             United States Court of Appeals
                        For the First Circuit
 
 

Nos. 13-1531, 13-1665,
     13-1705, 13-1714

    AMERICAN STEEL ERECTORS, INC.; AJAX CONSTRUCTION COMPANY, INC.;
        AMERICAN AERIAL SERVICES, INC.; BEDFORD IRONWORKS, INC.;
                      AND D.F.M. INDUSTRIES, INC.,
                Plaintiffs-Appellants/Cross-Appellees,

         RONALD BEAUREGARD, D/B/A INDEPENDENT WELDING SERVICES
                           INDUSTRIES, INC.,
                              Plaintiffs,

                                  v.

        LOCAL UNION NO. 7, INTERNATIONAL ASSOCIATION OF BRIDGE,
           STRUCTURAL, ORNAMENTAL & REINFORCING IRON WORKERS,
                  Defendant-Appellee/Cross-Appellant,

      CHARLES WRIGHT; STEEL ERECTION AND ORNAMENTAL IRON INDUSTRY
                           ADVANCEMENT FUND,
                              Defendants.



             APPEALS FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Richard G. Stearns, U.S. District Judge]



                                Before

                         Howard, Chief Judge,
                   Stahl and Lipez, Circuit Judges.


     Michael E. Avakian, with whom Wimberly, Lawson & Avakian,
Thomas M. Triplett, Schwabe Williamson & Wyatt, Geoffrey R. Bok,
and Stoneman, Chandler & Miller LLP were on brief, for
appellants/cross-appellees.
     Indira Talwani, with whom Paul F. Kelly, Jasper Groner, and
Segal Roitman, LLP were on brief, for appellee/cross-appellant.
     Maurice Baskin and Littler Mendelson, PC on brief for
Associated Builders and Contractors, Inc., amicus curiae in
support of appellants/cross-appellees.



                       February 25, 2016
            HOWARD,   Chief   Judge.        On   December    2,    2004,    five

structural steel contractors filed a complaint against a local

union alleging antitrust law violations under the Sherman Act,

labor law violations under the Labor Management Relations Act

("LMRA"),   and   other   violations    under     state     law.     Over   the

intervening decade, the case has evolved in complex ways. Although

we reviewed this matter once before, Am. Steel Erectors, Inc. v.

Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental

& Reinforcing Iron Workers ("ASE I"), 536 F.3d 68 (1st Cir. 2008),

we found elements pertaining to the federal claims undeveloped and

remanded for further proceedings.           The case now reaches us again

following trial, with both parties appealing and cross-appealing

aspects of the final judgment.       After considerable reflection, and

for the reasons set forth below, we affirm.

                              I.   Background

            A.    Factual History

            As we explained in ASE I, the structural steel industry

is comprised of steel fabricators, who manufacture steel products

to meet design specifications, and steel erectors, who assemble

the fabricated steel.      When a developer or owner taps a general

contractor to lead the construction of a building, that general

contractor typically solicits bids for a combined "fab and erect"

                                    - 3 -
package, which is submitted by the fabricator and includes the

combined price for both the fabrication and erection of the

structural steel.                                       As such, the steel fabricators must themselves

solicit bids for the erection work from the steel erectors in order

to finalize their combined bid price.                                        And, in turn, the erection

companies must incorporate the significant costs associated with

paying their laborers into their own steel erection price.

                             In New England, at the time of the complaint, there were

relatively few fabricators (around twenty) and many erectors (over

200).                 The plaintiffs in this case are five nonunionized steel

erector companies,1 and the defendant is Labor Union No. 7 of the

International Association of Bridge, Structural, Ornamental &

Reinforcing Iron Workers ("Local 7"), a teamsters local union for

member iron workers (including steel erector laborers) in eastern

Massachusetts.                                    Local 7 has a collective bargaining agreement

("CBA") with the Building Trades Employers' Association of Boston

and           Eastern                  Massachusetts             ("BTEA"),   which   is   an   entity   that

represents hundreds of construction companies.                                            Among the "union


                                                            
              1
       The plaintiffs are Arial Services, Inc., D.F.M. Industries,
Inc., American Steel Erectors, Inc., Bedford Ironworks, Inc., and
Ajax Construction, Inc. As plaintiffs D.F.M. Industries and Ajax
Construction are most heavily involved in the foundational facts,
we refer to them throughout as "DFM" and "Ajax" for ease.

                                                                   - 4 -
signatory" firms that have agreed to the CBA are numerous erector

companies with whom the plaintiffs compete.

            Under the CBA, the signatory erectors must pay Local 7

workers a union scale wage.   Nonunion erectors, on the other hand,

are not bound to the CBA and can negotiate their own labor costs

with their employees.     Because labor expenditures account for

approximately half of the total steel erection costs, nonunion

erectors are often able to submit lower bids for erection contracts

to fabricators looking to formulate a combined "fab and erect"

bid.   Over time, not unexpectedly, that can lead to nonunion

erectors and laborers gaining market share from union erectors and

laborers.

            In order to prevent such erosion in its labor market

share, Local 7 incorporated a "Market Recovery Program" ("MRP")

into its 2000-2006 CBA. Under the MRP, signatory erectors withheld

a fraction of each union laborer's paycheck, which was then paid

into a target fund (the "Fund") operated by Local 7.   Local 7 could

then identify construction projects likely to draw competition

from nonunion erectors and, on a case-by-case basis, send "blast

faxes" or "project alerts" to its signatory union erectors with an

offer to subsidize their bids and make them more competitive with

nonunion bids.     In the event that a union signatory won the

                               - 5 -
subcontract, Local 7 (sometimes in conjunction with other regional

unions) would enter into a job targeting fund agreement with that

erector company governing the terms of the MRP subsidy for that

specific project ("JTF agreement").

           B.    Procedural History

           In 2004, the plaintiffs filed a complaint in federal

district court in Massachusetts alleging, in addition to state law

claims, that actions of Local 7 violated both (1) the LMRA, which

provides civil liability for damages resulting from unfair labor

practices, 29 U.S.C. §§ 158, 187; and (2) Sections 1 and 2 of the

Sherman   Act,   which    forbid   practices   that   unlawfully   impair

competition, 15 U.S.C. §§ 1, 2.      In general, the complaint alleged

that Local 7 employed coercion and unlawful economic pressure to

ensure that contracts were awarded to signatory erectors, rather

than plaintiffs, and to foreclose nonunion erectors from a large

portion of the structural steel erection market in the greater

Boston area.

           After the district court granted Local 7's request for

summary judgment on all claims, we reversed in part.         See ASE I,

536 F.3d at 76-85.       We agreed that the plaintiffs' state claims

were preempted, but remanded the surviving federal labor and

antitrust claims for further proceedings.       The district court set

                                   - 6 -
the plaintiffs' LMRA claims for trial and reserved the antitrust

claims to be addressed after several of the factual disputes

underlying both claims had been resolved by the jury.

          At trial on the LMRA claims, the court limited the

plaintiffs to presenting evidence about union conduct relating to

four particular construction projects: two, referred to as Cardi's

Furniture and Archstone Apartments, involved plaintiff Ajax; the

other two projects, Fox 25 and Brickworks, involved plaintiff DFM.

The jury found for the plaintiffs on each of the four projects,

awarding Ajax $211,956.00 in damages and awarding DFM $78,757.60.

The district court denied Local 7's motion for judgment as a matter

of law or a new trial, see Fed. R. Civ. P. 50(b), 59, which

challenged the sufficiency of the evidence supporting liability

and the damages calculations.

          Following the jury verdict, the district court relied on

the evidence presented at trial in its subsequent consideration of

the antitrust issues, as the plaintiffs had represented earlier in

the litigation that identical evidence undergirded both the LMRA

claims and the antitrust claims.        Ultimately, the court entered

judgment on the Sherman Act claims in favor of Local 7, concluding

that the plaintiffs' evidence failed to give rise to antitrust

liability as a matter of law.     See Am. Steel Erectors, Inc. v.

                                - 7 -
Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental

& Reinforcing Iron Workers ("ASE II"), 932 F. Supp. 2d 240, 252

(D. Mass. 2013).

                           II.     Analysis

          The plaintiffs appeal from the summary judgment decision

on their antitrust claims.       Local 7 cross-appeals the court's

decision to keep in place the jury's verdict on the LMRA claims.

We address the appeals in reverse order, review the merits de novo,

and consider all trial evidence in the light most favorable to the

plaintiffs.    See Long v. Fairbank Reconstruction Corp., 701 F.3d

1, 3 (1st Cir. 2012).

          A.    Labor Law Claims

                1. Liability

          The LMRA extends a private right of action to those

injured in business or property by reason of certain unlawful union

practices proscribed by the National Labor Relations Act ("NLRA").

See 29 U.S.C. § 187.    As we explained in ASE I, § 8(b)(4)(ii) of

the NLRA makes it an unfair labor practice for a union to threaten,

coerce, or restrain an employer with an object of forcing the

employer (A) to enter into an agreement prohibited by § 8(e) of

the NLRA, or (B) to cease doing business with another party.   See

29 U.S.C. § 158(b)(4)(ii)(A) & (B); Intercity Maint. Co. v. Local

                                 - 8 -
254, Serv. Employees Int'l Union, 241 F.3d 82, 87 (1st Cir. 2001).

An illegal § 8(e) agreement is, in turn, defined in relevant part

as an agreement by an employer to cease doing business with any

other person.     See 29 U.S.C. § 158(e).        In other words, a union

may incur liability under subparagraph B of § 8(b)(4)(ii) if it

coerces an employer to cease doing business with another party or

under subparagraph A of § 8(b)(4)(ii) if it coerces an employer to

enter into an agreement to cease doing business with another party.

             Such an agreement can be express or implied, ASE I, 536

F.3d at 83, and it need not be of a "generalized exclusionary

nature to fall afoul of § 8(e); rather, the use of coercive

measures by a union to pressure a single neutral employer into a

single agreement to cease doing business with a single non-union

employer, or the application of such measures on a project-by-

project basis" is sufficient to find liability.                Id. (citing

N.L.R.B. v. Bangor Bldg. Trades Council, 278 F.2d 287, 289–90 (1st

Cir. 1960)).

             Of course, Local 7 rightfully points out that a neutral

employer's    mere   decision   to   acquiesce   to   a   union's   unlawful

coercion and cut ties with the nonunion party is not, standing

alone, sufficient to imply the existence of a § 8(e) agreement and

incur liability under subparagraph A. Such an interpretation would

                                     - 9 -
allow subparagraph B to swallow subparagraph A whole.              Local 7

points to the decision of the National Labor Relations Board

("NLRB") in Local Freight Drivers Local 208, 224 N.L.R.B. 1116

(1976), for support.

             In Local Freight Drivers, the NLRB held that the union

had violated subparagraph B by making the termination of its

unlawful picketing contingent upon the neutral party's decision to

sever its relationship with a nonunion employer.           See 224 N.L.R.B.

at   1121.      The   NLRB   stopped   short,   however,    of   finding   a

subparagraph A violation, noting that the union had "specifically

made removal of the [nonunion] . . . the quid pro quo for cessation

of the picketing," and that "[n]o other requirement was attributed

to [the union] as a condition for cessation of the picketing."

Id. at 1123.     Because the union did not go one step further and

require that the nonunion employer be replaced with a union

employer, the NLRB found that the factual elements required for

subparagraph A liability were absent from the record.            See id. at

1121-23.

             In ASE I, we deemed any subparagraph B claims waived due

to the plaintiffs' failure to "sort out their allegations and

develop their arguments sufficiently." 536 F.3d at 83. On remand,

we offered the plaintiffs an opportunity to flesh out "the nature

                                  - 10 -
and extent of Local 7's allegedly coercive tactics" and show that

"Local 7 through use of those tactics pressured neutral employers

into agreements to refrain from using non-union contractors in

violation of § 8(e)."       Id. at 84 (emphasis added).

            The permissible grounds for liability were narrowed even

further at trial by jury instructions that required the plaintiffs

to show that Local 7 "threatened, coerced, or restrained one or

more of the steel fabricators" with an object of "obtaining . . .

an agreement, explicit or implicit, from the steel fabricators to

cease   doing    business   with   the   plaintiffs."   (emphasis     added).

Although subparagraph A liability might well have been premised on

coercion directed at other neutral employers, such as site owners

or general contractors, the plaintiffs failed to object to the

jury instructions below.        With this somewhat whittled basis for

liability   in    mind,   we   examine   the   record   to   ensure   that   a

sufficient evidentiary foundation exists to prove the allegations.

            Although we must ensure that the judgment rests upon

more than conjecture and speculation or a mere scintilla of

evidence, see Trigano v. Bain & Co., Inc., 380 F.3d 22, 28-29 (1st

Cir. 2004), we are mindful that it is not our role to assess

witness credibility, resolve evidentiary conflicts, or weigh the

evidence, see Gibson v. City of Cranston, 37 F.3d 731, 735 (1st

                                   - 11 -
Cir. 1994).   In the end, we are compelled to honor the jury's

verdict unless the facts and inferences point so strongly and

overwhelmingly in favor of Local 7 that a reasonable jury could

not have returned the verdict for plaintiffs DFM and Ajax. See

Long, 701 F.3d at 3.

          At trial, DFM president Glen Pisani described how union

members regularly filmed job sites where his company's laborers

were working and formed picket lines ostensibly protesting DFM's

pay scale as being out of step with prevailing wage standards.

Pisani testified that he understood that unions might engage in

this conduct lawfully in order to place pressure on erectors to

sign a CBA. At one point, Pisani made efforts to determine whether

his workforce wanted to unionize, and they did not.     Even after

this, however, members of Local 7 would show up at work sites and,

in his words, "harass" his crew.      He found it "kind of ironic"

that the union picketed publicly funded job sites that were

governed by state-regulated pay scales.

          Pisani further described that occasionally he hired a

union crane laborer to work at a particular job alongside his

nonunionized workforce, but the pressure of union picketers would

provoke the crane operator to leave the site in order to avoid

being "blackballed" by the union.      Union picketing intensified

                             - 12 -
when Pisani's company secured erector jobs closer to Boston:            "I

want to work in the city.       Every time I get close, I get picketed

and they make problems for me."

             The president of Ajax, Donald Morel, also described

union picketing at his company's job sites.          He further testified

about an incident in July 2003 in which about "fifty union iron

workers stormed" one of his job sites in downtown Boston at 85 New

Market Street, threatening Ajax laborers as not "belong[ing] in

downtown."    Fights broke out and property was damaged, but no one

was ever held responsible for the incident. As of the time of

trial, Ajax had not worked in downtown Boston since that incident.

             At times, the developing hostilities in the erector

labor market ensnared neutral steel fabricators.           John Paulding of

Cape & Island Steel, a fabricator company, testified that Local 7

had pressured him on several occasions to award bids to union

signatories,    rather   than   to    nonunion   erector   companies.   He

described his first meeting with Eddie Wright, a former president

of Local 7, in the early 1990s after Paulding had awarded a job to

a nonunion company.      Wright "let [him] know [that] the project

needed to go union," and Paulding responded that he "couldn't

afford" to carry the "additional costs."             After pressure from

Wright and the general contractor, Paulding retained a union

                                     - 13 -
signatory   for    the   job.       Still,   Paulding   continued    to   use

nonunionized laborers at future job sites while also continuing to

feel the heat from Local 7 representatives who at times threatened

to picket in order to "stop the job."

            In   2003,   Paulding    again   was   approached   by   Local   7

representatives, who told him that they "wanted a lot of work for

their people" and that "there [were] opportunities out there with

target money."    They explained that target money would be provided

to the union "installers . . . to give them a leg up on the job"

and that "it would ultimately . . . help [Paulding's company] win

work."   "[I]t actually never quite worked like that," Paulding

explained, "it was sort of a mystery to me, the target fund money,

because it was always promised how much it could do for me, but it

never really did a thing for me."            Paulding continued to resist

the union's pressure but acknowledged that there came a time when

his company only hired union signatories for all erector work in

Boston except for smaller jobs lasting only one or two days.

            Another steel fabricator, Ann Gavin of FAMM Steel, also

testified about pressure to subcontract with union signatories

that her company experienced, more directly from owners and general

contractors.     Gavin testified that there were several instances in

which the general contractor or owner would require her to replace

                                    - 14 -
the nonunion erector at the site with a union signatory.                        She

testified, "[M]ost of them were Stop & Sho[p] [supermarkets], . .

. depending upon what happened with the union, they would change

their mind." "We would put the nonunion erector on notice, because

in some cases they had mobilized cranes and . . . were at the site

and had done the initial work in the field before the union erector

came on board.   So we had to get costs for them.               We couldn't just

cancel them and walk away."      Gavin estimated that the same pattern

occurred "[p]robably half a dozen [times] . . . if we're talking

just   about   Stop   &   Shops."         She   acknowledged       her   company's

participation    in   deciding      "to    make    a     change"   and   cancel   a

subcontract commitment due to "pressure or . . . an incentive being

offered"; "[i]t was an abuse.         It was unethical what we did."

           This general gloss informed more particular evidence and

testimony that was submitted with respect to four job sites where

fabricators    cancelled    subcontracts          with    DFM   and   Ajax   during

project kickoff and replaced them with union signatories despite

a higher subcontract cost.           We review events surrounding these

projects in chronological order.

           Cardi's Furniture

           In the spring of 2002, plaintiff Ajax pursued erector

work on a project in Attleboro, Massachusetts for a commercial

                                    - 15 -
building, Cardi's Furniture, and was awarded the job by fabricator

FAMM Steel.     Having in hand a $370,000 purchase order for twelve

weeks of erector work, Ajax began the normal kickoff preparations.

Ultimately, however it was prevented from ever being able to start

the work.

             During   kickoff,       Gavin   of   FAMM    Steel    received   some

"initial calls," advising her that "there were issues occurring at

the   site"--"something       was    up   with    the    union."     The   general

contractor    relayed    to    her    that   he    and    the   owner   now   were

"considering going from open shop to union."               When Ajax learned of

the trouble, Morel contacted Gavin "pretty much pleading with them

not to remove us."      Gavin told him that "it was beyond her control"

and that he "could call Mr. Cardi himself."               Morel also spoke with

the owner on two occasions, to no avail:                in the midst of project

kickoff, Gavin chose to cancel FAMM Steel's subcontract with Ajax

"to put a union erector on" the site.               FAMM Steel replaced Ajax

with Griffin Ironworks, a union signatory erector, at a higher

subcontract price.      Gavin acknowledged that "[i]t wasn't the first

time" that this occurred with Morel's company and she had been

"forced to change erectors."

             Several entities, including three local union chapters

and Local 7, paid Griffin Ironworks $120,000 in "target money" for

                                      - 16 -
the   Cardi's   Furniture   job   in   order   to     reduce   the   $570,000

replacement bid to $450,000--still a significantly higher cost

than the Ajax subcontract.        Griffin Ironworks began work in the

fall of 2002 and, after fifty percent completion, sent a letter to

Local 7 to request an installment of the promised payment.                  The

December 2002 letter opens with the following, "Through a concerted

effort with the New England District Council and Griffin Ironworks,

Cardi's new furniture store was turned around from a nonunion

project to a union project."

           Fox 25

           The following year, in 2003, plaintiff DFM sought work

at a job site in Dedham, Massachusetts.          It submitted a quote to

fabricator Cape & Island Steel for the second construction phase

at a Fox 25 television facility, because the erector company that

"had done the job wasn't going to be there to finish it."             DFM and

Cape & Island Steel agreed to a purchase order of $18,000 for the

erector work for a new side entrance of the building.                 Trouble

with Local 7 soon began.

           Within days of DFM laborers arriving on site, a Local 7

business representative, Wright, "had words" with DFM laborers,

"questioning    [them]   being    on   the   site"    and   upset    that   the

fabricator had brought DFM onto the job.             Wright also spoke with

                                  - 17 -
Paulding of Cape & Island Steel "about getting [DFM] off the site"

and "had conversations" with the general contractor. At some point

Wright called Paulding, "extremely upset that the project was

subcontracted by C&I Steel, Inc. to DFM," telling Paulding that

the job "was going union."      Paulding responded that his company

had solicited separate bids from both union and nonunion firms,

that Wright was unreasonable to expect continued negotiations with

unionized erectors, and that DFM had "a reasonable price and a

schedule that would work."     For the fabricator, "the schedule was

tight . . . we needed to get things rolling."              Wright's ire

escalated.     He told Paulding that DFM was "one of the companies

targeted by the Local 7 union," that "DFM should not be on this

project," and that "there will be a strike at Fox 25."          He also

warned Paulding that the union had put other companies out of

business before and that he planned to follow suit by "letting the

gorilla out of the cage" on both Cape & Island Steel and DFM.

             The conversation continued.      Paulding reminded Wright

that his fabricator company had provided "millions of dollars in

revenue for union forces through the calendar year of 2002" and

"hoped   [for]   some   consideration   for   this   effort."   Wright,

nonetheless, strenuously insisted that "the union erectors had

been hurt as a result of [Cape & Island Steel's] subcontracting to

                                - 18 -
DFM" which was "a big mistake."         The discussion ended with Wright

telling Paulding that "DFM [had] been targeted by the union," that

the Fox 25 job "is a high-profile project," and that DFM's "non-

union forces should not be there"--he assured Paulding that "Local

7 would be striking this site continuously."

            When Cape & Island Steel nevertheless "went forward with

DFM," union picketers arrived, causing the general contractor to

contact the fabricator about the union difficulties at the job

site.   DFM was asked to leave "until things got straightened out."

The nonunion laborers did so but later returned to work and found

that DFM's equipment and material had been damaged.        Pisani wrote

a letter to the fabricator, stating that DFM had been targeted

even though his employees were not interested in joining the union,

vandalism had occurred at the site, and his crew's safety needed

to be protected.     Receiving assurances, DFM laborers returned to

work.

            Later, however, the fabricator sent Pisani a fax with

the following cover:     "Union BS from 'Edwin Wright' that I guess

we must live with."      The attached document summarized the phone

call    exchange   between   Paulding    and   Wright.   The   fabricator

dismissed DFM from the job and retained an erector company that

was considered friendly with the union.         The replacement erector,

                                 - 19 -
however, worked at the site for only one week before Paulding

"called DFM back, hat in hand," because the new erector could not

meet the site needs.   DFM returned and finished the job.

          Archstone Apartments

          That summer, plaintiff Ajax pursued erector work on the

Archstone Apartments project in Watertown, Massachusetts.   It was

a "medium-sized," multi-phase project, expected to generate about

eight weeks of erector work.    Following the bidding process, Ajax

was awarded a $160,000 erector subcontract in June by fabricator

Mandate Erectors & Steel.      Ajax's project manager attended the

usual kickoff meetings, sequencing the job site but, again, Ajax

was never able to begin the erector work.

          In early September, Local 7 sent out a "project alert"

on the Archstone Apartments project, and Morel of Ajax soon learned

from Ajax personnel of "a problem" with the union and that his

company was "going to lose the job."      After Morel had already

"earmarked the crane for the job and the people," he urged the

fabricator "to try and get the owner to stay with our contract."

His effort failed; the fabricator broke the subcontract and hired

a union signatory erector as a replacement.




                               - 20 -
           Brickworks

           The following year, in the winter of 2004, plaintiff DFM

pursued erector work at a condominium construction project called

Brickworks in Cambridge, Massachusetts, at the site of an old brick

factory.   DFM was awarded the job by fabricator Capone Iron, an

$80,050 subcontract for five to six weeks of labor to begin in

November 2004.     During kickoff, DFM personnel met with the general

contractor to ensure that safety expectations, among other things,

were satisfied.     With the anticipation of union picketing, a "two-

gate system" was planned so that DFM laborers would enter the site

by a designated gate where the union could lawfully picket, and

other trade laborers would use a separate access gate.

           In    mid-November,        however,   DFM   received    from   the

fabricator a packet of correspondence involving union efforts to

obtain   the    erector   work   at   Brickworks.      One   document   was   a

handwritten proposal from Bel-Lin Corporation, a union signatory,

showing a total bid of $115,200 for the Brickworks erector work.

The note reflected an original pricing of $136,000, reduced by

some $21,000--cast as a "good guy discount."             A second document

was a letter from Wright of Local 7 addressed to fabricator Capone

Iron, indicating that "Walter Belmonte [of union signatory Bel-

Lin Corporation] will cut $9,000" and Local 7 will use $12,000 in

                                      - 21 -
target money for a total of $21,000 as "concession and market

recovery."       The union letter requested that the fabricator send

the offer to the general contractor.             The last item in the packet

that the fabricator provided to DFM was a note from the project

manager   of     Capone    Iron    addressed    to   the    general   contractor,

stating: "Please see the attached documents from Local 7 Agent

Edwin Wright, run this up the flag pole and see who salutes it."

               Ultimately, DFM did not begin the erector work because

the fabricator dismissed DFM from the job to give the erector work

to the selected union signatory. The December 3 dismissal letter

stated    in    part,     "[A]s    advised     during    our   recent    telephone

conversations and due to last-minute lobbying efforts by [Local

7,] Columbia Construction Company, the General Contractor, has

demanded that Union forces install the steel for the Brickworks

project." Citing the "for convenience" provision in the contract,

the   fabricator's        letter   cancelled     DFM's      installation   order,

stating: "We regret taking this action considering our long-term

relationship. Unfortunately, we have no other choice but to proceed

with this project utilizing a union subcontractor."

               The   fabricator    acknowledged      that   DFM   "did   [not]   do

anything at all" to cause Capone to cancel the contract.                      Less

than a week later, Capone Iron entered into a subcontract for

                                      - 22 -
$109,200 with Bel-Lin Corporation to perform the erector work for

the project.     Capone testified that it did not "make commercial

sense" to take a higher bid, but that the increased cost was paid

by the general contractor.

             Despite the narrow prism of liability available to the

plaintiffs as a result of our holding in ASE I and the district

court's jury instructions, we have viewed the record as a whole

and hold that there was sufficient evidence to justify the jury's

findings.     After the plaintiffs entered into a subcontract with

each fabricator at each site, Local 7 targeted the mid-size to

larger project in order to seize the work from the prominent

nonunion erectors. While Local 7 had pressured fabricators before,

on   these    four   occasions    the    fabricators    responded   (albeit

reluctantly) to the site troubles by agreeing to cancel Ajax's and

DFM's subcontracts and to hire replacement union signatories. None

of the fabricators took this action for otherwise legitimate

business reasons, such as saving money or saving the job site from

deficient or untimely performance by Ajax or DFM.              In fact, the

replacement    subcontracts      cost   more   than   the   cancelled   ones,

sometimes significantly so.       And, on each occasion, the fabricator

took the counterintuitive action almost immediately after the

union had stirred up trouble on the site, and in the midst of

                                   - 23 -
kickoff,    when    any       potential     work    delays    threaten     to    be    a

particularly expensive proposition.                  The jury rationally could

have seen these circumstances as signifying a tacit agreement,

attributable to the coercion itself, between each fabricator and

Local 7 for a specific course of action:                          oust the targeted

nonunion erector and hire a union signatory replacement for the

benefit of Local 7 in order to vitiate union obstacles that had

been causing project interference.                 See N.L.R.B. v. Int'l Broth.

of   Teamsters,    Local       251,   691    F.3d    49,     57    (1st   Cir.   2012)

(determining whether an arrangement comprises an illegal § 8(e)

agreement   through       a    "holistic"     inquiry      into     all   surrounding

circumstances).

            Local 7 protests this reading of the record and contends

that it was the general contractors or owners, rather than Local

7, who sought and secured agreements with each fabricator to cease

doing business with either Ajax or DFM at the four construction

projects.    No doubt there is evidence in the record that would

also support a jury finding that the fabricators principally acted

at the behest of the site owners and general contractors.                             And

perhaps we, sitting as a factfinder in the first instance, might

have come to the same conclusion that Local 7 implores us to arrive

at on appeal.      But that is not our job.

                                      - 24 -
           Here, the evidence is quite sufficient to infer that

Local 7 took a multi-pronged approach and applied pressure at

multiple points to achieve the maximum intended effect.             The fact

that direct evidence may show that pressure was applied to one

party does not somehow negate circumstantial evidence that shows

that pressure was applied to another party.        The task of weighing

these   pressures   and   considering   whether   these    facts,    in   the

aggregate, satisfied the jury instructions provided by the court

falls within the province of the jury, and we will only upset that

determination if no reasonable jury could have arrived at the same

conclusion.

           Moreover,      this   Court's   repeated       and   unwavering

pronouncements of respect for a jury's credibility findings and

rational inferences are not merely appellate flourishes or rote

recitation.   The jury was entitled to rely upon industry context,

witness credibility, and other subtle cues in order to feel out

the true pulse of the case; a pulse that is oftentimes difficult

for this Court to detect through a cold stack of transcripts.

Testimonial references to "troubles," "issues," or "problems" do

not arise in a vacuum and may be considered within the broader

record, which is sufficient to show Local 7's exploitation of the




                                 - 25 -
"time-is-money"                                    pressures        present   during    kickoff     and   the

interruption (or threatened interruption) of worksite activity.

                             Finally, we think the evidence is more than clear that

the pressure applied, and the agreements obtained, went well beyond

merely unseating the nonunion fabricator. The jury was well within

reason, based on the record, to find that the replacement erector's

union affiliation was not just a happy coincidence but rather a

necessary condition to mollify Local 7's demands.

                             Evidence                      about   the   lawfulness    of   union   conduct,

especially at a common situs for primary and secondary employers,

often "will be conflicting and confused, and the inferences to be

drawn susceptible of more than one interpretation," the selection

of which is left to the factfinder.                                            Abreen Corp. v. Laborers'

Int'l Union, 709 F.2d 748, 755 (1st Cir. 1983).                                             It is the jury's

role to decide among competing, reasonable interpretations of the

evidence, and the record here allowed the path it took by a

preponderance of the evidence.

                             With Local 7's LMRA liability left in place,2 we turn to

the damages award.


                                                            
              2
       We reject a number of both parties' subsidiary challenges.
First, we reject Local 7's evidentiary challenges to the record.
Local 7 first takes issue with Morel's brief testimony about union


                                                                    - 26 -
                                                            
workers storming the construction site at 85 New Market Street in
July 2003, as irrelevant and highly prejudicial. See Fed. R. Evid.
404(b). We see no abuse of discretion where the July 2003 event
was close in time to the Archstone Apartments project and provided
context for the hostilities between the union and Ajax during the
relevant time period. Moreover, the event was explored briefly on
redirect, perhaps in response to a possible misimpression left by
defense counsel's cross-examination of Morel regarding an
unsuccessful NLRB charge against the union. The issue of unfair
prejudice is largely left to the district court, and we see no
abuse of discretion given that union intent was a highly contested
issue at trial.
     Local 7's generic challenges to evidence of labor disputes,
including primary lawful picketing and secondary labor activity,
likewise fail. Despite the court's pretrial ruling allowing some
measure of "background" evidence, Local 7 points to no trial
objection in which it challenged testimony as out of bounds.
Additionally, the jury received instructions on the difference
between legal primary and illegal secondary union conduct, and
Local 7 gives us no reason to conclude that the jury was
inattentive to the careful line drawing it was called upon to do.
See Connolly v. Roden, 752 F.3d 505, 515 n.14 (1st Cir. 2014).
     Next, we reject the plaintiffs' allegations that the district
court improperly foreclosed evidence at the LMRA trial of eleven
other construction sites and that the district court abused its
discretion in excluding four witnesses.        The district court
properly excluded information regarding the additional eleven job
sites based on insufficient evidence that Local 7 engaged in
threats, restraints, or coercion on any of these sites.         The
district court also properly exercised its discretion to exclude
four witnesses that it deemed to be inadequately disclosed by the
plaintiffs. The witnesses were not included in the plaintiffs'
Rule 26 statement and were only referred to on a handful of
occasions within a voluminous record.     Although the plaintiffs
contend that an amended Rule 26 statement is not necessary when
additional information has "otherwise been made known to the other
parties during the discovery process," Fed. R. Civ. P. 26(e)(1)(A),
the "mere mention of a name in a deposition or interrogatory is
insufficient to satisfy Rule 26(a)(1)(A)(i)," especially where, as
here, the case involves an expansive record and a multitude of


                                                               - 27 -
                                            2.             Damages

                             The jury awarded Ajax $211,956.00 and DFM $78,757.60,

the precise amounts requested by plaintiffs' counsel.                                             Local 7

contends that the damages award is excessive and unwarranted by

the evidence for two reasons.                                          First, it argues that two-thirds of

the award is based on what it calls a "lost man hours" theory,

which amounts to a factual fiction in this case.                                          Second, Local 7

argues that the damages award amounts to a double recovery because

the plaintiffs were awarded their ordinary lost profits for the

job sites, as well as "lost man hours" costs which also included

a profit margin in the hourly wages calculus.                                           Rather than a new

trial on damages as urged below, Local 7 seeks remittitur here.

Assuming that remittitur is available in the context of this

appeal, we conclude that Local 7 fails to show sufficient cause

for disturbing the jury's damages award.

                             Great deference is accorded a jury's award of damages,

and the district court's decision to abide by the award is reviewed

for abuse of discretion.                                             See Loan Modification Group, Inc. v.

Reed, 694 F.3d 145, 154 (1st Cir. 2012); Rodríguez-García v.

Miranda-Marín, 610 F.3d 756, 765 (1st Cir. 2010).                                          "[T]he jury is

                                                            
individuals, see, e.g., Lujan v. Cabana Mgmt., Inc., 284 F.R.D.
50, 72 (E.D.N.Y. 2012).

                                                                      - 28 -
free to select the highest figures for which there is adequate

evidentiary support," Reed, 694 F.3d at 154 (internal quotation

marks omitted), as long as the figure remains in the "universe of

acceptable awards," Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148,

1162 (1st Cir. 1996).       In the end, we will not disturb a jury's

damages   award    unless   it    is   "grossly   excessive,     inordinate,

shocking to the conscience of the court, or so high that it would

be a denial of justice to permit it to stand."            Reed, 694 F.3d at

154 (internal quotation marks omitted).

           The district court instructed the jury that it may award

compensatory     damages,   meaning    "lost   profits,   both   actual    and

reasonably anticipated but for the effect of the boycott, and any

uncompensated out-of-pocket expenses a plaintiff incurred because

of the defendant's wrongful contact."          It admonished the jury not

to speculate or otherwise guess when deciding damages but to use

common sense and deduce from the evidence an award that "fairly

and reasonably compensate[s] a plaintiff for the full extent of

its losses," without "understat[ing] [or] exceed[ing] compensation

for the entire injury."           The court further explained that "a

plaintiff has a continuing duty to mitigate his damages by seeking

out   suitable    substitute     replacement   work   where   there   is   the

opportunity to do so." Ultimately, the jury awarded the plaintiffs

                                    - 29 -
both ordinary lost profits and damages associated with "additional

manpower costs" for keeping the displaced workforce employed.

            The portion of the awards first deemed excessive by Local

7 amounts to $89,600 for Ajax and $45,760 for DFM.            According to

Local 7, because the plaintiffs elected to put their displaced

laborers to work at alternative job sites, they continued to

receive an economic benefit from their labor force, leaving their

costs theory unsubstantiated on the record.         This argument assumes

that the displaced laborers must have been actually idle in order

for each company to have experienced tangible financial losses

aside from lost profits.            It also assumes that the evidence

compelled     a    finding   that   the   plaintiffs'    ousted   workforce

generated    profits    at   the    alternative   site   where    they   were

reassigned.       Local 7, however, both misunderstands the nature of

the "additional manpower costs" requested and unduly restricts the

impact of the evidence presented.

            Steel erector companies often schedule several jobs

simultaneously and in immediate succession in order to prevent

their labor force from becoming idle.             The evidence allowed a

reasonable inference that any alternative work sites where the

plaintiffs' displaced crews were reassigned already had fixed

profit returns under a fixed subcontract.            The jury could have

                                    - 30 -
concluded    rationally     that   readily   securing   true   replacement

erector work in the steel market for the plaintiffs' displaced

erector workforce was nearly impossible on short notice, and that

keeping the individuals employed meant carrying the costs of their

wages, as well as taking on costs of other business inefficiencies

in a time-is-money industry, without the benefit of any additional

income.   See Kerry Coal Co. v. United Mine Workers, 637 F.2d 957,

966 (3d Cir. 1981) (evidence showing "a reasonable basis" for a

causal relationship between damages requested and the union's

unlawful conduct is all that is required to sustain the damages

award).     Accordingly, we cannot say on this record that the

plaintiffs' estimation of "additional manpower costs" during the

time   related   to   the   cancelled   subcontracts    generated   grossly

excessive damages.

            In making their double recovery argument, Local 7 points

to the profit margin built into the hourly wage calculus used for

the costs theory.     Assuming, without deciding, that this issue is

preserved for appellate review, Local 7's brief argument again

fails.

            While the record shows the possibility of some overlap,

it does not necessarily demonstrate that a double recovery was

incorporated in the hourly wage calculus beyond actual wages paid.

                                   - 31 -
Not only did the plaintiffs pay the base wages for the displaced

laborers, but Pisani testified about the "scrambling" that was

required   after      the     sudden    loss    of   a    significant     erector

subcontract.    The jury reasonably could have inferred that both

companies faced similar circumstances common to the industry and

that the costs attributable to these business inefficiencies were

absorbed by both plaintiffs here and were thus recoverable as costs

beyond actual wages paid to the reassigned workers.              Cf. Landstrom

v. Chauffers, Teamsters, Warehousemen and Helpers Local No. 65,

476 F.2d 1189, 1195 (2d Cir. 1973) (remanding for new trial on

damages where "[t]he most that was shown is a lost gross profit,

but not a loss of net income").           Also, Local 7 makes no effort to

reckon with the evidence, from which plaintiffs' counsel argued to

the jury, that the financial hit taken by DFM and Ajax reduced in

some measure reasonably expected future profits by diminishing

their ability to reinvest in their companies for competitive

growth.

           After      reviewing    the    record,    we    conclude     that   the

district court did not abuse its discretion in upholding the LMRA

damages award as a fair estimate of compensable harm.                   Thus, in

addition   to   the    LMRA    liability       verdict,   the   damages   awards

withstand Local 7's appellate challenges.

                                       - 32 -
            B.    Antitrust Law Claims

            The district court entered summary judgment for Local 7

on   the    plaintiffs'   antitrust    claims,     concluding    that     the

plaintiffs' evidence failed to give rise to antitrust liability as

a matter of law.      The plaintiffs now appeal this determination.

Because    the   plaintiffs'   claim   bobs   at   the    crosscurrents   of

antitrust liability and labor rights, we must carefully navigate

conflicting statutory directives and cut a course as close to

congressional intent as we can.

            The Sherman Act protects against unlawful impairments to

competition, not to individual competitors.              See Atl. Richfield

Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990); Sterling

Merch., Inc. v. Nestle, S.A., 656 F.3d 112, 121 (1st Cir. 2011).

If a party drives down the cost of its products in the hopes of

pummeling a less-efficient competitor into submission, we do not

permit the competitor to reach for relief through an antitrust

claim.     Doing so would thwart the very purposes of the antitrust

laws:      encouraging efficiency, lowering costs, and increasing

output. As such, claims under the Sherman Act require care because

overly interventionist enforcement could backfire and dampen the

competitive spirit that the laws were intended to foster and

protect.

                                 - 33 -
              Here, the plaintiffs allege violations of Section 1 and

Section 2 of the Sherman Act.           Section 1 of the Act prohibits

unreasonable restraints of trade or commerce through contracts,

combinations, or conspiracies; it thus applies only to concerted

action that unreasonably restrains trade.            15 U.S.C. § 1; see Am.

Needle, Inc. v. Nat'l Football League, 560 U.S. 183, 189-90 (2010).

Section 2 forbids monopolization, attempted monopolization, and

conspiracies to monopolize any part of trade or commerce.                   15

U.S.C. § 2.       The latter "covers both concerted and independent

action" which "monopolizes" or "threatens actual monopolization"-

-"a category that is narrower than restraint of trade."                     Am.

Needle, 560 U.S. at 190 (internal quotation marks and brackets

omitted).

              In evaluating such claims under the Sherman Act, one of

the   first    considerations    a    court     faces    is   determining   the

appropriate framework for its review:             per se, "quick look," or

rule of reason.       Admittedly, this decision requires putting the

cart before the horse to some extent, since the court must engage

with the functional and factual contents of the claim in order to

decide how it will proceed to evaluate that claim.

              Under   Section   1,   for      example,   "certain   kinds    of

agreements will so often prove so harmful to competition and so

                                     - 34 -
rarely prove justified that the antitrust laws do not require proof

that an agreement of that kind is, in fact, anticompetitive in the

particular circumstances.           An agreement of such a kind is unlawful

per se."        NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 133 (1998)

(internal citations omitted).            When faced with an agreement of

this rare species, such as a horizontal price-fixing or a market-

division agreement, see id., plaintiffs can demonstrate Section 1

liability "without need for proof of power, intent or impact,"

Stop & Shop Supermarket Co. v. Blue Cross & Blue Shield of R.I.,

373 F.3d 57, 61 (1st Cir. 2004). See Leegin Creative Leather

Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886 (2007) (noting that

only those restraints "that would always or almost always tend to

restrict    competition       and     decrease   output,"    or    those   with

"manifestly anticompetitive effects and [that] lack any redeeming

virtue," may be deemed per se illegal (internal quotation marks

and ellipses omitted)).

            If the agreement in question does not quite fit the bill

of   per   se    liability,   but    nonetheless   would    seem   to   have   an

anticompetitive effect on customers and markets to "an observer

with even a mere rudimentary understanding of economics," F.T.C.

v. Actavis, Inc., 133 S. Ct. 2223, 2237 (2013) (internal quotation

marks omitted), the district court might opt to take a "quick look"

                                      - 35 -
at preliminary evidence.         Under this purgatorial standard, the

agreement is not subject to immediate per se condemnation and may

yet ascend to a full rule-of-reason review. "[Q]uick-look analysis

in effect" shifts to "a defendant the burden to show empirical

evidence of procompetitive effects."         Cal. Dental Ass'n v. F.T.C.,

526 U.S. 756, 775 n.12 (1999).       Such a preliminary evaluation may

be appropriate where the agreement seems anticompetitive at first

glance, but the competitive justification offered by the defendant

appears plausible or the agreement arises in a unique or unfamiliar

context.    See id. at 770.

            The vast majority of agreements, however, need only be

found to constitute a "reasonable" restraint of trade after a rule

of reason analysis to avoid Section 1 liability.                As the Supreme

Court has made clear, "the Sherman Act's prohibition of '[e]very'

agreement in 'restraint of trade,' 26 Stat. 209, as amended, 15

U.S.C. § 1, prohibits only agreements that unreasonably restrain

trade."    NYNEX, 525 U.S. at 133.       Because all agreements "restrain

trade" in some respect, Section 1 only prohibits "those classes of

contracts or acts which the common law had deemed to be undue

restraints    of   trade   and   those   which    new   times    and   economic

conditions would make unreasonable."             Klor's, Inc. v. Broadway-




                                   - 36 -
Hale Stores, Inc., 359 U.S. 207, 211 (1959) (citing Standard Oil

Co. of N.J. v. United States, 221 U.S. 1, 59-60 (1911)).

           The "[r]ule of reason analysis typically requires a

plaintiff to show that the defendants' actions enhanced market

power--i.e., the power to raise prices or exclude competition--

which in turn requires some economic analysis of the relevant

market."   Diaz Aviation Corp. v. Airport Aviation Servs., Inc.,

716 F.3d 256, 265 (1st Cir. 2013). This demanding calculus compels

an antitrust plaintiff to show, inter alia, "that the alleged

agreement involved the exercise of power in a relevant economic

market,"   and     "that    this     exercise   had   anti-competitive

consequences." Stop & Shop, 373 F.3d at 61.      For exclusive dealing

arrangements, "foreclosure levels are unlikely to be of concern

where they are less than 30 or 40 percent . . . low numbers make

dismissal easy."    Sterling Merch., 656 F.3d at 123-24 (internal

quotation marks omitted).

           Of course, in order to evaluate whether an agreement

truly deserves the fatal per se label, or instead merits a more

nuanced quick-look or rule-of-reason review, courts are obliged to

"seek the central substance of the situation."        Am. Needle, 560

U.S. at 191.     This usually involves careful delineation of the

parties' horizontal and vertical relationships.       For example, the

                                   - 37 -
plaintiffs here advance a "group boycott" theory of liability.

Under a group boycott theory, "[a] violation of section 1 may well

occur when a group of independent competing firms engage in a

concerted refusal to deal with a particular supplier, customer, or

competitor."     Gonzalez-Maldonado v. MMM Healthcare, Inc., 693 F.3d

244, 249 (1st Cir. 2012) (citing Klor's, 359 U.S. at 212).                 A group

boycott     arrangement       "sometimes        [is]    called      [a]    per   se

violation[]."        Stop & Shop, 373 F.3d at 61.              We have cautioned,

however, that the "rhetoric of older group boycott cases" cannot

be "taken at face value," and that any per se group boycott "label"

is "minimally useful."             Id. at 61, 63-64.             This is because

"precedent limits the per se rule in the boycott context to cases

involving horizontal agreements among direct competitors."                  NYNEX,

525 U.S. at 135.

            Horizontal        restraints        are         "agreements    between

competitors     at    the   same   level   of    market      structure,"   whereas

vertical restraints are "combinations of persons at different

levels    of     market      structure     such        as     manufacturers      and

distributors."       M & H Tire Co., Inc. v. Hoosier Racing Tire Corp.,

733 F.2d 973, 978 (1st Cir. 1984) (internal quotation marks

omitted).      For example, the vertical chain in this case runs from

the laborers to the erectors, from the erectors to the fabricators,

                                     - 38 -
and from the fabricators to the general contractors.              Meanwhile,

the nonunion erector companies compete on the same horizontal plane

as   the   union-signatory   erector     companies,    with    each     erector

company (whether union or nonunion) competing for bids against

every other erector company (whether union or nonunion).

            As if our framework for analysis were not convoluted

enough, we are faced here with an antitrust claim lodged against

a labor organization.        Because the labor laws accord specific

protections and rights to unions, there are qualifications and

carve-outs that must be considered before we proceed.

            As we noted in ASE I, "there is an inherent tension

between    national    antitrust   policy,   which     seeks    to    maximize

competition,    and     national   labor     policy,    which        encourages

cooperation    among     workers    to   improve      the     conditions     of

employment."    536 F.3d at 76 (quoting H.A. Artists & Assocs., Inc.

v. Actors' Equity Ass'n, 451 U.S. 704, 713 (1981)).                    Whereas

antitrust laws protect the consumer at the expense of individual

market participants with a singular focus on price and output,

labor laws protect the livelihood of the employee on the other end

of the long chain of production and consumption.            The courts have

sought to reconcile these competing directives via two labor




                                   - 39 -
exemptions    from    the   antitrust     laws,   one    statutory    and   one

nonstatutory.

             The statutory exemption stems from the Supreme Court's

attempt to harmonize the goals of the Sherman, Clayton, and Norris-

LaGuardia Acts.       Id.   "Reading the three statutes together, the

Supreme Court held that union activity is exempt from antitrust

liability 'so long as [the] union acts in its self-interest and

does not combine with non-labor groups.'"               Id. (quoting United

States v. Hutcheson, 312 U.S. 219, 232 (1941)).

             Yet, this exemption, while helpful in protecting the

organization     of   union    activity     itself,     did   not   adequately

encompass the need to protect legitimate collective bargaining

activity from antitrust liability.          This is because such activity

necessarily "constitute[s] a combination between labor unions and

non-labor employers."         Id. at 77.      In ASE I, for example, we

pointed out that the CBA (and the MRP) clearly could not qualify

for the statutory exemption because it represented a combination

between Local 7 (labor) and the signatory contractors (non-labor).

Id.

             Thus, the Supreme Court has recognized "that a proper

accommodation between the congressional policy favoring collective

bargaining under the NLRA and the congressional policy favoring

                                   - 40 -
free competition in business markets requires that some union-

employer agreements be accorded a limited nonstatutory exemption

from antitrust sanctions."            Connell Const. Co. v. Plumbers &

Steamfitters Local Union No. 100, 421 U.S. 616, 622 (1975).                       This

nonstatutory exemption "shields some restraints on competition

imposed    through     the     bargaining     process,       where     the    alleged

anticompetitive conduct is anchored in the collective-bargaining

process, concerns only the parties to the collective bargaining

relationship,      and    relates     to    wages,     hours,        conditions     of

employment, or other mandatory subjects of collective bargaining."

ASE I, 536 F.3d at 77 (citing Brown v. Pro Football, Inc., 518

U.S. 231, 250 (1996)).

            It is within this detailed framework that our evaluation

of the plaintiffs' antitrust claims begins.                    We described the

plaintiffs' antitrust claims in ASE I as asserting a "conspiracy

between    Local   7     and   its   signatory    contractors          to     pressure

fabricators to hire only union employers, through a combination of

threats, disruptive behavior, and MRP subsidies."                  Id. at 74.      The

plaintiffs had "paint[ed] the MRP as only one part--if the central

part--of   a   wider     conspiracy    between       Local    7,     its     signatory

contractors, and the general contractors and steel fabricators

from which they solicit steel erection work, to shut open-shop

                                     - 41 -
outfits such as Plaintiffs out of the steel erection market in the

greater Boston area."      Id. at 80.     Although we ultimately held

that Local 7's alleged conduct in combination with the signatory

erectors was not protected by the statutory labor exemption, we

remanded   for   further   fact-finding   to   determine   whether   the

nonstatutory exemption applied.     Id. at 78-81.     We reserved any

opinion on the merits of the plaintiffs' antitrust claims.           See

id. at 76 n.6.

           On remand, the district court resolved the antitrust

issues after the jury's verdict on the LMRA claims.        While ruling

that the illegal § 8(e) agreements could not enjoy the protections

of the nonstatutory exemption, the court concluded that summary

judgment for Local 7 was still warranted.      ASE II, 932 F. Supp. 2d

at 247, 252.      Its reasoning:    the plaintiffs had "failed to

demonstrate an unlawful anticompetitive effect of any aspect of

Local 7's accused conduct."    Id. at 252.     We review this judgment

de novo and may affirm on any ground made manifest in the record,

untethered to the district court's rationale.      See Euromodas, Inc.

v. Zanella, Ltd., 368 F.3d 11, 16 (1st Cir. 2004).

           Before us now, the plaintiffs argue that the court

erroneously focused only on the four § 8(e) agreements, and thus

failed to abide by our directive in ASE I to consider the "entirety

                                - 42 -
of the alleged activity" in the industry as a whole.                                              536 F.3d at

80.            Given a wider field of vision, they argue, the record shows

that the defendant is guilty of "conspiracies to monopolize, group

boycott, and horizontal monopoly."                                              We have attempted to piece

together these claims to the best of our ability given the rather

murky briefing, but we cannot find that antitrust liability exists

on the facts and theories presented.3

                                            1.             Section 1 Group Boycott

                             The plaintiffs initially attempt to circumvent a typical

rule of reason analysis by incanting the magic, per se words of

"group boycott."                                    But, the plaintiffs' attempt to twist the record

into reflecting a per se violation is unavailing.                                                As discussed

above, "precedent limits the per se rule in the boycott context to

cases involving horizontal agreements among direct competitors."

NYNEX, 525 U.S. at 135.                                           As such, plaintiffs' allegations of

questionable vertical arrangements, whether between Local 7 and

fabricators or Local 7 and general contractors, do little to

advance their claim to per se treatment.                                              In order to potentially

generate                      per             se           antitrust     liability,     Local   7's   vertical

                                                            
              3
       To the extent the plaintiffs fault the district court for
declining to engage in a free-ranging review of the defendant's
behavior and conjure coherent claims into existence on the
plaintiffs' behalf, we certainly find no error.

                                                                       - 43 -
relationships would at least need to intersect with or give rise

to an unlawful horizontal relationship.     Cf. MM Steel, L.P. v. JSW

Steel 7 (USA) Inc., 806 F.3d 835 (5th Cir. 2015); United States v.

Apple, Inc., 791 F.3d 290 (2d Cir. 2015).      Here, there is no such

horizontal arrangement to speak of.

             To the extent the plaintiffs claim that there is any

horizontal conspiracy among the fabricators as a class or the

general contractors as a class to shut nonunion erectors out of

bidding opportunities, there is no such evidence in the record.

Despite isolated instances of nonunion erectors being removed from

jobs, there was no evidence of any horizontal agreement among

general    contractors   or   among   fabricators   to   foreclose   the

plaintiffs from the structural steel erection market at Local 7's

request.     Compare Klor's, 359 U.S. at 208-09 (holding boycott

unlawful when appliance manufacturers and distributors agreed that

distributors would not sell to one retailer at another retailer's

request) with NYNEX, 525 U.S. at 133, 136-37 (antitrust rule that

group boycotts are illegal per se did not apply to a single buyer's

decision to favor "one seller over another, albeit for an improper

reason" because the combination involved only a vertical agreement

and a vertical restraint depriving a supplier of a potential

customer).

                                 - 44 -
            To the contrary, the fabricators' testimony evinced a

willingness and desire to work with the nonunion erectors, and

there appeared to be no general, horizontally consistent scheme of

market    foreclosure.       One    witness    described    DFM   and   Ajax   as

"extremely large" and "prominent" in the steel erection industry

during the pertinent time frame.          Pisani started DFM in the early

1990s, and the company gained stability with about twenty-five

employees, primarily working in Rhode Island and Massachusetts.

By the middle of the next decade, DFM had grown to about 110-120

employees and $13 million in sales.            First entering the industry

in the 1970s, Ajax had varying employee numbers over time, ranging

from thirty to 120.      Its business territory covered much of New

England, including Massachusetts, Connecticut, New Hampshire, and

Rhode Island.     Ajax and DFM, as well as other named plaintiffs,

regularly entered into subcontracts with various fabricators.

            Nor does one find any meaningful evidence of unlawful

horizontal conspiracy among the signatory erector firms.                 To the

extent    the   plaintiffs    bemoan     the    operation    of   the   MRP    in

conjunction with signatory erector firms, there can be little doubt

that this program was part and parcel of the CBA protected from

antitrust scrutiny by the nonstatutory exemption.                 The MRP was

clearly     "anchored    in        the   collective-bargaining          process,

                                     - 45 -
concer[ned]     only    the     parties      to   the   collective     bargaining

relationship,    and     relat[ed]      to    wages,    hours,   conditions    of

employment, or other mandatory subjects of collective bargaining."

ASE I, 536 F.3d at 77 (citing Brown, 518 U.S. at 250).                     As we

mentioned in ASE I, such agreements, as a general matter, have

been widely upheld.       Id. at 79-80.

          Beyond       this    point    of   wage   agreement,    however,     the

plaintiffs'     accusations      of    horizontal       conspiracy     among   the

signatory erectors ring hollow on this record, especially in light

of the rigorously enforced Section 1 demands for sufficient proof

of concerted conduct.         See Am. Needle, 560 U.S. at 190 n.2; Fisher

v. City of Berkeley, 475 U.S. 260, 266 (1986); White v. R.M. Packer

Co., 635 F.3d 571, 576 (1st Cir. 2011).                 While it remains true

that "[o]ne group of employers may not conspire to eliminate

competitors from the industry and the union is liable with the

employers if it becomes a party to the conspiracy," United Mine

Workers of Am. v. Pennington, 381 U.S. 657, 665-66 (1965); see

also Allen Bradley Co. v. Local Union No. 3, Int'l Bhd. of Elec.

Workers, 325 U.S. 797, 800 (1945), sufficient proof of concerted

anti-competitive       action    among       independent    business     entities

remains necessary to state a successful Section 1 claim.




                                       - 46 -
          In the end, evidence of conduct by the union erector

signatories as market participants that remains ambiguous as to

whether the actors have engaged in an illegal antitrust conspiracy,

as opposed to independent action or conscious parallelism, is

insufficient to survive summary judgment.   See White, 635 F.3d at

577 & n.5; Euromodas, 368 F.3d at 19.   After careful review of the

record, we conclude that the plaintiffs' evidence fails to clear

this hurdle and that any purported tacit horizontal agreement among

union signatory erectors remains illusory.      See Euromodas, 368

F.3d at 18 (noting that antitrust plaintiffs bear the burden "to

make at least a prima facie showing of concerted action" with "an

illicit objective").

          Beyond the bare wage agreement and operation of the MRP,

which are protected from antitrust scrutiny under the nonstatutory

exemption, each company acted as its own profit-maximizing entity

pursuant to its own economic interest when seeking to win a

fabricator's favor with the lowest erector bid, whether competing

against a nonunion firm or another union signatory.     Each union

signatory erector formulated its own bid either with assurances of

an MRP subsidy or by taking a corresponding cut in profits to

account for nonunion bidders who were not bound to CBA wages.

There is no evidence that the union signatories relinquished

                              - 47 -
independent,    competitive     decision-making     when    receiving    blast

faxes and opting to submit a bid on the projects targeted by Local

7 or when later entering into a JTF agreement with the union for

a winning bid.       Rather, the evidence tends to show that the

hundred-plus signatory erectors remained independently profit-

driven in their respective bidding decisions--with or without the

promised subsidy.

             This precludes us from holding that the instant case

falls within a category of "what may be called a group boycott in

the strongest sense:         A group of competitors[, i.e., signatory

erectors,] threaten[ing] to withhold business from third parties[,

i.e., fabricators or general contractors,] unless those third

parties would help them injure their directly competing rivals[,

i.e., nonunion erectors]."           NYNEX, 525 U.S. at 135; see also

Fashion Originators' Guild of Am., Inc. v. F.T.C., 312 U.S. 457

(1941) (applying per se liability to an agreement among clothing

designers,     manufacturers,    and    suppliers   to     withhold    selling

clothes   to     retailers     who     bought   clothes     from      competing

manufacturers and suppliers).

             Without unlawful agreement among participants at any

given horizontal plane, a Section 1 claim cannot fall within the

narrow category of per se unlawful group boycott agreements.

                                     - 48 -
Because the plaintiffs failed to demonstrate any agreement among

general contractors, any agreement among fabricators, or any non-

wage-based agreement among signatory erectors,4 the plaintiffs'

group boycott theory of antitrust liability fails.

                                                            
              4
        The plaintiffs continue to allege that the wage-based
agreement among and between the signatory erectors and Local 7
cannot be sheltered from antitrust scrutiny because it involved
taking deductions from laborer wages and providing contractor
subsidies on public projects in violation of the Davis-Bacon Act,
40 U.S.C. §§ 3141-3148. See ASE I, 536 F.3d at 74; see id. n.5
(providing contours of Davis-Bacon Act). In ASE I, we recognized
that "the MRP may very well violate the Davis-Bacon Act" to the
extent it draws deductions from public projects or offers subsidies
to contractors to win public projects.       Id. at 81.     We also
recognized, however, that the plaintiffs themselves had not
pursued, and likely could not pursue, a cause of action under the
Davis-Bacon Act. Id. We left it to the plaintiffs on remand to
flesh out their theory. In the final analysis, we do not believe
that the plaintiffs have successfully landed their "acrobatic
attempt to shoehorn a possible Davis-Bacon violation into their
antitrust claims." Id.
     "The Davis–Bacon Act was originally enacted in 1931 as a
'minimum wage law designed for the benefit of construction workers'
which 'protects . . . employees from substandard earnings by fixing
a floor under wages on Government projects.'" Int'l Bhd. of Elec.
Workers, Local 357, AFL-CIO v. Brock, 68 F.3d 1194, 1199 (9th Cir.
1995) (quoting United States v. Binghamton Constr. Co., 347 U.S.
171, 177–178 (1954)). "When Congress enacted the Davis-Bacon Act,
it intended to remove labor as [a] competitive element." In the
Matter of: Bldg. & Constr. Trades Unions Job Targeting Programs,
WAB Case No. 90-02, 1991 WL 494718, at *1 (June 13, 1991).
     When an otherwise-lawful MRP is utilized on such public
projects, however, the funds deducted from the Davis-Bacon
projects are used "as subsidies on private sector projects," and
the prevailing wage surveys might thereby become "distorted to the
extent the subsidy was distributed to [a] contractor on a private


                                                               - 49 -
                                            2.             Section 1 Vertical Restraints

                             This leaves us with the plaintiffs' attack on Local 7's

alleged vertical arrangements with individual signatory erectors,

fabricators, and general contractors.                                          Assuming that, from our

labor analysis above, at least four vertical agreements exist, the


                                                            
sector project." Id. at *6. "Over time, the government would pay
more on Davis-Bacon . . . projects than the actual area wage rate,
a result clearly outside the public interest and definitely not
contemplated by the Congress which enacted Davis-Bacon." Id.
     Although the recycling of wages through fixed-wage public
projects and competitive private projects via the MRP may
ultimately have an anticompetitive effect, this outcome is
partially a result of the Davis-Bacon Act's anticompetitive
prevailing wage mechanism. In other words, the plaintiffs' frontal
assault on the MRP seems to necessarily entail a collateral,
predicate attack on the Davis-Bacon Act itself.
     Thus, while we agree that Congress presumably did not intend
to permit such deductions under the Davis-Bacon Act, we find it
equally unlikely that Congress intended the Sherman Act to provide
the remedy that the plaintiffs request. See ASE I, 536 F.3d at 81
(noting that "Reich and its progeny do not appear to stand for the
proposition that a Davis-Bacon violation exposes an otherwise
exempt job targeting program to antitrust liability"). Allowing
particular deductions or subsidies that violate Davis-Bacon to
eviscerate the categorical protections provided against Sherman
Act liability would radically alter the careful balance struck
between labor rights and antitrust liability.
     That is not to say that a theory of liability more tailored
to the specific offending characteristics or applications of the
MRP might not allow for antitrust scrutiny. Rather, it is simply
to say that the plaintiffs' broadside attack on the nonstatutory
exemption fails. The plaintiffs have attempted to pin antitrust
liability on the MRP as a whole, but we think the tail fails to
find the donkey.

                                                                    - 50 -
plaintiffs allege a wider pattern of exclusive dealing between

Local 7 and fabricators or Local 7 and general contractors.

             Yet, this basis for antitrust liability also fails.

First, to the extent any given fabricator or contractor replaced

a nonunion erector with a union erector for improper reasons and

in the face of higher costs, this alone is insufficient to prevail

on an antitrust claim.    See NYNEX, 525 U.S. at 136-37 (noting that

"[t]he freedom to switch suppliers lies close to the heart of the

competitive process" and that applying per se liability to a

buyer's decision to switch suppliers, even "though not made for

competitive reasons, . . . would transform cases involving business

behavior that is improper for various reasons . . . into treble-

damages antitrust cases").

             Second, any vertical agreements struck by the union are,

on this record, insufficient to survive the district court's

summary judgment.      That is not to say that vertical agreements

with   exclusionary     components   can   always   escape   antitrust

liability.     In Connell Construction, for example, a local union

entered two sets of agreements: (1) a multiemployer bargaining

agreement with a "most favored nation" clause that promised in

essence to eliminate competition between all signatory mechanical

trade subcontractors and any other subcontractors that the union

                                - 51 -
might organize, and (2) a series of parallel, vertical agreements

with general contractors that prohibited the general contractor

from using any subcontractor that did not have an agreement with

the union.    421 U.S. at 619, 623-25.         Thus, the union's agreements

with general contractors not only reached beyond the laborers'

primary    employers,      but     also    made     nonunion     subcontractors

completely ineligible to compete for a substantial portion of all

available work and imposed an anticompetitive restraint on the

business   market   that     was   not    limited    to   the   elimination    of

competition over wages and working conditions.                       Id. at 625.

Without deciding whether the union's vertical agreement with the

general contractor actually violated the Sherman Act, the Supreme

Court held that the agreement could provide the basis for a federal

antitrust suit and remanded the case.             Id. at 637.

              Simply put, however, this case is no Connell.               In the

absence of evidence that Local 7 entered into a systemic or

interlocking set of vertical exclusive dealing agreements with

third-party     neutrals     so    as     to   effectively      foreclose     the

plaintiffs'    access   to    a    significant      portion     of    competitive

opportunities in the market for structural steel erection, we

cannot disagree with the district court's decision to dispose of

the antitrust claims on summary judgment.

                                     - 52 -
          To the extent Local 7 can be said to have entered into

a   handful   of   project-by-project    vertical    "exclusionary"

agreements, the district court properly noted that such agreements

are usually adjudged under the rule of reason.      See Leegin, 551

U.S. at 907; Cont'l Television v. GTE Sylvania, 433 U.S. 36, 59

(1977).   A rule of reason analysis "requires a burdensome multi-

part showing: that the alleged agreement involved the exercise of

power in a relevant economic market, that this exercise had anti-

competitive consequences, and that those detriments outweighed

efficiencies or other economic benefits."   Stop & Shop, 373 F.3d

at 61.

          But, generally speaking, to make out a claim of exclusive

dealing under the rule of reason, the plaintiffs would need to

show that they were foreclosed from competing in a substantial

portion of the relevant market.    See id. at 68 ("For exclusive

dealing, foreclosure levels are unlikely to be of concern where

they are less than 30 or 40 percent."); ZF Meritor, LLC v. Eaton

Corp., 696 F.3d 254, 303 (3d Cir. 2012) (holding that parallel

long-term agreements between a single, upstream supplier and all

downstream purchasers that contained exceedingly high market-

penetration-target rebates constituted de facto exclusive dealing

agreements and were, in the aggregate, anticompetitive under the

                              - 53 -
rule of reason).                                       Based on the trial record, the district court

found                that              spending                  in   the     relevant   market    "has    exceeded

$200,000,000 each year since 1999" and that the four opportunities

foreclosed "constitute only a fraction of a percent of the defined

market, nowhere near the percentage impact necessary to make out

an exclusionary claim under the rule of reason."5                                                  ASE II, 932 F.

Supp. 2d at 248.                                               Rather, the district court found that the

plaintiffs were not "shorn of the ability to remain as competitors

in the market" and that there was "no evidence that they were

excluded from bidding on other jobs."                                               Id. at 249.

                             To overcome this factual inconvenience, plaintiffs argue

that the four deprivations presented at trial are illustrative of

a broader pattern of exclusion from the Boston-area steel erection

market, as evidenced by (1) the undisputed fact that seventy

percent of the steel erection work within the geographical bounds

of         the           agreed-upon                           market   was    performed   by     union   signatory

erectors, and (2) the trial testimony indicating that at some point

nearly all significant erector work in Boston itself was performed

by union signatory companies.

                                                            
              5
       The court assumed for purposes of summary judgment that
spending for steel erection in the agreed-upon market exceeded
$200 million each year since 1999, and the plaintiffs agree with
this calculation.

                                                                        - 54 -
           Although these numbers might paint a more compelling

picture if the plaintiffs could show that they were the result of

widespread or systemic anticompetitive agreements or conduct, we

side with the district court in finding the record lacking in this

regard.   Section 1 "does not reach independent decisions, even if

they lead to the same anticompetitive result as an actual agreement

among market actors."     White, 635 F.3d at 575.     "To survive [a]

motion    for   summary   judgment,    [the]   plaintiffs   needed   to

demonstrate a genuine dispute as to whether defendant['s] actions

caused an injury to competition, as distinguished from impact on

themselves."    R.W. Int'l Corp. v. Welch Food, Inc., 13 F.3d 478,

487 (1st Cir. 1994) (emphasis in original).

           None of the discrete agreements involved a refusal to

deal on an on-going basis, a fact that the plaintiffs acknowledged

before the district court.     Cf. Sterling Merch., 656 F.3d at 124

("'Short contract terms and low switching costs generally allay

most fears of injury to competition,'" as do vertical agreements

that are "not entirely exclusive." (quoting 11 Areeda & Hovenkamp,

Antitrust Law, ¶ 1802, at 94)).       Moreover, there is insufficient

evidence to establish widespread collusive agreements between

Local 7 and steel fabricators or general contractors to foreclose




                                - 55 -
open-shop erector companies as a general matter.                    We briefly

revisit the record on the latter point.

           Of the twenty steel fabricators referenced at trial,

only four agreed to break subcontracts with DFM and Ajax and retain

a union signatory replacement at a higher cost due to the pressure

imposed by Local 7.     Indeed, Paulding of fabricator Cape & Island

Steel testified to his resistance against union pressure, and the

evidence   relating     to    the     Brickworks      project     also   evinces

fabricator opposition toward Local 7's interference.               Furthermore,

DFM and Ajax were not excluded from bidding on other jobs or on

future   jobs   with   the   same    fabricators.       It   is   telling   that

fabricator Cape & Island recalled DFM to finish the erector work

at the Fox 25 site, and afterward the two entities continued their

business   relationship.            Similarly,      fabricator    Capone    Iron

continued hiring DFM after dismissing that nonunion company from

the Brickworks site.

           Additionally, both DFM and Ajax flourished financially

during   the    relevant     time   frame,    two    other   plaintiffs     also

experienced economic growth, and three of the five plaintiffs

entered the steel erector market since the inception of the MRP.

Pisani himself testified that in the "past couple of years [DFM

had] been doing a lot of pharmaceutical companies" and was "very

                                     - 56 -
competitive" on "very large jobs . . . a testament to what [his

company] has done," and he agreed that as of 2006 his company

"[had] been working pretty steady with about 20 fabricators."

                             While Local 7 certainly put direct pressure on some

third-party neutrals to award work to union signatory companies,

in         the            end            (and             after   years   of   litigation   and   protracted

discovery), the plaintiffs proved only four occasions in which

individual fabricators agreed to replace a nonunion company with

a union signatory erector company.

                             Nor is it sufficient to point to the MRP alone as

evidence of an unlawful vertical agreement.                                                 Fabricators are

entitled to respond to lower prices from erectors, and signatory

erectors are entitled to float lower bids in an attempt to win

erection work.                                   A job lost to price competition is not one the

antitrust laws were intended to restore or vindicate.6



                                                            
              6
       As we discuss above, there may perhaps be reason to believe
that a more narrowly tailored challenge to applications of the MRP
could survive summary judgment, but the plaintiffs cannot render
all contracts stemming from the MRP wholly unlawful under antitrust
law merely by showing that the MRP sometimes functioned unlawfully
under unrelated laws. As such, the plaintiffs cannot transform a
vertical agreement entered into between a union signatory and a
fabricator on the basis of price into an unlawful "exclusionary"
agreement simply by pointing to a secondary JTF agreement between
Local 7 and that union signatory.

                                                                    - 57 -
                             Moreover,                         the   record   gives   other   reasons    for   the

concentration of union labor in Boston.                                               For instance, early on in

the litigation, the district court noted that "[t]he largest Boston

area construction projects employing structural steel workers are

government-financed public works projects, including the 'Big

Dig,' the Boston Harbor clean up, and the renovation of the

terminals and parking facilities at Logan Airport."                                                     At trial,

both Pisani and Morel testified that they generally opted not to

submit bids for publicly funded projects because they did not want

to sign the required project labor agreement. In short, the record

evidence does not point inevitably toward a conclusion that union

labor dominance for erector work in Boston stemmed from any set of

unlawfully restrictive agreements, rather than some other cause

not regulated under the Sherman Act.                                             See NYNEX, 525 U.S. at 136-

37; Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S.

209, 224-25 (1993); Atl. Richfield, 495 U.S. at 344; Apex Hosiery

Co. v. Leader, 310 U.S. 469, 503 (1940).7


                                                            
              7
       It is true that Gavin of fabricator FAMM Steel testified
that her company had agreed on numerous occasions to replace a
nonunion erector with a union signatory at the behest of the
general contractor or owner (and through union pressure),
including about "half a dozen Stop & Shops." However, she is the
only fabricator witness who testified to an apparent company
pattern of subcontract breaches targeting nonunion erectors.


                                                                        - 58 -
                             "[S]ome                   antitrust   cases    are   intrinsically   hopeless"

because "they merely dress up in antitrust garb what is, at best,

a business tort or contract violation."                                           Stop & Shop, 373 F.3d at

69; see also E. Food Servs., Inc. v. Pontifical Catholic Univ.

Servs. Ass'n, Inc., 357 F.3d 1, 4 (1st Cir. 2004).                                             Ultimately,

the plaintiffs' antitrust claims here are dressed in the same

vestment.                       And so, given the record before us, we agree with the

district court's bottom line that the evidence was only sufficient

to demonstrate the existence of a handful of sporadic vertical

restraints resulting in harm to the plaintiffs, and not the

existence of a systemic set of exclusionary restraints resulting

in harm to competition in the marketplace for structural steel




                                                            
Also, the plaintiffs offered no evidence that Gavin's company
accepted higher priced contracts with union signatories beyond the
Cardi's Furniture project. On this record, we should not leap to
a conclusion that one fabricator's potential business torts or
contract breaches are indicative of antitrust liability. See Stop
& Shop, 373 F.3d at 69. This is particularly true in view of the
fact that DFM, Ajax, and other willing open-shop erectors continued
to participate in the fiercely competitive structural steel
erection market. Cf. Sterling Merch., 656 F.3d at 124 (holding
that exclusive agreements were not proven to have impaired
competition where, inter alia, distributors historically competed
for the agreements with retailers, plaintiff succeeded in winning
over one of defendant's largest customers, other avenues of
distribution remained available, and new competitors entered the
market).

                                                                   - 59 -
erection services itself.          See Stop & Shop, 373 F.3d at 66;

Euromodas, 368 F.3d at 21; R.W. Int'l, 13 F.3d at 487.

              3.   Section 2

              Lastly, we note that the plaintiffs have invoked Section

2 of the Sherman Act as well, although their allegations pertaining

to "conspiracy to monopolize" and "horizontal monopolization" are

dubious and difficult to divine.         Their brief mingles Section 1

and Section 2 advocacy, with little attention to the latter.

              There is, perhaps, an argument to be made that the bids

of signatory erectors on particular private projects could have

been below-cost, predatory bids offset by supracompetitive prices

enabled by the Davis-Bacon Act's prevailing wage mechanism and the

artificial inflation of the local prevailing wage rate.           Hints of

a novel theory of this nature seem to be scattered throughout the

plaintiffs' papers. Yet, once again, we are faced with a situation

where   the    plaintiffs   have   provided   such   skimpy   evidence   and

entangled briefing that this theory of liability must be considered

waived.   See ASE I, 536 F.3d at 83 ("[I]f [p]laintiffs cannot sort

out their allegations and develop their arguments sufficiently, it

is not for us to do so for them.").

              The plaintiffs' buckshot Davis-Bacon accusations have

always seemed to suggest that the alleged violations of that

                                   - 60 -
statute should unwind the nonstatutory exemption as a whole,

thereby causing otherwise-lawful and non-conspiratorial activity

to incur antitrust liability.          On remand, the district court

addressed   the   MRP   in   the   context   of    the   plaintiffs'   larger

conspiracy theory, and we agree that the plaintiffs' alleged Davis-

Bacon violations do not impact the MRP's broader eligibility for

the nonstatutory exemption.

            Beyond this, however, the plaintiffs have sporadically

implied that the deductions and subsidies themselves were part of

an unlawful predatory pricing scheme.         While we do not foreclose

the viability of the suggested theory as a matter of law in future

cases, any leeway that we may grant to parties who present evolving

legal theories on appeal has limits.          See generally Genereux v.

Raytheon Co., 754 F.3d 51, 59 (1st Cir. 2014); Macauley v. Anas,

321 F.3d 45, 52 (1st Cir. 2003).

            The plaintiffs have exceeded those limits.          A predatory

pricing claim under Section 2 requires plaintiffs to prove that

the prices complained of were below an appropriate measure of costs

and that there was a dangerous probability that the difference

between these values could be recouped.           Brooke Group, 509 U.S. at

222, 224.




                                   - 61 -
            Here, the plaintiffs haphazardly invoke variant strands

of antitrust case law and have failed to make any coherent argument

to support their predatory pricing claim.               Stop & Shop, 373 F.3d

at 65 ("[S]ubstitut[ing] innuendo for analysis [is] fatal" to

antitrust   claims    since   antitrust        plaintiffs     must    "explain    in

detail . . . just what the arrangements were and why they plausibly

constituted      antitrust   violations.").           The   plaintiffs     fail   to

explain at all, for example, how recoupment via the unlawful

exploitation of a statutory mechanism rather than recoupment via

monopolistic power would affect a predatory pricing analysis.                     If

this unconventional approach is economically unsound, then there

is a good chance that the "unsuccessful predation [would be] . .

. a boon to consumers," Brooke Group, 509 U.S. at 224, and we would

be wise to stay our hand, at least as far as antitrust liability

is concerned.       If the plaintiffs wish to cut a bold new path

through antitrust law with a seemingly unique claim, they must

show us the way.

            Equally fatal, the plaintiffs' brief feints in this

direction   inexplicably      fault    Local     7    for   failing   to   provide

evidence    of   above-cost   pricing.          But   as    the   district   court

recognized, "[t]his contention . . . stands the burden of proof on

its head.     Plaintiffs bear the ultimate burden of proving their

                                      - 62 -
claims, and on summary judgment must identify some evidence on

which a jury could reasonably find in their favor . . . .                                                 That

they have not done."                                           ASE II, 932 F. Supp. 2d at 251 n.13.8        We

can hardly disagree.                                           See Brooke Group, 509 U.S. at 222 ("[A]

plaintiff seeking to establish competitive injury from a rival's

low prices must prove that the prices complained of are below an

appropriate measure of its rival's costs.").

                             Because the plaintiffs have failed to offer sufficient

evidence                      or           argument              to   support   a   predatory   pricing     or

"monopolization" claim, we find that their Section 2 claim, like

their Section 1 claims, fails.                                           Accordingly, the plaintiffs are

left without antitrust recourse.9

                                                            
              8
       Insofar as the plaintiffs point to Dr. Kenneth Clarkson's
expert report and argue that the MRP resulted in millions of
dollars in harm due to "gross lost profits" by the plaintiffs,
this continues to both presume the MRP is wholly unlawful and
confuse harm to competition with harm to competitors.       More
importantly, Local 7 successfully moved to preclude him from
testifying at the LMRA trial, and the plaintiffs failed to
reanimate and adequately support these arguments in their post-
trial briefing.
              9
       As with the LMRA claims, the plaintiffs gain no traction by
faulting the district court for excluding evidence on the eleven
other construction projects. The court rendered these rulings in
relation to the LMRA trial, and the jury's verdict has withstood
Local 7's appellate attack. The plaintiffs do not adequately tie
their evidentiary challenges to their antitrust appeal, and we
will not craft a connection for them. Moreover, while they had
the opportunity post-trial to readdress evidentiary boundaries for


                                                                      - 63 -
                                                                III.   Conclusion

                             We AFFIRM the district court's decisions upholding the

LMRA jury verdict and award of damages for plaintiffs DFM and Ajax,

and           granting                    summary              judgment   for   defendant   Local   7   on   the

antitrust claims.                                       Parties to bear their own costs.




                                                            
the antitrust litigation, the plaintiffs' 2011 summary judgment
pleadings nearly exclusively relied on the trial evidence.
Accordingly, we have no need to address the merits of their
arguments.

                                                                       - 64 -
