This appeal is the result of certain Utah optometrists’ decade-long effort to become panel providers for the largest managed health care company in the state. In 2001, the optometrists ultimately filed suit against Intermountain Health Care, Inc. (“IHC”) and others, alleging that IHC’s exclusion of optometrists from its network of providers violates §§ 1 and 2 of the Sherman Act. The District Court granted summary judgment in favor of the Defendants on all claims. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
A. The Parties and Players
1. The Plaintiffs
The Plaintiffs are forty-nine optometrists who practice along Utah’s Wasatch Front 1 and their affiliated professional organizations, as well as Standard Optical Company, an eye clinic on the Wasatch Front that employs optometrists. Optometrists sell optical hardware, such as glasses and contact lenses, and have been permitted under Utah law to perform the full scope of non-surgical eye care (“NSEC”) since 1991. All optometrists who are parties to this suit are therapeutic optometrists, which means they are authorized to prescribe prescription drugs in addition to performing NSEC and selling hardware.
2. The Defendants
We begin with IHC, the largest managed care company-in Utah. IHC began as an nonprofit association of hospitals in 1975. In the mid-1980s IHC vertically integrated its hospitals and began to offer prepaid health services from IHC facilities *1254 and physicians through managed care organizations. IHC’s health service products — also called managed care plans — are provided through IHC’s wholly-owned subsidiary, IHC Health Plans, Inc. In the mid-1990s, IHC added a physicians’ division and formed IHC Health Services, Inc. That entity operates health care facilities and directly employs physicians and other health care providers. IHC and its affiliates now own and operate nineteen acute care hospitals and six surgical centers in Utah. Nine of these hospitals and five of these surgical centers are located on the Wasatch Front.
The Defendants also include two ophthalmologists — Corey A. Miller, M.D. and David A. Brodstein, M.D. — and then-respective professional corporations. Like optometrists, ophthalmologists sell optical hardware and perform the full scope of NSEC. They therefore compete with optometrists for the sale of these goods and services. Unlike optometrists, however, ophthalmologists are licensed physicians and are authorized in Utah to perform surgical eye care (“SEC”) in addition to NSEC. Accordingly, ophthalmologists frequently have staff privileges at hospitals, which enables them to use the hospital to perform eye surgery. 2
Though not a party to this action, Eye Network of Utah (“ENU”) figures prominently in this case. ENU is a network of vision care providers; its membership comprises exclusively ophthalmologists under contract with an IHC managed care plan. Dr. Miller and Dr. Brodstein were managers of ENU during the period relevant to this appeal. The members of ENU, as well as all of IHC’s panel ophthalmologists, are horizontally positioned competitors with respect to each other (in the provision of SEC and NSEC and in the sale of optical hardware) and with respect to optometrists (in the provision of NSEC and the sale of optical hardware).
B. Background, Facts
IHC administers four managed care plans that furnish health care services, including SEC and NSEC, to an enrollee in exchange for periodic prepaid premiums. The plans seek to limit costs (and therefore premiums) by: (1) designating the individual health care providers (“panel providers”) from whom enrollees may seek treatment; and (2) managing access to and the type of care enrollees may obtain. IHC then reimburses panel providers for services provided to enrollees. Because panel providers accept lower payments for their services to IHC enrollees in exchange for increased patient volumes directed to them as a panel provider, costs may decline and premiums may decrease when provider panels become smaller and more exclusive. Therefore, IHC limits the number of health care providers with whom it contracts. 3 These contracts are governed by written agreements, and all IHC’s panel providers — whether physicians like ophthalmologists or so-called “ancillary providers” like optometrists— sign the same agreement.
IHC’s presence in the market for managed care — that is, the market for managed care plans — is significant, estimated
*1255
by some to consist of sixty percent of total managed care plan enrollees on the Wasatch Front. Although IHC’s enrollees may patronize a health care provider who is not an IHC panel provider, plan benefits will generally not be paid when the enroll-ee does so. As such, IHC’s panel providers only theoretically compete with non-panel providers because the practicalities of life dissuade most IHC enrollees from obtaining health services from non-panel providers.
See Abraham v. Intermountain Health Care, Inc.,
Besides IHC’s presence in the market for managed care plans, it also has a significant presence in the market for hospital and surgical facilities on the Wasatch Front. It controls approximately 51% to 55% of that market. Although IHC has employed some physicians directly, for the most part health care is provided only through its managed care subsidiaries.
With one exception, all of IHC’s panel providers of eye care on the Wasatch Front are ophthalmologists. In contrast, all competing managed care companies on the Wasatch Front have both ophthalmologists and optometrists on the list of available providers of NSEC. Indeed, all the optometrists in this case serve on IHC’s competitors’ panels. Not surprisingly, then, optometrists on the Wasatch Front have for more than a decade entreated IHC to list them as providers on its managed care plans. In fact, in 1995 there were several indications that IHC intended to include optometrists on its provider panels, as they typically charge approximately twenty percent less for NSEC than do ophthalmologists. Ultimately, however, no optometrists were paneled. IHC’s director of provider relations explained that whenever IHC tries to add optometrists to its provider panels, the ophthalmologists “write all kinds of letters and- [make] phone calls and raise such a stink” that IHC decides not to do it each time it is proposed.
The crux of the Plaintiffs’ claims is the existence of an agreement between IHC and its panel ophthalmologists designed to preserve for ophthalmologists' the exclusive ability to provide NSEC to an estimated sixty percent of the region’s managed care enrollees while simultaneously increasing IHC’s dominance in the market for the provision of hospital and surgical facilities. More specifically, the Plaintiffs claim that in exchange for IHC’s agreement not to panel optometrists, IHC’s panel ophthalmologists agreed to refer their patients to IHC hospitals and surgical facilities — as opposed to facilities owned and operated by IHC’s competitors — when those patients needed SEC. Needless to say, IHC and the defendant ophthalmologists deny the existence of any such quid pro quo. More facts will come as needed.
C. Procedural History
.The Plaintiffs filed suit against the Defendants in November 2001, alleging violations of §§ 1 and 2 of the Sherman Act, see 15 U.S.C. §§ 1, 2. They sought damages under § 4 of the Clayton Act, see 15 U.S.C. § 15(a), 4 as well as injunctive relief under § 16 of the Clayton Act, see 15 U.S.C. § 26. 5 All of the Plaintiffs’ claims *1256 are based on the same general conduct. As explained above, they first allege that IHC and the defendant ophthalmologists conspired to exclude optometrists as a class from IHC’s provider panels — conduct that, according to the Plaintiffs, constitutes an illegal horizontal group boycott in violation of § 1. They also allege that IHC unlawfully tied the sale of its managed care plans to the provision of SEC and NSEC in violation of § 1. Finally, the Plaintiffs allege IHC and the defendant ophthalmologists conspired and attempted to monopolize the market for surgical facilities in violation of § 2.
The District Court granted summary judgment in favor of all Defendants. With regard to the group boycott claim, the court held that the Plaintiffs failed to establish the existence of a conspiracy and that they had shown no “discrete ‘antitrust injury’ to themselves flowing from any adverse impact upon competition resulting from the defendants’ alleged misconduct.”
Abraham,
II. SECTION 1 CLAIMS
A. Group Boycott
Section 1 of the Sherman Act provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States ... is declared to be illegal.” 15 U.S.C. § 1. A conspiracy involves “two or more entities that previously pursued their own interests separately ... combining to act as one for their common benefit.”
Copperweld Corp. v. Independence Tube Corp.,
The heart of the Plaintiffs’ § 1 claim is that IHC, at the behest of several of its panel ophthalmologists — including Drs. Miller and Brodstein — unlawfully excluded optometrists from its provider panels, and that this exclusion injured both competition, generally, and the Plaintiffs, specifically. Of course, if IHC acted independently in excluding optometrists, IHC would not be liable under § 1.
See Monsanto Co. v. Spray-Rite Serv. Corp.,
Although the traditional summary judgment standard applies to antitrust cases, the analysis is altered somewhat when — as is the situation here — the plaintiff relies solely on circumstantial evidence to prove concerted action.
See Rossi v. Standard Roofing, Inc.,
As the Third Circuit has explained:
The Supreme Court’s concerns about permitting the inference of a conspiracy from ambiguous circumstantial evidence in the antitrust context stem from its' conclusion that mistakes by an overzealous judiciary would be “especially costly ... chill[ing] the very conduct the antitrust laws are designed ■ to protect.” Matsushita,475 U.S. at 594 ,106 S.Ct. 1348 ; Monsanto,465 U.S. at 763 ,104 S.Ct. 1464 ; Big Apple BMW [v. BMW of North America, Inc.], 974 F.2d [1358,] 1363 [(3rd Cir.1992)] (“Care must be taken to ensure that inferences of unlawful activity drawn from ambiguous evidence do not infringe upon defendant’s freedom, so long as it acts independently, to refuse to deal.”) (citing Colgate & Co.,250 U.S. 300 ,39 S.Ct. 465 ,63 L.Ed. 992 (1919)). For this reason, the plausibility of an antitrust plaintiffs claim is important. “[I]f the factual context renders [the plaintiffs] claim implausible — if the claim is one that simply makes no economic sense — [a plaintiff] must come forward with more persuasive evidence to support [its] claim than would otherwise be necessary.” Matsushita,475 U.S. at 587 ,106 S.Ct. 1348 (citations omitted). Relatedly, in evaluating whether a genuine issue for trial exists, the antitrust defendants’ economic motive is highly relevant. “[I]f [the defendants] had no rational *1258 economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, the conduct does not give rise to an inference of conspiracy.” Id. at 596,106 S.Ct. 1348 . Moreover, even with a plausible motive to conspire, ambiguous conduct will not create a triable issue of fact with respect to the existence of a conspiracy. See id. at 597 n. 21,106 S.Ct. 1348 .
Rossi,
To establish a conspiracy between IHC and the defendant ophthalmologists, the Plaintiffs in this case make the following allegations in light of the undisputed facts:
Ophthalmologists have a long history of trying to limit competition between themselves and independent optometrists. This tension increased in 1991, when Utah passed new legislation authorizing optometrists to engage in the full scope of NSEC. The only group to oppose the legislation was the Utah Ophthalmology Society (“UOS”); Dr. Miller was the chairman of UOS’s legislative committee at that time.
Due in part to the 1991 legislation, in 1995 IHC began studying whether to add optometrists to its provider panels. Drs. Miller and Brodstein- — both of whom were already IHC providers- — -worked vigorously with each other and with other panel ophthalmologists to discourage IHC from paneling optometrists. Indeed, the record is replete with evidence of their efforts, which the ophthalmologists felt were necessary in order to retain their share of NSEC patients and optical hardware purchasers.
Of course, a conspiracy among the ophthalmologists alone could not effectuate their plan to horde the provision of NSEC and optical hardware. Paneling decisions at IHC are made by IHC’s Preferred Provider Strategic Committee — no members of which are ophthalmologists. Therefore, the ophthalmologists had to devise some way to convince IHC not to panel their competitors. To establish this indispensable part of the alleged conspiracy, the Plaintiffs emphasize that ophthalmologists had repeated discussions with IHC urging it to panel only ophthalmologists. For example, in November 1995, Todd Kimball, one of the plaintiff optometrists in this case, met with IHC to discuss the possibility of paneling optometrists. Several ophthalmologists were also in attendance, and they were openly hostile to Dr. Kim-ball. Two months later, in January 1996, Dr. Brodstein wrote a letter on behalf of ENU to IHC. The letter noted IHC’s interest in paneling optometrists but went on. to explain that in ENU’s view an ophthalmologist-led network of providers that only included optometrists insofar as they were employed by and acted under the supervision of ophthalmologists was “essential to maintain the high quality of care provided by IHC.” 6 In other words, it did not want independent optometrists on IHC’s panels.
The ophthalmologists were successful; independent optometrists were not paneled. C.D. Richards, the Medical Director for IHC’s Health Plans, Inc., explained to Dr. Kimball -that the decision was made because “[t]he physicians do not want you on the panel at this time.” A memo between Mr. Richards and another employee further elucidates IHC’s decision:
POLITICS SHOULD NOT CONTROL PANEL DECISION: There are many providers who do not get added to our panels because of the politics associated with hospitals and provider relationships. A good example is optometrists. *1259 Our members want to see them; they do not create any anti-selection; they are cost effective; and yet they are not added because the ophthalmologists at the hospitals don’t want the competition.
At first blush, it might appear as though IHC and its panel ophthalmologists acted in concert to exclude optometrists from IHC’s provider panels — thereby establishing that element of a § 1 claim. Indeed, it is clear that IHC excluded optometrists because of the actions of its panel ophthalmologists. But simply because IHC acted in response to ophthalmologists’ complaints is not enough to establish the concerted action requirement. To the contrary, it is well-established in antitrust cases that a manufacturer’s exclusion of a buyer-distributor in response to another buyer-distributor’s complaints is insufficient as a matter of law to establish conspiracy,
see Monsanto,
Permitting an agreement to be inferred merely from the existence of complaints, or even from the fact that termination came about “in response to” complaints, could deter or penalize perfectly legitimate conduct. As Monsanto points out, complaints about price-cutters are natural — and from the manufacturer’s perspective, unavoidable — reactions by distributors to the activities of their rivals. Such complaints, particularly where the manufacturer has imposed a costly set of nonprice restrictions, arise in the normal course of business and do not indicate illegal concerted action. Moreover, distributors are an important source of information for manufacturers. In order to assure an efficient distribution system, manufacturers and distributors constantly must coordinate their activities to assure that their product will reach the consumer persuasively and efficiently. To bar a manufacturer from acting solely because the information upon which it acts originated as a price complaint would create an irrational dislocation in the market. In sum, to permit the inference of concerted action on the basis of receiving complaints alone and thus to expose the defendant to treble damage liability would both inhibit management’s exercise of independent business judgment and emasculate the terms of the statute.
Accordingly, the Plaintiffs must present additional evidence — evidence that tends to exclude the possibility that IHC was acting independently and not pursuant to an agreement with the ophthalmologists. To this end, the Plaintiffs assert that optometrists are a lower-cost alternative to ophthalmologists when it comes to NSEC because optometrists generally charge twenty percent less than ophthalmologists for the same NSEC and, according to a 1999 study conducted by IHC, IHC might save $300,000 to $400,000 per year on the provision of NSEC if it added optometrists to its panels. Specifically, the study noted that industry experts estimate that fifty percent of routine eye exams are performed by optometrists; that IHC’s panel ophthalmologists employ optometrists to perform NSEC for them; and that IHC pays ophthalmologists (for services performed by their employee-optometrists) at a higher rate than it would have to pay optometrists for the same service if the optometrists were directly included on the provider panel. Accordingly, the study recommended that IHC *1260 list optometrists on its provider panels if they were willing to accept reimbursement at a rate twenty percent less than the rate IHC pays to ophthalmologists.
In addition; the Plaintiffs contend that IHC had a motive to conspire with the panel ophthalmologists. IHC, as a vertically integrated health care system, seeks to maximize the use of its hospitals and surgical facilities. The Plaintiffs contend that the panel ophthalmologists were able to coerce IHC to exclude optometrists from its provider panels by promising that they (the ophthalmologists) would use IHC’s hospital and surgical facilities to serve a substantial portion of their discretionary patients (i.e., those patients who are not IHC enrollees). In this way, both IHC and the panel ophthalmologists would benefit: IHC would profit by increasing the utilization of (and, accordingly, payment for) its facilities, and the ophthalmologists would profit by preventing lower-cost optometrists from competing with them for NSEC.
There is no direct evidence of such collusion; IHC’s provider agreement does not limit where a panel provider refers his or her non-IHC patients. Nevertheless, the Plaintiffs argue that such quid pro quo is implicit in the following paragraph of the provider agreement:
Termination in Connection with Reappointment. Provider understands and agrees that HPI or an Affiliated Managed Care Plan may terminate Provider from participation with its Members at the time of or in connection with the recredentialing/reappointment process. Such termination may be based on (i) business or competitive reasons relating to HPI’s or any Affiliated Managed Care Plans’ business, (ii) Provider’s adherence to efficient managed care principles and practices, (iii) utilization of IHC related providers and facilities, (iv) affiliation with competing organizations, or (v) other reasons, whether specified in this Agreement or not.
(emphasis added). Further, the record reveals that panel ophthalmologists, all of whom have hospital privileges at regional hospitals not associated with IHC, often utilize IHC’s hospital and surgical facilities for their discretionary patients. And when one ophthalmologist failed to adequately direct his discretionary patients to IHC’s surgical facilities, IHC refused to reappoint him to its panel of providers.
For its part, IHC counters that it unilaterally implemented a policy preferring physicians over other health care providers because physicians have hospital staff privileges. According to IHC, this is a cost-effective means to implement regular peer review, quality control, and basic ereden-tialing. 7 On the other hand, it is undisputed that IHC has recognized a need to panel other types of ancillary providers who do not possess hospital privileges at IHC hospitals. Indeed, IHC has paneled psychologists, social workers, physical therapists, and podiatrists despite their lack of hospital privileges. But IHC contends that it has not needed to panel optometrists in urban areas, such as the Wasatch Front, where there are sufficient panel ophthalmologists to fulfill all enroll-ees’ eye care needs, including NSEC. As support for this contention, IHC points to the fact that it has paneled optometrists in other geographic markets where ophthalmologists cannot meet the needs of its enrollees. For example, though no optometrists are paneled to serve enrollees on *1261 the Wasatch Front specifically, throughout Utah IHC has paneled thirty optometrists.
IHC also notes that all its panel providers are subject to the termination of privileges provision cited above — it is not a provision specific to ophthalmologists. In other words, IHC could terminate privileges of any panel provider if he or she failed to adequately use IHC’s facilities — it did not need to agree to exclude optometrists in order to bring that pressure to bear on ophthalmologists. Moreover, Dr. Miller, who derives approximately sixteen percent of his annual income from services provided to IHC enrollees, has, since 1985, performed most of his surgeries at the Intermountain Surgical Center as a matter of convenience. IHC acquired that building in 1995. Therefore, that he performs the majority of his surgeries at an IHC facility is not the result of a conspiracy between IHC and the ophthalmologists, but Dr. Miller’s longstanding practice.
Finally, IHC contends that limiting the size of the panel allows IHC to negotiate lower payments to the panel providers since their patient volume will increase. In fact, there is substantial empirical evidence that selective contracting allows managed care companies to contain health care costs — the more restrictive the panel, the lower the cost of the premium to the subscriber.
As noted above, “antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case,”
Matsushita,
That optometrists provide lower-cost NSEC does not alter the analysis. Although the Plaintiffs have provided evidence that IHC may have saved money in the provision of NSEC by paneling optometrists, the Plaintiffs have failed to provide evidence to show that on the whole, IHC’s decision is against their economic interests. The financial consequences of adding optometrists is multi-dimensional given both the economics of managed care and the vertically integrated nature of IHC’s business. IHC has provided a legitimate rationale for its decision, and, as we noted earlier, “conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Id.
Our holding today finds support in our case law as well as that of other circuits. In
Todorov v. DCH Healthcare Authority,
for example, the plaintiff neurologist argued that the hospital conspired with the radiologists on its staff to exclude the plaintiff from performing services that he was qualified to perform but that were traditionally performed exclusively by the radiologists.
In
Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia,
the plaintiff clinical psychologists raised nearly identical concerns as the optometrists in this case — the defendant insurers refused to pay for services rendered by psychologists, although they paid for identical services when billed through a psychiatrist.
In
Cooper v. Forsyth County Hospital,
the plaintiff podiatrists sought surgical privileges at the defendant hospital.
A concurring opinion in Cooper proffered the following analysis:
Section 1 of the Sherman Act clearly prohibits members of a medical-dental staff from agreeing with one another to coerce a hospital’s trustees to deny privileges to members of a competing profession for the purpose of furthering their economic self-interest. A jury could properly infer the existence of such an unlawful agreement from evidence of threats made to the trustees of mass resignations by the members of the medical-dental staff and the absence of demonstrably sound reasons relating to the quality of patient care underlying the defendants’ actions.
Id. at 282 (Motz, J., concurring) (emphasis added).
Our own case law also reflects a concern that something more than mere acquiescence to a competitor’s complaints about a price-cutter be present to infer a conspiracy. In Reazin v. Blue Cross & Blue Shield of Kansas, Inc., for example, the defendants terminated a relationship with a hospital regarded as a low-cost provider of quality healthcare when other regional hospitals agreed to reduce their maximum allowable payments (“MAPs”).899 F.2d 951 . In finding sufficient evidence of a conspiracy, *1263 we did not rest on evidence of a motive or opportunity to conspire. Id. at 963. Instead, we relied on evidence that the decision to seek reduced MAPs from the regional hospitals and the decision to terminate the plaintiffs contract was “related,” as well as evidence that the competitors’ reduced rates were conditioned on the termination of the plaintiffs contract — both of which tended to exclude the possibility of independent conduct. Id. at 964.
Here, the record reflects that IHC prefers to panel health care providers who have staff privileges at IHC hospitals. Ophthalmologists, by law, can perform more procedures than optometrists. Therefore, even if IHC were to include optometrists on its provider panels, it would still need to panel ophthalmologists. This fact, coupled with IHC’s procompeti-tive justification for limiting the number of paneled health care providers — that is, limiting the number of providers performing a given service increases the volume of patients each provider sees, which, in turn, enables IHC to negotiate lower reimbursement rates to the panel providers— suggests that IHC may have acted independently in deciding not to panel optometrists on the Wasatch Front. Although it is tempting to treat the Plaintiffs’ evidence in this case as sufficient evidence of a conspiracy to survive summary judgment, the only permissible inference to be drawn from it is that IHC responded to the ophthalmologists’ complaints by deciding not to panel optometrists. There is no evidence to suggest that the ophthalmologists threatened a mass resignation,
see Cooper,
B. Tying Arrangement
The Plaintiffs next argue that IHC unlawfully tied the sale of NSEC to the sale of IHC managed care plans. This claim strikes at the heart of an entire industry devoted to the efficient distribution of health care. Although there are many conceptual hurdles to holding that such an arrangement amounts to a violation of the antitrust laws — indeed, as the Plaintiffs would have it, the arrangement at issue amounts to a per se violation of the antitrust laws — there is nothing in our jurisprudence to indicate ’that managed care companies and the products they sell should be treated any differently than participants and products in other industries.
“A, tying arrangement is ‘an agreement by a party to sell one product but only on the condition that the buyer also purchase a different (or tied) product.’ ”
Eastman Kodak v. Image Technical Servs., Inc.,
Whether products can be considered distinct “turns not on the functional relation between them, but rather on the character of the demand for the two items.”
Jefferson Parish Hosp. Dist. No. 2 v. Hyde,
On the other hand, in the only case with similar facts to those at issue here, the Ninth Circuit held to the contrary. In
Klamath-Lake Pharmaceutical Ass’n v. Klamath Medical Service Bureau,
Insureds, the consumers, certainly did not consider these as two separate products. In deciding whether to buy the pharmacy benefit, they made just one decision, comparing the expected cost- of the benefit plus copayments for drug purchases against the expected cost of drugs bought at the independent pharmacies. The risk insureds sought to transfer was the risk of high pharmacy bills. The product these consumers sought was a means by which they could satisfy their drug needs on favorable terms. Their purchase of drugs in the *1265 required manner was the consummation of the pharmacy benefit, not an unwanted and unnecessary product tied to the desired product.
Id.
at 1290;
see also De Modena v. Kaiser Found. Health Plan, Inc.,
It has been suggested, however, that Klamathr-Lake sweeps too broadly:
Th[e] reasoning [in Klamathr-Lake ] implies that any bundling of health insurance with the provision of medical goods and services is a single product. For all such insurance, the consumer choosing a plan compares its premium plus expected copayments against the expected cost of buying the covered medical goods and services from independent suppliers. And the purchase of the medical goods and services from the plan is the consummation of the insurance benefit. But this logic is far too sweeping. For any tie, a rational buyer compares the expected cost of the bundle to the expected cost of buying the items unbundled elsewhere. And, having contracted for the bundle, receiving the bundle is the consummation of the buyer’s contract. Thus, literally applied, the courts’ logic suggests that all ties involve single products.
10 Phillip E. Areeda & Herbert Hoven-camp, Antritrust Law ¶ 1745g4 (2004) (hereinafter “Areeda & Hovencamp”).
We agree with this analysis. Although powerful economic reasons may justify the bundling of medical insurance with the provision of the goods and services that fall within the plan’s parameters, 9 such bundling does not transform the managed care plan itself and the provision of its benefits into a single product.
Our analysis, however, does not end there. It is undisputed that IHC does not sell NSEC and that “the essential characteristic of an invalid tying arrangement lies in the seller’s exploitation of its control over the tying product to force the buyer into the purchase of the tied product.”
Jefferson Parish,
An illegal tie may be found where the seller of the tying product does not itself sell the tied product but merely requires the purchaser of the tying product to buy the tied product from a designated third party rather than from any other competitive source that the buyer might prefer.
However, where a third party is involved in selling the tied product to the plaintiff, most courts have required that the tying product seller have a direct *1266 economic interest in the sale of the tied product before an illegal tying arrangement will be found.
Courts that have imposed the economic interest requirement when the tied and tying products are sold by different, unrelated sellers have done so generally on the grounds that if the tying product seller does not have an economic interest in the sale of the tied product, the seller is not attempting to invade the alleged tied product or service market in a manner proscribed by section 1 of the Sherman Act.,
Sports Racing Servs.,
Unlike the cases in which courts have held the “economic interest” requirement satisfied because the seller of the tying product receives an economic benefit from the sale of the tied product,
sée, e.g., id.
at 888 (seller of racing services received economic benefit from third party sale of race cars);
Thompson v. Metro. Multi-List, Inc.,
III. SECTION 2 CLAIMS
In contrast to § 1 of the Sherman Act, which reaches only concerted action, § 2 extends both to concerted and unilateral conduct. Under that section, “[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce ... shall be deemed guilty of a felony.” 15 U.S.C. § 2. The Plaintiffs allege that IHC attempted to monopolize the surgical facilities market on the Wasatch Front. 11 Specifically, the Plaintiffs allege *1267 that IHC leveraged its power in the managed care market to increase its power in the surgical facilities market: because health care providers desire to be included on IHC provider panels — which serve a substantial portion of the population of the Wasatch Front — those providers are willing to agree to send as many patients as possible to IHC surgical facilities in exchange for paneling. This, in turn, has the effect of increasing IHC’s presence in the surgical facilities market. We agree with the District Court that the Plaintiffs lack standing — with respect to both its request for damages under § 4 of the Clayton Act as well as its request for injunctive relief under § 16 of the Clayton Act — to pursue this claim.
The concept of “antitrust standing,” which extends to suits arising under both § 4 and § 16 of the Clayton Act, is distinct from that of constitutional standing.
See B-S Steel of Kan., Inc. v. Tex. Indus., Inc.,
In this case, the Plaintiffs make no attempt to delineate
any
injury they have suffered or will suffer that is associated with IHC’s dominance in the surgical facilities market, let alone explain how that injury is “of the type the antitrust laws were designed to prevent and that flows from that which makes defendants’ acts unlawful.”
12
Associated Gen. Contractors of Cal., Inc. v. Carpenters,
Moreover, a plaintiff seeking damages under § 4 must also demonstrate that it is an efficient-enforcer of the antitrust laws.
B-S Steel,
IV. OUTSTANDING MOTIONS
There are also two outstanding motions we must briefly address. The first motion regards a protective order entered by the .District Court pursuant to Fed.R.Civ.P. 26(c). The protective order designates a part of the record below as confidential, and in essence, subject to review only by counsel and the court as needed for adjudication of the case. The order expressly states that its protections “shall survive the termination of the litigation.” Following the entry of summary judgment, the Defendants filed a motion to enforce the protective order, which a panel of this court provisionally granted, reserving the issue for reconsideration by the merits panel. The Plaintiffs’ motion for reconsideration of that ruling is now before us. Generally, “[a]s long as a protective order remains in effect, the court that entered the order retains the power to modify it, even if the underlying suit has been dismissed.”
United Nuclear Corp. v. Cranford Ins. Co.,
The Plaintiffs also filed a motion to supplement the record along with a supplemental appendix. That motion is granted.
*1269 V. CONCLUSION
For the foregoing reasons, we conclude the Plaintiffs failed to present evidence of a conspiracy between the defendant ophthalmologists and IHC that tends to exclude the possibility of independent conduct. We also conclude that the Plaintiffs have failed to raise a genuine issue of fact on their tying claim because they failed to show that IHC has an economic interest in the sale of NSEC. Finally, we conclude that the Plaintiffs have failed to demonstrate standing to assert their § 2 claims. We therefore AFFIRM the District Court’s disposition of this matter.
Notes
. The Wasatch Front refers to Salt Lake, Davis, Weber, Cache, Utah, and western Summit counties.
. For the sake of clarity, we will collectively refer to the IHC-affiliated entities as “IHC.” We will refer to Drs. Miller and Brodstein and their professional corporations as “defendant opthalmologists.” We will refer to the collective group of defendants — IHC, IHC Health Plans, Inc., and IHC Health Services, Inc., and the defendant ophthalmologists — as "Defendants.”
. Utah law explicitly permits this practice. See Utah Code Ann. § 31A-8-105(2) (stating that “organizations may ... furnish health care through providers which are under contract with the organization”).
. Section 4 provides that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.” 15 U.S.C. § 15(a).
. Section 16 provides that "[a]ny person ... shall be entitled to sue for and have injunctive relief ... against threatened loss or damage by a violation of the antitrust laws ... under the same conditions and principles ... [usually employed by] courts of equity.” 15 U.S.C. § 26.
. ENU's internal memoranda, however, reveal less concern over the quality of care than concern about the possibility that independent optometrists might dilute the volume of business conducted by the ophthalmologists.
. When granting hospital privileges to physicians, the hospitals verify the applicant’s health care training, education, malpractice insurance, as well as investigate the applicant's background. By preferring providers with staff privileges, IHC suggests that it avoids unnecessary credentialing costs and duplicative efforts.
. The Defendants also argue that the Plaintiffs lack standing to assert their group boycott claim under § 1. We need not address that issue, however, as we conclude that the Plaintiffs failed to present sufficient evidence of a conspiracy.
See Lantec, Inc. v. Novell, Inc.,
. Professor Areeda suggests, for example, that such integration can reduce transaction costs, reduce the incentive to overconsume “that otherwise results when the insured patient or physician can order any medical goods and services they wish without regard for cost because the [traditional] insurer reimburses all costs,” and it reduces utilization of expensive and excessive testing. 10 Areeda & Ho-vencamp, Antitrust Law ¶ 1745g4. Furthermore, such bundling can reduce the cost to enrollees as the managed care company rightly assumes that though it provides access to a host of medical services, a majority of enroll-ees will not utilize them all.
. The Plaintiffs also allege that IHC unlawfully tied the sale of SEC — in addition to NSEC — to its managed care plans. Two types of parties have standing to challenge illegal tying arrangements — "the purchasers who are forced to buy the tied product to obtain the tying product ... and the competitor who is restrained from entering the market for the tied product.”
Sports Racing Servs.,
. The Plaintiffs also contend that IHC and its panel ophthalmologists conspired to mo *1267 nopolize the market for surgical facilities. Because we held in section II.A that the Plaintiffs failed to present sufficient evidence of a conspiracy, this claim likewise fails.
. Significantly, the Plaintiffs do not allege that part of the monopolization attempt involved the
quid pro quo
discussed in Part I.A.
supra.
Instead, the Plaintiffs simply contend that IHC agreed to panel ophthalmologists in exchange for an agreement to refer patients needing surgery to IHC surgical facilities. Moreover, to the extent that the Plaintiffs’ argument could be construed in such a way, their claim fails because such allegedly anti-competitive conduct does not result in a dangerous probability of successfully monopolizing the surgical facilities market.
See Colo. Interstate Gas Co. v. Natural Gas Pipeline Co. of Am.,