                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-1746


SD3, LLC; SAWSTOP LLC,

                Plaintiffs – Appellants,

          v.

BLACK & DECKER (U.S.) INC.; BLACK & DECKER CORPORATION;
CHANG TYPE INDUSTRIAL CO., LTD.; DELTA POWER EQUIPMENT
CORP.; HITACHI KOKI CO., LTD.; HITACHI KOKI USA LTD.; MAKITA
CORPORATION; MAKITA U.S.A., INC.; MILWAUKEE ELECTRIC TOOL
CORP.; ONE WORLD TECHNOLOGIES, INC.; OWT INDUSTRIES, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH TOOL CORPORATION; RYOBI
TECHNOLOGIES, INC.; STANLEY BLACK & DECKER, INC.; TECHTRONIC
INDUSTRIES, CO., LTD.; TECHTRONIC INDUSTRIES NORTH AMERICA,
INC.; PENTAIR WATER GROUP, INC.; EMERSON ELECTRIC COMPANY;
PENTAIR, INC.,

                Defendants – Appellees,

          and

DEWALT INDUSTRIAL TOOLS; EMERSON ELECTRIC COMPANY,     INC.;
PENTAIR CORPORATION; PORTER-CABLE CORPORATION; SKIL    POWER
TOOLS,

                Defendants.

----------------------------

AMERICAN ANTITRUST INSTITUTE; NATIONAL CONSUMERS LEAGUE,

                Amici Supporting Appellants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:14−cv−00191−CMH−IDD)
Argued:   May 12, 2015               Decided:   September 15, 2015


Before WILKINSON, AGEE, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by published
opinion.   Judge Agee wrote the opinion, in which Judge Wynn
joined. Judge Wynn wrote a separate concurring opinion. Judge
Wilkinson wrote an opinion concurring in part and dissenting in
part.


ARGUED: Joel Davidow, CUNEO GILBERT & LADUCA, LLP, Washington,
D.C., for Appellants. James Scott Ballenger, LATHAM & WATKINS,
LLP, Washington, D.C., for Appellees.     ON BRIEF: Jonathan W.
Cuneo, Matthew E. Miller, CUNEO GILBERT & LADUCA, LLP,
Washington, D.C., for Appellants. John D. Harkrider, Richard B.
Dagen, AXINN, VELTROP & HARKRIDER LLP, Washington, D.C., Bernard
J. DiMuro, DIMURO GINSBERG PC, Alexandria, Virginia, for
Appellees Stanley Black & Decker, Incorporated, Black & Decker
(U.S.) Incorporated, and Black & Decker Corporation; Christopher
S. Yates, Christopher B. Campbell, Aaron T. Chiu, LATHAM &
WATKINS LLP, San Francisco, California, for Appellee Emerson
Electric Company; Paul Devinsky, Stefan M. Meisner, MCDERMOTT
WILL & EMERY LLP, Washington, D.C., for Appellees Hitachi Koki
USA Ltd. and Hitachi Koki Co., Ltd.; Lee H. Simowitz, Elizabeth
A. Scully, Katherine L. McKnight, BAKER & HOSTETLER LLP,
Washington, D.C., for Appellees Makita USA Incorporated and
Makita Corporation; David M. Foster, Washington, D.C., Layne E.
Kruse, Eliot Fielding Turner, FULBRIGHT & JAWORSKI LLP, Houston,
Texas, for Appellees Robert Bosch Tool Corporation and Robert
Bosch GmbH; James G. Kress, BAKER BOTTS L.L.P., Washington,
D.C., Scott W. Hansen, Steven P. Bogart, James N. Law, REINHART
BOERNER VAN DEUREN S.C., Milwaukee, Wisconsin, for Appellees
Milwaukee Electric Tool Corporation, One World Technologies,
Incorporated, OWT Industries, Incorporated, Ryobi Technologies,
Incorporated, Techtronics Industries Co., Ltd., and Techtronic
Industries North America, Incorporated.     Seth D. Greenstein,
David D. Golden, CONSTANTINE CANNON LLP, Washington, D.C., for
Amici Curiae.




                                2
AGEE, Circuit Judge:

        SD3,    LLC    and        its   subsidiary,            SawStop,        LLC    (together,

“SawStop”), contend that several major table-saw manufacturers

conspired to boycott SawStop’s safety technology and corrupt a

private      safety-standard-setting                   process,      all   with      the   aim   of

keeping that technology off the market.                               Consequently, SawStop

sued nearly two dozen saw manufacturers and affiliated entities,

alleging that they violated § 1 of the Sherman Antitrust Act, 15

U.S.C.       § 1.     The    district         court       dismissed        SawStop’s       amended

complaint based on, among other things, its belief that SawStop

had failed to plead facts establishing an unlawful agreement.

See SD3, LLC v. Black & Decker (U.S.), Inc., No. 11:14-cv-191,

2014 WL 3500674 (E.D. Va. July 15, 2014).                            SawStop appealed.

        We   agree    with     the      district        court       that   several     parts     of

SawStop’s case cannot go forward.                        SawStop’s complaint does not

plausibly allege any conspiracy to manipulate safety standards,

so we affirm the district court’s decision to dismiss SawStop’s

claims       concerning      standard-setting.                     Likewise,    the    complaint

fails    to    allege       any    facts      at       all    against      several     corporate

parents       and    affiliates,         so    we       affirm       the   district        court’s

decision to dismiss all claims against those defendants.

     But as to the remaining defendants, SawStop has alleged

enough to suggest a plausible agreement to engage in a group

boycott.            Although       that       claim          may    not    prove      ultimately

                                                   3
successful      at   trial,    or    even       survive   summary    judgment,       the

complaint offers enough to survive the defendants’ motion to

dismiss.       “[A] well-pleaded complaint may proceed even if it

strikes    a   savvy   judge       that    actual    proof   of     those    facts   is

improbable, and that a recovery is very remote and unlikely.” 1

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).                        Thus, we

vacate the district court’s decision dismissing SawStop’s group-

boycott claim and remand for further proceedings.



                                I.        Background

                              A.     Relevant Facts

     This appeal concerns a decision on a motion to dismiss, so

we draw the relevant facts only from allegations in SawStop’s

complaint      and   from   sources       incorporated     into     that    complaint.

“In reviewing the dismissal of a complaint, we must assume all

well-pled facts to be true and draw all reasonable inferences in

favor of the plaintiff.”            Cooksey v. Futrell, 721 F.3d 226, 234

(4th Cir. 2013).       Keeping that standard in mind, we now consider

the relevant facts.




     1 We have omitted any internal quotation marks, alterations,
emphasis, or citations here and throughout this opinion, unless
otherwise noted.


                                            4
                                      1.

       In the 1990s, SawStop’s founder, Dr. Stephen Gass, created

a form of “active injury mitigation technology” (“AIMT”) meant

to prevent some hand and finger injuries on table saws.                               In

basic terms, Gass’ technology “detects contact between a person

and the blade and then stops and retracts the blade to mitigate

injury.”     J.A. 83 ¶ 60.       When this system works as it should, a

table-saw user who makes contact with the blade will suffer only

a small nick rather than more serious injury.

       Gass and his co-inventors initially sought to capitalize on

their invention by pursuing licensing agreements with the major

table-saw manufacturers.         The effort began in August 2000, when

SawStop first took a “prototype table saw” to a trade show to

publicly     demonstrate   the    technology.        J.A.    86    ¶    66.         That

demonstration       spurred        meetings        with      some         table-saw

manufacturers, including S-B Power Tool Corp.; Black & Decker

(U.S.), Inc.; Emerson Electric Company; and Ryobi Technologies,

Inc.     J.A. 86 ¶ 67.        During these meetings, SawStop sought

royalties     at   “typical      commercial      rates”     of    about       “8%    of

wholesale prices” in any license agreement.               J.A. 86 ¶ 65.

       The   technology    “impressed”     the    manufacturers.           J.A.       87

¶ 68.    Ryobi, for instance, formed a team to determine whether

it   could   incorporate    SawStop’s      technology     into    its     products;

Ryobi’s counsel wanted to adopt the technology “as fast as they

                                       5
[could].”       J.A. 87 ¶ 69.           S-B Power Tool likewise expressed

interest in “going forward.”             J.A. 88 ¶ 73.        One Black & Decker

U.S. employee told Gass that he felt a licensing agreement was

“inevitable,” even though Black & Decker was “used to being able

to crush little guys.”           J.A. 88 ¶ 76.        Emerson’s then-president

also held in-person meetings with SawStop to discuss a potential

deal.      J.A.    88-89     ¶   77.      Several     manufacturers        conducted

technical      studies      to    evaluate     SawStop’s      effectiveness          in

preventing table-saw accidents, which produced positive results.

J.A. 87-88 ¶¶ 70, 74.

      Still, table-saw manufacturers also held reservations, one

of which was product liability exposure.                 If some manufacturers

adopted AIMT while others did not, then an issue could arise as

to   whether    the    non-adopters      might   be   sued    for    producing       an

inherently unsafe product.             J.A. 90 ¶ 81.     But a lawyer for one

defendant      noted     that    the   AIMT    technology      might      be     deemed

infeasible,     and    therefore       less   relevant   in    product-liability

suits, if it did not enter the market for some period.                         J.A. 87-

88 ¶ 72.

      Putting     aside    product      liability,    some    saw   manufacturers

held other concerns, including that engineering and cost factors

could   render     the     technology     infeasible.         By    all    accounts,

SawStop had not yet tested its technology in the marketplace.

That testing would take some time, and SawStop itself estimated

                                          6
that the device could not have been fully implemented on all

table saws until as late as 2008.                      J.A. 92 ¶ 90.           At least one

industry insider also believed that SawStop’s AIMT could induce

consumers to dispense with other safety features.                             J.A. 87 ¶ 71.

Furthermore, AIMT did not prevent certain other common table-saw

injuries, like kickback.             Id.

       SawStop’s      licensing         discussions        did         not     produce     any

immediate      results.        One    manufacturer,            S-B    Power     Tool,    ended

licensing discussions in September 2001.                       J.A. 88 ¶ 75.

                                             2.

       In October 2001, table-saw manufacturers allegedly met and

“decide[d]      how    to     respond,      as    an    industry,        to    the    SawStop

[t]echnology.”          J.A.     89     ¶    80.         The     meeting       occurred     in

conjunction with the annual meeting of the Power Tool Institute,

a    trade    association.        Like      the     broader      annual       meeting,    the

table-saw session drew representatives from across the industry,

including      S-B    Power    Tool;       Ryobi;      Makita    USA,        Inc.;   Emerson;

Porter-Cable Corp.; Hitachi Koki USA Ltd.; Black & Decker U.S.;

and Milwaukee Electric Tool Corp.                  J.A. 89 ¶ 79.

       SawStop alleges that the October 2001 meeting gave birth to

a    group    boycott       against     SawStop.          The        manufacturers       first

purportedly determined to take an “all” or “nothing” approach,

in    which    all    table-saw       manufacturers            would     adopt       SawStop’s

technology      or    none     would.        J.A.      89-90     ¶     80.       Then,    they

                                              7
allegedly took the latter path: they “agree[d] not to purchase

technology licenses from [SawStop] or otherwise implement AIMT.”

J.A. 90 ¶ 80.           “[N]o contrary views [were] articulated.”                       Id.

By keeping SawStop out of the market, the manufacturers hoped

that “it would remain . . . at least plausible for [them] to

contend, in defending product liability lawsuits, that AIMT was

not viable.”          J.A. 90 ¶ 81.

       Ultimately, SawStop contends, the group boycott succeeded.

“[T]hose Defendants not yet in license negotiations with SawStop

refrained from requesting a license, [while] Defendants who were

already     in        negotiations         found       ways    to     abort      them   as

opportunities arose.”              J.A. 91 ¶ 85.

       According to the complaint, it took only a matter of months

for the few defendants who had been negotiating with SawStop to

find   ways   to       end    those    discussions.           In    January   2002,     for

instance,     Ryobi          had     agreed     to     a   non-exclusive       licensing

agreement with an initial 3% royalty and a 5% to 8% escalator

clause.     J.A. 91-92 ¶ 87.              SawStop, however, identified a “minor

ambiguity”       in    the    agreement       and     asked   Ryobi    to   correct     the

“error.”      J.A.       92    ¶    87.       Although     Ryobi’s     counsel    assured

SawStop    that       would    happen,        Ryobi    instead      ended   negotiations

entirely; Ryobi stopped responding to SawStop’s communications,

and never explained its failure to communicate further.                                 Id.

Similarly,       Emerson           abruptly     ended      negotiations,       “offering

                                               8
pretextual reasons for its lack of interest.”                         J.A. 92 ¶ 88.

And Black & Decker U.S. offered a “disingenuous and not made in

good faith” offer: a 1% royalty, paired with an indemnification

provision      that    would       have      placed    liability     on   SawStop    for

“various risks.”        J.A. 92 ¶ 89.

                                              3.

     Having      failed       to     sign    any   manufacturer      to   a   licensing

agreement, SawStop turned to a private safety-standard-setting

organization, Underwriters Laboratories, Inc. (“UL”), to advance

the AIMT product.         In December 2002, Gass submitted a proposal

to   UL    suggesting         that    the     organization     modify     its    widely

accepted safety standards to require AIMT on all table saws.

J.A. 96 ¶ 104.          UL in turn referred the proposal to Standards

Technical Panel 745 (“STP 745”), a subgroup of UL that sets

standards for table saws.              J.A. 96 ¶ 104.

     SawStop’s proposal to modify the UL standards failed, and

SawStop alleges that the failure traces to a second conspiracy,

which     we   will    term    the     “standard-rejection         conspiracy.”       In

SawStop’s      view,    STP    745     was    “under    the   firm   control    of   the

Defendants,” as its members comprised “either employees of the

Defendants or . . . purportedly unaffiliated consultants . . .

who are aligned with the Defendants.”                   J.A. 97 ¶ 106.        Thus, the

defendants allegedly “agreed to vote as a bloc” to “thwart” the

proposal.       J.A. 97 ¶ 105.              After the vote, the defendants are

                                               9
said to have “promulgated falsehoods, factual distortions and

product defamation” to ensure that STP 745 would not adopt any

standard incorporating AIMT.                  J.A. 101 ¶ 123.

                                               4.

       Later,   the       defendants         are    alleged   to    have    additionally

conspired to develop their own safety standards, purportedly to

impose   unnecessary           costs     on    SawStop   and    foreclose         any    wide

adoption of AIMT.              SawStop says that the defendants implemented

this conspiracy in multiple stages.                      First, in October 2003,

several defendants -- Black & Decker Corp.; Hitachi; Pentair,

Inc.; Robert Bosch Tool Corp.; Robert Bosch GmbH; Ryobi; One

World Technologies Inc.; and Techtronics Industries Co., Ltd. --

formed a joint venture to develop blade avoidance technology.

J.A. 97 ¶ 109.            SawStop maintains that this venture was a mere

“smokescreen”        to    “fend       off”     intervention       from     the    Consumer

Products    Safety         Commission,         a    federal     safety      agency,       and

constituted     an    “act       of     fraudulent      concealment.”             Id.     The

venture failed to produce any results.                    Later, in November 2004,

four   defendants         --    Black    &    Decker   Corp.,      Makita    USA,       Robert

Bosch Tool Corp., and Techtronic Industries North America --

formed another joint venture.                      J.A. 98 ¶ 111.          This venture,

too, was alleged to be a fake effort “to develop a uniform blade

guard standard to preclude quality competition on blade guard



                                               10
standards.”     Id.    Members of the Power Tool Institute also began

work on a new blade guard design around the same time.

      This third conspiracy, which we will call the “contrived-

standards conspiracy,” led to two standards changes adopted by

UL in 2005 and 2007.            The first change added certain anti-

kickback devices.        The second “specified that the blade guard

should not be a hood, but rather a modular design with a top-

barrier element and two side-barrier guarding elements.”                      J.A.

99 ¶ 115.       SawStop maintains that this second change is too

designed-focused      and    ineffective;   it    deduces   that   the    change

must therefore serve an illegitimate purpose.

      SawStop further believes that the manufacturers are trying

to   extend   the   contrived-standards      conspiracy     abroad,      as   they

“control”     the   International      Electrotechnical     Commission,        the

European counterpart to UL.          J.A. 100 ¶ 122.

                                       5.

      SawStop maintains that all of the alleged conspiracies have

continued     through       today,    and   the    defendants      purportedly

communicate weekly “to maintain” the conspiracies.                    J.A. 100

¶ 121.    Nonetheless, SawStop was eventually able to enter the

market by making its own table saws employing AIMT in 2004.

J.A. 95 ¶ 101.        When SawStop filed its complaint, it sold three

types of these saws.         J.A. 95-96 ¶ 102.     The company represented

at oral argument that it now makes additional models.

                                       11
                               B.      Proceedings Below

        Based on the three purported conspiracies, SawStop filed a

complaint in February 2014 in the U.S. District Court for the

Eastern       District     of       Virginia.                 The    original          three-count

complaint       against     22      separate            defendants         alleged          that     the

manufacturer-defendants, conspiring with UL and the Power Tool

Institute,       violated        § 1      of       the    Sherman          Act.         After       the

defendants      moved     to    dismiss,           however,         SawStop       filed      a     first

amended       complaint     --      the     operative           pleading          on    appeal       --

dropping some defendants and adding three new counts under state

law.     For convenience, we refer to the first amended complaint

as simply “the complaint.”

       The     district    court       dismissed              SawStop’s        complaint           under

Federal Rule of Civil Procedure 12(b)(6) after identifying a

number    of    problems       that    it      perceived            in   the      facts      alleged.

First,       “Plaintiffs’       conspiracy           allegations           [were]       belied       by

their negotiating history with varying Defendants.”                                       SD3, LLC,

2014 WL 3500674, at *3.                In the district court’s view, SawStop

could    not    plausibly        allege        a    refusal         to     deal     when      several

defendants had actually offered to deal, and the facts alleged

did not “tend[] to exclude” lawful explanations.                                       Id. at *4.

Second,       SawStop     failed       to      allege          anything        as      to     several

defendants,       instead       choosing           to    lump       them    together          in    the

complaint      without    explanation.                  Id.      Third,        SawStop       did    not

                                               12
allege “direct evidence” of agreement by referring to testimony

from a Ryobi engineer, David Peot.                The district court found

that Peot’s testimony, when read in its full context, indicated

only that certain defendants launched a joint venture to develop

technology to prevent table-saw accidents.                Id. at *5.     Fourth,

SawStop had not established any harm from any of its alleged

conspiracies because the “purported motivation for the alleged

conspiracy      is   non-existent.”         Id.      And    fifth,     SawStop’s

standard-setting conspiracies alleged nothing more than ordinary

participation in trade groups, standard-setting organizations,

and joint ventures, which does not create antitrust liability.

Id. at *6.

     SawStop timely appealed, challenging the district court’s

decision as to its three Sherman Act claims.                 SawStop does not

address   the    district   court’s   decision       to    dismiss     its    three

remaining state law claims.           As to those claims, SawStop has

forfeited review, and we do not consider them.                   See Powell v.

Palisades    Acquisition    XVI,   LLC,    782    F.3d    119,   127   (4th    Cir.

2014).    We have jurisdiction under 28 U.S.C. § 1291.



                         II.   Standard of Review

     “We review the district court’s grant of the defendants’

motion to dismiss de novo.”           Johnson v. Am. Towers, LLC, 781

F.3d 693, 706 (4th Cir. 2015).             “[W]e accept as true all well-

                                      13
pled facts in the complaint and construe them in the light most

favorable to [SawStop].”              United States v. Triple Canopy, Inc.,

775 F.3d 628, 632 n.1 (4th Cir. 2015).                        We do not, however,

“accept   as    true       a    legal    conclusion      couched      as    a     factual

allegation.”      Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195,

198 (4th Cir. 2014).             Nor do we accept “unwarranted inferences,

unreasonable conclusions, or arguments.”                     United States ex rel.

Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136

(4th Cir. 2014).        We can further put aside any “naked assertions

devoid of further factual enhancement.”                 Id.



          III. Allegations Against Parents and Affiliates

      We begin by addressing a problem common to all counts of

the complaint.

      A plaintiff in a § 1 case cannot assemble some collection

of   defendants      and       then   make   vague,    non-specific        allegations

against all of them as a group.                   At trial, a § 1 plaintiff will

be   required   to     make      a    “factual     showing    that   each       defendant

conspired in violation of the antitrust laws.”                       AD/SAT, Div. of

Skylight, Inc. v. Associated Press, 181 F.3d 216, 234 (2d Cir.

1999); cf. United States v. Foley, 598 F.2d 1323, 1336 (4th Cir.

1979) (examining whether a jury charge in a criminal antitrust

case “require[d] a sufficient involvement by each defendant”).

Thus, the complaint must forecast that factual showing, and if

                                             14
it   fails    to     allege     particular       facts    against    a    particular

defendant,     then    the    defendant      must    be   dismissed.        In   other

words, the complaint must “specify how these defendants [were]

involved     in    the      alleged     conspiracy,”       without       relying      on

“indeterminate        assertions”      against      all   “defendants.”          In   re

Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 905 (6th

Cir. 2009); see also Total Benefits Planning Agency, Inc. v.

Anthem Blue Cross & Blue Shield, 552 F.3d 430, 436 (6th Cir.

2008); In re Elevator Antitrust Litig., 502 F.3d 47, 50-51 (2d

Cir. 2007).

     Nevertheless, SawStop means to bring claims against some

corporate parents -- including Hitachi Koki Co., Ltd.; Makita

Corporation; and Chang Type Industrial Co., Ltd. -- even though

no factual allegations are made against them.                    Instead, SawStop

nakedly alleges only that all of the corporate subsidiaries are

“dominated     by,    and     [are]    alter     ego[s]   of,”   these      corporate

parents.      J.A.     73-78.        That   allegation     offers    only    a   legal

conclusion, and SawStop has alleged no facts suggesting the kind

of unity of interests that we usually require a party to plead

before permitting them to advance an alter ego theory.                             See,

e.g., C.F. Trust, Inc. v. First Flight Ltd. P’ship, 306 F.3d

126, 134 (4th Cir. 2002).               “The fact that two separate legal

entities may have a corporate affiliation does not alter [the]

pleading     requirement”       to    separately     identify    each    defendant’s

                                            15
involvement         in    the    conspiracy.          In    re     Aluminum        Warehousing

Antitrust Litig., No. 13–md–2481 (KBF), 2015 WL 1344429, at *2

(S.D.N.Y. Mar. 23, 2015).

       The complaint also fails to allege any facts pertaining to

certain      of     the    corporate         subsidiaries.             In    discussing       the

alleged      group       boycott,      for     example,      SawStop         never      mentions

Techtronic Industries North America, Inc.; OWT Industries, Inc.;

or Pentair Water Group, Inc.                   OWT Industries, Inc. and Pentair

Water Group also go unmentioned in SawStop’s allegations as to

the UL safety standards.                   A defendant obviously may not pursue

an antitrust claim against a defendant who is not alleged to

have    done      anything      at    all.      Antitrust        law    doesn’t         recognize

guilt by mere association, imputing corporate liability to any

affiliate company unlucky enough to be a bystander to its sister

company’s alleged misdeeds.

       SawStop      tries       to   tie     other   defendants         to     the      purported

conspiracies with nothing more than conclusory statements, even

though    those      defendants         entered      the    table-saw          industry       well

after    these      conspiracies           allegedly       began.           Stanley      Black   &

Decker,      Inc.,        for   instance,       is     purportedly           liable       because

“persons       speaking         for     [the        company]        have       affirmed        its

understanding of the purpose of [the conspiracies], and agreed

to participate in [them].”                   J.A. 99 ¶ 117.            SawStop alleges the

same    as     to    Delta      Power      Equipment,       Inc.            J.A.   99     ¶   116.

                                               16
“[U]nadorned conclusory allegations” like these are akin to no

allegations at all.       Vitol, S.A. v. Primerose Shipping Co., 708

F.3d 527, 543 (4th Cir. 2013).

     For these reasons, SawStop cannot proceed against all of

the defendants.     In particular, Hitachi Koki Co., Ltd.; Makita

Corporation; Chang Type Industrial Co., Ltd.; OWT Industries,

Inc.; Pentair Water Group, Inc.; Stanley Black & Decker, Inc.;

and Delta Power Equipment, Inc. must be dismissed as to all

counts.     The group-boycott claim against Techtronic Industries

North America, Inc. must also be dismissed.                The district court

correctly dismissed these defendants because, at least as to

them, the “complaint was vague, never explained its case, and

lumped [them] together without sufficient detail.”                       Bates v.

City of Chicago, 726 F.3d 951, 958 (7th Cir. 2013).

     We now consider whether SawStop has properly alleged an

antitrust conspiracy against the remaining manufacturers.



                   IV.    Pleading a § 1 Conspiracy

     Section 1 of the Sherman Antitrust Act prohibits “[e]very

contract,   combination    .   .    .,    or   conspiracy       in   restraint   of

trade.”     15   U.S.C.   §    1.        “To   establish    a    §   1   antitrust

violation, a plaintiff must prove (1) a contract, combination,

or conspiracy; (2) that imposed an unreasonable restraint of



                                         17
trade.”       N.C. State Bd. of Dental Exam’rs v. FTC, 717 F.3d 359,

371 (4th Cir. 2013).

       This    appeal   principally     concerns     the   first    element,    the

conspiracy.       “[S]ection one’s prohibition against restraint of

trade applies only to concerted action, which requires evidence

of a relationship between at least two legally distinct persons

or entities.”      Robertson v. Sea Pines Real Estate Cos., 679 F.3d

278, 284 (4th Cir. 2012).            To be actionable, the defendants must

have   specifically       made   a   “conscious     commitment      to   a   common

scheme designed to achieve an unlawful objective.”                  Monsanto Co.

v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984).                     Not even

“conscious parallelism” is enough, Brooke Grp. Ltd. v. Brown &

Williamson      Tobacco    Corp.,      509   U.S.     209,    227    (1993),    as

“independent action is not proscribed by § 1,” Va. Vermiculite,

Ltd. v. Historic Green Springs, Inc., 307 F.3d 277, 280 (4th

Cir. 2002).

       Accordingly, a plaintiff bringing a § 1 claim must first

plead an agreement to restrain trade.               In Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556 (2007), the Supreme Court explained

that such a plaintiff must plead “enough factual matter (taken

as true) to suggest that [the requisite] agreement was made.”

In other words, the complaint must contain “enough fact to raise

a reasonable expectation that discovery will reveal evidence of

illegal   agreement.”        Id.       For   this   reason,   “allegations       of

                                        18
parallel conduct [on the part of the defendants] . . . must be

placed in a context that raises a suggestion of a preceding

agreement, not merely parallel conduct that could just as well

be independent action.”        Id. at 557.          “[A] conclusory allegation

of agreement at some unidentified point [also] does not supply

facts adequate to show illegality.”             Id.

     At    bottom,    Twombly    applies        a     long-held     principle   in

antitrust law to the pleading stage: parallel conduct, standing

alone, does not establish the required agreement because it is

equally consistent with lawful conduct.                 The Twombly plaintiffs

asked the Court to reject that idea and assume a conspiracy

“exclusively” from action that seemed too coincidentally similar

to be independent.      Id. at 565 n.11.            The Court refused, and for

good reason.     “Parallel conduct or interdependence,” after all,

is “just as much in line with a wide swath of rational and

competitive    business   strategy      unilaterally        prompted   by   common

perceptions of the market.”          Id. at 554.        Thus, the complaint in

Twombly    failed    because    it     rested    only      on   “descriptions   of

parallel   conduct”    that    could    be   just     as   easily   explained   by

“natural, unilateral reaction[s]” from each defendant.                      Id. at

564, 566; see also Robertson, 679 F.3d at 289 (“Twombly required

contextual evidence to substantiate a speculative claim about

the existence and substance of a conspiracy.”).



                                        19
       For a § 1 claim to survive, then, a plaintiff must plead

parallel conduct and something “more.”                         Twombly, 550 U.S. at

557.      That     “more”     must    consist       of    “further       circumstance[s]

pointing toward a meeting of the minds.”                       Id.    Allegations could

suffice, for instance, where a plaintiff demonstrates that the

parallel     behavior        “would       probably       not    result      from     chance,

coincidence, independent responses to common stimuli, or mere

interdependence unaided by an advance understanding among the

parties.”        Id. at 556 n.4.            Often “characterized as ‘parallel

plus’   or   ‘plus     factors,”          Evergreen      Partnering      Grp.,      Inc.    v.

Pactiv Corp., 720 F.3d 33, 45 (1st Cir. 2013), these facts must

be evaluated holistically, see Cont’l Ore Co. v. Union Carbide &

Carbon Corp., 370 U.S. 690, 699 (1962) (cautioning courts not to

“compartmentaliz[e]           the     various       factual       components”        of     an

antitrust case).

       We do not take the approach that the dissent pursues, which

seems to parse each “plus factor” individually and ask whether

that factor, standing alone, would be sufficient to provide the

“more.”      Cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 310 (2007) (explaining that “courts must consider the

complaint     in    its   entirety”        to   determine       whether      “all    of    the

facts     alleged,     taken        collectively,”         give      rise    to     relevant

inferences,         rather     than        asking        “whether      any        individual

allegation,        scrutinized       in    isolation,      meets      that    standard”).

                                             20
Actions that might seem otherwise neutral in isolation can take

on a different shape when considered in conjunction with other

surrounding circumstances.            See William E. Kovacic, et al., Plus

Factors and Agreement in Antitrust Law, 110 Mich. L. Rev. 393,

426-34 (2011) (explaining why plus factors must be analyzed in

groups or “constellations”).

     Importantly,           Twombly’s       requirement        to    plead      something

“more”    than       parallel     conduct       does    not   impose    a     probability

standard at the motion-to-dismiss stage.                      See Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).             Courts must be careful, then, not to

subject        the     complaint’s          allegations         to     the       familiar

“preponderance         of   the    evidence”           standard.       Text     Messaging

Antitrust Litig., 630 F.3d 622, 629 (7th Cir. 2010).                              When a

court     confuses      probability     and        plausibility,       it      inevitably

begins weighing the competing inferences that can be drawn from

the complaint.         But it is not our task at the motion-to-dismiss

stage    to    determine     “whether       a    lawful    alternative        explanation

appear[s] more likely” from the facts of the complaint.                             Houck

v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir.

2015).        Post-Twombly appellate courts have often been called

upon to correct district courts that mistakenly engaged in this

sort of premature weighing exercise in antitrust cases.                              See,

e.g., Evergreen Partnering Grp., 720 F.3d at 50; Erie Cnty.,

Ohio v. Morton Salt, Inc., 702 F.3d 860, 868-69 (6th Cir. 2012);

                                            21
Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 189 (2d

Cir. 2012).

        Similarly,     courts        must      be      careful         not     to    import      the

summary-judgment standard into the motion-to-dismiss stage.                                       At

summary     judgment      in    a     §    1     case,       a       plaintiff      must     summon

“evidence    tending       to    exclude         the      possibility          of    independent

action.”     Twombly, 550 U.S. at 554; see also Monsanto, 465 U.S.

at 764; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 588 (1986).               But the motion-to-dismiss stage concerns

an “antecedent question,” Twombly, 550 U.S. at 554, and “[t]he

‘plausibly       suggesting’        threshold          for       a    conspiracy          complaint

remains    considerably         less       than       the    ‘tends       to      rule     out   the

possibility’ standard for summary judgment,” Starr v. Sony BMG

Music     Entm’t,    592       F.3d       314,      325     (2d       Cir.     2010).         Thus,

“[a]lthough Twombly’s articulation of the pleading standard for

§   1    cases    draws    from       summary          judgment         jurisprudence,           the

standards applicable to Rule 12(b)(6) and Rule 56 motions remain

distinct.”       In re Ins. Brokerage Antitrust Litig., 618 F.3d 300,

323 n. 21 (3d Cir. 2010).                  “[T]here is no authority . . . for

extending    the     [Monsanto/Matsushita]                  standard         to     the   pleading

stage.”     Erie Cnty., 702 F.3d at 869.                     Indeed, such an extension

would be wholly unrealistic, as “a plaintiff may only have so

much information at his disposal at the outset.”                                  Robertson, 679

F.3d at 291.        Here, for instance, SawStop was three months into

                                                 22
its case and had not conducted any discovery when the defendants

moved to dismiss.      We can hardly expect it to have built its

entire case so early on.

     We therefore consider whether the district court properly

applied this plausibility-focused standard.



                          V.   Group Boycott

     SawStop initially alleges a group boycott, which generally

constitutes a “concerted refusal[] by traders to deal with other

traders.”     Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S.

207, 212 (1959).     Most often, group boycotts involve “horizontal

agreements among direct competitors” with the aim of injuring a

rival.    NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 135 (1998).

This sort of “naked concerted refusal occurs when the defendants

are not engaged in any significant integration of production or

distribution, and the only rationale for the restraint is the

elimination of additional, lower-cost, higher-quality, or more

innovative output from the market.”     Phillip E. Areeda & Herbert

Hovenkamp, Fundamentals of Antitrust Law § 22.02a (4th ed. 2014

supp.).     “[S]uch agreements . . . cripple the freedom of traders

and thereby restrain their ability to sell in accordance with

their own judgment.”     Kiefer-Stewart Co. v. Joseph E. Seagram &

Sons, 340 U.S. 211, 213 (1951).



                                  23
                                             A.

       The district court held that SawStop had not adequately

alleged    an   agreement       to   boycott.         However,       in    reaching      that

conclusion, the district court committed the two errors that we

earlier cautioned against.

       First, it confused the motion-to-dismiss standard with the

standard for summary judgment.                    The district court twice cited

Matsushita -- the case defining the “tends to exclude” standard

for summary judgment -- as a basis for its ruling.                                See SD3,

LLC, 2014 WL 3500674, at *3, 4.                     It then mistakenly dismissed

certain    claims    because     the    facts       alleged     did       not   “tend[]    to

exclude”    independent     action.           Id.    at   *4.        It    made   explicit

findings of fact -- including a finding that motive was “non-

existent” -- that were plainly contradicted by the terms of the

complaint.        See J.A. 89-90 ¶¶ 80-81 (alleging motive).                              The

district court further required SawStop to definitively “show an

agreement,” SD3, LLC, 2014 WL 3500674, at *3, rather than asking

whether     the     allegations         “plausibly         suggest[ed]”           such    an

agreement, Twombly, 550 U.S. at 557.                   And it erroneously looked

to   summary    judgment    cases       to    define      the   relevant        standards.

See,   e.g.,      SD3,   LLC,    2014    WL       3500674,      at    *3    (citing      Gtr.

Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 391,

396 (7th Cir. 1993)).



                                             24
      Second, the district court applied a standard much closer

to probability than plausibility.                   For instance, the district

court’s    opinion       adopts      defendants’        characterizations        of     the

licensing       negotiations        and   then    draws    unsurprisingly        adverse

inferences against SawStop based on them.                        The district court

noted, for example, that Emerson had made a pre-conspiracy offer

to license, but believed that SawStop had made “no allegation

that Emerson rescinded that offer.”                 SD3, LLC, 2014 WL 3500674,

at   *4.     SawStop       specifically        alleged     to    the    contrary       that

“Emerson cut off all license negotiations with SawStop, offering

pretextual reasons for its lack of interest, and did not renew

them.”     J.A. 92 ¶ 88.        In much the same way, it concluded that a

“disingenuous”         offer   to    license     from    Black    &    Decker    USA   was

inconsistent with conspiracy, SD3, LLC, 2014 WL 3500674, at *4,

without explaining why an offer that SawStop pled was intended

to be rejected was unavoidably inconsistent with a refusal to

license.        On   the   whole,     these      inferences      seem    to   have     been

colored    by    the    district      court’s     belief    that       SawStop   was    “a

technology with uncertain commercial viability and safety.”                            Id.

at *5.

      In short, the district court imposed a heightened pleading

requirement -- but such a standard does not apply on a Rule

12(b)(6) motion, even in an antitrust case.                      See Marucci Sports,

L.L.C. v. Nat’l Collegiate Ath. Ass’n, 751 F.3d 368, 373 (4th

                                            25
Cir. 2014); W. Penn Allegheny Health Sys., Inc. v. UPMC, 627

F.3d 85, 98 (3d Cir. 2010).                 This heightened pleading standard

was   error.     Instead,        the    district       court   should     have   asked

whether SawStop has alleged parallel action and something “more”

that indicates agreement, as Twombly provides.

      Our de novo standard of review means that we can decide the

matter without deference to the lower court.                    Thus, we may apply

the   appropriate,     Twombly-based         standard     ourselves     rather    than

remanding to the district court for another attempt of its own.

See, e.g., Houck, 791 F.3d at 484-86; Triple Canopy, 775 F.3d at

637-40.    Further, we enjoy the benefit of the parties’ briefs,

and can read and understand the complaint in the same way as

could the district court.              Thus, we proceed to consider whether

SawStop has adequately alleged a group boycott.

                                            B.

      A   plaintiff    establishes          parallel    conduct    when    it    pleads

facts     indicating      that     the       defendants        acted    “similarly.”

Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., 998

F.2d 1224, 1243 (3d Cir. 1993); see also Hyland v. HomeServices

of Am., Inc., 771 F.3d 310, 320 (6th Cir. 2014) (considering

whether the defendants’ actions were “uniform”).

      SawStop adequately alleged parallel conduct.                        The similar

or uniform actions alleged are obvious: none of the defendants

ultimately     took   a   license      or    otherwise    implemented       SawStop’s

                                            26
technology.      As a result, SawStop could not pursue its initial

business     strategy    of     entering          the   market     through      a   license

agreement with a major table-saw manufacturer.                          Such actions are

classically anticompetitive, as “parallel action that excludes

new   entrants    both    facilitates         price       elevation       and    can     slow

innovation.”     C. Scott Hemphill & Tim Wu, Price Exclusion, 122

Yale L.J. 1182, 1185 (2013).

      The    manufacturers       incorrectly            insist    that    their     conduct

must be deemed dissimilar at this stage because some licensing

negotiations     continued          after     the       conspiracy       formed.         The

district court agreed.              See SD3, LLC, 2014 WL 3500674, at *4

(“The sequence of all of these events undermines the Plaintiffs’

group boycott allegations.”).               So does the dissent.

      But that argument misunderstands the nature of the alleged

boycott,       while          again         confusing            “probability”           with

“plausibility.”         The    manufacturers            could    have    achieved      their

alleged     objective    of    keeping       SawStop       off    the    market     in    any

number of ways: they could refuse any licensing discussions at

all, they could engage in spurious licensing discussions, see,

e.g., J.A. 93 ¶ 94, they could sign a license agreement and then

never   implement       it,    or     they    could       scare     SawStop     off      with

commercially unreasonable offers.                  All of these actions could be

consistent     with     the     boycott’s          ultimate       alleged       objective,

exclusion from the marketplace.                   See Evergreen Partnering Grp.,

                                             27
720 F.3d      at   51    (faulting   the     district        court      for    “improperly

weigh[ing]         [the]      defendants’          alleged[ly]                inconsistent

responses”);       Anderson    News,     680     F.3d        at   191       (holding    that

defendants’ “varied” actions during the initial stages of the

alleged conspiracy did not render the existence of a conspiracy

implausible).

       SawStop never alleged that the manufacturers agreed on a

common manner of preventing SawStop’s entry into the market.

That’s not surprising.          Commercially sophisticated parties like

the defendants could well understand the red flags that would be

raised from a blanket, total refusal to negotiate.                             See, e.g.,

Am. Tobacco Co. v. United States, 328 U.S. 781, 800-01 (1946)

(detailing     a    price-fixing     conspiracy         in     which    the     defendants

used a variety of differing methods to achieve the same ultimate

objective,     an       understood   and        settled        price     for    tobacco).

SawStop might have become suspicious if all of the defendants

fled the negotiations en masse without any pretextual cover.

But if the defendants employed different courses of action, then

their conspiracy might better avoid detection.                          SawStop alleges

they    did    exactly      that.      See       J.A.     94      ¶    96     (“Defendants

fraudulently concealed the AIMT Boycott by, among other things,

giving separate excuses for not taking a license[.]”); J.A. 95

¶ 100   (“[SawStop]’s        inquiries      were    met        with     silence,       false

denials . . . and misleading explanations[.]”).

                                           28
        The    dissent,       however,          is    unwilling         to    credit         SawStop’s

factual allegation that the different paths of negotiations were

themselves part of the claimed conspiratorial ruse.                                     It contends

that, in crediting SawStop’s allegation, we “underestimate[] the

difficulty      of     getting         a    group     of     competitors          to    agree     on   a

course of action that separate contract negotiations may or may

not     have    shown       to    be       in   their       best     commercial          interest.”

Dissenting op. at 85.                  But the same thing could be said about

most any alleged agreement between competing businesses -- and

yet the law has never embraced a presumption against business

agreements.            Much       of       antitrust        law      is      premised        on   such

agreements.           More importantly, we are in no position at this

stage to make “estimates” of the sort the dissent posits.                                              It

should hardly need to be said again that we must proceed “on the

assumption that all the allegations in the complaint are true

(even    if    doubtful          in    fact).”            Twombly,      550     U.S.    555.      “Rule

12(b)(6)       does    not       countenance          dismissals          based    on    a    judge’s

disbelief of a complaint’s factual allegations.”                                       Colon Health

Ctrs. of Am., LLLC v. Hazel, 733 F.3d 535, 545 (4th Cir. 2013).

        We    must    be    careful         not      to    rely    on     our     own    subjective

disbelief here, as even the acts that the manufacturers and the

dissent       say     are    dissimilar           might      also       be    read      to    suggest

deception.           Ryobi       and       Emerson,        for    example,        suddenly        ended

negotiations without sufficient explanation after proceeding all

                                                  29
the way to a draft license agreement.                       See J.A. 92 ¶¶ 77, 87-88.

This    sort    of    abrupt        and    unexplained          shift    in     behavior      can

suggest that a defendant’s acts were not entirely independent,

as the shift came after the alleged October 2001 agreement to

launch the boycott.                See, e.g., Toys “R” Us, Inc. v. FTC, 221

F.3d 928, 935 (7th Cir. 2000) (explaining that the defendants’

sudden “decision to stop dealing,” which was an “abrupt shift

from    the    past,”       provided       more    reason       to   infer        a   horizontal

agreement).           For    its     part,    Black     &       Decker      USA       purportedly

tendered only a “disingenuous” offer that was “not made in good

faith.”        J.A.    92     ¶    89.       Assuming       that     characterization          is

accurate (as we must), few benign purposes would be served by

such an offer.

       But    the    dissent       would     require    more,        even      at     this   early

stage of the proceedings; it would find “parallel conduct” only

when    defendants          move    in     relative     lockstep,           achieving        their

common anticompetitive              ends     (exclusion)         only     by    substantially

identical means.            So far as we can tell, this standard finds no

support in any existing authority.

       The three decisions that the dissent cites do not support

the proposed rule, as they all involved non-parallel “ends.” One

involved       inconsistent          pricing       in      an      alleged          price-fixing

conspiracy, see City of Moundridge v. Exxon Mobil Corp., 429 F.

Supp.   2d     117,    131-32       (D.D.C.       2006),     while       another       addressed

                                              30
wildly    varying         surcharges    (in       both   amount       and    timing)       in   an

alleged      fuel-surcharge-fixing            conspiracy,         LaFlamme         v.    Societe

Air France, 702 F. Supp. 2d 136, 151 (E.D.N.Y. 2010).                               The last,

an appeal from a summary judgment decision, held only that the

defendant had not established conscious parallelism on the part

of one defendant; it assumed, however, that the actions alleged

were    parallel.           See    Cosmetic        Gallery,     Inc.        v.   Schoeneneman

Corp., 495 F.3d 46, 54 (3d Cir. 2007).                           At best, these cases

stand    for    an     unremarkable       proposition:          parallel         conduct    must

produce parallel results.                 And they further recognize the very

point so hotly contested by the dissent: parallel conduct “need

not be exactly simultaneous and identical in order to give rise

to an inference of agreement.”                       LaFlamme, 702 F. Supp. 2d at

151; cf. City of Moundridge v. Exxon Mobil Corp., Civil Action

No. 04-940 (RWR), 2009 WL 5385975, at *5 (D.D.C. Sept. 30, 2009)

(“Price-fixing can occur even though the price increases are not

identical in absolute or relative terms.”).

       Our     own   precedent      does      not     support     the       dissent’s      view.

Take, for example, United States v. Foley, 598 F.2d 1323 (4th

Cir.    1979),       in    which    a   group       of   real    estate          brokers    were

convicted      of    violating      § 1      by    conspiring     to    fix       real    estate

commissions.         It seems an understatement to say that the Foley

defendants did not move in any way close to perfect tandem: some

defendants       did      not     act   to        implement     the     commission-fixing

                                              31
agreement      until       months       after     it    formed,      while       at    least    one

defendant implemented the new commissions before the conspiracy

formed.        Id.        at        1332-34.          Still      other      defendants         only

“partially” joined, taking higher commissions when available but

otherwise pursuing lower ones.                         Id.       Had Foley been decided

under the dissent’s framework, these “divergent paths to the

same end” (higher commissions) would apparently have required

reversal    of      the    convictions.              The    Court,       however,       reached    a

different result -- it affirmed all nine criminal convictions

after finding sufficient evidence of agreement.                                  Id. at 1335.

Foley,     then,          effectively           rejects       the    dissent’s           proposed

methodology.

      Lastly, we disagree that the dissent’s definition is needed

to avoid imposing antitrust liability on innocent activities.

The   dissent       proceeds          as   if    a     finding      of     parallel       conduct

inexorably       leads         to    liability.            But    Twombly’s       foundational

principle      is    that       parallel        conduct,         standing       alone,    is    not

enough    to   impose          antitrust        liability.          In    other       words,    the

plaintiff’s      initial            showing     of     parallel      conduct       is    only     an

initial step in a multi-step process.                               It is the additional

steps    required         of    an    antitrust        plaintiff         that    are    meant     to

ensure    that      innocent          business       activities       are       not    tarred     as

antitrust violations, whether at the motion-to-dismiss stage or

later.

                                                 32
      Thus,    we    think       it   plain      that      SawStop        alleged    parallel

conduct.      The remaining question is whether SawStop also pleads

the   requisite      “more”      that    “point[s]         toward     a    meeting    of   the

minds.”     Twombly, 550 U.S. at 557.

                                               C.

      SawStop       has    alleged       the    “more”      necessary        to     move   its

allegations of parallel conduct into the realm of plausibility.

      The    group-boycott        claim        pled   in    the      complaint      builds   a

detailed story.           SawStop identifies the particular time, place,

and manner in which the boycott initially formed, describing a

separate meeting held for that purpose during the Power Tool

Institute’s October 2001 annual meeting.                        See J.A. 89-90 ¶¶ 79-

81.     The complaint names at least six specific individuals who

took part in forming the boycott, noting which defendant each

person    ostensibly       represented.             See    J.A.      89    ¶¶ 78-79.       The

complaint further tells us the means by which the defendants

sealed their boycott agreement: a majority vote.                               See J.A. 89

¶ 80.       And the complaint then explains how the manufacturers

implemented the boycott: refusing to respond to entreaties from

SawStop, going silent after long negotiations, or offering only

bad-faith     terms       that    were    intended         to   be    rejected.        Thus,

“[u]nlike the plaintiffs in Twombly . . ., [SawStop] clearly has

alleged an express agreement to restrain trade.”                             Watson Carpet

& Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452, 457

                                               33
(6th Cir. 2011); cf. Swierkiewicz v. Sorema N.A., 534 U.S. 506,

514 (2002) (explaining that a Title VII complaint should not

have been dismissed where it “detailed the events leading to his

termination, provided relevant dates, and included the ages and

nationalities of at least some of the relevant persons involved

with his termination”).

       Antitrust     complaints,       like      SawStop’s,        “that    include

detailed fact allegations as to the ‘who, what, when and where’

of   the   claimed    antitrust      misconduct    not   surprisingly       survive

dismissal.”        William Holmes & Melissa Mangiaracina, Antitrust

Law Handbook § 9:14 (2014 supp.); see also Carrier Corp. v.

Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012); Kendall v.

Visa U.S.A., Inc., 518 F.3d 1042, 1048 (9th Cir. 2008); cf.

Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511

(4th Cir. 2015) (“A complaint should not be dismissed as long as

it provides sufficient detail about the claim to show that the

plaintiff has a more-than-conceivable chance of success on the

merits.”).      Detail      in   a   complaint    of   “further      circumstances

pointing toward a meeting of the minds” allays the suspicion

that   the    plaintiff     is   merely    speculating       a    conspiracy   into

existence from coincidentally similar action.                    Twombly, 550 U.S.

at 557.      That, after all, was Twombly’s principal concern.                  See

Swanson v. Citibank, N.A., 614 F.3d 400, 405 (7th Cir. 2010) (“A

more    complex      case    [like     one]      involving       . . .     antitrust

                                          34
violations[] will require more detail, both to give the opposing

party notice of what the case is all about and to show how, in

the plaintiff’s mind at least, the dots should be connected.”).

      The dissent contends that the complaint rests on a “casual

presumption”       of     liability.             But     that     view     overlooks        the

complaint’s detailed account of the alleged events -- an account

that, again, we must take as true for Rule 12(b)(6) purposes.

Instead,    the    dissent       seems      to    rely      on   a     series    of   factual

suppositions that might “perhaps” explain the relevant parallel

conduct.      But that approach forces us to ignore the factual

allegations       that    form      the     heart      of    SawStop’s         complaint:    a

particular     meeting         on     a     particular           day     with     particular

participants making a particular agreement that generated the

conspiracy at issue.                And by favoring its perception of the

relevant events over the narrative offered by the complaint, the

dissent makes the very mistake that the district court made,

recasting “plausibility” into “probability.”

      The dissent underscores the weakness in its position by

mischaracterizing the factual allegations in SawStop’s complaint

as “conclusory” in an effort to avoid them.                            It may be that the

dissent    doesn’t       believe     the    complaint’s          detailed       allegations,

but   that        skepticism         does        not     render         the      allegations

“conclusory.”            See     Iqbal,      556       U.S.       at     681     (explaining

allegations cannot be called “conclusory” merely because a judge

                                             35
views        them    as     “extravagantly            fanciful,”         “unrealistic,”            or

“nonsensical”).                 Indeed,    just       two   weeks      after       Twombly,       the

Supreme Court reversed one of our sister circuits for making

much the same error.                See Erickson v. Pardus, 551 U.S. 89, 90

(2007) (reversing dismissal of a complaint as “conclusory” where

the complaint alleged harm only by saying that prison officials

“endanger[ed] his life” by taking away needed treatment).                                        And,

as a practical matter, demanding more than the particularized

allegations that SawStop offered here would compel an antitrust

plaintiff to plead evidence -- and we have already expressly

refused to impose such a requirement.                         See Robertson, 679 F.3d

at 291.

       In any event, we observe that SawStop not only alleges the

“who, what, when, and where” in its complaint, but also the

“why.”       “[M]otivation for common action” is a key circumstantial

fact.        Einer R. Elhauge & Damien Geradin, Global Antitrust Law

and    Economics          837    (2007);    see     also    Hyland,          771   F.3d     at    320

(listing        “common         motive     to    conspire”        as     a    potential          plus

factor); Mayor & City Council of Balt. v. Citigroup, Inc., 709

F.3d     129,       136    (2d     Cir.     2013)       (same).          According        to      the

complaint, the defendants here were motivated to conspire out of

a     fear    of     product-liability            exposure:         if       one   manufacturer

adopted       the    technology,          then    non-adopting         manufacturers           could

face    liability          exposure       from    their     failure          to    employ      AIMT.

                                                 36
Thus,     under    SawStop’s      theory,    the     manufacturers       conceived      a

group boycott to keep AIMT off the market, thereby preventing

its use as a design alternative in product-liability cases.                           And

even though a complaint need not “forecast evidence” to support

its theory, Robertson, 679 F.3d at 291, SawStop’s complaint does

so   by    referencing          testimony    from      Peot     (the   former     Ryobi

engineer),       who    agrees    that    non-adopting        manufacturers      “could”

have been in “real legal trouble” if a major manufacturer had

adopted AIMT.          Transcript of Trial at 4-125, Osorio v. One World

Techs. Inc., No. 06-CV-10725 (D. Mass. Feb. 25, 2010), ECF No.

137 (cited at J.A. 89 ¶ 80).                 The complaint further describes

statements in which Black & Decker’s counsel is alleged to have

said that product liability could be lessened “if a couple of

years      passed         without        implementation         of     the       SawStop

[t]echnology.”          J.A. 87 ¶ 72.

     The     defendants          insist     that     this      alleged       motive    is

implausible, and the dissent agrees.                      They theorize that, if

SawStop’s theory of motive were true, one would have expected

all of the manufacturers to take a license once SawStop began

making     its    own     AIMT-equipped      saws    in     2004.      The    complaint

indicates that course of events did not occur.

     Once more, the manufacturers’ argument -- embraced by the

dissent    --     seems    to    misconstrue     the    complaint’s      allegations.

SawStop     entered       the    market     as   a     peripheral      player.        See

                                            37
Appellant’s       Br.      44   (“SawStop’s       sales       .     .    .    did   not      even

constitute       1%   of    total    industry         sales   of    table       saws    in    the

United     States[.]”).             Thus,       the     manufacturers            were     still

conceptually able to argue that SawStop was peddling a fringe

technology,        as      reflected       in     its     “marginaliz[ed]”              market

position.        See J.A. 90 ¶ 81; see, e.g., Osorio v. One World

Techs., Inc., 659 F.3d 81, 87-88 (1st Cir. 2011) (describing

defendant’s argument that SawStop’s technology was not viable).

Indeed,    the     fact     that    the    conspiracy         did       not   include     every

player in the table-saw industry implies that the conspirators

were concerned with major manufacturers taking a license, not

smaller ones.         Thus, the defendants’ post-2004 actions -- which,

in any event, are not fully discussed in the complaint -- are

not     much     help      in   evaluating        the     manufacturers’            potential

motives.

      Even if the “who, what, where, when, and why” were not

enough, the complaint also describes a number of communications

among     the     defendants.             Allegations         of    communications           and

meetings        among      conspirators         can     support         an     inference       of

agreement       because     they    provide       the    means      and       opportunity      to

conspire.       See, e.g.,         Evergreen Partnering Grp., Inc., 720 F.3d

at 49; Hyland, 771 F.3d at 320; Mayor & City Council of Balt.,

709 F.3d at 136.            Here, in addition to discussing the October

2001 meeting where the alleged conspiracy formed, the complaint

                                             38
describes      phone      calls,     meetings,       and    discussions       among    the

various       conspirators.               Such    “allegation[s]         identif[y]      a

practice, not illegal in itself, that facilitates [an antitrust

conspiracy]      that       would    be    difficult       for   the    authorities     to

detect.”      Text Messaging, 630 F.3d at 628; accord Todd v. Exxon

Corp., 275 F.3d 191, 213 (2d Cir. 2001); see also Sharon E.

Foster, LIBOR Manipulation and Antitrust Allegations, 11 DePaul

Bus. & Com. L.J. 291, 304 (2013) (“Facilitating practices . . .

may    evidence       the    plus    factors        necessary      to   establish      the

inference of an agreement.”).

       A market in which sales power is concentrated in the hands

of the few can also facilitate coercion.                         See, e.g., Evergreen

Partnering Grp., 720 F.3d at 48; Todd, 275 F.3d at 208; In re

High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 656

(7th Cir. 2002).            Fewer “minds” must “meet” in a concentrated

market.       And the complaint implies that the table-saw market is

so concentrated, as the defendants here purportedly control 85%

of that market.           J.A. 81 ¶¶ 44, 48; see, e.g., Starr, 592 F.3d

at 323 (listing the defendants’ control of 80% of the market as

a relevant plus factor).              Further, the complaint describes ways

in    which    the    manufacturers         attempted      to    hide   their   actions,

including a mutual agreement not to “leave a paper trail.”                             See

J.A.    93-94        ¶¶     92-97.          These    alleged       attempts      by    the

manufacturers        to     hide    their    actions       could   suggest      that   the

                                             39
defendants   knew   their   actions       “would   attract   antitrust

scrutiny,” Starr, 592 F.3d at 324; in other words, the alleged

facts suggest consciousness of guilt.          Those actions give us

further reason to conclude that a group boycott is plausibly

alleged. 2

                              D.

     Generally, “[i]n addition to establishing a conspiracy, a

successful plaintiff must also show . . . that the conspiracy

produced adverse, anti-competitive effects within the relevant

product and geographic market.”        Terry’s Floor Fashions, Inc. v.

Burlington Indus., Inc., 763 F.2d 604, 611 n.10 (4th Cir. 1985).

In a viable complaint, “the plaintiff must allege, not only an

injury to himself, but an injury to the market as well.”         Agnew

v. Nat’l Collegiate Ath. Ass’n, 683 F.3d 328, 335 (7th Cir.

2012); accord Todd, 275 F.3d at 213.          “Actual anticompetitive

effects include, but are not limited to, reduction of output,




     2 SawStop also argued that the complaint alleged sufficient
direct evidence of a conspiracy to avoid dismissal.          See
Robertson, 679 F.3d at 289 (holding that a complaint can state a
§ 1 claim if it alleges “direct evidence” of the agreement
itself); but see Am. Chiropractic Ass’n v. Trigon Healthcare,
Inc., 367 F.3d 212, 226 (4th Cir. 2004) (indicating that
“smoking gun” direct evidence is “extremely rare in antitrust
cases”).   As SawStop’s complaint meets “Twombly’s requirements
with respect to allegations of illegal parallel conduct,”
Robertson, 679 F.3d at 290, we need not determine whether
SawStop has adequately alleged direct evidence.


                                  40
increase    in    price,      or    deterioration           in   quality.”        Jacobs      v.

Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1339 (11th Cir. 2010).

      In cases involving “per se” violations of the Sherman Act,

however,    this      anti-competitive          harm        is   essentially        presumed.

“[C]ertain       agreements        or   practices”          have    such    a    “pernicious

effect on competition” that they “are conclusively presumed to

be unreasonable and therefore illegal without elaborate inquiry

as   to   the    precise      harm”     that        they    caused.         TFWS,     Inc.   v.

Schaefer, 242 F.3d 198, 209 (4th Cir. 2001).                            Claims that such

agreements       “lacked   anticompetitive                effects   .   .    .   are     simply

irrelevant.”         In re Cardizem CD Antitrust Litig., 332 F.3d 896,

909 (6th Cir. 2003).

      Although the manufacturers contend that SawStop failed to

allege anticompetitive harm, SawStop maintains that its alleged

group boycott violates the Sherman Act per se -- such that no

separate     allegations           of   harm    were        necessary.           “[I]n    some

circumstances        a   group      boycott         may    be    considered       a    per    se

violation.”          Precision Piping & Instruments, Inc. v. E.I. du

Pont de Nemours & Co., 951 F.2d 613, 617 n.4 (4th Cir. 1991).

And the alleged agreement here comes close to the “paradigmatic

boycott,”       in    which        “a   group       of     competitors”          (here,      the

manufacturers) take “collective action” (here, the refusal to

license or implement) that “may inhibit the competitive vitality

of rivals” (here, SawStop).               NYNEX Corp., 525 U.S. at 135; see

                                               41
also     Nw.     Wholesale      Stationers,          Inc.    v.    Pac.    Stationery    &

Printing Co., 472 U.S. 284, 294 (1985) (explaining that per se

illegal boycotts “often cut off access to a supply, facility, or

market necessary to enable the boycotted firm to compete and

frequently the boycotting firms possessed a dominant position in

the relevant market”).

       Despite the facial appeal of SawStop’s per se argument,

neither        the    manufacturer’s         brief     nor    the    district     court’s

opinion directly address it.                  The district court remarked only

in   passing         that   SawStop    had    “fail[ed]       to    establish    a   naked

boycott organized for a concerted refusal to deal.”                             SD3, LLC,

2014 WL 3500674, at *5.               It did not discuss the issue further,

and offered only a cursory citation to Northwest Wholesale.                             The

manufacturers           similarly      assert,        without       explanation,      that

SawStop “failed to allege any per se violation of the Sherman

Act.”    Response Br. 58.

       Because        the   issue     of   competitive        harm    is    inadequately

briefed, and because the district court’s opinion likewise gives

us no guidance, we cannot decide that issue or affirm on that

basis.     If the manufacturers so choose, however, they may again

raise the issue of competitive harm before the district court on

remand so that it may fully consider and discuss the question

with the benefit of proper argument.



                                              42
                                            E.

       In sum, SawStop’s complaint is very different from the one

seen     in   Twombly,      which       rested    solely        on    “descriptions        of

parallel conduct and not on any independent allegation of actual

agreement.”          Twombly, 550 U.S. at 564; see also id. at 548

(“[T]he question . . . is               whether       a § 1 complaint can survive

when it alleges . . . certain parallel conduct . . . , absent

some factual context suggesting agreement[.]” (emphasis added)).

SawStop’s complaint alleges an actual agreement to boycott in

detail and does not rely, as in Twombly, on parallel conduct

alone.         The    dissent’s         observation        to        the     contrary     is,

respectfully,        simply      an    inaccurate     reading        of    Twombly.       See

Dissenting Op. 75.            In particular, the Supreme Court directly

rejected      the     dissent’s        reading     of     the     Twombly       complaint:

“Although in form a few stray statements sp[oke] directly of

agreement, on fair reading these [were] merely legal conclusions

resting on the prior allegations.”                      Twombly, 550 U.S. at 564.

The    Supreme      Court   was       explicit   in     finding       that    the   Twombly

complaint did not contain “any independent allegation of actual

agreement among the ILECs.”              Id.

       As to the district court, it erred by applying a summary-

judgment      standard      to    SawStop’s       group    boycott         claim    and    by

confusing “plausibility” with “probability.”                         Again, because the

complaint        pleads       parallel         conduct     in         conjunction         with

                                            43
“circumstance[s]       pointing     toward      a   meeting     of    the     minds,”

Twombly, 550 U.S. at 557, SawStop has adequately alleged the

agreement needed to support a Sherman Act § 1 conspiracy.                            Of

course,     it    remains     to   be    seen    whether    SawStop      has        also

adequately alleged any requisite harm to the market.

      Our decision should not be mistaken for an endorsement of

the ultimate merits of SawStop’s case.               At this point, SawStop’s

prospects for success are largely irrelevant, as “[a] lawsuit

need not be meritorious to proceed past the motion-to-dismiss

stage.”      Ringgold-Lockhart v. Cnty. of Los Angeles, 761 F.3d

1057, 1066 (9th Cir. 2014).             In fact, “a well-pleaded complaint

may proceed even if it strikes a savvy judge that actual proof

of those facts is improbable, and that a recovery is very remote

and   unlikely.”       Twombly,        550   U.S.   at   556;   accord       Cardigan

Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 89 (1st Cir. 2015);

N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC,

709 F.3d 109, 125 (2d Cir. 2013); cf. Iqbal, 556 U.S. at 681

(“[W]e do not reject these bald allegations on the ground that

they are unrealistic or nonsensical.”).                   To dismiss SawStop’s

complaint    because     of     some    initial     skepticism       would     be    to

mistakenly       “collapse    discovery,      summary    judgment[,]     and    trial

into the pleading stages of a case.”                     Petro-Hunt, L.L.C. v.

United States, 90 Fed. Cl. 51, 71 (2009).



                                         44
       Our decision also is not meant to afford SawStop a license

for unlimited discovery.             Like the dissent, we are well aware of

the substantial cost that discovery in an antitrust case can

impose, Twombly, 550 U.S. at 558-59, and recognize that the cost

largely      falls     on   the     defendants.              When    not     appropriately

managed, that cost can have an extortionate effect, compelling

some defendants to enter early settlements even in meritless

suits.    But we are neither the Advisory Committee on the Rules

of Civil Procedure, nor the Supreme Court, nor Congress.                                 We

must take the rules as we find them.

       District      courts     possess        a    number    of    tools    --    including

limitations on discovery or consideration of a timely motion for

summary judgment -- to combat any sort of predatory discovery.

See    Federal       Judicial     Center,          Manual    for    Complex       Litigation

§ 30.1    (4th       ed.    2004)    (“Effective            management       of    antitrust

litigation       requires       identifying,           clarifying,          and    narrowing

pivotal factual and legal issues as soon as practicable[.]”).

Although tools like these do not permit us to give the benefit

of the doubt to groundless claims, Twombly, 550 U.S. at 559,

they confirm that our antitrust jurisprudence cannot be driven

solely    by      fears      about       the       expense     of        modern    antitrust

litigation.       We have faith that district courts possess both the

will   and     the    ability       to   make       good     use    of    available    case-



                                               45
management mechanisms, employing them as needed to preserve a

level playing field -- particularly in antitrust cases. 3



                    VI.   Standard-Setting Conspiracies

     In addition to its group-boycott claim, SawStop alleges two

separate but related conspiracies concerning private standard-

setting -- the standard-rejection conspiracy and the contrived-

standards conspriacy.          Industry particpants allegedly used their

influence    over    UL   to    prevent    the       private    organization   from

adopting AIMT as a required safety device.                     The defendants then

purportedly encouraged UL to adopt other standards that imposed

needless    costs   on    SawStop   and        insulated    the   defendants   from

liability.

     We find that the complaint does not plausibly establish

either     conspiracy.          Although        the     standard-rejection      and

contrived-standards       conspiracies         are    separately    alleged,   they

fail for the same fundamental reason: the facts alleged imply

nothing beyond ordinary participation in lawful standard-setting

processes.      Thus,     in    contrast        to    its   group-boycott   claim,


     3  Many of the same allegations that carry SawStop’s
complaint past a motion to dismiss –- the “who, what, when, and
where” –- may substantially focus the discovery in a way that
was not possible in Twombly.    See id. at 560 n.6 (noting the
difficulty and expense of discovery directed toward “some
illegal agreement” “between unspecific persons” “at some point
over seven years.”).


                                          46
SawStop’s      standards-focused           conspiracies         fail     to       allege   the

“more” necessary to raise an inference of agreement.

                                              A.

      Standard-setting            organizations           are   voluntary          membership

organizations           whose            participants           develop            “technical

specifications         to        ensure       that        products     from         different

manufacturers are compatible with each other,” address certain

threshold safety concerns, or serve other beneficial functions.

Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 875 (9th Cir.

2012).       These organizations have enjoyed a rather complicated

relationship         with        antitrust         law.         “[M]embers          of     such

associations         often       have     economic          incentives        to     restrain

competition      and        []     the     product         standards        set     by     such

associations have a serious potential for anticompetitive harm.”

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492,

500 (1998); see also Soc’y of Mech. Eng’rs v. Hydrolevel Corp.,

456   U.S.    556,    571     (1982).         As    a     result,    “private       standard-

setting      associations          have       traditionally          been      objects      of

antitrust scrutiny.”             Allied Tube, 486 U.S. at 500.

      Still,         such        ventures          can      also      have         “decidedly

procompetitive         effects”          by     encouraging          “greater         product

interoperability,”           generating       “network       effects,”        and    building

“incentives to innovate.”                 Princo Corp. v. Int’l Trade Comm’n,

616 F.3d 1318, 1335 (Fed. Cir. 2010); accord Lotes Co., Ltd. v.

                                              47
Hon Hai Precision Indus. Co., 753 F.3d 395, 400 (2d Cir. 2014);

Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 308 (3d Cir.

2007).      “As   a     result,     one    can   hardly      infer     anticompetitive

intent to exclude from rule making alone[.]                         . . .       Antitrust

must therefore seek out the exceptional case, where rule making

is used to facilitate collusion or the exclusion of rivals whose

competitiveness        or    innovation     threatens       the     relevant     decision

makers.”    Areeda & Hovenkamp, supra, § 22.06b.

     Courts have found standard-setting organizations and their

members to have violated the antitrust laws in some cases, but

those    cases    are       relatively     few   and     far    between.         Of     most

relevance here, “an entity may be prosecuted for an antitrust

violation    on   the       basis   of    improper     coercion      of   a    standards-

setting    body.”           Coalition     for    ICANN      Transparency,        Inc.    v.

VeriSign, Inc., 611 F.3d 495, 506 (9th Cir. 2010).                            Allied Tube

is the oft-cited example of that concept.                           In that case, the

defendant deliberately packed a standard-setting panel with paid

supporters who then banned a competing product.                           Allied Tube,

486 U.S. at 496.             Coalition for ICANN Transparency is another

example.     There, the Ninth Circuit found potential antitrust

liability when a powerful corporation allegedly used vexatious

litigation       and    financial         pressure     to      coerce     a     standards

organization      into       providing      advantages         to    that      defendant.

Coalition for ICANN Transparency, 611 F.3d at 501, 506.

                                            48
       The common thread in the few cases finding liability in the

private     standard-setting          context         is    unique,          external        pressure

applied to achieve an anti-competitive end.                                      “[T]he principal

concern has been the use of standards setting as a predatory

device . . . ; normally there is a showing that the standard was

deliberately        distorted        by    competitors            of       the    injured     party,

sometimes     through       lies,      bribes,        or     other          improper     forms    of

influence,      in     addition           to    a     further              showing      of    market

foreclosure.”        DM Research, Inc. v. Coll. of Am. Pathologists,

170 F.3d 53, 57-58 (1st Cir. 1999).                        In other words, a plaintiff

must ordinarily show that the standard-setting activity had a

market-closing effect that was committed “through the use of

unfair, or improper practices or procedures.”                                     Clamp-All Corp.

v. Cast Iron Soil Pipe Inst., 851 F.2d 478, 488 (1st Cir. 1998)

(Breyer, J.).

       In     the     usual          case,      neither            the           standard-setting

organization nor its participants will run afoul of antitrust

law    when   they    use    ordinary          processes          to       adopt     unexceptional

standards.           It     is       “axiomatic            that        a     standard        setting

organization must exclude some products, and such exclusions are

not themselves antitrust violations.”                        Golden Bridge Tech., Inc.

v. Motorola, Inc., 547 F.3d 266, 273 (5th Cir. 2008); see also

Gtr.    Rockford     Energy      &    Tech.         Corp.,    998          F.2d    at   396     (“The

failure of a private, standard-setting body to certify a product

                                               49
is not, by itself, a violation of § 1.”); Plant Oil Powered

Diesel Fuel Sys., Inc. v. ExxonMobil Corp., 801 F. Supp. 2d

1163, 1193 (D.N.M. 2011) (holding that the plaintiff did not

plausibly     allege       an      antitrust          conspiracy        based    on      the

defendant’s mere opposition to a particular standard).                           “To hold

otherwise     would       stifle     the        beneficial       functions       of     such

organizations[.]”           Golden        Bridge      Tech.,     547     F.3d    at   273.

Similarly, it is not problematic, standing alone, for market

participants to try to influence the standard-setting process

through the organization’s ordinary procedures.                           See Clamp-All

Corp., 851 F.2d at 488.

                                            B.

     SawStop      never    alleges        that     UL’s   normal        procedures      were

thwarted,    or    that     the     defendants         engaged     in    some    form    of

external misconduct.            Instead, it asks us to infer malfeasance

because some of the defendants’ representative served on the

relevant     standard-setting         panel.           But     SawStop     provides       no

authority    drawing      that     sort    of    naked    inference,       and   we     have

found none.       “Certifiers may reasonably believe that they can do

their job properly (a job that benefits consumers) only if all

interested    parties      are     allowed       to   present     proposals,      frankly

present their views, and vote.”                 Id.

     SawStop’s complaint takes issue with UL’s actions largely

because the organization is alleged to have erred in rejecting

                                            50
SawStop’s        proposed       standard    and       selecting         another    one.        The

unstated assumption of this argument is that, lacking a valid

“technical” justification, the only remaining explanation must

be an antirust conspiracy.

       Even if UL’s ultimate decision can be called “wrong,” that

mistake alone does not indicate concerted action to manipulate

the    result.        “[S]tandard-setting               bodies      sometimes      err,”      but

simple      error    creates       no   reason         for    liability         without       some

further      indication          that   the          organization’s         activities         are

“merely      a    ploy     to     obscure        a    conspiracy         against    competing

producers.”         Consol. Metal Prods., Inc. v. Am. Petroleum Inst.,

846 F.2d 284, 294 (5th Cir. 1988); see also DM Research, 170

F.3d at 57 (“Merely to say that the standards are disputable or

have      some    market    effects        has       not   generally        been   enough      to

condemn them as ‘unreasonable’ under the Sherman Act.”); Moore

v. Boating Indus. Ass’ns, 819 F.2d 693, 711-13 (7th Cir. 1987)

(finding no evidence of an actionable conspiracy despite the

jury’s      finding      that     the      association            was    “unreasonable         and

arbitrary” in setting standards); cf. Brookins v. Int’l Motor

Contest Ass’n, 219 F.3d 849, 854 (8th Cir. 2000) (“So long as

IMCA made game-defining rules decisions based upon its purposes

as    a    sports    organization,          an       antitrust          court   need    not    be

concerned         with      the     rationality              or     fairness       of     those

decisions.”); M & H Tire Co. v. Hoosier Racing Tire Corp., 733

                                              51
F.2d 973, 984 (1st Cir. 1984) (“We discern no duty to provide an

absolutely       objective      or     scientific      basis      for     decision.”).

“[A]ntitrust is not concerned with whether a standard might be

unreasonable as an abstract proposition.”                     Areeda & Hovenkamp,

supra, § 22.06c.

       If   antitrust     suits      were   permitted      to     go    forward    based

solely on an allegation that the standard-setting body erred,

courts would be cast into the role of standard-setting appellate

bodies.         Consol.    Metal       Prods.,     846     F.2d    at     297.       Any

disagreement big or small with the ultimate adoption of a safety

standard would, to follow SawStop’s reasoning, create potential

antitrust liability.           “Not only would this tax the abilities of

the    federal   courts,       but   fear   of    treble   damages       and    judicial

second-guessing        would    discourage       the   establishment        of    useful

industry standards.”           Id.

       Beyond    its    error-based      allegations,      the     complaint’s      only

assertions of concerted action are conclusory and non-specific:

“a collective decision was made,” or the defendants “agreed to

vote as a bloc,” or non-SawStop designs were a “smokescreen.”

J.A. 96-97 ¶¶ 103, 105, 109.                The complaint identifies no fact

other than consistent votes against SawStop’s proposal (and for

the other designs) to establish the alleged illegal agreements.

That    would    be    parallel      conduct,    but   such     conduct    is    equally

consistent with legal behavior.                  After all, even if SawStop is

                                            52
right   that   technical      reasons    did   not   support   the    standard-

setting     organizations      decisions,       other    non-anticompetitive

explanations remain.         See, e.g., Golden Bridge Tech., 547 F.3d

at 272-73 (“[T]he existence of an independent financial motive

to [change the standard] might be an independent reason for each

Appellee    company     to   support    [the   change].”);     Advanced    Tech.

Corp., Inc. v. Instron, Inc., 925 F. Supp. 2d 170, 179 (D. Mass.

2013)     (dismissing    a    complaint      where   “[t]he    crux   of   [the

plaintiff’s] antitrust claim [wa]s simply that competitors in a

market declined to support a standard that would promote another

competitor’s technology”).

     Lastly, we note that SawStop does not allege the sort of

anticompetitive objectives that are ordinarily seen in standard-

setting cases.     Usually, standard-setting cases are brought when

products are effectively excluded from the market by adopted

safety standards.       Here, SawStop largely complains that it could

not use the standard-setting process to impose its own product

on everyone else.        The anticompetitive harms of a “refusal to

impose” are much harder to identify.                 Nothing that UL or the

standards-setting groups did barred SawStop’s AIMT-equipped saws

from the market, as SawStop’s entry into the competitive table-

saw market establishes.         From all appearances, SawStop remains

free to offer its saws with the UL seal of approval, along with

its perceived market advantage of also offering AIMT on those

                                        53
saws.         And   if     UL’s    newer   standards       generate       some    additional

costs, those costs are common to each member of the industry who

chooses       to    make    a     UL-compliant         table    saw.      We    see    nothing

anticompetitive or exclusionary in that.

        The    district         court    thus     did     not    err    in     granting    the

defendants’ motions to dismiss on the standard-setting claims.



                                                VII.

        For    the       reasons     described          above,    the     district      court

correctly dismissed the standard-setting claims as to all the

defendants.          The district court also correctly dismissed the

group-boycott         claims       against       Hitachi       Koki    Co.,    Ltd.;   Makita

Corporation; Chang Type Industrial Co., Ltd.; OWT Industries,

Inc.; Pentair Water Group, Inc.; Stanley Black & Decker, Inc.;

Delta    Power       Equipment,         Inc.;    and    Techtronic       Industries       North

America, Inc.            However, the district court erred in dismissing

the group-boycott claims against the remaining defendants.

     Therefore,             the     district          court’s     decision        dismissing

SawStop’s complaint is

                                                AFFIRMED IN PART, VACATED IN PART,
                                                     AND REMANDED FOR PROCEEDINGS
                                                     CONSISTENT WITH THIS OPINION.




                                                 54
WYNN, Circuit Judge, concurring:

       “Judges ought to remember that their office is jus dicere,

and not jus dare—to interpret law, and not to make law, or give

law.”     Francis Bacon, “Essay LVI: Of Judicature,” Essays (1625),

reported in Richard Whately, Bacon’s Essays With Annotations 511

(1857).     Here, the judiciously well-reasoned majority opinion

resists the temptation to move beyond our limited role and into

the    colorful   realm   of   policy.     Respectfully,      the     dissenting

opinion strays beyond our limited review here and encroaches on

policy issues best left to other branches of government.

                                      I.

       First, rather than confront the issues actually in play,

the dissenting opinion dresses up points of agreement as dire

rifts.     The dissent asserts, for example, that plaintiffs “seek

to achieve through litigation a monopoly for their product” and

claims    that    the   majority   opinion       “turns   a   blind    eye”   to

“anticompetitive impulse[s]” driving SawStop’s claims.                  Post at

70, 96.     The dissenting opinion claims that the majority opinion

“ignores all [the benefits of ventures such as standards setters

and trade groups] in its rush to flatten pleading standards,

make    communications    perilous,      and    consign   antitrust     law   to

isolationist ends.”        Id. at 97.          Thus, the dissent takes the

policy view that today’s opinion will doom “American companies”

to “competitive disadvantage at the very time global commercial

                                      55
interactions      are    becoming       more      commonplace.”       Id.         Nonsense

(beyond the obvious problem that a competitive disadvantage is

meaningful only in the context of a comparison with America’s

global competitors, many of whom also have antitrust laws).

      The   majority         opinion    fully      accords    with   the         view    that

“[j]oint     ventures,        standard-setting         organizations,         and       trade

association       meetings       may      allow       individuals       of       different

specialties to benefit from each other’s expertise. These fora

may     prove    invaluable       for     efficient       and    effective         product

development.”          Post at 96.           As the majority opinion plainly

states,     “such      ventures”       can     have    “decidedly       procompetitive

effects     by        encouraging       greater       product      interoperability,

generating       network       effects,        and     building      incentives           to

innovate.”       Ante at 47 (quotation marks and citations omitted).

The majority opinion in no uncertain terms affirms the district

court’s dismissal of SawStop’s standards-setting-related claims—

a crucial fact relegated to a dissenting footnote.

      Second, rather than address SawStop’s complaint as it is

written,        the     dissenting        opinion        employs     verbiage            like

“commercial interactions” to revise the complaint so as to omit

the allegations of a secret agreement to refuse to deal.                                Again

sounding    in    policy,      the     dissenting      opinion     asserts        that    the

majority     “drape[s]        innocent       commercial      activity       in    sinister

garb”     because      the    complaint        “hardly    bespeaks      a        collective

                                             56
agreement not to deal.”       Post at 67, 73.     Thus, the dissenting

opinion editorializes that due to the majority opinion, “HOLDING

OR ATTENDING [A] TRADE ASSOCIATION MEETING WILL INCREASE YOUR

EXPOSURE TO ANTITRUST SUITS.”     Id. at 68 (emphasis added).

     Yet, when read with a judicious eye, SawStop’s complaint

clearly alleges that Defendants entered into a secret agreement

to refuse to deal at a trade association meeting—not just that

Defendants   “held”   or   “attended”   such   meetings.   Indeed,   the

complaint plainly bespeaks a collective agreement not to deal.

     Specifically, the complaint alleges, among other things:

       •   “In conjunction with the [Power Tool Institute] annual
           meeting, a separate meeting of representatives of
           table saw manufacturers was held.    Attendees at the
           meeting included, but were not necessarily limited to,
           Domeny (on behalf of SBTC and Bosch), Peot (on behalf
           of Ryobi, TIC and affiliates), Stanley Rodrigues (for
           Makita), Ray Mayginnes (for Emerson), David V. Keller
           (of Porter-Cable, who also spoke for Pentair and
           DICM),    Steven    Karaga    (for    Hitachi),    and
           representatives of B&D and Milwaukee Electric.     Mr.
           Domeny, at the time, was the Chair of the [Power Tool
           Institute]’s Product Liability Committee, and chaired
           the meeting.” J.A. 89 ¶ 79 (emphasis added).

       •   “At the meeting, Mr. Domeny and the other participants
           expressed concerns that if one manufacturer adopted
           SawStop Technology, then all manufacturers would be
           subject   to  greater   liability in   future  product
           liability cases.      Mr. Peot shared this concern.
           [Power Tool Institute]’s table saw manufacturers
           determined at that meeting that they would decide how
           to respond, as an industry, to the SawStop Technology.
           A consensus was reached that (1) all should take a
           SawStop license and/or implement AIMT, or (2) none
           take it or otherwise implement AIMT; since if one or
           more took a license and/or offered a product with
           AIMT, the others would be more vulnerable to product

                                   57
    liability.   It was also agreed that collective action
    would proceed only if all, or at least a substantial
    majority,   of  participants   voted  to  participate.
    Members also discussed developing something like
    SawStop Technology, without having to pay a royalty to
    Dr. Gass.    The consensus reached by the attendees,
    with no contrary views articulated, was that industry
    members would collectively agree not to purchase
    technology licenses from Plaintiffs or otherwise
    implement AIMT.” J.A. 89-90 ¶ 80 (emphasis added and
    citations omitted).

•   “The consensus reached at the meeting was based on a
    calculated     economic   determination    that    the
    manufacturers would, collectively, fare better by
    collectively agreeing to marginalize SawStop and AIMT,
    than by allowing the marketplace to determine whether
    any   manufacturers   did business  with   SawStop  or
    otherwise implemented AIMT.    The Defendants believed
    that bringing AIMT into the mass market would have
    catastrophic product liability consequences for them.
    Purchasers of their existing and prior inventories of
    table saws (and, perhaps, other products) would point
    to the viability of AIMT as evidence that other
    products were inherently unsafe because they lacked
    AIMT. Defendants believed that, in the short term, if
    SawStop was unable to obtain a major manufacturing
    partner, it would not be able to produce or market a
    meaningful quantity of saws with its AIMT – this way,
    the major manufacturers could continue to earn current
    profit margins on their existing inferior product
    lines without paying royalties to Plaintiffs, and it
    would remain (for the time being) at least plausible
    for the major manufacturers to contend, in defending
    product liability lawsuits, that AIMT was not viable.
    Thus, Defendants’ business calculation was that they,
    collectively, would fare better by marginalizing
    SawStop and AIMT, than by working with SawStop and/or
    otherwise adopting AIMT.” J.A. 90 ¶ 81.

•   “It was agreed at the meeting and thereafter that all
    discussions concerning a collaborative response to
    SawStop would be confidential and concealed from
    persons other than [Power Tool Institute] members who
    manufactured table saws.  It was further agreed that,
    going forward, information relevant to SawStop and
    table saw product liability defense issues would only

                         58
              be shared among those industry participants who
              affirmatively agreed to act collectively in response
              to SawStop.” J.A. 90 ¶ 82 (emphasis added).

         •    “At, or within a period of months following the
              October 2001 meeting, each of Defendants Bosch, Ryobi,
              Makita,   Hitachi,  Pentair,  Emerson   and  Milwaukee
              Electric, and entities affiliated with them, had
              agreed to enter into a boycott (the ‘AIMT Boycott’) of
              SawStop’s intellectual property, by collectively (1)
              refusing to license SawStop technology, and (2)
              agreeing not to otherwise implement AIMT.” J.A. 90-91
              ¶ 83 (emphasis added).

         •    “During this time frame, in which [Power Tool
              Institute]’s table saw manufacturers voted to respond
              collectively to SawStop Technology, those Defendants
              not yet in license negotiations with SawStop refrained
              from requesting a license, and the Defendants who were
              already in negotiations found ways to abort them as
              opportunities arose.” J.A. 91 ¶ 85 (emphasis added).

In other words, SawStop’s complaint alleges a specific meeting

in which Defendants agreed to refuse to deal with SawStop and to

keep   that    pact    a    secret.         Around     the   same   time,   Defendants

refrained from seeking SawStop’s technology or, if in licensing

negotiations     with       SawStop,    found         ways   to   abort   them.     The

dissenting      opinion’s        dismissive           characterization      of     these

detailed allegations as mere “conclusory assertions,” post at

71, thus plainly misses the mark.

       On the contrary, SawStop’s allegations squarely conform to

what   we    require       Sherman    Act    §    1   plaintiffs    to    plead.     “To

establish a § 1 antitrust violation, a plaintiff must prove, and

therefore plead, (1) a contract, combination, or conspiracy; (2)

that imposed an unreasonable restraint of trade.”                         Robertson v.

                                             59
Sea Pines Real Estate Companies, Inc., 679 F.3d 278, 284 (4th

Cir.     2012)    (Wilkinson,       J.)   (quotation        marks    and        citation

omitted).         Further,     “Iqbal     and     Twombly    do     not    require      a

plaintiff to prove his case in the complaint.”                            Id. at 291.

Instead, the complaint “need only allege facts sufficient to

state    elements       of    the   claim.”        Id.   (quotation        marks     and

citations omitted).           And at the Rule 12(b)(6) stage, which is

where we are, the complaint is to be “construed liberally so as

to do substantial justice.”             Pub. Employees’ Ret. Ass’n of Colo.

v. Deloitte & Touche LLP, 551 F.3d 305, 311 (4th Cir. 2009)

(Wilkinson, J.) (quotation marks and citation omitted).

       In its revisionist account of SawStop’s allegations, the

dissenting opinion essentially turns the Rule 12(b)(6) standard

on its head.       “A motion to dismiss under Rule 12(b)(6) tests the

sufficiency of a complaint; importantly, it does not resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.”             Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992).                   Instead, “a well-pleaded

complaint may proceed even if it strikes a savvy judge that

actual    proof    of   the    facts    alleged    is    improbable       and    that   a

recovery is very remote and unlikely.”                   Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556 (2007) (quotation marks and citation

omitted).



                                          60
      Despite our crystal-clear mandate in reviewing this Rule

12(b)(6) dismissal, the dissenting opinion nevertheless attacks

the complaint in a light least favorable to SawStop, viewing the

facts and reasonable inferences in the light most favorable to

Defendants.       For example, the dissenting opinion opines that

“[i]gnoring the many practical reasons for declining [SawStop]’s

offers, the majority hones in on the fear of product liability

as the key motivation behind defendants’ alleged boycott.”                      Post

at   91.   Yet,      the   majority      opinion    rightly     focuses    on   the

products       liability        reasoning—because        SawStop     specifically

alleges it.      See, e.g., J.A. 89-91.           We are thus not at liberty

to swap that pled reasoning out for other “practical reasons” we

might   make    up   out   of    whole   cloth.      A    further    example:    The

dissenting opinion asserts that “it was consistent with each

manufacturer’s best interest to reject an expensive, unproven,

undeveloped,      and   possibly      unsafe   technology.      Each    defendant

could easily have arrived at this business decision on its own.”

Post at 90.      But SawStop alleges that they didn’t arrive at that

decision   independently.           Instead,   the       complaint   specifically

alleges that Defendants expressly agreed to refuse to deal and

to keep that agreement secret.            See, e.g., J.A. 89-91.          Ignoring

such specific allegations to SawStop’s detriment is nothing shy

of an all-out perversion of the generous lens through which we



                                         61
must view the complaint.              Pub. Employees’ Ret. Ass’n of Colo.,

551 F.3d at 311.

         Finally, the dissenting opinion focuses on its own policy

preferences, thereby abandoning this Court’s limited role—which

is   simply       to    assess     whether      SawStop       plausibly      alleges   the

elements of its Section 1 claim.                     Because the majority opinion

sticks     to    its     limited    role,      it    steers    clear    of   considering

things         like     different     “approach[es]”             in     a     “globalized

marketplace,” whether the word “‘conspiracy’ is bound to stoke

paranoia,” or the appropriate amount of “lag time” in “product

development.”          Post at 66, 79, 91.

         The dissenting opinion sees itself in no way so bound and

thus insists, for example, that “[h]ere, plaintiffs are the ones

acting anti-competitively.”               Post at 70.          It is simply not our

job in reviewing a Rule 12(b)(6) motion to assess which party’s

conduct we deem more pro-competitive.                      In refusing to stick to

our limited role, the dissenting opinion engages in breathtaking

judicial activism.

         “As   the     Supreme   Court    has       repeatedly    emphasized,      .   .   .

Congress is the policymaker—not the courts.”                            In re Sunterra

Corp., 361 F.3d 257, 269 (4th Cir. 2004).                              See also, e.g.,

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530

U.S. 1, 13-14 (2000) (“Achieving a better policy outcome . . .

is   a    task    for     Congress,      not        the   courts.”).         It   is   thus

                                               62
inappropriate to suggest, for example, that, as a matter of law,

a boycott conspiracy may not be motivated by liability concerns.

Congress    can    pencil     such    categorical      limitations       into    the

Sherman Act; we cannot.

     The dissenting opinion embarks on yet another odyssey into

policy, as well as assumptions untethered to reality, much less

the complaint at issue here, when it asserts that “[t]hese days

secrets are harder to keep. A secret is something that is held

by only one. Or maybe two. But twenty-two? Managers everywhere

must be relieved to learn from my concurring colleague that you

can let twenty-two people in on a secret and have nothing leak

out.”      Post   at   87.    Yet    in    reviewing   a   complaint     for    Rule

12(b)(6)    purposes,    we   may    not    peer   into    a   crystal   ball   and

decide how many people we personally believe can keep a secret

and kick complaints out of court on such a basis.

     Moreover,     to   the   extent       the   dissenting    opinion    suggests

that a large, multi-firm conspiracy by definition cannot exist,

it is simply uninformed.            Large antitrust conspiracies have not

only existed but have been caught—a perfect example being the

famous international vitamin scandal of the 1990s—which involved

21 firms engaged in a conspiracy that lasted over a decade:

          From 1988 to 1992 21 chemical manufacturers
     headquartered in seven nations joined . . . vitamins
     cartels . . . . Sales by these cartels exceeded $30
     billion . . . . The pharmaceutical manufacturers
     involved became virtually addicted to the infusion of

                                          63
        monopoly   profits,   giddy   financial    results  that
        prompted    the   conspirators    to    continue   their
        clandestine activities for up to 15 years. These
        illegal activities persisted in the face of [among
        other things] several public prosecutions of parallel
        conspiracies [and] multiple antitrust investigations .
        . . . The conspirators simply burrowed deeper and
        developed more elaborate methods of subterfuge.

John M. Connor, The Great Global Vitamins Cartels 8, available

at http://ssrn.com/abstract=885968.

     In other words, large, multi-player conspiracies involving

elaborate ruses can indeed exist as a matter of law and fact.

And here, SawStop alleges that one did, and that it undertook a

group     boycott      to   freeze    SawStop     technology          out   of    the

marketplace.        In refusing to accept those allegations, as we

must at this stage, the dissenting opinion plainly oversteps its

bounds.



                                       II.

     In sum, courts exist to resolve disputes, not to pervert

procedural rules into swords with which to fight policy battles.

And today, we do not confront whether SawStop should ultimately

succeed     on   its    boycott    claim.       Instead,    we    confront       only

whether, when viewing SawStop’s complaint with an unjaundiced

eye and using the proper standard, we can say that it has made

allegations      sufficient   to     withstand    a    motion    to    dismiss    for

failure to state such a claim.               It has.    Accordingly, with all


                                        64
due respect for the dissenting view, I join in the judicious and

well-reasoned majority opinion.




                                  65
WILKINSON, Circuit Judge, concurring in part and dissenting in
part:

       The majority’s view of modern commerce is unfortunate. It

takes an isolationist approach in which each business must all

but lock itself in semi-solitary or risk the taint of antitrust

claims.   Whatever        validity    the    isolationist        approach    may    once

have    had,   it    is     profoundly       injurious      in     an    increasingly

interconnected,        necessarily          collaborative,         and      globalized

marketplace. The majority rightly observes that agreement is the

crux of an antitrust claim, but it has made mere communication

the touchstone of liability. Ante at 29.

       The majority rejects this as a statement of policy, ante at

45, 56, but it is hardly that. It is rather a statement of

consequences that flow from the majority’s refusal to follow the

Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007), which established pleading requirements for a

Sherman Act Section 1 complaint. The Supreme Court lacks the

institutional       resources    to    ensure     full   compliance         with    its

decisions. Among other things, it has room on its docket for a

limited   number     of    cases,    and    the   Twombly    decisions       from   the

lower courts may be routinely pitched as pertaining to no more

than the particulars of an individual complaint.

       It just may be, however, that the institutional limitations

at the Court impart institutional obligations on the courts of


                                            66
appeals      to     respect          in     fullest           measure       the       highest    Court’s

approach.          In    this        obligation,              I    believe       the     majority      has

defaulted. I shall show throughout how it has failed to follow

Twombly at every turn. I would suggest, most respectfully, that

the majority has committed basic conceptual errors and that the

consequences of those errors, which the majority prefers not to

face     and        to        dismiss          as     policy,         are        regrettable.          Most

regrettable,            however,          is    the       treatment         of    a     Supreme       Court

decision, even a controversial one, at the hands of this court.

       Among Twombly’s insights was that markets, every bit as

much   as      conspiracies,              play       a    significant            role    in     governing

commercial conduct. See 550 U.S. at 557. Twombly counsels that

we not leap to pejorative explanations when legitimate business

considerations are more likely at play. Id. at 554. The fact

that Sherman Act conspiracies in restraint of trade do assuredly

continue to exist does not mean that we should rush too quickly

to drape innocent commercial activity in sinister garb.

       The     majority,         however,            adopts         the   reverse        sequence.      It

fashions       a    template          for       the       frustrated         market         participant:

Whenever       routine         business             decisions        don’t       go     your    way,    for

whatever reason, simply claim an industry conspiracy under the

Sherman      Act        and    the    courts         will         infer   malfeasance.          But    such

casual    presumptions               of    antitrust              infractions         can     only    chill

communications among companies, which in turn may hinder product

                                                         67
development,       innovative       joint        ventures,     and        useful     trade

association conclaves. WARNING: HOLDING OR ATTENDING THIS TRADE

ASSOCIATION      MEETING    WILL     INCREASE      YOUR     EXPOSURE      TO    ANTITRUST

SUITS.

     The    chilling       effect     is    most     acute     when       the     majority

considers      independent       market-driven        behavior       to    be     parallel

conduct warranting antitrust scrutiny. Parallel industry conduct

is, of course, the lynchpin of many a Sherman Act Section 1

claim.   The     majority’s      cardinal        conceptual    error       lies    in    the

adoption    of    an    ends-based      approach     to   parallel        conduct       in    a

circumstantial antitrust case. See infra Part II.A. The end of

course is the fact that a plaintiff’s product was not adopted.

But the products most likely to meet the end of rejection are

those of the least utility or those that would cause the most

expense.    The       majority   thus      uses    its    ends-based       analysis          to

reward     the    least     marketable           products     with        the     greatest

possibility      of    litigation     success.      WARNING:     FAILURE        TO   ADOPT

THIS PRODUCT FOR WHATEVER REASON WILL INCREASE YOUR EXPOSURE TO

ANTITRUST SUITS.

     This treatment of ends and means in antitrust litigation

undermines the Twombly decision. An analysis of means rather

than ends is the most sensitive tool we possess to measure the

plausibility of a complaint. See                    Twombly, 550 U.S. 544. And

here, the means by which the so-called conspiracy was carried

                                            68
out paint a clear picture of non-parallel conduct. The complaint

is the best evidence of that. After SD3 introduced its product,

certain       defendants        entered       into    licensing        negotiations         that

continued well after the alleged group boycott agreement. Some

of   them     offered      to     license     the    technology,        again      after     the

supposed agreement, and were rebuffed by SD3. Other negotiations

yielded     no    offers,       with    one    defendant        leaving     the     table    saw

industry altogether. The vast majority of named defendants are

not even mentioned in SD3’s account of the supposedly “parallel”

behavior.        Their    negotiation          posture,      which      would      seem     well

within plaintiffs’ knowledge, is nowhere set forth or detailed.

       While     the     majority       highlights        cases   in    which      plaintiffs

successfully       alleged        parallel      conduct,        none   of    them     features

disparate        actions        such    as     these.      If     defendants’         behavior

qualifies as parallel conduct, then plainly divergent actions

among competitors in any field will now give rise to antitrust

claims. This is but part and parcel of the majority’s attempt to

impose a presumption of guilt on antitrust defendants who now

must    bear     the     burden    of    proving      a    negative     when      the     burden

properly lies with the party bringing the claim.

       It   is    no   accident        that    Twombly      itself     was    an    antitrust

decision. For what we confront in antitrust law is a perfect

storm    of    treble      damages,       large      discovery     costs,       and     relaxed

pleading standards. It is the three factors in combination that

                                               69
pose a threat to legitimate marketplace behavior. The Supreme

Court in Twombly sought to calm the waters by addressing the

latter two. The majority, however, adds to the turbulence by

sanctioning complaints that would in all likelihood have failed

even under pre-Twombly standards. Here, plaintiffs are the ones

acting        anti-competitively.        They       seek      to     achieve    through

litigation a monopoly for their product that neither the table

saw market nor contractual negotiations would yield. The result,

as noted, is that marketplace failures will increasingly lead to

litigation       success.    And      that    is   only      the   beginning        of    the

difficulty.

       The majority appears to believe that the full course of

discovery is the proper mechanism for winnowing out meritless

claims. In many fields, that observation would be correct. The

bone     of     contention       in   federal       civil     litigation       is        most

frequently over summary judgment versus trial. In antitrust law,

however, the flashpoint is often over motions to dismiss versus

summary judgment. For the Supreme Court has clearly recognized

that   in      the   area   of    antitrust        it   is   the     threat    of    steep

litigation costs that produces deleterious consequences in and

of itself, no matter who the victor in the antitrust marathon

may ultimately prove to be.

       As     Twombly   emphasized,          discovery       costs    have     escalated

dramatically since the adoption of the Federal Rules. Twombly,

                                             70
550 U.S. at 558-60; see Brian T. Fitzpatrick, Twombly and Iqbal

Reconsidered,    87    Notre    Dame     L.      Rev.    1621,     1638     (2012).

Multiplying     electronic     and      paper     records,        combined      with

increased regulatory obligations, have caused discovery costs to

mount even further since the issuance of Twombly itself. Before

we impose these climbing costs on companies, there must exist

confidence that the claims leveled against them allege actual

facts   that    make   conspiracy       and      other    illicit        intentions

plausible. SD3 fails to clear this bar, but still the majority

just piles it on.

                                       I.

                                       A.

     The   majority’s        approach       to    Twombly        tells     an    old

intermediate appellate story. The majority alights on a minor

motif of that Supreme Court decision, while leaving its main

point wholly unobserved. The Court made clear in Twombly, and

reiterated in Iqbal, that a plaintiff must allege enough factual

content in the complaint to render his legal claim for relief

“plausible on its face” in order to survive a motion to dismiss

under Rule 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Twombly, 550 U.S. at 570). Plausibility requires “more

than a sheer possibility that a defendant acted unlawfully.” Id.

(citation omitted). SD3’s complaint cannot clear this hurdle.

Its conclusory assertions that defendants agreed to an industry-

                                       71
wide “boycott” of its product are fully consistent with, and

most    plausibly            reflect,          independent         and      legitimate         business

decisions. Put simply, the majority proceeds as if Twombly were

at most persuasive authority, and not very persuasive authority

at that.

       Twombly         is     particularly           important         here,      for    the     Supreme

Court in that case addressed the meaning of plausibility in the

context      of    a     conspiracy            allegation        based      on    descriptions            of

parallel conduct. The Court instructed that “when allegations of

parallel conduct are set out in order to make a § 1 claim, they

must    be   placed           in    a    context      that       raises      a    suggestion         of     a

preceding agreement, not merely parallel conduct that could just

as well be independent action.” Twombly, 550 U.S. at 557. “Even

‘conscious         parallelism,’               a    common    reaction           of     ‘firms       in    a

concentrated            market           that       recognize       their         shared       economic

interests and their interdependence with respect to price and

output decisions’ is ‘not in itself unlawful.’” Id. at 553-54

(citations         omitted).             Nor       should    a     court         infer       “that     the

companies         had       agreed       among       themselves        to    do       what    was     only

natural      anyway.”              Id.    at       566.    Thus,       a    plaintiff         fails        to

adequately plead his claim that a defendant unlawfully conspired

under     Section           1      if     there      exists       an       “obvious       alternative

explanation”            for        the    defendant’s         conduct        that        renders          the



                                                      72
prohibited      explanation         implausible.          Iqbal,        556    U.S.     at     682

(citation omitted); Twombly, 550 U.S. at 567.

       This   could       not     be   more      clear.      In     light       of    Twombly’s

directives,         SD3’s       allegations          fall        well      short       of      the

plausibility        requirement.         The       complaint        hardly          bespeaks     a

collective agreement not to deal. Instead, it most plausibly

reflects typical market forces at work and rational business

choices being made -- the kind of things that happen every day.

Why did the manufacturers not adopt SD3’s product? Perhaps they

realized the technology was too nascent to license, in short

unproven. Perhaps it would not have been cost effective for the

manufacturers        to    incorporate        it.    Or     perhaps        SD3’s      incipient

product    actually        increased       the     risk     of    injury       to    consumers.

These varied market explanations may well have been different

for different companies. They reflect business decisions of the

most    common       and        ordinary       character.          They        are     “obvious

alternative         explanations”        and       have      not        been     sufficiently

rebutted by any valid assertions of a preceding agreement to

collude.      All    the     behavior      described         by     SD3       “was    not    only

compatible      with,       but    indeed      was    more        likely       explained       by,

lawful, unchoreographed free-market behavior.” Iqbal, 556 U.S.

at 680 (quoting Twombly, 550 U.S. at 567).

       In the majority’s eyes, however, the above discussion is

all    wasted    effort,        merely     “practical            reasons”      and     “factual

                                              73
suppositions”      that   must   not    be   considered.     Ante    at    35,   61.

Instead, we should take plaintiffs’ allegations at face value

and call it a day. It is certainly true that we assume the truth

of factual allegations at the motion-to-dismiss stage. Twombly,

550   U.S.    at   572    (citations     omitted).    Even    after       accepting

plaintiffs’    claims     as   true,    however,    the   court     must    further

analyze whether those allegations are “plausible” under Twombly.

Id. at 556. The majority refuses to undertake this second, more

analytic step. My concurring colleague simply wishes it away.

There is a time warp here, a nostalgia for the old pleading ways

and days. Those earlier standards were easier on us, I admit.

But our nostalgia now flies in the face of a controlling Supreme

Court decision.

      SD3’s boycott claim is not “plausible” for the same reasons

Twombly’s    was   not    plausible.     SD3’s     boycott   claim    is    hardly

distinguishable from the very allegations that the Supreme Court

rejected in Twombly. According to the complaint in that case,

defendants -- who, like the defendants here, owned a significant

share of the market -- agreed to “engage in parallel conduct”

and “prevent competitive entry.” Twombly, 550 U.S. at 550-51,

550 n.1. The complaint charged that the defendants’ “‘compelling

common   motivation’      to   thwart    plaintiffs’      competitive      efforts

naturally led them to form a conspiracy.” Id. at 551. If these

allegations sound familiar, it is because they almost perfectly

                                        74
parrot the claims made by SD3 in its complaint. SD3 argued that

the defendants -- at least the few named defendants it actually

bothered to discuss -- “agreed among themselves to collectively

refuse” SD3’s licensing offers “based on a calculated economic

determination” that they would fare better in the marketplace if

SD3 were excluded. J.A. 71, 90. If Twombly’s complaint could not

pass as well-pleaded, then SD3’s should not fare any better.

       The majority claims that the complaint in Twombly “rested

solely      on       descriptions      of     parallel   conduct,     and    not       on       any

independent           allegation       of      actual    agreement.”        Ante       at        43

(citation and internal quotation marks omitted). This is simply

incorrect. The majority overlooks the actual language in the

Twombly complaint: “Defendants had compelling common motivations

to include in their unlawful horizontal agreement an agreement

that each of them would engage in a course of concerted conduct

calculated to prevent effective competition from [plaintiffs] .

. . .” Amended Complaint at ¶ 50, Twombly v. Bell Atl. Corp.,

313    F.    Supp.        2d   174   (S.D.N.Y.       2003);   see   also    id.    at       ¶    51

(noting that defendants “have agreed not to compete with one

another”).           To   be   sure,   after     Twombly      complaints     have       sought

length in the hope that courts would mistake such length for

substance. But the substance here is thin gruel. The complaint’s

allegation of an agreement is weaker than in Twombly, boiling

down    to       a    contention       that    the     defendants    met    at     a    trade

                                                75
association meeting followed by the inconvenient fact for the

majority that non-parallel conduct ensued.

       In fact, the Twombly complaint was much stronger than the

one in this case and it went much further. That complaint relied

on evidence that defendants refused to provide plaintiffs with

network connections and services of equal quality, that they

billed plaintiffs’ customers in a manner to ruin plaintiffs’

customer     relations,         that     they    refused      plaintiffs      access     to

certain facilities and delayed the provision of network elements

after    plaintiffs       had    invested        tens    of     billions    of    dollars.

Twombly,     313    F.    Supp.     at    177-78.       Despite    this     support      for

plaintiffs’     conspiracy         allegations,         the   Court   maintained       that

each    defendant        “had    reason     to    want     to    avoid     dealing     with

plaintiffs,”        and     each       defendant        “would     attempt       to     keep

plaintiffs     out,       regardless       of     the     actions     of    the       other”

defendants. Twombly, 550 U.S. at 566.                         Defendants’ actions in

Twombly, like defendants’ actions in this case, were “just as

much    in   line   with    a    wide     swath    of    rational     and    competitive

business strategy unilaterally prompted by common perceptions of

the     market.”    Id.     at     554    (citation       omitted).        Consequently,

plaintiffs’ conspiracy claims in both cases “stop short of the

line between possibility and plausibility.” Id. at 557 (citation

omitted). If only the plaintiffs in Twombly could have called

upon this court to refashion their complaint.

                                            76
                                         B.

       But,   insists     the      majority,        “[t]o   dismiss       SawStop’s

complaint     because   of      some   initial       skepticism    would        be    to

mistakenly    ‘collapse      discovery,       summary   judgment[,]       and    trial

into the pleading stages of a case.’ . . . District courts

possess a number of tools . . . to combat any sort of predatory

discovery.” Ante at 45-46 (citation omitted). That approach is

astonishing, for it is precisely what Twombly warned against:

“It is no answer to say that a claim just shy of a plausible

entitlement to relief can, if groundless, be weeded out early in

the discovery process . . . given the common lament that the

success of judicial supervision in checking discovery abuse has

been on the modest side.” Twombly, 550 U.S. at 559 (citation

omitted).

       The majority’s assurance that of course district courts can

control   discovery     is   the     sort     of   appellate   wand-waving           that

ignores every reality on the ground. Trial judges are busy; they

must   set    priorities.     Many     understandably       feel   that    time       is

better spent in trial or in dealing with dispositive motions to

dismiss or for summary judgment than in wading into the big

muddy of discovery disputes. There is the temptation, and it is

again an understandable one, to say to the parties, “Folks, go

work this out among yourselves.” The problem has become even

more acute with the advent of e-discovery. Modern electronic

                                         77
devices    generate         and     record      a    great      variety         and    volume   of

information.      It    is    now       easier      and     faster       to    store    evidence,

which in turn has spawned greater opportunities for discovery

requests and conflict. Regulatory mandates from governments at

every level add to the store of both paper and electronic files.

All of this makes companies more and more vulnerable to open-

ended discovery requests. The majority pays no more than lip

service to what has become a serious problem. Its casualness

stands    in   contrast           to    the    gravity         of      the    Twombly     Court’s

concern.

     To overlook this concern is to resurrect the dangers that

Twombly sought to lay to rest. Conley v. Gibson was doubtless

correct    when    decided.            See    355    U.S.      41   (1957),         abrogated    by

Twombly,    550    U.S.       544.       It    made       sense     to       skip   through     the

pleadings on the theory that discovery would somehow sort it all

out. See id. at 47-48. But times have changed. Although the

majority       pooh-poohs              “the     expense           of      modern        antitrust

litigation,” ante at 46, it is altogether legitimate for the

Supreme    Court       to    take       cognizance        of    the      shifting       interplay

between causes of action (here Sherman Act Section 1 claims) and

the Federal Rules (here those of pleading and discovery). Thus,

the Court in Twombly sought to shield defendants from what it

later described as the “heavy costs of litigation in terms of

efficiency and expenditure of valuable time and resources” by

                                                78
allocating the plausibility burden to those who allege unlawful

conduct. Iqbal, 556 U.S. at 685.

     The Court understood what the majority does not: that an

antitrust       complaint             is   often      too   tempting       to     pass        up.    It

provides        a    tantalizing             weapon       for    parties        whose     business

endeavors are going badly. The term “conspiracy” is bound to

stoke paranoia, and to kindle an effort to pin on others the

blame for business failures of one’s own. The treble damages

awards     of       antitrust          actions      are     a    further        temptation          for

floundering companies armed with the knowledge that defendants

would    rather          settle       than   face     the   prospect       of    such     damages,

especially          with        the     attendant         high    litigation        costs.          See

Twombly,    550          U.S.    at     558-59.     Twombly      sought     to    reduce        these

dangers in language of no moment to the majority: “It is only by

taking     care          to     require       allegations        that      reach        the     level

suggesting conspiracy that we can hope to avoid the potentially

enormous expense of discovery . . . .” Id. at 559. So much for

that hope: the majority just loads it on.

                                                   II.

                                                   A.

     With its inverted version of Twombly, the majority allows

plaintiffs          to        contort      normal        marketplace      behavior        into       a

potential antitrust violation. Even by the majority’s diluted

pleading standard, however, SD3’s group boycott claim fails as

                                                   79
its complaint plainly alleges non-parallel conduct. The majority

bases    its   contrary      conclusion      on    an     expansive      definition       of

parallel conduct focused solely on a perceived uniformity of

ends    without     regard   to     dissimilarity         of    means.    The    majority

observes: “The similar or uniform actions alleged are obvious:

none of the defendants ultimately took a license or otherwise

implemented         SawStop’s       technology.”          Ante     at     26-27.         The

defendants’ vastly “different courses of action” are seen as

part of some grand scheme to conceal the underlying conspiracy.

Ante at 28. By that logic, the majority would find parallel

conduct as long as defendants all allegedly reached the same end

-- not adopting a product -- regardless of how the dealings

between plaintiffs and defendants proceeded or fell apart.

       Such    an    ends-based      focus       misses     the    entire       point    of

Twombly, which is to determine whether allegedly anticompetitive

conduct “stems from independent decision or from an agreement,

tacit or express.” Twombly, 550 U.S. at 553 (citation omitted).

If defendants act in parallel whenever they arrive at the same

general    end      or   outcome,    then    parallel          conduct   will        embrace

independent      but     identical    business      decisions       borne       by    market

forces    --   precisely      the    conduct      that     Twombly       excluded       from

antitrust liability. In distinguishing horizontal conspiracies

from innocuous coincidences, the means matter. That competitors



                                            80
travelled divergent paths to the same end reflects the absence,

not the presence, of illicit coordination or agreement.

       Certainly, direct evidence of a collusive end would amount

to a plausible Section 1 claim. See American Chiropractic Ass’n

v. Trigon Healthcare, Inc., 367 F.3d 212, 226 (4th Cir. 2004)

(“Direct evidence in antitrust cases is explicit and requires no

inferences      to    establish     the     proposition     or       conclusion      being

asserted.”). By contrast, when plaintiffs rely on circumstantial

evidence of conspiracy, as in Twombly and the case at hand, the

ends-based approach carries an unacceptably high risk of finding

parallel      conduct     in    wildly    disparate      behaviors       motivated     by

independent        economic     concerns.    With   its     over-inclusive        sweep,

the majority erodes the long-recognized right of one party not

to deal with another. Monsanto Co. v. Spray-Rite Service Corp.,

465 U.S. 752, 761 (1984). As long as competitors respond in the

same    way    to    an   unappealing       offer   or    product,      a    business’s

refusal to deal now becomes part of parallel conduct potentially

triggering antitrust liability.

       The    assumption       running    throughout      the    complaint      is    that

SawStop      was    the   only    product     anyone     could       have    thought   of

adopting. No other business decision could have been reasonable.

Therefore, defendants’ rejection of SawStop must have been part

of a group boycott. Case closed. We are not told exactly why

SD3’s    product      was      demonstrably      superior       to   other    competing

                                            81
products in terms of cost effectiveness and safety, such that

only one business decision with respect to it was conceivable.

The naked assumption of its irresistible appeal and inevitable

adoption operates in a comparative vacuum. But defendants faced

comparative decisions. They had to weigh options. The majority’s

ready acceptance of SD3’s unsupported superiority assumption is

part of the fallacy of its ends-based perspective, namely that

any ultimate refusal to adopt is nothing more than one more

instance of parallel behavior.

     A means-based analysis, one that focuses on the means by

which    the    so-called     conspiracy      was   carried     out,   is   the   most

sensitive gauge of parallel conduct and complaint plausibility.

The majority contends the dissent would find parallel conduct

“only    when     defendants     move    in     relative        lockstep”    or   “by

substantially identical means.” Ante at 30. Not so. A focus on

means-based analysis comes nowhere close to requiring identical

means.    As     circumstantial      evidence        of     a    conspiracy,       the

similarity of conduct lies along a spectrum. Beyond a certain

point, starkly dissimilar means render a secret agreement among

competitors less plausible. The majority dismisses this means-

based analysis, apparently because dissimilar means “might also

be read to suggest deception” rather than independent business

activity. Ante at 29. The majority thus sets a nifty trap: if

defendants      engage   in    similar     means,    it’s     collusion;    if    they

                                         82
engage in dissimilar means, it’s deceit. Given those options,

businesses should either keep to themselves or close up shop.

     For      good       reason     then,     courts       have      shied      away   from       the

majority’s         ends-driven         conception          of     parallel        conduct         and

instead required more specific similarities. See, e.g., Cosmetic

Gallery, Inc. v. Schoeneman Corp., 495 F.3d 46, 54 (3d. Cir.

2007)   (deeming          uniform     refusal       to     sell      insufficient        to    show

conscious      parallelism          because     one      distributor          decided       not    to

deal prior to the alleged agreement); LaFlamme v. Societe Air

France, 702 F. Supp. 2d 136, 151 (E.D.N.Y. 2010) (casting doubt

on parallel conduct claim where defendants engaged in disparate

strategies         at    different     times);       City       of     Moundridge      v.     Exxon

Mobil     Corp.,         429   F.     Supp.    2d        117,     131-32        (D.D.C.       2006)

(expressing skepticism towards an allegation of parallel conduct

based   on    evidence         that   defendants         did      no    more    than    exchange

information).            Although      the     majority           insists        these        cases

foundered      on       findings      of    “non-parallel              ends,”    their      common

failing      was    in    fact      patently    disparate            means.     Ante   at     30-31

(emphasis added) (internal quotation marks omitted).

     Turning to the means here, there is simply nothing parallel

about separate licensing discussions proceeding along separate

timetables with different results and different motivations. SD3

alleges that defendants collectively agreed not to license its

technology         in     October      2001.        J.A.        89-90.     Defendants         then

                                               83
supposedly “found ways to abort” the negotiations and conceal

their agreement by “giving separate excuses.” J.A. 91, 94. As

stated in the complaint, however, three defendants continued to

negotiate with SD3 after October 2001 while the fourth, Bosch,

ended   negotiations      a     month    before     and       restarted      discussions

years   later.     J.A.   88,    92.    Ryobi     sent    a    signed    non-exclusive

licensing agreement to SD3 in January 2002 -- three months after

the   so-called      collective        refusal     to    deal.    J.A.       91-92.       The

contract offered a 3% royalty initially that would increase to

5%-8% if the technology proved successful on the market. J.A.

91-92. SD3 refused to accept what appear to be generous terms

based on a minor wording issue. J.A. 92. Emerson offered the

same royalty rate as Ryobi and participated in negotiations for

several months after October 2001, eventually ending talks and

leaving the table saw industry altogether the following year.

J.A. 56-57, 97. Six months after the alleged refusal to deal,

Black   &   Decker    offered     SD3    a    licensing       agreement      with     a    1%

royalty. J.A. 92. SD3 balked at what it considered unreasonably

stingy terms for its untested and undeveloped technology. Id. If

all this is parallel conduct and evidence of a refusal to deal,

well then anything will qualify.

      And   yet,     despite    all     this,     the    agreement      is    repeatedly

characterized as a refusal to deal. E.g., ante at 27-28. How can

this be? Defendants did deal and did offer to purchase SD3’s

                                             84
technology. How were the eighteen defendants not discussed in

the complaint supposed to deal when, insofar as the complaint is

concerned, they were never even approached?

     In short, all four discussed defendants were willing to

deal with SD3 but their negotiations broke down at various times

for various reasons, not least because SD3 demanded more than

defendants were willing to offer. The record shows no refusal to

deal, much less parallel means to that end. It is not plausible

to think that the defendants’ disparate actions were somehow a

carefully choreographed plan to exclude SD3 from the market. By

supposing it possible, the majority severely underestimates the

difficulty     of    getting   a   group    of   competitors   to     agree   on   a

course of action that separate contract negotiations may or may

not have shown to be in their best commercial interest. It would

be quite a feat of stage management, moreover, to have some of

those   competitors         actually   extend      generous     but     different

licensing offers at different times to the very party that was

the subject of the supposed group boycott. This is the type of

claim   on     the    far    margins   of    conceivability      that     Twombly

condemned.

     The Hail Mary nature of SD3’s complaint is underscored by

the fact that only four of twenty-two named defendants are even

so much as discussed in the allegations (the “twenty-two” figure

comes   from    the    original    complaint      as   one   defendant    somehow

                                       85
failed    to    appear      in    the   amended   version).         Compare    J.A.    30

(original complaint) with J.A. 70 (amended complaint). Indeed,

even    the     majority     chides     plaintiffs     for     “assembl[ing]         some

collection of defendants and then mak[ing] vague, non-specific

allegations against all of them as a group.” Ante at 14.

       Even plaintiffs appear to realize how tenuous their claim

of parallel conduct is. In contrast to the original complaint,

SD3’s amended complaint collapses its description of the various

negotiations and timelines to create an illusion of uniformity.

Compare J.A. 55-58 (original complaint) with J.A. 88-93 (amended

complaint).         While   the    original     version      details    each    of    the

discussed defendant’s negotiation history in a separate section,

plaintiffs’ second effort weaves those divergent strands into

one vague narrative, obscuring dates and distinctions along the

way. Id.

       This attempt at obfuscation hardly inspires confidence in

SD3’s promise that discovery will bolster its claims. Even with

its    artful       redrafting,    however,     SD3   falls    short    of     the   bare

minimum required for alleging a group boycott. To hold otherwise

is to use antitrust law to badly skew the market forces normally

at    play     in    contract     negotiations.       From    now    on,     defendants

decline to deal with an entity proposing any new design feature

of product development at their peril. They also cannot refuse

to purchase a product in the course of licensing negotiations

                                           86
because that too, under the majority’s rubric, is grounds for

possible antitrust liability if others arrive independently at a

similar   business     judgment.      Again,    SD3’s    attempt    to    achieve

through litigation more than what markets or contracts would

ever   independently       confer   is   precisely   the   kind    of    abuse   of

Sherman Act claims that Twombly sought to prohibit.

                                         B.

       The majority believes that all the non-parallel behavior

and disparate means of proceeding were hatched in secret. The

concurrence makes much of the fact that the meeting among table

saw manufacturers was “secret.” Ante at 56-58. In fact, no fewer

than four times does the concurring opinion refer to the alleged

agreement not to deal as a “secret agreement” or a “pact [kept]

secret.” Id. This is manifestly a cover for the fact that my

concurring colleague is unable to point to the traces of an

agreement, hoping, I suppose, that a fishing expedition will

unearth them.

       But there is a larger problem here. These days secrets are

harder to keep. A secret is something that is held by only one.

Or   maybe   two.    But    twenty-two?       Managers   everywhere      must    be

relieved to learn from my concurring colleague that you can let

twenty-two people in on a secret and have nothing leak out.

       We also run into a significant collective action difficulty

here. The larger the alleged conspiracy, the larger the number

                                         87
of alleged participants that need to be brought into line both

as to the object and execution of the conspiracy as well as the

need   to    keep   it   secret.   The   vast   number     of   antitrust   cases

involve a much smaller number of conspirators, and it is telling

that my concurring friend must venture back to the 1990s even to

find an inapposite situation. The concurrence again labels the

dissent’s discussion of collective action problems a foray into

policy. It is not. It is an inquiry into plausibility, which

Twombly absolutely requires that we undertake. The failure to do

this is but one more example of the majority’s failure to follow

that decision.

                                         C.

       Assuming,     though    only   for     the   sake   of   argument,   that

plaintiffs had properly alleged parallel conduct, the amended

complaint still fails to show the “something more” needed to

turn conscious parallelism into a plausible conspiracy. Twombly,

550 U.S. at 560. The majority contends that the “more” necessary

to nudge SD3’s group boycott claim across the goal line is the

complaint’s identification of “the particular time, place, and

manner      in   which   the   boycott   initially     formed,    describing   a

separate meeting [among table saw manufacturers] held for that

purpose during the Power Tool Institute’s October 2001 annual

meeting.” Ante at 33 (citation omitted). This, we are told, is

“the heart of SawStop’s complaint.” Ante at 35.

                                         88
       But perfectly lawful trade association meetings do in fact

take    place    on    a     particular       day       at     a    particular         time       for     a

particular purpose. And the majority’s assertion that table saw

manufacturers broke off in a “separate meeting” in the course of

a larger trade convention is nothing more than a description of

ordinary       conduct.       Indeed,        it     would          be    unusual        for       a     bar

association       meeting,          health        care        convention,         or        any       other

industry-wide gathering not to break out into more specialized

subgroups to discuss matters of common interest. We need not

coin the term “breakout discussion liability” to note that these

sessions have long been a staple of business and professional

life,    and     the       majority        has     now        made       even     this        form      of

communication more perilous.

       Courts     have       recognized       behavior             contrary      to     defendants’

economic       interests       as    a     plus        factor       for     showing          concerted

action. See, e.g., Hyland v. HomeServices of America, Inc., 771

F.3d    310,    320    (6th     Cir.       2014).        It    is       hard    to    see     how      any

defendant in this case acted against its economic interest. SD3

boldly     asserts         that,     but     for       the      boycott,         all        table       saw

manufacturers would have licensed its technology. J.A. 92. There

is little support for such inflated self-confidence. Plaintiffs

conceded       that    any    licensing          agreements             could   not     have          taken

effect until 2004, and that its technology would not have been

fully    implemented          until        2008        --     years       after        it     demanded

                                                  89
industry-wide       acceptance.         J.A.       92.     Defendants       were      also

concerned that the new technology could actually increase hand

injuries,    discourage        the    use    of    blade       guards,    and    fail     to

address “kickback” injuries. J.A. 87, 101. Despite the lukewarm

reception,    SD3    set      its    royalty      rate    at    approximately        8%   of

wholesale prices, a costly gamble for manufacturers operating on

often thin and always uncertain profit margins. Response Br. 1;

J.A. 86. For all these reasons, it was consistent with each

manufacturer’s best interest to reject an expensive, unproven,

undeveloped,       and   possibly      unsafe       technology.      Each       defendant

could easily have arrived at this business decision on its own.

      One recalls the World’s Fairs at the end of the nineteenth

and beginning of the twentieth century. They were held almost

annually,    most    often      serving      as    the    epicenter       for    a   brisk

competition among participating countries to produce the most

creative and technologically advanced exhibitions. It was then,

as now, a time of unusual inventiveness. The fairs were humming

with booths, tables, exhibits, and displays all designed to show

off new technologies and create a buzz about new products. Some

of those products succeeded spectacularly; a far larger number

cratered. The point is simply that manufacturers should be able

to take into account the time it takes, after the initial hype,

for   an   invention     to    become       one   of     practical   and    marketable

utility     that     would      not     expose         consumers     to     injury        or

                                            90
manufacturers      to    liability.      The    majority,        however,        takes    no

cognizance of lag time, which not only exists, as it always has,

in product development but in the most highly touted medical

discoveries.      Yet    consciousness         of    lag    time     is   something       no

prudent business is without.

       Ignoring    the    many    practical         reasons    for    declining     SD3’s

offers, the majority hones in on the fear of product liability

as the key motivation behind defendants’ alleged boycott. Ante

at    37-39.    This,    we     are    told,   is     the     “why.” 1    Ante    at     37.

Defendants counter that no manufacturer rushed to adopt SawStop

technology even after SD3 began producing its own saws in 2004.

Response Br. 32. The majority answers on plaintiffs’ behalf:

SD3 remained too small a player in the table saw market to pose

a significant threat in products liability suits. Ante at 38.

Yet    the     earlier    products      liability       cases      involving      SawStop

technology      focused    on    the    “mechanical         feasibility,”        not     the


       1
       In making this point, the majority credits scraps of
testimony from David Peot cherry-picked by SD3 while it ignores
the district court’s diligent review of the full trial
transcript. Ante at 37. When read in full, Peot’s testimony
focused on defendants’ joint venture, formed years after the
alleged group boycott. J.A. 134-40. Far from revealing a
collective refusal to deal, Peot clarified that defendants
planned “to use whatever technology we felt would be best to
prevent table saw accidents. There were no limitations that I
can remember one way or the other.” J.A. 140. This discrepancy
is emblematic of plaintiffs’ attempt to conjure a conspiracy and
of the majority’s willingness to overlook the holes in the
narrative.


                                          91
market share, of a “safer alternative design.” Osorio v. One

World       Technologies        Inc.,    659        F.3d    81,    85    (1st       Cir.      2011)

(citation omitted). Different design features anywhere in use

are     routinely          used      comparatively           in        products       liability

litigation.       SD3’s         entry    into        the    market       should       have     put

defendants       at    a    serious      disadvantage             in    products      liability

suits. J.A. 90. And yet still defendants refused to bite at

SD3’s    product.       Either       they      were    never       motivated        by    product

liability concerns in the first place or those concerns were

outweighed       by    other      drawbacks          (too    costly,         ineffective,       or

unsafe) to licensing SawStop technology.

       Of    course,       if    manufacturers         miscalculate           in    failing     to

adopt safer technologies, products liability lies in wait. But

products liability and antitrust law each serve different and

valid interests. Nothing is to be gained by scrambling them in a

way that has the two bodies of law working at cross purposes

such    that    manufacturers           are    forbidden,         on    pain    of    antitrust

liability,       from       discussing         and     weighing         product       liability

concerns.

                                                D.

       By    casting       product      liability       concerns        as    the     driver     of

anticompetitive            conduct,           the     majority          risks        curtailing

communication         critical     to    technological            development.           We   would

seemingly      want     manufacturers           to    be    concerned         about      products

                                                92
liability.       Products       liability     law    exists           to    make     businesses

cognizant of the risks their products create and to encourage

them to take steps to avoid such liability. Open and honest

dialogue        among          competitors         can         help         locate     product

vulnerabilities         and     formulate    solutions,          hopefully          leading   to

improved consumer safety. But the majority forces the defendants

into    yet    another     a    double   bind:      They       face        product   liability

suits either for refusing to use what SD3 alleges is a safer

product or for adopting an untested product that could well fail

to work as advertised. The industry would have been foolish not

to discuss the risks either way. It makes little sense to dampen

such    discussions        prematurely       with        the     specter       of    antitrust

liability.

       Working together, whether cooperating in a joint venture or

simply exchanging information at a trade association meeting,

can     not    only   save       industry     participants             --     and    therefore

consumers -- time and money but can also spawn innovations that

no participant could have achieved alone. Given the speed at

which     product        development         now     moves        and        the      increased

specialization        of   many      industries,         “much    innovation          today   is

likely to require lateral and horizontal linkages as well as

vertical ones.” Thomas M. Jorde & David J. Teece, Rule of Reason

Analysis       of   Horizontal        Arrangements:         Agreements          Designed      to

Advance       Innovation       and   Commercialize        Technology,           61    Antitrust

                                             93
L.J.    579,    590        (1993).       Particularly             for       smaller     firms       with

limited     resources         or    in    patent-heavy            industries,         professional

conclaves offer an efficient means of acquiring information. In

an ever more complex world, sharing information becomes vital to

the    holistic         perspectives           so    crucial       for       highly     specialized

companies to keep pace. To that end, sharing information assists

American       industry         in       the        increasingly             competitive          global

marketplace.

       To   take        but   one    example,            industry-wide         coordination          has

been   a    driving        force     for       technological            progress       in    American

semiconductor           manufacturing.              In   1987,     semiconductor            producers

established         a    consortium        that          pooled    resources          and    gathered

information         from      across      what       was    then        a    stagnant       industry.

Thomas M. Jorde & David J. Teece, Innovation, Cooperation and

Antitrust,      4       Berkeley     Tech.          L.J.    1,     35       (1989).    Since       then,

semiconductor manufacturers not only reduced the size of their

circuits -- from 500 nanometers (nm) to 45 nm -- but they also

more than quadrupled the number of transitors, or amplifiers, in

semiconductor chips. Rahul Kapoor & Patia J. McGrath, Unmasking

the     Interplay             Between          Technology               Evolution           and      R&D

Collaboration:             Evidence            from        the      Global            Semiconductor

Manufacturing           Industry,        1990-2010,           43    Res.        Pol’y       555,     559

(2014).



                                                    94
       Standard-setting          bodies         offer       similar      advantages.          See

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492,

500-01       (1988).       Compatibility         standards          make       markets      more

efficient       by     making    parts       interchangeable,           benefitting         both

producers      and     consumers     who       want    to    change     products       or   shop

around.       Joseph       Farrell      &      Garth        Saloner,       Standardization,

Compatibility, & Innovation, 16 Rand J. Econ. 70, 70-71 (1985).

And    properly      devised     safety        standards         both   provide       consumers

some       guarantee    of    minimum       safety     and       encourage     producers       to

adopt safer albeit more expensive features, buoyed by the hope

that consumers may realize these products are more expensive

because       they   are     safer   to      use.     The     standards        thus    help   to

prevent      cheaper,       shoddy   or     unsafe      products        from    undercutting

manufacturers trying to protect consumer welfare. These and many

other benefits to consumers and competition alike can accrue

from standardization.

       I commend the majority for recognizing some of the virtues

of standard-setting organizations. 2 Ante at                            48.    In doing so,

however,       it    gets     caught      in    a     contradiction:           the    majority

acknowledges         the     monopolistic        aims       in    plaintiffs’         standard-

       2I thus concur in Part VI of the majority opinion
dismissing SD3’s challenge to the actions of the standard-
setting organization, Underwriters Laboratories, Inc. (UL). I
also concur in Part III rejecting SD3’s claims against a number
of defendants simply lumped into a conspiracy through nothing
more than conclusory allegations.


                                               95
setting   conspiracy     claim   but     turns   a    blind    eye   to   the   same

anticompetitive impulse driving SD3’s group boycott allegation.

Compare ante at 51-54 with ante at 37. Its opinion fails to

comprehend the totality of what SD3 aims to achieve here.

       When taken in its entirety, plaintiffs’ use of antitrust

law    strikes   at     the   heart    of     even    the     most   constructive

horizontal cooperation. I recognize that collaboration may shade

into collusion, the very evil that the Sherman Act was designed

to    prevent.   See,   e.g.,    Am.   Soc’y     of   Mech.    Eng’rs,    Inc.    v.

Hydrolevel Corp., 456 U.S. 556 (1982) (finding liability where

competitors incorrectly declared product unsafe to exclude it

from market); Radiant Burners, Inc. v. Peoples Gas Light & Coke

Co., 364 U.S. 656 (1961) (finding valid cause of action when

competitors excluded innovative product from market through non-

objective safety standards).

       And yet many minds may be better than one. Joint ventures,

standard-setting organizations, and trade association meetings

may allow individuals of different specialties to benefit from

each   other’s   expertise.      These    fora   may    prove    invaluable      for

efficient and effective product development. Those efficiencies

in turn generate reduced costs of doing business that can then

be passed along to the consumer in the form of reduced prices

and better products. Some forms of collaborative endeavors, in

other words, are not so inherently conspiratorial that their

                                         96
benefits can be overlooked. The majority ignores all this in its

rush    to        flatten         pleading       standards,            make       communications

perilous, and consign antitrust law to isolationist ends. It is

an    odd   time     for     the    majority         to    assume      a    more       isolationist

stance.      It    raises         the   risk     that       antitrust           law    will      render

American companies comparatively incommunicative and thus at a

competitive        disadvantage           at    the       very   time       global         commercial

interactions are becoming more commonplace.

                                                III.

       I have seldom read a complaint where so many defendants

were    named      in     the      complaint         (twenty-two)           and       so   few    were

actually discussed (four). I have seldom seen a complaint in

which a supposed group boycott fell apart for so many reasons

and    in   so     many      directions.         Even      applying         the    most     generous

assumptions,        one      is    hard    pressed         to    find       a    plausible        group

boycott      claim      in    defendants’            divergent        and       market-explicable

conduct.      After        all,     SD3        has    not       been    excluded           from    the

marketplace.         Its      SawStop       technology           is     currently           available

through its own production. Though it would have liked to corner

the    market      through        the     industry’s        leading         manufacturers          and

standard-setting organization, it had no right to establish what

was in effect a monopoly all its own. SD3 aims to force all

manufacturers, through its group boycott claim, to adopt its



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technology at its prices and to have the industry’s standard-

setting organization do the same.

       It is disappointing that such a skimpy complaint pressing

such   anticompetitive        ends    should    be   allowed       to     traduce    the

Twombly     standard    and     coopt    antitrust      law      for    the   precise

monopolistic      purposes     that     the   Sherman      Act    was     designed    to

prevent. The fallout will disable American companies from all

sorts of cooperative communication, from the most innocuous to

the most productive. If the complaint had spun even a remotely

plausible narrative of impermissible collusion, I should have

been the first to wave it through the Twombly gates. See, e.g.,

Robertson    v.   Sea   Pines    Real    Estate,     679    F.3d    278     (4th    Cir.

2012). But I cannot conspire with my colleagues in the demise of

the    Twombly     decision.      For     the    reasons         stated     above,    I

respectfully dissent.




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