supply

18   distribution market.1 They purchase dental supplies and equipment

19   from different manufacturers, and then sell the products to dental

20   practices nationwide. This one‐stop‐shop model obviates the need for

         1As we must at this stage, we take all of IQ’s well‐pleaded facts as true.
     See Gelboim v. Bank of Am. Corp., 823 F.3d 759, 769 (2d Cir. 2016).
     5                                                       No. 18‐175‐cv

 1   dental practices to purchase their dental equipment from each

 2   manufacturer.

 3       IQ is also a distributor of dental supplies, albeit one with

 4   considerably less market share than any of the Defendants. IQ entered

 5   the market in 2009. Beginning in 2014, IQ adopted a new distribution

 6   model. Instead of distributing dental supplies through the traditional

 7   method of deploying on‐the‐ground sales teams around the country

 8   (the model used by the Defendants) IQ distributed dental supplies

 9   through an online portal hosted by SourceOne.

10       SourceOne’s online portal is a website where dental practices can

11   purchase their supplies. SourceOne itself does not sell any dental

12   supplies through the website but serves as the platform through

13   which dental‐supply distributors, such as IQ, sell products to dental

14   offices. The distributors that used SourceOne’s portals pay SourceOne

15   a commission for each sale made through the website. In 2013,

16   SourceOne launched additional distribution websites in partnership

17   with the SDAs in Texas, Arizona, and Nevada. These SDA‐specific

18   sites operated much like SourceOne’s own portal, but each SDA had

19   its own unique domain name. SourceOne remitted a portion of their

20   commission to the SDA for each sale made through an SDA‐specific

21   website.
     6                                                       No. 18‐175‐cv

 1       IQ was not SourceOne’s first distribution partner. Two other

 2   distributors—DDS Dental Supply and Arnold Dental Supply (“DDS

 3   and Arnold”)—distributed products through SourceOne before IQ

 4   reached its agreement with SourceOne. But sometime around April

 5   2014 both DDS and Arnold stopped selling through SourceOne

 6   because the Defendants pressured dental‐supply manufacturers to

 7   stop supplying DDS and Arnold due to their arrangement with

 8   SourceOne. After losing DDS and Arnold as distribution partners,

 9   SourceOne tried to enlist a third distributor to supply dental

10   products, but that distributor declined, allegedly because of the same

11   anticompetitive behavior by the Defendants that had caused DDS and

12   Arnold to withdraw.

13       SourceOne’s need for a distributor to supply its online portals

14   opened the door for IQ. In May of 2014, IQ signed a contract to

15   distribute through SourceOne‐affiliated websites, and, since then, IQ

16   has supplied 90% of the dental supplies sold through SourceOne’s

17   website and its affiliated SDA websites. But IQ soon encountered the

18   same problem that DDS and Arnold had faced: pressure from the

19   Defendants intended to disrupt SourceOne’s online sales portals

20   began to affect IQ’s business.

21       IQ alleged that the Defendants engaged in this campaign to force

22   SourceOne out of business by conspiring to organize a boycott of:

23   (1) SourceOne     and      SourceOne‐affiliated    SDA      websites,
     7                                                         No. 18‐175‐cv

 1   (2) participating SDAs and SDA trade shows, and (3) IQ directly by

 2   pressuring the manufacturers to stop supplying IQ. It also alleged

 3   that the Defendants engaged in a price‐fixing conspiracy, which is not

 4   part of this appeal. These unlawful boycotts allegedly frightened off

 5   dental manufacturers, SDAs, and dental practices from doing

 6   business with companies connected to SourceOne, and, as a result,

 7   ultimately dealing with IQ. These boycotts “severely limited and

 8   inhibited IQ’s growth and sales, and has cost IQ many millions of

 9   dollars in lost profits.” Appellant’s Br. at 13.

10       In August 2017, IQ sued the defendants in the Eastern District of

11   New York, under the Sherman Act, 15 U.S.C. § 1, and corresponding

12   state antitrust laws—the Donnelly Act, N.Y. Gen. Bus. Law §§ 340 et

13   seq., and the New Jersey Antitrust Act, N.J. Stat. Ann. §§ 56:9‐1 et seq.

14   IQ also brought common‐law claims for tortious interference with

15   prospective business relations, civil conspiracy, and aiding and

16   abetting.

17       The district court granted the Defendants’ motion to dismiss IQ’s

18   complaint. It determined that IQ failed to establish antitrust standing

19   because it had neither alleged an antitrust injury, nor shown that it

20   was an efficient enforcer of the antitrust laws. The remaining state law

21   claims were dismissed for failure to state a claim. IQ now appeals that

22   decision.
     8                                                            No. 18‐175‐cv

 1                                 DISCUSSION

 2       We review the district court’s grant of a motion to dismiss de novo;

 3   we accept as true all factual claims and draw all reasonable inferences

 4   in IQ’s favor. Gelboim v. Bank of Am. Corp., 823 F.3d 759, 769 (2d Cir.

 5   2016). Questions of standing are also reviewed de novo. In re DDAVP

 6   Direct Purchaser Antitrust Litig., 585 F.3d 677, 688 (2d Cir. 2009).

 7       I. Antitrust Standing

 8       To survive the pleading stage, an antitrust plaintiff must

 9   demonstrate that it has “antitrust standing.” See Daniel v. Am. Bd. of

10   Emergency Med., 428 F.3d 408, 436–37 (2d Cir. 2005). Only antitrust

11   standing is at issue here. The antitrust standing requirement reflects

12   the judgment that “‘Congress did not intend the antitrust laws to

13   provide a remedy in damages for all injuries that might conceivably

14   be traced to an antitrust violation.’” Id. (quoting Associated Gen.

15   Contractors of Cal., Inc. v. Cal. State Council of Carpenters (AGC), 459 U.S.

16   519, 534 (1983)).

17       To satisfy antitrust standing at the pleading stage a plaintiff must

18   plausibly allege two things: (1) “that it suffered a ‘special kind of

19   antitrust injury,’” and (2) “that it is a suitable plaintiff to pursue the

20   alleged antitrust violations and thus is an ‘efficient enforcer’ of the

21   antitrust laws.” Gatt Commc’ns, Inc. v. PMC Assocs., L.L.C., 711 F.3d 68,

22   76 (2d Cir. 2013) (internal quotation marks omitted) (quoting Port
     9                                                           No. 18‐175‐cv

 1   Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121–22 (2d Cir.

 2   2007)). We address both these antitrust‐standing imperatives in turn.

 3       A. Antitrust Injury

 4       A plaintiff raising an antitrust claim must demonstrate antitrust

 5   injury to “‘ensure[] that the harm claimed by the plaintiff corresponds

 6   to the rationale for finding a violation of the antitrust laws in the first

 7   place.’” Gatt, 711 F.3d at 76 (quoting Atl. Richfield Co. v. USA Petroleum

 8   Co., 495 U.S. 328, 342 (1990)).

 9       Our jurisprudence culminating in Gatt Communications, Inc. v.

10   PMC Associates, L.L.C. established a three‐part test for determining

11   whether the plaintiff has alleged an antitrust injury: (1) the court

12   “must ‘identify[] the practice complained of and the reasons such a

13   practice is or might be anticompetitive,’” Id. (quoting Port Dock, 507

14   F.3d at 122); (2) the court must “identify the ‘actual injury the plaintiff

15   alleges’ . . . [which] requires us to look to the ways in which the

16   plaintiff claims it is in a ‘worse position’ as a consequence of the

17   defendant’s conduct,” id. (quoting Port Dock, 507 F.3d at 122, and

18   Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 486 (1977));

19   and (3) the court compares the “‘anticompetitive effect of the specific

20   practice at issue’ to the ‘actual injury the plaintiff alleges,’” id.

21   (quoting Port Dock, 507 F.3d at 122). IQ has adequately pleaded an

22   antitrust injury in accordance with our decision in Gatt.
     10                                                           No. 18‐175‐cv

 1        1. Gatt Step One

 2        At the first step of the Gatt analysis, IQ need allege only that the

 3   Defendants have engaged in unlawful anticompetitive conduct. Id.

 4   The bar for such a showing is a low one. See Port Dock, 507 F.3d at 122.

 5   IQ has satisfied this requirement by plausibly alleging that the

 6   Defendants conspired to boycott the SourceOne‐affiliated websites,

 7   the SDAs, and IQ itself, and engaged in a price‐fixing campaign.2

 8   These allegations easily satisfy Gatt’s initial requirement that IQ

 9   allege unlawful anticompetitive conduct by the Defendants. See

10   Klor’s, Inc. v. Broadway‐Hale Stores, Inc., 359 U.S. 207, 212 (1959)

11   (“Group boycotts . . . have long been held to be in the forbidden

12   category [under the antitrust laws].”).

13        2. Gatt Step Two

14        The second Gatt step requires us to isolate and identify IQ’s

15   “actual injury” or the “ways in which the plaintiff claims it is in a




          2 The district court dismissed IQ’s price‐fixing claims because
     competitors cannot claim injury from supracompetitive prices. See
     Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 582–83
     (1986) (“Nor can respondents recover damages for any conspiracy by
     petitioners to charge higher than competitive prices . . . . Such conduct
     would indeed violate the Sherman Act, but it could not injure respondents:
     as petitioners’ competitors, respondents stand to gain from any conspiracy
     to raise the market prices . . . ” (internal citations omitted)). IQ does not
     pursue a price‐fixing antitrust conspiracy claim on appeal.
     11                                                           No. 18‐175‐cv

 1   ‘worse position’ as a consequence of the defendant’s conduct.” Gatt,

 2   711 F.3d at 76.

 3        The Defendants argue that IQ is in no “worse position” due to their

 4   conduct because the demise of DDS and Arnold provided IQ with the

 5   opportunity to do business through SourceOne. But for their alleged

 6   anticompetitive behavior, the Defendants claim, IQ would not have

 7   made a single sale through SourceOne’s online portals—and

 8   therefore IQ cannot allege that it has been made any worse off than it

 9   would have been absent the Defendants’ anticompetitive scheme.

10   Essentially, the argument goes, every sale IQ has made through

11   SourceOne‐affiliated websites is a “bonus” sale that IQ would not

12   have made in an undistorted market because DDS and Arnold would

13   still be SourceOne’s primary distributors, and IQ has not alleged that

14   it would have partnered with SourceOne were that the case.

15        To support this argument, the Defendants rely on cases where

16   courts have denied antitrust standing to a competitor that benefitted

17   from a market distorted by anticompetitive conduct, see Matsushita

18   Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 583 (1986)

19   (no antitrust standing for competitors who would benefit from a

20   price‐fixing conspiracy to raise prices); Sprint Nextel Corp. v. AT&T

21   Inc., 821 F. Supp. 2d 308, 319–20 (D.D.C. 2011) (no antitrust standing

22   because an increase in market price did not harm competitors);

23   MacPherson’s Inc. v. Windermere Real Estate Services Co., 100 F. App’x
     12                                                          No. 18‐175‐cv

 1   651, 654 (9th Cir. 2004) (no antitrust standing because the alleged

 2   price‐fixing scheme would increase the plaintiff’s profits), and where

 3   courts have denied antitrust standing to a competitor that alleged it

 4   would have experienced an increase in its profits but for the

 5   anticompetitive conduct, Alberta Gas Chemicals Ltd. v. E.I. Du Pont de

 6   Nemours and Co., 826 F.2d 1235, 1243 (3d Cir. 1987) (no antitrust

 7   standing for plaintiffs denied access to “windfall profits” as a result

 8   of antitrust conspiracy).

 9        But the plaintiff’s position in each of these cases is distinguishable

10   from IQ’s. In three of the cases—Matsushita, MacPherson’s, and

11   Sprint—the would‐be antitrust plaintiffs enjoyed continuing benefits

12   as a direct result of the antitrust violations. The plaintiffs in these

13   cases were competitors benefiting from the supracompetitive pricing

14   that the conspiracy had produced. Matsushita, 475 U.S. at 583;

15   MacPherson’s, 100 F. App’x at 654; Sprint, 821 F. Supp. 2d at 319–20.

16   IQ, however, is not receiving a continuing benefit from the

17   Defendants’ alleged antitrust violations because the Defendants’

18   conduct is not producing an ongoing competitive advantage for IQ.3



          The Defendants maintain that because their anticompetitive behavior
          3

     is the but‐for cause of IQ’s agreement with SourceOne, any IQ sale made
     through SourceOne‐affiliated websites constitutes an ongoing benefit to IQ.
     But the cases cited by the Defendants deny standing to plaintiffs who
     experience an ongoing beneficial market condition as a result of the
     defendants’ conduct—not a one‐time market opportunity. By contrast, the
     13                                                           No. 18‐175‐cv

 1   Instead, IQ alleges that the Defendants’ actions have decreased the

 2   number of sales it has been able to make through SourceOne‐affiliated

 3   websites.

 4        Alberta Gas is distinguishable for a different reason: in that case the

 5   plaintiffs claimed antitrust losses “stemming from the failure of a

 6   competitor to bring about an increase in demand and price.” Alberta

 7   Gas, 826 F.2d at 1243. The Third Circuit held that a lost “windfall

 8   profit” is not an antitrust injury. Id. But IQ does not claim an actual

 9   injury based on the loss of windfall profits such as that disallowed in

10   Alberta Gas. IQ’s alleged losses do not stem from the denial of profits

11   that would have resulted from an increased demand or new market

12   absent the Defendants’ anticompetitive conduct.

13        We agree with IQ that its role as a “replacement supplier” for

14   SourceOne after the demise of DDS and Arnold does not defeat its

15   claim of actual injury under the antitrust laws. Regardless of how IQ

16   entered the market, once IQ was in the market it had a right to do

17   business in a market undistorted by unlawful anticompetitive

18   conduct. See Brunswick, 429 U.S. at 489 (plaintiffs must show that their

19   injury is “of the type the antitrust laws were intended to prevent”).




     Defendants’ ongoing boycotts have the continuing effect of restricting the
     number of sales IQ makes through SourceOne‐affiliated websites.
     14                                                       No. 18‐175‐cv

 1        Antitrust law is concerned with market conditions. See Gelboim,

 2   823 F.3d at 773. Assuming that IQ is operating in a market affected by

 3   anticompetitive conduct, the question of actual injury becomes

 4   whether IQ is worse off than it would be if the market were free of

 5   anticompetitive forces. IQ has alleged that the Defendants’

 6   anticompetitive conduct affected the market, and that, after it entered

 7   the market, its sales through SourceOne suffered as a result. The

 8   manner     of   IQ’s   entrance   into   the   SourceOne    agreement

 9   notwithstanding, it is entitled to conduct its business in a market that

10   is not infected with an anticompetitive distortion. Moreover, this is

11   the type of injury the antitrust laws were designed to prevent. We

12   conclude that IQ has adequately alleged an actual injury.

13        3. Gatt Step Three

14        Finally, at Gatt’s third step IQ must demonstrate that the

15   Defendants’ anticompetitive behavior caused its actual injury. Gatt,

16   711 F.3d at 76. IQ has satisfied this requirement. Assuming that IQ has

17   suffered an actual injury as we determined in step two, there is no

18   substantial dispute that IQ has adequately alleged that the

19   Defendants’ anticompetitive behavior caused the injury. See

20   Brunswick, 429 U.S. at 489 (the plaintiff must show that the injury

21   “flows from that which makes defendants’ acts unlawful”).
     15                                                         No. 18‐175‐cv

 1        B. Efficient‐Enforcer Test

 2        Even if IQ has cleared the antitrust‐injury hurdle, there is more to

 3   the antitrust standing requirement. An antitrust plaintiff must also

 4   show that it is an “efficient enforcer” of the antitrust laws. Daniel, 428

 5   F.3d at 443.

 6        A four‐factor test is employed to determine whether an antitrust

 7   plaintiff is an efficient enforcer; thus we must evaluate: (1) “the

 8   directness or indirectness of the asserted injury,” (2) “the existence of

 9   an identifiable class of persons whose self‐interest would normally

10   motivate them to vindicate the public interest in antitrust

11   enforcement,” (3) “the speculativeness of the alleged injury,” and (4)

12   “the difficulty of identifying damages and apportioning them among

13   direct and indirect victims so as to avoid duplicative recoveries.” Id.

14   (internal quotations marks and citations omitted). These four factors

15   need not be given equal weight: the relative significance of each factor

16   will depend on the circumstances of the particular case. Id.

17        To determine whether IQ is an efficient enforcer of the antitrust

18   laws, we must first distinguish the different types of antitrust

19   violations IQ seeks to enforce. There are three types of antitrust

20   violations at issue in this appeal: organizing boycotts of

21   (1) SourceOne‐affiliated websites, (2) the SDAs, and (3) IQ. The first

22   two violations allege instances of unlawful pressure placed on IQ’s
     16                                                          No. 18‐175‐cv

 1   business indirectly due to a boycott of SourceOne and the SDAs (“the

 2   indirect boycott allegations”), and the third violation alleges a direct

 3   boycott of IQ (“the direct boycott allegations”).

 4                 1.     The Indirect Boycott Allegations

 5        Directness of the injury. The first efficient‐enforcer factor requires

 6   a direct injury: “Directness in the antitrust context means close in the

 7   chain of causation.” Gatt, 711 F.3d at 78 (internal citation and

 8   quotation marks omitted); see also Paycom Billing Servs., Inc. v.

 9   Mastercard Int’l, Inc., 467 F.3d 283, 293 (2d Cir. 2006) (finding the

10   plaintiff’s injury too indirect when it “flowed from the injuries”

11   suffered by other parties).

12        As to IQ’s allegations that the Defendants engaged in an unlawful

13   campaign to boycott the SourceOne‐affiliated websites and the SDAs

14   themselves, the violation is too remote to satisfy this first factor. We

15   agree with the district court that IQ’s claims with respect to these

16   allegations are derivative and indirect: the harm to IQ resulted from

17   injury to SourceOne and the SDAs.

18        To be sure, the infliction of a derivative injury does not always

19   render an antitrust plaintiff’s injury too indirect under the efficient‐

20   enforcer test. See In re DDAVP, 585 F.3d at 688 (derivative harm is

21   sufficiently direct when “harming competitors [is] simply a means for

22   the defendants to charge the plaintiffs higher prices”). Thus, in In re
     17                                                              No. 18‐175‐cv

 1   DDAVP, the ultimate goal of the anticompetitive scheme to harm

 2   competitors was to charge the consumers higher prices. Id. at 682. By

 3   contrast, the Defendants here sought to put SourceOne—not IQ—out

 4   of business by undermining SourceOne’s new and disruptive online

 5   sales model. IQ was not the target of annihilation; it was simply

 6   collateral damage.4 IQ’s alleged injury is therefore too indirect.

 7        Sufficiently motivated plaintiff. Under the second efficient‐

 8   enforcer factor, IQ has failed to adequately allege that it is a

 9   sufficiently motivated plaintiff such that it is part of “an identifiable

10   class . . . whose self‐interest would normally motivate [it] to vindicate

11   the public interest in antitrust enforcement.” Gatt, 711 F.3d at 79

12   (quoting AGC, 459 U.S. at 542). In this case, several plaintiffs have

13   already sued the Defendants and have alleged these same antitrust

14   violations. See SourceOne Dental, Inc. v. Patterson Cos., Inc., et al., No.

15   15‐cv‐05440 (BMC) (E.D.N.Y filed Sept. 21, 2015) (suit brought by

16   SourceOne); In re Dental Supplies Antitrust Litig., No. 16‐cv‐00696


          IQ argues that the district court erred by applying the “target area test.”
          4

     We abandoned that test over thirty years ago in Crimpers Promotions Inc. v.
     Home Box Office, Inc., 724 F.2d 290, 292–93 (2d Cir. 1983). In any event, the
     district court did not apply the “target area test” when it found that IQ had
     not suffered a direct injury under the first efficient‐enforcer factor. The
     “target area test” used to ask whether a plaintiff was within “that sector of
     the economy which is endangered by a breakdown of competitive
     conditions in the particular industry.” Id. at 292 (internal quotation marks
     omitted). The district court did not ask that question. It properly asked
     whether IQ was a “target” of the Defendants’ unlawful conspiracy in the
     context of assessing whether that injury was sufficiently direct.
     18                                                        No. 18‐175‐cv

 1   (BMC) (E.D.N.Y. filed Feb. 9, 2016) (suit brought by dental offices).

 2   Although the existence of more‐motivated plaintiffs is not dispositive,

 3   the presence of plaintiffs who are better situated to vindicate the

 4   antitrust laws is relevant to this second factor. See In re DDAVP, 585

 5   F.3d at 688–89. With respect to the challenged boycotts, SourceOne is

 6   a better‐positioned plaintiff than IQ because SourceOne has been

 7   more directly injured by the alleged antitrust conspiracy than IQ. And

 8   SourceOne has in fact sued the Defendants seeking to enforce the

 9   antitrust laws.

10        IQ argues that it is sufficiently motivated because none of the

11   parties that have already sued (or could sue) the Defendants stand to

12   recover lost profits. This is IQ’s most promising claim that it is a

13   properly motivated plaintiff: while SourceOne and the SDAs earn a

14   commission on the sales, neither earns a profit. But this alone will not

15   qualify IQ as a sufficiently motivated plaintiff. The antitrust laws

16   recognize that “not every victim of an antitrust violation needs to be

17   compensated under the antitrust laws in order for the antitrust laws

18   to be efficiently enforced.” Gelboim, 823 F.3d at 779. IQ’s (highly

19   speculative, as discussed below) lost profits do not tip the scales.

20        In short, “[t]he justification for permitting [IQ] ‘to perform the

21   office of a private attorney general’ is greatly diminished because

22   ‘[d]enying [IQ] a remedy on the basis of its allegations in this case is

23   not likely to leave a significant antitrust violation undetected or
     19                                                        No. 18‐175‐cv

 1   unremedied.’” Paycom, 467 F.3d at 294 (quoting AGC, 459 U.S. at 542).

 2   Given that IQ is further removed from the harm caused by the

 3   Defendants than the parties directly affected by the boycott that have

 4   already sued the Defendants, the second efficient‐enforcer factor

 5   weighs against IQ’s antitrust standing.

 6        Speculative Damages. Under the third efficient‐enforcer factor we

 7   must consider whether IQ’s “asserted damages are speculative.” Gatt,

 8   711 F.3d at 76. Although “some degree of uncertainty stems from the

 9   nature of antitrust law,” a high degree of speculation in a damages

10   calculation suggests that “a given plaintiff is an inefficient engine of

11   enforcement.” Gelboim, 823 F.3d at 779.

12        The derivative nature of IQ’s alleged injuries renders its potential

13   recovery highly speculative. As the district court correctly

14   ascertained, calculating IQ’s damages essentially would require the

15   creation of an “alternative universe.” IQ Dental Supply, Inc. v. Henry

16   Schein, Inc., No. 17‐cv‐4834, 2017 WL 6557482, at *10 (E.D.N.Y. Dec.

17   21, 2017). IQ would have to model far more than basic lost sales and

18   lost profits. It would need to first show how many additional SDAs

19   would have partnered with SourceOne but for the Defendants’

20   conduct, second demonstrate the types of agreements SourceOne and

21   IQ would have had with each of those SDAs, and finally show how

22   many SDA customers would have purchased IQ‐supplied products

23   through a SourceOne‐affiliated website. Thus, IQ’s damages
     20                                                       No. 18‐175‐cv

 1   calculation rests on multiple layers of speculation. See id. (“Any

 2   damages estimate would require evidence to ‘support a just and

 3   reasonable estimate of damages,’ and it is difficult to see how

 4   appellants would arrive at such an estimate, even with the aid of

 5   expert testimony.” (internal quotation marks omitted) (quoting U.S.

 6   Football League v. Nat’l Football League, 842 F.2d 1335, 1378 (2d Cir.

 7   1988))). No amount of expert testimony can adequately ameliorate the

 8   highly speculative nature of IQ’s alleged losses.

 9        Duplicative and difficult to apportion damages. The fourth factor,

10   duplicative recovery, also cuts against IQ. The damages to which IQ

11   lays claim—lost profits from sales it would have made through

12   SourceOne‐affiliated websites absent the Defendants’ anticompetitive

13   conduct—are exactly the same damages SourceOne’s initial suppliers,

14   DDS and Arnold, could have claimed.

15        IQ argues that the potential for duplicative recovery has become

16   irrelevant to the efficient‐enforcer analysis because any antitrust

17   claims DDS and Arnold might have against the Defendants are now

18   time‐barred. But we reiterate that the efficient‐enforcer factors are

19   concerned with finding the plaintiffs best suited to serve as “private

20   attorney[s] general,” AGC, 459 U.S. at 542, and not with identifying

21   every plaintiff who might sue. Whether external or practical

22   considerations (such as the statute of limitations) may eliminate a

23   duplicative damages concern, therefore, is not substantially material.
     21                                                        No. 18‐175‐cv

 1   The efficient‐enforcer factor asks, in the overall scheme of antitrust

 2   enforcement, whether a potential antitrust plaintiff stands within that

 3   scheme as someone well positioned to enforce the antitrust laws. The

 4   existence of other plaintiffs who could lay claim to precisely the same

 5   damages, whether in theory or in actuality, indicates that the would‐

 6   be antitrust plaintiff might not be well positioned to vindicate the

 7   antitrust laws for the benefit of the public. See id. Indeed, it would be

 8   strange and unworkable if new efficient enforcers sprang up simply

 9   by operation of the statute of limitations on the other enforcers.

10        In sum, we agree with the district court that because IQ is not

11   positioned to efficiently enforce the claims that the Defendants

12   harmed it by conspiring to boycott SourceOne‐affiliated websites and

13   the SDAs, IQ does not have antitrust standing to bring these claims.

14                 2.     The Direct Boycott Allegations

15        IQ also alleges that the Defendants injured it by means of a direct

16   boycott. IQ claims that the Defendants pressured the manufacturers

17   to stop supplying IQ, frightened manufacturers away from supplying

18   IQ in the first place, and otherwise disparaged IQ’s business to its

19   customers and potential customers.

20        We find, with respect to these particular allegations, that IQ is an

21   efficient enforcer and thus has antitrust standing to proceed with its

22   direct boycott claim against the Defendants.
     22                                                        No. 18‐175‐cv

 1        Directness of the injury. The direct boycott injury IQ alleges is

 2   neither indirect nor derivative. IQ claims that the Defendants directly

 3   pressured manufacturers to stop selling their products to IQ, and that

 4   the Defendants sought to damage IQ’s business reputation with its

 5   customers. Because IQ was the Defendants’ target, these are direct

 6   injuries.

 7        Sufficiently motivated plaintiff. Second, IQ is the most‐motivated

 8   plaintiff with respect to the Defendants’ alleged direct boycott of IQ.

 9   See Gatt, 711 F.3d at 78. Unlike the claims of injury from the indirect

10   pressure on SourceOne and the SDAs, IQ is the “immediate victim[]”

11   of any direct boycott of IQ. AGC, 459 U.S. at 541. It has suffered a

12   direct loss of sales. By contrast, none of the plaintiffs best positioned

13   to enforce IQ’s claims of indirect boycott are well positioned to

14   enforce IQ’s allegations of direct boycott.

15        Speculative damages. The damages that flow from the

16   Defendants’ alleged direct boycott of IQ would not necessarily be

17   speculative—such damages would relate to instances of potentially

18   ascertainable business losses. The value of each lost opportunity

19   might be calculated based on IQ’s historical sales data without undue

20   speculation.

21        Duplicative recovery. IQ’s recovery of damages related to the

22   direct boycott of IQ would not be duplicative. See Gatt, 711 F.3d at 79–
     23                                                        No. 18‐175‐cv

 1   80. Unlike the indirect claims, any damages in connection with the

 2   Defendants’ direct boycott of IQ could not also be claimed by Arnold

 3   and DDS. These injuries are specific to IQ alone.

 4        The Defendants argue that IQ fails to state plausible claims for

 5   relief for direct injury because “the complaint does not contain factual

 6   allegations that Defendants engaged in any joint conduct to boycott

 7   IQ.” Appellees’ Br. at 55. This argument fails to recognize that the

 8   allegations of direct boycott are part of the Defendants’ vast and

 9   multipronged attack on SourceOne’s platforms, the SDAs, the

10   distributors, and dental offices. In other words, IQ has not alleged that

11   it has suffered an antitrust injury from the Defendants’ direct boycott

12   in isolation. Although, as the Defendants note, “complaints about

13   price‐cutters are natural—and from the manufacturer’s perspective,

14   unavoidable—reactions by distributors to the activities of their

15   rivals,” Monsanto Co. v. Spray‐Rite Serv. Corp., 465 U.S. 752, 763 (1984)

16   (internal citation and quotation marks omitted), IQ’s complaint here

17   is not limited to price cutting. IQ has alleged that the Defendants, as

18   part of their elaborate and extensive scheme to force SourceOne and

19   associated entities out of business, exerted pressure on some of IQ’s

20   suppliers to boycott IQ.

21                                      ***
     24                                                          No. 18‐175‐cv

 1        In sum, IQ is an efficient enforcer of the antitrust laws solely with

 2   respect to IQ’s allegations that it has been directly boycotted by the

 3   actions of the Defendants. As to these allegations, we vacate the

 4   district court’s judgment and remand for further proceedings on IQ’s

 5   claim.

 6        II.   IQ’S STATE LAW CLAIMS

 7              A. New York and New Jersey Antitrust Claims

 8        IQ brought parallel antitrust claims under New York’s Donnelly

 9   Act, N.Y. Gen. Bus. Law § 340 et seq., and the New Jersey Antitrust

10   Act, N.J. Stat. Ann. §§ 56:9‐1 et seq. We decide questions of antitrust

11   standing under both New York and New Jersey antitrust law in

12   conformity with federal antitrust law. Gatt, 711 F.3d at 81–82 (holding

13   that the Donnelly Act should generally be interpreted consistently

14   with federal antitrust law (citing X.L.O. Concrete Corp. v. Rivergate

15   Corp., 634 N.E.2d 158, 161 (N.Y. 1994))); see also State v. Lawn King, Inc.,

16   417 A.2d 1025, 1032 (N.J. 1980) (“[T]he New Jersey act is to be

17   construed in harmony with ruling judicial interpretations of

18   comparable Federal antitrust statutes and to effectuate, insofar as

19   practicable, a uniformity in the laws of those states which enact it.”

20   (internal quotation marks omitted)).

21        Therefore, our holding with respect to IQ’s state law antitrust

22   claims mirrors our federal antitrust holding discussed above. IQ’s
     25                                                          No. 18‐175‐cv

 1   indirect allegations—the boycott of SourceOne and the SDAs—fail

 2   because IQ is not an efficient enforcer. IQ’s state‐law antitrust claims

 3   that the Defendants directly boycotted IQ’s business, however, may

 4   proceed.

 5          B.    IQ’s State Law Tort Claims

 6        Our final task is to determine the fate of IQ’s remaining state law

 7   claims. IQ asserted common‐law claims of tortious interference with

 8   prospective business relations, civil conspiracy, and aiding and

 9   abetting.

10               1. Tortious Interference with Prospective Business
11                  Relations
12        Under New York law, a plaintiff claiming tortious interference

13   with prospective business relations must “show the defendant’s

14   interference with business relations existing between the plaintiff and

15   a third party, either with the sole purpose of harming the plaintiff or

16   by means that are dishonest, unfair, or in any other way improper.”

17   PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266, 269 (2d Cir.

18   1987) (internal citation and quotation marks omitted), abrogated on

19   other grounds by Hannex Corp. v. GMI, Inc., 140 F.3d 194, 206 n.9 (2d

20   Cir. 1998). But where, as it does here, “the defendant’s interference is

21   intended, at least in part, to advance its own competing interests, the

22   claim will fail unless the means employed include criminal or

23   fraudulent conduct.” Id.
     26                                                        No. 18‐175‐cv

 1        The district court dismissed IQ’s tortious interference claim

 2   because IQ failed to allege a “viable antitrust claim” and therefore

 3   could not plausibly allege that it had suffered criminal or tortious

 4   behavior. Second, the district court determined, consistent with the

 5   efficient‐enforcer analysis, that IQ had not plausibly alleged that the

 6   Defendants’ conduct was the proximate cause of its injuries because

 7   IQ had suffered only indirect harm. Finally, with respect to IQ’s

 8   allegations that the Defendants directly boycotted its business, the

 9   district court found them too “threadbare” to sustain a tortious

10   interference claim.

11        We agree with the district court that IQ’s claims of tortious

12   interference with respect to IQ’s allegations of indirect pressure by the

13   Defendants (the boycott of SourceOne and the SDAs) should be

14   dismissed because IQ failed to plausibly allege the underlying

15   criminal or tortious conduct on which the tortious interference claim

16   must be based.

17        We disagree with the district court, however, that IQ’s claims of

18   direct tortious interference are too scant to survive a motion to

19   dismiss. As discussed above, IQ has plausibly alleged that it suffered

20   an antitrust injury resulting from the Defendants causing a direct

21   boycott of its business. Accordingly, this allegation is sufficient to

22   allow IQ’s tortious interference claim to proceed. Therefore, to the

23   extent that the district court’s dismissal of IQ’s tortious interference
     27                                                              No. 18‐175‐cv

 1   claim rested on a misapprehension of the distinction between IQ’s

 2   claims of indirect and direct pressure on its business by the

 3   Defendants, the judgment of the district court is vacated and

 4   remanded to allow the tortious interference claims premised on the

 5   direct boycott of IQ to proceed.

 6              2. Civil Conspiracy and Aiding and Abetting

 7        IQ also asserted claims for state civil conspiracy and aiding and

 8   abetting.5 Because IQ’s civil conspiracy and aiding and abetting

 9   claims were derivative of its tortious interference claim, the district

10   court dismissed these claims as tag‐along claims. Consistent with our

11   analysis above, we vacate in part the judgment of the district court as

12   to these claims with respect to IQ’s direct boycott allegations.

13                                         ***

14        To recap, we conclude that while IQ has alleged an antitrust injury,

15   it is not an efficient enforcer with respect to its allegations that the

16   Defendants unlawfully caused the boycotts of SourceOne and the

17   SDAs. We therefore affirm the judgment of the district court

18   dismissing those claims. With respect to IQ’s allegations that the



          We express no opinion at this stage as to the district court’s finding that
          5

     the existence of an independent tort of civil conspiracy in New Jersey did
     not raise a question of conflict of laws. IQ has properly pleaded a tortious
     interference claim from which its claim for civil conspiracy (under the law
     of either jurisdiction) can be derived.
     28                                                        No. 18‐175‐cv

 1   Defendants directly brought about a boycott of IQ, however, we find

 2   that IQ is best positioned to enforce those antitrust violations.

 3   Accordingly, we vacate the judgment and remand the case to the

 4   district court on IQ’s allegations of direct boycott only. IQ’s state law

 5   antitrust claims and common law tort claims are also vacated and

 6   remanded, but only to the extent that they rely on IQ’s allegations that

 7   it suffered harm as a result of the direct boycott.

 8                                CONCLUSION

 9        The judgment of the district court is AFFIRMED in part and

10   VACATED in part. We REMAND this case to the district court for

11   further proceedings consistent with this opinion.
