Tenth Circuit

Tenth Circuit decisions

Sufficiency of the pleadings

Llacua v Western Range Association

In Llacua v Western Range Association, 1 the plaintiffs, Peruvian shepherds working in the United States on H-2A agricultural visas, alleged the defendants conspired to fix their wages at the minimum Department of Labor floor. 2 In particular, the shepherds alleged that the defendant rancher associations submitted job orders on behalf of multiple ranches with identical wage rates for all ranches operating in a state without distinguishing between ranches. 3 The rancher associations followed the same pattern with respect to visas by applying without naming the specific ranches, thereby allegedly prohibiting the shepherds from ‘shop[ping] between ranches, as in a competitive labor market.’ 4 In dismissing the plaintiffs’ antitrust claims, the district court held that the shepherds had not met the standard set out by the Supreme Court in Twombly: mere allegations of parallel conduct, absent additional contextual facts, fail to state a plausible conspiracy claim. 5

On appeal, the Tenth Circuit affirmed that the district court correctly applied the Twombly framework in dismissing the plaintiffs’ claim. 6 First, because the allegations did not directly establish a section 1 agreement 7 and instead the shepherds had asked the court to infer a conspiracy from circumstantial evidence of parallel conduct, Twombly was the appropriate standard by which to analyze the allegations. 8 Second, applying Twombly, the Court held that the shepherds failed to alleged facts that would support a plausible inference that the ranch associations were hired to keep wages low. 9 Noting that the Supreme Court has long warned courts to be hesitant about inferring concerted action from evidence that is merely circumstantial, 10 particularly when that circumstantial evidence relates to participating in a business association, 11 the Tenth Circuit found that the allegations simply indicated that member ranches unilaterally decided to join the ranch associations and use their services in filling out paperwork and applying for the appropriate visas. 12 Furthermore, the allegation that ranches participated in a conspiracy to seriously depress wages by their competitors in other states ‘does not make economic sense.’ 13 Ranchers would not attempt to participate in a conspiracy that ‘locks in substantial advantages for their competition’ so the factual allegations simply did not plausibly state the existence of a conspiracy to fix wages. 14

This case is significant because it confirms that the Tenth Circuit will rigorously apply Twombly in assessing claims of antitrust conspiracy that do not put forward direct evidence. Plaintiffs must comply with the pleading standards set forth by the Supreme Court and ensure not only that the allegations demonstrate that an agreement existed, but also that that agreement made economic sense and that defendants had an economic motive to conspire.

District court decisions

Monopolization and attempted monopolization

NM Oncology & Hematology Consultants, Ltd v Presbyterian Healthcare Services

In NM Oncology & Hematology Consultants, Ltd v Presbyterian Healthcare Services, 15 the plaintiff, New Mexico Oncology and Hematology Consultants, Ltd (NMOHC) is an independent, physician-owned practice providing a full range of oncology-related services. 16 NMOHC brought an action against Presbyterian Healthcare Services, an integrated healthcare system that owns several hospitals, and its subsidiary health insurance company and health plan (Presbyterian Health Plan, Inc (PHP)) (defendants) alleging monopolization of private health insurance services in Albuquerque and attempted monopolization of oncology services in Albuquerque. 17 The court granted the defendants’ motion for summary judgment on both antitrust claims finding there was no evidence in the record that the defendants engaged in anticompetitive conduct. 18

To prove its monopolization claims, the court said NMOHC must prove (1) monopoly power in the relevant market, and (2) acquisition or maintenance of that power through anticompetitive, or exclusionary, conduct. 19 To establish that defendants possessed monopoly power, plaintiffs must first ‘identify . . . the relevant product market,’ and then demonstrate that defendants have ‘both power to control prices and power to exclude competition’ in that market. 20 In this case, the plaintiff submitted expert testimony regarding the defendants’ market share for commercial health insurance purchased by employers in Albuquerque, including the submarkets for both commercial fully insured covered lives and commercial self-insured covered lives, and its market share for Medicare Advantage. 21 The defendants argued that NMOHC’s claim failed because its shares of these markets – ranging from 26.3 per cent to 54.7 per cent during the period of 2008 to 2015 – were below the level that could support a claim of monopolization. 22

The court disagreed. Consistent with Tenth Circuit precedent in Reazin v Blue Cross & Blue Shield of Kansas, the court noted that a range of 45 per cent to 62 per cent of a health insurance market gives rise to a presumption that the defendants lack monopoly power, not a conclusion the defendants lack monopoly power as a matter of law. 23 Finding market shares to not alone be dispositive, the court turned to other factors discussed in Reazin including: ‘the number and strength of the defendant’s competitors, the difficulty or ease of entry into the market by new competitors, consumer sensitivity to changes in prices, innovations or developments in the market, [and] whether the defendant is a multimarket firm.’ 24 Assessing all the inputs to determine monopoly power, the court held that there could be a genuine issue of fact not as to pure market share numbers but because of high barriers to entry and the defendants’ power as a multimarket firm. 25

Despite the factual issues remaining related to market power, the court granted summary judgment on the monopolization claim because it found that there was no evidence that the defendants engaged in anticompetitive or exclusionary conduct. 26 NMOHC alleged three types of exclusionary conduct: (1) in the most recent provider contract, the defendants lowered reimbursement rates and declined to cover services offered by NMOHC with the intent to ‘financially strangle’ and eliminate the plaintiff; (2) the defendants entered into an exclusive arrangement with United HealthCare (United), such that United could not take certain actions without the defendants’ approval causing significant concentration of the private health insurance market; and (3) the implementation of the defendants’ ‘mandate’ to require certain members to obtain drugs from the defendants. 27 The court assessed and rejected each of these claims of exclusionary conduct. Particularly interesting was the court’s assessment of the plaintiff’s claim of refusal to deal based on the parties’ efforts to negotiate a new contract. The court rejected the notion that the defendants were sacrificing short-term profits or acting irrationally and instead found that they wanted to ‘maximize the company’s immediate and overall profits’ by reducing the reimbursement rates to the plaintiff. 28 Although the court acknowledged that a reasonable juror might well infer from the evidence that the defendants’ negotiation strategy was informed by the vision for its cancer center as the dominant oncology services provider in central New Mexico, the court held that a monopoly ‘leveraging’ claim cannot establish anticompetitive conduct. 29

The court then engaged in a similar analysis of the attempted monopolization claim. To prove its attempted monopolization claims, the court said NMOHC must prove (1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize, and (3) a dangerous probability of achieving monopoly power. 30 Going through the same Reazin factors described above, the court noted that it was questionable whether a genuine issue of fact remains as to the dangerous probability that the defendants’ will achieve monopoly power despite their market share of only 24 per cent in the market for outpatient oncology services. 31 Nonetheless, the court held it did not need to make that determination since the plaintiff failed as a matter of law to prove anticompetitive, exclusionary conduct. 32

NMOHC alleged several types of exclusionary conduct but the court focused most directly on whether the defendants’ patient retention goals and efforts went beyond unilateral conduct. 33 In particular, the court found that the evidence demonstrates that the defendants implemented a referral management system to steer its own physicians toward making internal referrals (including oncology) where it had the capacity and expertise to treat those patients. 34 The plaintiff claimed this was an effort to monopolize the relevant market but the court rejected that premise noting ‘[t]he Sherman Act does not force [PHP] to assist a competitor in eating away its own customer base, especially when the competitor is offering [PHP] nothing in return.’ 35 Instead, after entering the oncology business by building its own cancer center, the defendant was entitled to ‘recoup its investment in a number of ways,’ including, as it chose, to pursue strategies to reduce external referrals and outmigration of oncology patients. 36 Finally, as a policy point, the court noted that allowing the defendants ‘to decide for themselves what blend of vertical integration and third party competition will produce the highest return may well increase competition in the [health services] business as a whole, and thus benefit consumers.’ 37

Application of per se rule to customer allocation

United States v Kemp & Associates

The United States v Kemp & Associates case 38 arose from the United States’ indictment of Kemp & Associates and its chief operating officer regarding their actions as an ‘heir location service,’ a term used to describe companies that ‘identify heirs to estates of intestate decedents and, in exchange for a contingency fee, develop evidence and prove heirs’ claims to an inheritance in probate court.’ 39 In particular, the United States alleged that Kemp agreed to allocate customers with a competitor, Blake & Blake, and split the contingency fees collected from those allocated heirs. 40 The district court originally cited three reasons for applying the rule of reason, namely the fact that the agreement (1) was structured in an unusual way in that it only applied to new customers, (2) affected only a small number of customers, those who were contacted by more than one heir location service, and (3) occurred in an obscure industry with an unusual manner of operation. 41

In an appeal by the government, the Tenth Circuit reversed the district court’s ruling that the indictment was beyond the statute of limitations but held that the district court’s rule of reason order did not fall within its interlocutory appellate jurisdiction. 42 Although the Tenth Circuit did not find it had jurisdiction to review the order, it noted that ‘[it] is undisputed that “an agreement to allocate or divide customers between competitors within the same horizontal market, constitutes a per se violation of § 1 of the Sherman Act.”’ 43 It went on to say that the indictment describes the conduct at issue to do just that: ‘a conspiracy “to suppress and eliminate competition by agreeing to allocate customers of heir location services sold in the United States.”’ 44 Following the reversal on the statute of limitations, the United States filed a motion to reconsider whether the rule of reason or the per se approach should apply to the case. 45 The district court granted the motion. 46

In accepting the Tenth Circuit’s view that horizontal customer allocation agreements are normally subject to the per se approach, the district court analyzed whether the agreement at issue was in fact a horizontal customer allocation agreement and concluded that it was. 47 Important to the court’s decision was the fact that the agreement between the parties was ‘almost certainly sought to minimize competition’ because the ‘arrangement allowed the heir location service that first contacted a potential client to offer that client whatever price they chose, while being unrestrained by the natural check that the thought of competition places on business.’ 48 The court also noted that no special circumstances applied to require application of the rule of reason because no joint venture existed between the parties and the existence of the product did not depend on such an agreement. 49 Finally, the court addressed its original analysis and acknowledged it was immaterial that the agreement only applied to new customers, affected a small number of customers, and occurred in a niche industry. 50

Sufficiency of the pleadings

Omnimax International, Inc v Anlin Industries

In Omnimax International, Inc v Anlin Industries, 51 in response to the plaintiff’s lawsuit against former employees who allegedly misappropriated certain customer lists and confidential information, the defendant asserted that the agreements the former employees signed were unlawful restraints of trade in violation of the Colorado Antitrust Act of 1992 (Act). 52 The court’s decision focused on whether the defendant sufficiently alleged antitrust injury and noted that ‘the “crucial first step,” “screen,” or “filter” dispositive of whether an accused’s practices harm competition within the meaning of the antitrust statutes is whether that firm possesses “market power.”’ 53 Here, the court found that the defendant’s counterclaim failed to meet the pleading sufficiency required by Twombly 54 because the company did not ‘even hypothetically plead facts to inform the Court of the relevant market, the market power of any party, or how the use of the Agreements causes that or any other antitrust injury[.]’ 55

Chase Manufacturing, Inc v Johns Manville Corporation

In Chase Manufacturing, Inc v Johns Manville Corporation, 56 the plaintiff, Chase Manufacturing (Chase), was a new entrant into the production of calsil, an insulation product used in large industrial facilities such as oil refineries, chemical and power generation plants, and pulp and paper mills. 57 At the time Chase began producing calsil in 2018, the defendants owned and operated the only two remaining calsil manufacturing plants in North America, and had a market share of at least 98 per cent. 58 The parties sell their products to national and regional distributors, which then resell the products to industrial customers or plant operators. 59 These end customers require that their distributors carry other construction products made by the defendants, including the defendants’ fiberglass and expanded perlite products. 60 After one of the defendants’ customers expressed interest in purchasing calsil from Chase, the defendants allegedly began threatening customers that they would not sell them calsil or any other products, including their fiberglass and expanded perlite products, if the customers purchased Chase’s product. 61 According to Chase, the defendants’ threats included a warning that the defendants were tracking and monitoring import records to enable them to watch the plaintiff’s calsil sales. 62 Finally, the complaint also stated that the defendants told customers that Chase’s calsil was ‘poor quality’ and ‘cannot be trusted to meet “specifications,”’ ‘may have asbestos,’ and was ‘Chinese,’ referring to where it was produced. 63

The plaintiff alleged that the defendants both unfairly created and maintained a monopoly through five types of exclusionary conduct: (1) tying its fiberglass and expanded perlite products to the purchase of calsil, (2) exclusive dealing causing a substantial foreclosure on the plaintiff’s ability to compete, (3) refusal to deal as a result of the defendants’ threats to refuse to sell products to its customers if those customers purchased calsil from Chase, (4) spying, based on the comments from the defendants that they were tracking Chase’s imports, and (5) product disparagement, including statements that the plaintiff’s product was poor quality, could not meet specifications and may have asbestos. 64 In granting the defendants’ motion to dismiss, the court found that the plaintiff failed to plead a monopoly claim because it did not establish that the defendants acquired or maintained a monopoly through any of the five types of exclusionary conduct alleged. 65

First, the court held that the complaint failed to state a claim with respect to tying because the plaintiff needed to allege both an appropriate product market and geographic market 66 and could not adequately allege a geographic market. 67 In particular, purchasers of the tying products were regional and national distributors selling throughout the country and there were insufficient allegations as to the defendants’ national market share and power. 68 Second, the complaint failed with respect to exclusive dealing because it did not allege sufficient facts suggesting that the defendants’ actions foreclosed a substantial share in the calsil market or the plaintiff’s ability to compete in that market. 69 Third, the plaintiff waived its monopoly claim based on refusal to deal because, during oral argument, it expressed that it was not relying on that theory. 70 Fourth, although the court recognized that commercial spying can be grounds for exclusionary conduct to support an antitrust monopoly claim, 71 it held that the company here failed to adequately state a claim. 72 Commercial spying sufficient to support a monopoly claim includes such behavior as a company using its employees to infiltrate a competing company to covertly obtain information about the competitor 73 or a company creating code numbers and a network of ‘special agents’ to tattle tale on distributors who violate the company’s resale prices. 74 Here, comments by the defendants stating that they were monitoring the plaintiff’s imports simply did not amount to commercial spying. 75 Fifth, the complaint failed with respect to product disparagement because it could not overcome the presumption that the effect on competition is de minimis. 76

GDHI Marketing, LLC v Antsel Marketing, LLC

GDHI Marketing, LLC v Antsel Marketing, LLC 77 relates to a dispute between two publishers of magazines marketing the services and products of home-improvement contractors, and allegations that the defendants made false statements about the plaintiff and its operations in an attempt to drive it out of the market. 78 As a threshold issue, the court held that the plaintiff lacked standing to assert an antitrust claim based on its allegations of false advertising. 79 While the Tenth Circuit has not squarely addressed false advertising as causing an antitrust injury, the court noted that other courts have and reiterated that absent ‘an accompanying coercive enforcement mechanism of some kind, even demonstrably false commercial speech is not actionable under the antitrust laws.’ 80 Here, the plaintiff failed to plead coercive mechanisms and instead focused on ‘mere misrepresentations,’ which was insufficient. 81 Moreover, the injury the plaintiff is alleged to have suffered is ‘one suffered by a competitor, not competition,’ which the antitrust laws are not designed to protect against. 82

Although not required to address the substance of the plaintiff’s antitrust claims, the court went on to find that the plaintiff failed to state claims for monopolization, attempted monopolization and conspiracy to monopolize. 83 While the ‘allegations generally smack of a suspicion that something was wrong or unfair, . . . they do not plausibly allege the elements or requirements necessary for monopolistic power.’ 84 In particular, the court focused on the plaintiff’s inability to show that the defendants had any kind of power to exclude competitors from entering the home-renovation direct-mail market. 85 Indeed the plaintiff’s entry into the market shows the lack of the defendants’ alleged monopoly power. 86 ‘This is why false advertising, without more, is not an actionable antitrust injury; there is no anticompetitive power inherent to a false statement. There may be consequences, to be sure, but these are not consequences suffered by competition.’ 87

Refusal to deal

Entrata, Inc v Yardi Systems, Inc

Before the court in Entrata, Inc v Yardi Systems, Inc 88 was the defendant’s motion for summary judgment in a dispute between two software and technology companies producing ‘various competing property management software products.’ 89 After several years of a ‘mutually beneficial relationship,’ Yardi allegedly began to communicate false and misleading information to Entrata’s current and prospective customers. 90 As a result, Entrata brought antitrust claims under the refusal to deal doctrine – a mechanism by which ‘a monopolist [may maintain] its power.’ 91

To invoke the refusal to deal doctrine, the Supreme Court and the Tenth Circuit have explained that at least two features must be present: (1) there must be a preexisting voluntary and presumably profitable course of dealing between the monopolist and rival, and (2) the monopolist’s discontinuation of the preexisting course of dealing must suggest a willingness to forsake short-term profits to achieve an anticompetitive end. 92

In support of its motion for summary judgment, Yardi argued that Entrata changed the preexisting course of dealing when it introduced a product that would compete with Yardi’s product. 93 The court disagreed, noting Entrata pointed to ample evidence of a preexisting, profitable course of dealing and provided evidence that Yardi unilaterally ended the relationship, creating a dispute precluding summary judgment. 94 Next, Yardi argued there was no evidence it gave up short-term profits or acted irrationally in refusing to deal with Entrata. 95 The court rejected this argument because Entrata pointed to evidence that Yardi offered substantial discounts to mutual customers to persuade them to remain with Yardi after Yardi cut off Entrata. 96 The court held that a factfinder would need to weigh the evidence to determine whether Yardi’s actions were motivated by profits and whether it had a valid business reason for refusing to deal with Entrata. 97 Finally, the court addressed Yardi’s reliance on Tenth Circuit precedent, SOLIDFX, LLC v Jeppesen Sanderson, Inc. 98 In SOLIDFX, the court referenced decisions from other Circuits stating that a company’s ‘unilateral refusal to sell or license copyrighted expression’ to a competitor triggers a ‘presumptively rational business justification for a unilateral refusal to deal.’ 99 In that case, it was undisputed that the antitrust plaintiff required access to the defendant’s copyrighted toolkits to develop its product but because the defendant cut off the plaintiff’s access to its software in order to develop its own product using its own intellectual property, it was shielded from antitrust liability. 100 Here, the court found that there was a genuine issue of material fact about whether Entrata actually requires access to any of Yardi’s intellectual property or that Yardi’s refusal to deal was a result of its efforts to innovate a new competitive product. 101 Thus, unlike in SOLIDFX, it is not ‘undisputed that, in order’ for Entrata to develop its custom integration products, it ‘needs to access’ Yardi’s copyrighted materials. 102


Notes

1 Llacua v W. Range Ass’n, 930 F.3d 1161 (10th Cir. 2019).

2 Id. at 1168.

3 Id. at 1172–73.

4 Id. at 1173.

5 Id. at 1174–75 (citing Bell Atl. Corp. v Twombly, 550 U.S. 544, 556–57 (2007)).

6 Id. at 1177.

7 For example, there were ‘no factual allegations of agreements, no reports, memoranda, or tapes of meetings, no plainly anticompetitive association rules compelling certain behavior.’ Id. at 1178.

8 Id. at 1178–79.

9 Id. at 1179.

10 See Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574, 588 (1986); Monsanto Co. v Spray-Rite Serv. Corp., 465 U.S. 752, 763 (1984).

11 See generally Maple Flooring Mfrs.’ Ass’n v United States, 268 U.S. 563, 566 (1925).

12 Llacua, 930 F.3d at 1181.

13 Id.

14 Id.

15 N.M. Oncology & Hematology Consultants, Ltd. v Presbyterian Healthcare Servs., 418 F. Supp. 3d 826 (D.N.M. 2019).

16 Id. at 830.

17 Id. at 830–31.

18 Id. at 855, 866.

19 Christy Sports, LLC v Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir. 2009).

20 Lenox MacLaren Surgical Corp. v Medtronic, Inc., 762 F.3d 1114, 1119–20 (10th Cir. 2014); Reazin v Blue Cross & Blue Shield of Kansas, Inc., 899 F.2d 951, 966–67 (10th Cir. 1990).

21 N.M. Oncology, 418 F. Supp. 3d at 834.

22 Id. at 834–35.

23 Id. at 835.

24 Reazin, 899 F.2d at 967 n.23.

25 N.M. Oncology, 418 F. Supp. 3d at 840.

26 Id. at 840–41.

27 Id. at 841, 854.

28 Id. at 849.

29 Id. at 850.

30 Christy Sports, 555 F.3d at 1192.

31 N.M. Oncology, 418 F. Supp. 3d at 859.

32 Id.

33 Id. at 863–64.

34 Id. at 864.

35 Id. at 865.

36 Id. at 866 (quoting Christy Sports, 555 F.3d at 1195).

37 Id.

38 United States v Kemp & Assocs., No. 2:16CR403 DS, 2019 WL 763796 (D. Utah Feb. 20, 2019).

39 United States v Kemp & Assocs., 907 F.3d 1264, 1268 (10th Cir. 2018).

40 Id. at 1269.

41 Kemp, 2019 WL 763796 at *4.

42 Kemp, 907 F.3d at 1272–73.

43 Id. at 1273 (quoting United States v Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir. 1990)).

44 Id.

45 Kemp, 2019 WL 763796 at *1.

46 Id. at *3.

47 Id. To prove that such an agreement exists, a plaintiff must show: (1) An agreement between competitors (2) at the same level of the market structure (3) to allocate territories (4) in order to minimize competition. Id. at *2 (citing United States v Topco Assocs., 405 U.S. 596, 608 (1972)).

48 Id. at *3.

49 Id. at *4.

50 Id.

51 Omnimax Int’l, Inc. v Anlin Indus., No. 18-cv-01830-DDD-MEH, 2019 WL 2516121 (D. Colo. June 17, 2019).

52 Id. at *4. Under the Act, ‘[e]very contract, combination in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce is illegal.’ Colo. Rev. Stat. § 6-4-104. Analogous to bringing a claim under the Sherman Act, a plaintiff must show (1) the defendant entered into an agreement constituting a contract, combination in the form of a trust or otherwise, or conspiracy; (2) that constitutes an unreasonable restraint on trade; and (3) the plaintiff suffered an antitrust injury. Omnimax, 2019 WL 2516121 at *4.

53 Id. at *5 (quoting SCFC ILC, Inc. v Visa USA, Inc., 36 F.3d 958, 963 (10th Cir. 1994)).

54 Bell Atlantic Corp. v Twombly, 550 U.S. 544, 570 (2007).

55 Omnimax, 2019 WL 2516121 at *5.

56 Chase Mfg. v Johns Manville Corp., Civil Action No. 19-cv-00872-MEH, 2019 WL 2866700 (D. Colo. July 3, 2019).

57 Id. at *1.

58 Id.

59 Id. at *2.

60 Id.

61 Id.

62 Id.

63 Id.

64 Id. at *4–10.

65 Id. at *13.

66 ‘Market power is important because if the defendant has substantial power in the tying market, then the tie has the potential of injuring competition by forcing consumers to take the tied product just to get the tying one.’ Suture Express, Inc. v Owens & Minor Distrib., Inc., 851 F.3d 1029, 1039 (10th Cir. 2017). ‘Without power in the tying market, we would expect that a customer would not feel obliged to take the tie, as he could simply go elsewhere to buy the tying and tied products separately.’ Id.

67 Chase, 2019 WL 2866700 at *6.

68 Id.

69 Id. at *7.

70 Id. at *8–9.

71 Utah Pie Co. v Cont’l Baking Co., 386 U.S. 685, 697 (1967).

72 Chase, 2019 WL 2866700 at *9.

73 Utah Pie Co., 386 U.S. at 696–97.

74 Fed. Trade Comm’n v Beech-Nut Packing Co., 257 U.S. 441, 455 (1922).

75 Chase, 2019 WL 2866700 at *9.

76 Id. at *10. In order to rebut this presumption, a section 2 plaintiff must satisfy a six-factor test, showing that the disparagement was: ‘(1) clearly false, (2) clearly material, (3) clearly likely to induce reasonable reliance, (4) made to buyers without knowledge of the subject matter, (5) continued for prolonged periods, and (6) not readily susceptible to neutralization or other offset by rivals.’ Lenox MacLaren Surgical Corp. v Medtronic, Inc., 762 F.3d 1114, 1127 (10th Cir. 2014). Here, the plaintiffs failed to allege facts to meet the third, fourth, fifth and sixth factors. Chase, 2019 WL 2866700 at *10.

77 GDHI Mktg. LLC v Antsel Mktg. LLC, 416 F. Supp. 3d 1189 (D. Colo. Sept. 9, 2019).

78 Id. at 1195.

79 Id. at 1202–03.

80 Mercatus Grp. v Lake Forest Hosp., 641 F.3d 834, 852 (7th Cir. 2011).

81 GDHI, 416 F. Supp. 3d at 1202.

82 Id. at 1203.

83 Id. at 1203–05.

84 Id. at 1204 (emphasis in original).

85 Id.

86 Id.

87 Id.

88 Entrata, Inc. v Yardi Sys., No. 2:15-cv-00102, 2019 WL 4597519 (D. Utah Aug. 14, 2019).

89 Compl. at 6, Entrata, Inc. v Yardi Sys., No. 2:15-cv-00102, 2015 WL 13828831 (D. Utah Feb. 12, 2015).

90 Id. at 35.

91 Entrata, 2019 WL 4597519 at *6 (citing SOLIDFX, LLC v Jeppesen Sanderson, Inc., 841 F.3d 827, 841 (10th Cir. 2016)).

92 Novell, Inc. v Microsoft Corp., 731 F.3d 1064, 1074–75 (10th Cir. 2013).

93 Entrata, 2019 WL 4597519 at *6.

94 Id.

95 Id. at *6–7.

96 Id. at *6.

97 Id. at *7.

98 Id. at *8–9.

99 SOLIDFX, 841 F.3d at 841–42.

100 Entrata, 2019 WL 4597519 at *8.

101 Id.

102 Id. at *9.

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