*940Plаintiff CollegeNet, Inc., brings this antitrust action for violations of Sections 1 and 2 of the Sherman Act against Defendant The Common Application, Inc. Plaintiff brings seven claims for relief: (1) Horizontal Restraint of Trade in the Admissions Markets; (2) Horizontal Restraint of Trade in the Online College Application Processing Market; (3) Exclusive Dealing; (4) Tying; (5) Monopolization; (6) Attempted Monopolization; and (7) Conspiracy to Monopolize. Defendant moves to dismiss all of Plaintiff's claims and transfer this action to the Eastern District of Virginia. The Court denies Defendant's Motions to Dismiss and Transfer.
BACKGROUND
I. The Parties
Plaintiff CollegeNET is a Portland-based corporation that offers various web-based administrative services to higher education and non-profit organizations, including customized online application forms, processing services, and contact management services. First Am. Compl. ("FAC") ¶ 6, ECF 75. Defendant The Common Application is a Virginia-based non-profit corporation comprised of 549 non-profit member colleges and universities. Id. at ¶ 7. It offers a standard college application data service, application forms, and processing services. Id.
Defendant was formed in 1975 as a limited group of selective colleges seeking to simplify the college admissions process. Id. at ¶¶ 13, 38. The application was initially a paper form that was universally accepted by all member colleges, eliminating the need for applicants to write their basic information more than once. Id. at ¶ 13. According to Plaintiff, Defendant has since "transformed itself into a dominant online college application processing provider." Id. at ¶ 14. As it grew, Defendant's members began to "understand that Common Application was providing tangible monetary benefits to them at the expense of applicants. What started out as a service to simplify the college application process for students had become a pipeline of applicants" Id. at ¶ 48. According to Plaintiff, membership grew "not to serve students but in part to secure a boost in applications, application fees, and rankings." Id.
Plaintiff alleges that Defendant is not a single entity, but rather a "consortium of competitors" that have participated with Defendant as co-conspirators in connection with the alleged antitrust violations. Id. at ¶¶ 8, 84. A majority of Defendant's steering committee or board of directors is made up of admissions officers from member colleges. Id. at ¶ 85. The board discusses and approves membership agreements, Common Application changes, and restraints. Id. at ¶ 86. Each year, member colleges sign an agreement with Defendant to abide by its rules and regulations. Id. at ¶ 88.
II. Evolution of Defendant's Unlawful Conduct
Plaintiff alleges various anticompetitive behavior resulting from membership restrictions and restraints, including but not limited to: (a) Tying and Bundling/Forced Purchase Requirements; (b) Exclusivity Restrictions; (c) the "Equal Treatment" Requirement; and (d) Uniformity Requirements. Id. at ¶ 15. Plaintiff suggests that none of these requirements-which Defendant operated without for 25 years-is necessary to achieve any legitimate or procompetitive goal of the Common Application. Id. at ¶ 16. According to Plaintiff, these restraints "have the primary effect of suppressing competition to provide online *941college application processing services to applicants and colleges, reducing net output, and excluding rival providers." Id. They "are not ancillary to or reasonably necessary to carry out Common Application's official mission." Id. at ¶ 159.
In 2003, Defendant "redefined its 'equal treatment' requirement." Id. at ¶ 46. Specifically, it began requiring members to "encourage the use of the Common Application" by "(1) charging an application fee to Common Applicants that was 'no greater than the fee charged for [their] other accepted applications; (2) providing 'an equally prominent link to the Common App Online wherever [they] post[ed] a link to another online application; and (3) not 'explicitly offer[ing] any special benefits to students regardless of the application they choose.' " Id. It also began charging non-exclusive members a higher fee per application than was charged to exclusive members. Id. at ¶ 47.
In 2005-06, Defendant entered into agreements with Naviance and ApplyYourself ("AY"). Naviance is the "largest provider of planning and advising systems for secondary schools" with an "electronic document transmission system ... integrated into more than 5,500 schools." Id. at ¶ 55. Defendant became "tightly integrated" with Naviance's system, and college counselors familiar with Naviance "encourage[d] students to apply to college through the Common App." Id. Defendant also awarded an "exclusive Online College Application Processing Services contract" to AY from 2007 to 2013. Id. at ¶ 56.
During this timе, Defendant also made several changes to its services and pricing structure. Plaintiff alleges that Defendant's "typical pattern was to begin by offering additional 'optional' services and then, after a few years, (1) bundle the services with its core offering, (2) make their use mandatory, and/or (3) impose penalties on members who did not agree to use Common Application's services exclusively." Id. at ¶ 58. In the mid-2000's, for example, Defendant introduced supplemental forms and payment processing services. Id. at ¶ 59. Initially, members could pay for membership, applications, application payment processing, supplemental applications, and maintenance of supplemental applications separately. Id. But, in the late 2000's, Defendant "bundled all of its distinct services (except for payment processing) into a single offering for one all-in fee." Id. at ¶ 61. In other words, Common Application still charged a membership fee and a fee per application, but the supplemental application and other services were "free." Id. In addition, members who were fully exclusive and did not use other application providers were charged $4.00 per application processed as opposed to the standard $5.50 fee per application. Id. at ¶¶ 61-62. Defendant also began "restricting member institutions' ability to customize and personalize their Institutional Supplements." Id. at ¶ 64.
In 2011, Defendant announced its intent to end its contract with AY and-in 2014 with its fourth-generation system "CA4"-to bring the online processing staff, software, and infrastructure in-house. Id. аt ¶ 66. According to Plaintiff, Defendant was equipping itself to " 'handle the full volume of the entire American college application process.' " Id. at ¶ 67.
Plaintiff alleges that CA4 was a "woefully deficient, technologically backwards, glitch-riddled product that would never survive in a competitive marketplace." Id. at ¶ 68. By further homogenizing the college application process, CA4 made it "harder for applicants and Colleges to identify good 'matches.' " Id. at ¶ 79. CA4 eliminated file uploads and used text boxes that were limited to 650 words. Id. Applicants were further limited in the number of versions of essays they could upload and *942to answering four specific essay prompts. Id. at ¶¶ 80-81.
In addition, Defendant made further changes to its pricing and membership structure. Under its new three-tiered membership structure, all members had to (1) use Defendant's Common Application for all form and payment processing-including Institutional Supplements-for Common Applicants; (2) accept all Common Applicant evaluation forms (including final transcripts) online, for schools that chose to send them online; and (3) accept the Common Application fee waiver. Id. at ¶¶ 74-75. In addition, "Exclusive I" members had to use the Common Application as their only admission application for full-time, undergraduate, degree-seeking applicants, and "Exclusive II" members had to (1) establish uniform fees for all applicants; (2) use the Common Application as their only transfer application; and (3) use Slideroom.com for their Arts Supplement (if they offered one). Id. at ¶¶ 76, 77. According to Plaintiff, the "penalties" for choosing to be a Non-Exclusive versus Exclusive II member are "extrеme." Id. at ¶ 78.
Since 2000, Defendant's membership has grown substantially, reaching 549 members in the 2014-2015 academic year. Id. at ¶ 44. With that growth, its total revenue increased from $339,046 in 2003 to $14.5 million in 2013. Id. It processed 3.45 million applications in the 2013-2014 application cycle. Id. at ¶ 82. In addition, in 2014 Defendant eliminated its "holistic admission membership requirement," allowing "virtually any College ... to join Common Application." Id. at ¶ 83.
III. Anticompetitive Effects and Injury
Plaintiff alleges that Defendant's agreements and the challenged restraints have had various anticompetitive effects. They have harmed competition in the Admissions and Online College Application Processing Markets. Id. at ¶ 149. They have resulted in lower "Net Output," defined as the net value derived from Online College Application Processing services including (1) quality, functionality, features, ease of use and level of innovativeness of Application Processing services; (2) the ability of applicants and Colleges to find good matches; (3) the ability to predict yield or matriculation; and (4) the amount of time and money spent by Colleges and applicants using these services. Id. at ¶¶ 21, 151, 153-56. According to Plaintiff, the equal treatment requirement in particular has reduced competition among members to offer better alternatives to the Common Application. It amounts to a group boycott and an agreement to suppress demand for application services. Id. at ¶¶ 151-52. Plaintiff alleges that Defendant has impermissibly tied its Standard College Application Data service to its Online Application Processing service through its "one-price-for-all-services model." Id. at ¶ 153. The exclusivity provisions have also foreclosed rival providers by making it "prohibitively expensive for members to use and offer to applicants those rivals' services." Id. at ¶ 154. The uniformity requirements have similarly reduced Net Output by decreasing the value that applicants derive from the application process and limiting their ability to find a good match. Id. at ¶ 155.
Plaintiff has also been injured by the restraints. Plaintiff alleges that it has lost over 200 college customers to Common Application in the last 10-15 years. Id. at ¶ 37. Prior to the alleged restraints, Plaintiff asserts that it hosted Common Application Institutional Supplements and supported Common Application member colleges in other ways. Id. Plaintiff attributes its losses to these restraints. Id.
According to Plaintiff, members receive certain benefits from the restraints. Id. at ¶ 157. The restraints allow them to spend less on online application processing services *943without a reduction in applicants. Id. at ¶ 157(a). They boost their application numbers, fees, and rankings. Id. at ¶ 157(c). Plaintiff alleges that early members in particular have a "significant financial interest and have invested substantial time and effort" in the commercial joint venture such that they are motivated to prevent competition. Id. at ¶ 157(b).
IV. The Relevant Markets
Plaintiff alleges that there are four relevant markets in which to analyze the effects of Defendant's allegedly unlawful restraints: "(1) the market for applicants to Colleges (the "Student Application Market"); (2) the market for admission to Colleges (the "College Admissions Market") ( (1) and (2) collectively, the 'Admissions Markets'); (3) the Online College Application Processing Market and each of its submarkets; and (4) the College market for Standard College Application Dаta Services." Id. at ¶ 90. In the alternative, Plaintiff contends that the Admissions Markets may be limited to Elite Colleges, defined as top-50 universities and top-50 liberal arts colleges by U.S. News & World Report. Id. at ¶¶ 18, 91.
Plaintiff contends that the Online Application Processing Market is a distinct product market. Id. at ¶ 92. It is limited in geographic scope to the United States, and suppliers include: Defendant, Plaintiff, Applications Online LLC ("AOL"), XAP Corporation, Hobsons U.S., and AY. Id. at ¶¶ 33, 93. Plaintiff alleges that the market does not include applications to graduate programs (which cost more and are not a reasonable substitute for the college product) or student information systems ("SIS") (which are more limited products and require significant investment from the college). Id. at ¶¶ 96-106. Plaintiff alleges that barriers to entry are high because of the high fixed costs involved in entering the industry and the difficulty obtaining and retaining customers due to Defendant's entrenchment and exclusivity agreements. Id. at ¶¶ 107-10. Plaintiff also alleges that Defendant's exclusivity agreements, equal treatment requirements, bundling/forced purchase requirements, and tying behavior disincentivize offering other applications and have made switching costs high. Id. at ¶¶ 110-13. Plaintiff contends that Defendant's share of this market is 60%: "In 2014-15, an estimated 9.4 million undergraduate applications will be submitted, with 5-6 million processed online by third-party providers, and approximately 3.6 million of which will be processed by Common Application."Id. at ¶ 115.
The Standard College Application Service Market is a distinct product market. Unlike the Online Application Processing Market, "which includes full application form development and processing," thе Standard College Application Data Service "provides a generic, text-based data entry form for applicants to input their background information required by more than one College." Id. at ¶ 118. Plaintiff alleges that there are no reasonable substitutes for access to this product, which generates an "applicant pipeline." Id. at ¶ 121. Competitors in this market include AOL (provider of the Universal College Application) and Defendant. Id. at ¶¶ 24, 122. Plaintiff alleges that Defendant's share of this market is 90%. Id. at ¶ 122.
The Student Application Market and College Admissions Markets are also distinct product markets. Id. at ¶ 124. They are supplied by Online Application Processing providers. Id. at ¶ 125. The Student Application Market is limited to applications for admission to full-time, four-year degree programs at Colleges ("regionally accredited, non-profit, undergraduate colleges and universities"). Id. at ¶ 124. Similarly, the College Admissions Market is comprised of full-time, four-year College degree programs. Id. Plaintiff contends *944that graduate programs; part-time or two-year programs; programs at non-regionally accredited, for-profit schools; or non-US institutions are not substitutes for Colleges and thus excludable from these markets. Id. at ¶ 127. Plaintiff contends that Defendant will process 40-45% of College applications in 2014-15 year and therefore controls at least 40-50% of the Student Application Market. Id. at ¶ 129. Plaintiff alleges that this number is an understatement of Defendant's market power, or "their ability to reduce Net Output without losing applicants" as a result of the network effects of its applicant pipеline. Id. at ¶ 130. There are also high barriers to entry in this market. Id. at ¶ 131.
The College Admissions Market is the market for admission to full-time, four-year College degree programs. Id. at ¶ 138. For the reasons discussed in the preceding paragraph, this market excludes other degree programs, and Defendant has similar market share and market power. Id. at ¶¶ 139-40. Plaintiff contends that the ability of Defendant to offer a product with "inferior functionality" at a high cost with limitations on Colleges' advertising opportunities and the ability of applicants to find a good College (without losing users) is direct evidence of Defendant's "unconstrained exercise of their market power." Id. at ¶ 137.
V. Procedural History
Plaintiff filed this case in the District of Oregon on May 8, 2014. Compl., ECF 1. On May 15, 2015, the Court granted Defendant's first Motion to Dismiss Plaintiff's claims for failure to plead antitrust injury. Opinion & Order, ECF 96. On appeal, the Ninth Circuit reversed the decision of the district court and remanded this case for further proceedings. Mandate, ECF 112. On July 12, 2018, Defendant filed its Motion to Dismiss, and on August 3, 2018, Defendant filed its Motion to Transfer. Def. Mot. Dismiss, ECF 137; Def. Mot. Transfer, ECF 146.
STANDARDS
I. Motion to Dismiss
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block ,
However, the court need not accept conclusory allegations as truthful. See Warren v. Fox Family Worldwide, Inc. ,
*945Bell Atl. Corp. v. Twombly ,
II. Motion to Transfer Venue
The burden is on the moving party to demonstrate that the balance of conveniences favoring the transfer is high. The defendant must make "a clear showing of facts which ... establish such oppression and vexation of a defendant as to be out of proportion to plaintiff's convenience, which may be shown to be slight or nonexistent." Dole Food Co. v. Watts ,
DISCUSSION
I. Judicial Notice
Both parties filed requests for judicial notice.
Courts may take judicial notice of information "not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Courts may take judicial notice of SEC filings, press releases, or contents of a website, when they are "matters of public record." See Lee ,
Turning first to Defendant's request, the Court declines to take judicial notice of the attached documents. Specifically, many of Defendant's exhibits are used to challenge inferences from facts alleged in the complaint. For example, numerous exhibits involve the "Coalition Application" and are cited to demonstrate that, because Plaintiff and other member colleges entered the market, barriers to entry are low, see Def. Mot. Dismiss 30 (citing RJN Exs. 2, 3, 5) (arguing that actual entry "proves that there are low barriers to entry" defeating Plaintiff's Section 2 claim), and there is no group boycott, See id. at 12 (citing RJN Exs. 23-34) (asking the Court to infer from the fact that some colleges provide multiple application options that there is no group boycott). Others are used to challenge Plaintiff's allegations of market power. See id. at 29 (citing RJN Exs. 17-18). In its own words, Defendant is "asking the court to take judicial notice of uncontested facts" and "[f]rom there, ... assess the plausibility of Plaintiff's allegations in light of those uncontested facts." Def. Reply Req. Judicial Notice 3, ECF 150. Thus, Defendant improperly asks the Court to take notice of the facts contained within these documents and infer from them that Plaintiff cannot state its claims under the Sherman Act. See Khoja v. Orexigen Therapeutics, Inc. ,
Turning to Plaintiff's request, the Court finds that the documents in question are irrelevant to the disposition of the Motion to Transfer. In connection with its response to Defendant's Motion to Transfer, Plaintiff asks the Court to take judicial notice of the per diem costs in Washington, D.C., and the endowments of certain member schools. Pl. Req. Judicial Notice, ECF 155. But neither of these exhibits is relevant in determining whether the Court should transfer this case to the Eastern District of Virginia. See Neylon v. Cty. of Inyo , No. 1:16-CV-0712 AWI JLT,
*947II. Defendant's Motion to Dismiss
Plaintiff's claims arise under Sections 1 and 2 of the Sherman Act. Section 1 prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States."
Defendant moves to dismiss all of Plaintiff's antirust claims. For the reasons that follow, the Court finds that Plaintiff has plausibly alleged all seven of its claims for relief. Accordingly, Defendant's Motion to Dismiss is denied.
A. Horizontal Restraints on Trade (Claims 1 & 2)
Plaintiff's first and second claims for relief arise under Section 1 of the Sherman Act. "[A] cause of action under
Defendant argues that Plaintiff has not adequately plead a claim under Section 1 of the Sherman Act for horizontal restraint of trade. Specifically, Defendant contends that Plaintiff has not adequately alleged (1) an agreement; or (2) any unlawful restraint on trade that harmed competition. Def. Mot. Dismiss 8-19.
i. Agreement
In the absence of direct evidence of a horizontal agreement, the plaintiff must demonstrate "parallel conduct plus." In Re Musical Instruments and Equipment Antitrust Litigation ,
Plaintiff makes the following relevant allegations in support of its contention *948that there was an agreement to restrain trade: Defendant is an association of 549 universities, which are all legally distinct entities. FAC ¶¶ 7, 84. They compete with one another for applicants. Id. at ¶ 84. Defendant's board is primarily comprised of admissions officers from member colleges. Id. at ¶ 85. They regularly meet in this capacity to discuss and vote on business decisions and modify the restraints that Defendant imposes on members. Id. at ¶ 86. Annually, each member college signs an agreement with Defendant in which it agrees to abide by the restraints at issue here. Id. at ¶ 88. Plaintiff argues that "[w]hen horizontal competitors," like the member colleges, "form an association," like Defendant, "to adopt rules on how they will compete against each other, those rules constitute 'agreements' under Section 1." Pl. Opp'n Dismiss 9, ECF 143.
The Court agrees with Plaintiff. As noted above, the Supreme Court has acknowledged that such associations or joint ventures can, under certain circumstances, violate Section 1. Defendant responds that the restraints alleged here do not constitute concerted action because membership does not preclude colleges from buying or selling their own products or prohibiting them from using other services. Def. Reply Mot. Dismiss ("Def Reply") 12. Thus, membership "does not 'deprive the marketplace of independent centers of decisionmaking" and ... does not fall into the 'concerted activity' covered by Section 1." Id. at 13 (citing Am. Needle ,
ii. Unlawful Horizontal Restraints
Plaintiff and Defendant both characterize Plaintiff's first and second claims for horizontal restraints on trade as group boycott or buyer's cartel/refusal to deal claims. "[M]ost antitrust claims are analyzed under a 'rule of reason,' according to which the finder of fact must decide whether the questioned practice imposes an unreasonable restraint on competition, taking into account a variety of factors[.]" State Oil ,
While the rule of reason is the default standard to analyze allegedly anticompetitive conduct, "[s]ome types of restraints ... have such predictable and pernicious anticompetitive effect, and such limited potential for procompetitive benefit, that they are deemed unlawful per se ." State Oil ,
Plaintiff alleges that the challenged restraints-namely, the equal treatment requirement, exclusivity provisions, and tying-have all injured competition. FAC ¶¶ 149-56. For example, the equal treatment requirement has disincentivized investment in alternative applications that might provide better and less expensive services. Id. at ¶ 150. Tying of access to the applicant pipeline has foreclosed rival providers from capturing Colleges' business. Id. at ¶ 153. The exclusivity provisions make it cost prohibitive for members to use or offer rival services. Id. at ¶ 154.
Plaintiff's First and Second Claims for relief allege horizontal restraints of trade in the Admissions Market and the Online College Application Processing Markets, respectively. In Plaintiff's First Claim, Plaintiff alleges that the horizontal agreements among Defendant and its members amount to a conspiracy to insulate competitors in the application process, fix and reduce Net Output, stabilize or increase the prices paid, or reduce the benefits received by applicants. FAC ¶ 164. By boycotting other providers, Defendant аnd its members restrain competition in the Admissions markets. Id. at ¶¶ 164-65. These are allegedly unlawful under the rule of reason because Defendant has significant market power and the restraints have reduced competition, reduced Net Output, and impaired access to other options. Id. at ¶ 167.
Similarly, in its Second Claim, Plaintiff alleges that the horizontal agreements among Defendant and its members amount to a conspiracy to refuse to deal or exclude rival providers in the Online College Application Processing Market in order to to suppress demand for services and prices paid below competitive levels. Id. at ¶ 173.
*950Plaintiff alleges that the restraints are unreasonable under the rule of reason because Defendant and its members have significant market power and their adoption of the challenged restraints and boycott of rival providers have reduced competition in the Online College Application Processing Market. Id. at ¶ 174.
Defendant first challenges Plaintiff's "Group Boycott" Claim
Defendant also makes more targeted challenges to Plaintiff's "Refusal to Deal" Claim. Specifically, it argues that (1) Plaintiff's claims are illogical because a buyer's cartel in this context would only hurt all market participants, including Defendant and its member schools; and (2) that Plaintiff cannot allege suppression of demand because the number of applications ("output") increased as a result of increased demand. Def. Mot. Dismiss 14-19. With respect to Defendant's first argument, the Court finds that Plaintiff's allegations are not implausible. Plaintiff specifically alleges that Defendant and its member colleges have an interest in reducing demand and prices for application services. It is in their economic interest to eliminate all suppliers except Common App (which is controlled by members) and to prevent other competitor colleges from using a different supplier and changing the competitive landscape of the Admissions Market. FAC ¶ 157. These restraints benefit the members by allowing them to spend *951below-competitive levels on services without losing applicants and boosting their applications, application fees, and rankings. Id. In addition, members-particularly those who joined the venture early-have invested time and effort in Defendant and have a financial interest in the success of The Common Application. On the second argument, the Court finds that Plaintiff has adequately alleged that Net Output has decreased as a result of Defendant's market power. Id. at ¶¶ 149-56, 166, 173. Members and Colleges have derived less value from the process, including a reduction in their ability to find good matches, poorer quality and innovativeness of the application process, and increased monetary costs. Id. at ¶¶ 149-57. Accordingly, the Court declines to dismiss Plaintiff's first and second claims for relief.
B. Exclusive Dealing (Claim 3)
Plaintiff's third claim for relief is for exclusive dealing under Sections 1 and 2 of the Sherman Act. "Exclusive dealing involves an agreement between a vendor and a buyer that prevents the buyer from purchasing a given good from any other vendor." Allied Orthopedic Appliances Inc. v. Tyco Health Care Grp. LP ,
Defendant argues that complaint does not allege either (1) an agreement to deal exclusively; or (2) substantial foreclosure of the market. Def. Mot. 20-21.
i. Exclusivity Agreement
"[A] prerequisite to any exclusive dealing claim is an agreement to deal exclusively." Aerotec Int'l, Inc. v. Honeywell Int'l, Inc. ,
Here, Plaintiff adequately alleges exclusive dealing. First, provisions in the agreements for Exclusive members specifically condition exclusivity on a discount for Defendant's services. FAC ¶ 76-78. In addition, the membership agreements contain equal treatment provisions, which, among other things, prevent member schools from offering other applications at a lower price. Id. at ¶ 46. Further, Plaintiff plausibly alleges that Defendant has tied access to its data services-and the student pipeline-on using its online application processing services, in a sense requiring member schools to use Defendant's product instead of competitor products. Id. at ¶ 61. Combined with the alleged high switching costs associated with terminating membership with Defendant (a dominant supplier), the membership agreements here plausibly constitute de facto exclusive dealing arrangements that in practical effect prevent purchasers from using the services and goods of competitors. See Pro Search Plus, LLC v. VFM Leonardo Inc. , No. SACV 12-2102-JLS (ANx),
ii. Substantial Foreclosure
To determine whether an agreement forecloses competition, the Ninth Circuit "focus[es] on whether there are requirements terms (i.e. , terms requiring a buyer to purchase all the product or service it needs from one seller), volume or market share targets, or long-term contracts that prevent meaningful competition by taking potential purchasers off the market." See Aerotec ,
[W]eigh[s] the probable effect of the contract on the relevant area of effective competition taking into account the relative strength of the parties, the proportionate volume of commerce involved in relation to the total volume of commerce in the relevant market area, and the probable immediate and future effects which pre-emption of that share of the market might have on effective competition therein.
Tampa Elec. Co. ,
Plaintiff alleges that many aspects of the membership аgreement-including the alleged tying, exclusivity discount, and equal treatment provisions-taken together amount to an exclusive dealing arrangement. Pl. Opp'n Dismiss 18-21. In other words, all the membership agreements-not just the Exclusive agreements-are relevant to this inquiry.
Again, taken together, Plaintiff has adequately alleged substantial foreclosure of the market. Tampa Elec. Co. ,
C. Tying (Claim 4)
Plaintiff's Fourth Claim is for unlawful tying in violation of Sections 1 and 2 of the Sherman Act. "Tying is defined as an arrangement where a supplier agrees to sell a buyer a product (the tying product), but 'only on the condition that the buyer also purchase a different (or tied) product ....' " Brantley v. NBC Universal, Inc. ,
"The Supreme Court has developed a unique per se rule for illegal tying arrangements." Cascade Health Solutions v. PeaceHealth ,
Alternatively, "[a] tying arrangement which is not unlawful per se may be invalidated under the rule of reason if the party challenging the tie demonstrates that it is an unreasonable restraint on competition in the relevant market."
Defendant raises two challenges to Plaintiff's tying claim. First, Defendant asserts that Data Services and Processing Services are one product market, not two. Def. Mot. Dismiss 24-25. Second, Defendant argues that Plaintiff has not plausibly alleged coercion because there are no alleged facts to show an express or implied tying condition in the Common App's agreements with member colleges. Id. at 25-27.
i. Distinct Products
To state a claim for unlawful tying, Plaintiff must show that there are two distinct products or services offered for sale by the defendant. Jefferson Parish Hosp. v. Hyde ,
Here, Plaintiff has adequately alleged that two separate product markets exist. The tying product is the Standard College Application Data service. This is a "a type of network service where the service provider hosts a single, web-based background information form that applicants wishing to apply to any of the network Colleges-which all require this same information-fill out only once." FAC ¶ 22. The tied product is the Online Application Processing Services, or "online application evaluation forms and processing services offered to Colleges and Applicants." Id. at ¶ 20. Plaintiff alleges that not all colleges that purchase processing services buy data services. Id. at ¶ 188. The products do not operate better when bundled than when integrated with a rival processing services provider. Id. at ¶ 189. They are "physically and economically" separable as evidenced by Defendant's former pricing structure whereby members could purchase one or both. Id. at ¶ 190.
*955Defendant, Plaintiff, AOL, XAP Corporation, Hobsons, and AY all provide Online Application Processing Services, and only Defendant and AOL provide standard application data services. Id. at ¶¶ 24, 33; See Eastman Kodak ,
ii. Coercion
Defendant argues that "CollegeNET has not plausibly alleged coercion because it did not allege any facts to show an express or implied tying condition in the Common App's agreements with member colleges." Def. Mot. 25. Courts typically encounter positive ties, or the "sale of the desired ('tying') product is conditioned on purchase of another ('tied') product. Aerotec ,
In Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal and Professional Publications, Inc. , the Tenth Circuit held that the plaintiff-a commerciаl provider of bar examination preparation services-had created an issue of fact on summary judgment with respect to its tying claim.
Here, Plaintiff has plausibly alleged a tying condition in the agreements with member colleges. Initially, Defendant is alleged to have offered its Data Services *956to colleges in the form of a paper application. FAC ¶ 13. More recently, however, both products are bundled together such that a school cannot purchase Data Services-and the pipeline of student applications that comes with it-without also purchasing Processing Services. Id. at ¶¶ 61, 192. In other words, this is not a case where the consumer can buy both products separately and the seller is merely offering them together at a lower price. Cf. Jefferson Parish ,
C. Monopolization (Claims 5, 6 & 7)
Plaintiff's Fifth, Sixth, and Seventh Claims for relief are for monopolization, attempted monopolization, and conspiracy to monopolize in violation of Section 2 of the Sherman Act. "In order to state a claim for monopolization under Section 2 of the Sherman Act, a plaintiff must prove: (1) Possession of monopoly power in the relevant market; (2) willful acquisition or maintenance of that power; and (3) causal antitrust injury." SmileCare Dental Grp. v. Delta Dentаl Plan of California, Inc. ,
Defendant argues that Plaintiff's monopolization claims should be dismissed for three reasons. First, Defendant contends that Plaintiff cannot adequately allege monopoly power. Second, Defendant alleges that Plaintiff's entry into the Online College Application Market defeats its Section 2 claims. Third, Defendant argues that Plaintiff has not alleged sufficient facts to support its conspiracy claims.
i. Market Power
To state a claim under the Sherman Act, "a plaintiff must allege that the defendant has market power within a 'relevant market.' " Newcal Indus., Inc. v. IKON Office Solutions ,
a. Market Definition
Defendant first argues that "Plaintiff wrongfully excludes other competitor application options, including a college's own internal application, which shifts the market share analysis." Def. Mot. 29. Separately, Defendant also argues that Plaintiff's product markets inappropriately focus on a small subset of colleges by excluding two-year colleges and graduate school admissions. Id. at 33-34.
"[A] 'market' is the group of sellers or producers who have the 'actual or potential ability to deprive each other of significant levels of business.' " Rebel Oil ,
"[T]he validity of the 'relevant market' is typically a factual element rather than a legal element, [and] alleged markets may survive scrutiny under Rule 12(b)(6) subject to factual testing by summary judgment or trial." Newcal Indus. ,
In RealPage, Inc. v. Yardi Systems, Inc. , the parties were competitors in the real property management business.
Here, as in RealPage , Plaintiff's complaint does not suffer from a "fatal legal defect" as it adequately considers and rejects alternatives. First, with regard to the exclusion of in-house or SIS-based application services from the Online Application Processing Market, Plaintiff alleges that they are not a reasonable substitute for third-party processing. Third-party solutions have distinct features, such as better data security and payment processing, and SIS-based application services require substantial time investment by the College. FAC ¶¶ 100-05. Because these systems are so "barebones," Plaintiff alleges that Colleges would not turn to them in response to a small but significant, nontransitory increase in price. Id. at ¶ 106.
Similarly, Plaintiff excludes two-year, part-time, and graduate schools from the Admissions markets because of their distinct characteristics. Id. at ¶¶ 127, 139. The customer base is distinct because students seeking four-year or full-time undergraduate degree programs would not consider these-or could not consider them in the case of graduate programs-as alternativеs. Id. Graduate program applications all require more specialized applications and processing, and graduate school application processing services are sold at a higher price. Id. at ¶¶ 97-98. Thus, according to Plaintiff, a small but significant, nontransitory increase in the price of College programs would not result in students applying to these other programs, nor would an increase in price result in Colleges using graduate products. Id. at ¶¶ 98, 127, 139. Plaintiff therefore plausibly alleges that these products are not interchangeable. The extent to which these markets are too narrow turns on issues of fact more appropriate for resolution at summary judgment.
b. Market Share
Defendant also contends that Plaintiff has miscalculated its market share. Def. Mot. Dismiss 30. "Courts generally require a 65% market share to establish a prima facie case of market power." Image Tech. Servs., Inc. v. Eastman Kodak Co. ,
The parties primarily dispute the appropriate way to calculate market share. Defendant alleges that Plaintiff's market share-which it calculates by dividing Defendant's *959total number of members by the total number of Colleges-is only 24% and is, therefore, insufficient to constitute a monopoly. Def. Mot. Dismiss 30. Plaintiff, by contrast, calculates market share of the Online College Application Processing Market by looking to the number of undergraduate applications processed by Defendant. FAC ¶ 115. According to Plaintiff's calculation, this puts Defendant's total market share 60%.
c. Barriers to Entry
Defendant also contends that Plaintiff cannot demonstrate barriers to entry. Def. Mot. 33. "Entry barriers pertain not to those already in the market, but to those who would enter but are prevented from doing so." United States v. Syufy Enterprises ,
Here, Defendant's argument focuses on the recent entry of the Coalition Application into the market. Def. Mot. 30-31. Defendant argues that the entry of the Coalition defeats Plaintiff's Section 2 claims because it shows that barriers to market entry are low.
ii. Conspiracy
As stated above, to succeed on a claim for conspiracy to monopolize, the *960plaintiff must demonstrate: "(1) the existence of a combination or conspiracy to monopolize; (2) an overt act in furtherance of the conspiracy; (3) the specific intent to monopolize; and (4) causal antitrust injury. Paladin ,
III. Defendant's Motion to Transfer Venue
Courts employ a two-step analysis when determining whether transfer is proper. First, a court must ask "whether the transferee district was one in which the action might have been brought by the plaintiff." Hoffman v. Blaski ,
Defendant moves to transfer this action to the Eastern District of Virginia. Though this alternate venue is proper, the Court finds that Defendant has not demonstrated that the convenience of the parties and witnesses or any other factors outweigh the great weight accorded to Plaintiff's choice of forum. Accordingly, Defendant's Motion to Transfer is denied.
A. Venue is proper in the Eastern District of Virginia
Plaintiff does not dispute that the Eastern District of Virginia is a permissible forum. Pl. Opp'n Transfer 9 n.2, ECF 152. Defendant's principal place of business is Virginia.
B. Convenience and Fairness
i. Plaintiff's Choice of Forum
Defendant asserts that Plaintiff's choice of forum should be given little weight because "the challenged conduct ... lacks any substantial connection to Oregon." Def. Mot. Transfer 9, ECF 146. It argues that "the fact that ten colleges and universities in Oregon ... accept The Common Application does not in and of itself make Oregon an appropriate venue" in light of *961the fact that Defendant provides products and services to colleges and applicants throughout the United States.
A plaintiff's choice of forum is generally accorded great weight. Lou v. Belzberg ,
Here, the Court finds that Plaintiff's choice of forum should receive substantial weight. First, this is not a case where Plaintiff has no substantial connection with Oregon. Cf. Ventress v. Japan Airlines ,
ii. Convenience of the Parties and Witnesses
Defendant argues that the Eastern District of Virginia is more convenient for both party and non-party witnesses and will reduce the financial burden on Defendant. Def. Mot. Transfer 12. First, Defendant argues that Plaintiff's monopolization claim will center on Defendant's office in Virginia, which is only seven miles from the federal courthouse. Id . at 12-14 (citing Adam Decl. Ex. F, ECF 147). In addition, Defendant asserts that Virginia is a more convenient location for non-party witnesses, including member and non-members educational institutions, vendors, and partners, who will likely reside outside the 100-mile radius of Portland. Id. at 15. Here, Defendant also emphasizes the ease *962of access to third parties in Virginia. Id. at 16.
"Convenience of witnesses is often the most important factor in determining whether or not to transfer a given case." Partney Const., Inc. ,
Defendant has not made a sufficiently strong showing of inconvenience to upset Plaintiff's choice of forum. To the extent that proceeding in Oregon presents a hardship to Defendant and its party witnesses-including its executives and other employees-proceeding in Virginia would present the same hardships to Plaintiff and its party witnesses, including executives and other employees. Compare Rickard Decl. ¶ 7 (noting that 80 of 87 employees work in the Virginia office, including key executive witnesses) and ¶¶ 10-12 (noting that trial is currently scheduled for Defendant's busiest months), ECF 148, with Trachtenbarg Decl. ¶¶ 3-5 (noting 147 of 165 its employees are located in Portland as are executives who are likely to be witnesses) and ¶ 6 (also noting that trial is scheduled during its busiest months), ECF 154. Thus, transfer of venue would merely shift inconvenience of trial from one party to another. See Decker Coal Co. ,
As to nonparties, the Court notes that-with the information provided by both Plaintiff and Defendant-it is difficult to tell not only the number of witnesses located within the respective districts but also the nature and quality of their testimony. For example, Defendant notes that there are "three times as many" institutions of higher education within 100 miles of the Virginia courthouse and more elite or public institutions. But neither party has indicated that witnesses from these schools will be called or whether they are relevant to this case. Indeed, Plaintiff has indicated that it may call third-party schools-both members and non-members-located throughout the country and outside the subpoena power of both courts. See Pl. Opp'n (citing Compl. ¶¶ 29, 54-56) (identifying colleges in Kansas, New York, South Carolina, California, and Louisiana).
In addition, no individuals or organizations have been identified or noted for deposition. See Alfonso Decl. ¶ 4 (no nonparty depositions have yet been identified), ECF 153. Though subpoenas for documentary evidence have been served on some third-party competitors within the subpoena power of the Eastern District of Virginia, see Adam Decl. ¶¶ 2-5, Exs. A-D, there is no evidence of the substance or materiality of their testimony or any indication that either party plans to call these third parties as witnesses, Adidas Am. ,
iii. Other Factors in the Interest of Justice
As to the remaining factors, the Court finds that they are, on balance, neutral and *963therefore have little impact on this determination.
The place of negotiation and execution of the relevant agreements is neutral. Defendant argues that the place of negotiation was Virginia, where Defendant is located, and that this factor weighs in favor of transfer. The Court disagrees. The contracts in this case were negotiated by phone and email in Virginia and throughout the United States, wherever the relevant member school was located. Rickard Decl. ¶¶ 5-6. In other words, "therе is no one prominent location for negotiation or execution that would sway this Court's determination under this factor." Shee Atika Languages, LLC v. Kershner , No. 107CV00009JWSDMS,
Overall, the interest of judicial efficiency is a neutral factor. The relative court congestion and time of trial in each forum weighs in favor of transfer. As Defendant notes, the Court's recent scheduling order, which set trial just under two years from now in August of 2020, is consistent with the "26.5 month median timeline from the filing of a civil case to trial in the District of Oregon."
As to the familiarity of each forum with the applicable law, the law governing Plaintiff's antitrust claims is federal and, therefore, the Court can presume all federal courts have equal familiarity with the applicablе law. The Court finds that this factor is neutral.
The Court concludes that the evidence is located in multiple locations, though perhaps more evidence will be located in Virginia where Defendant is located. However, the evidence is largely documentary evidence that can be easily transmitted from afar. Adidas Am. ,
CONCLUSION
The Court DENIES Defendant's Motion to Dismiss [137], Request for Judicial Notice [138], and Motion to Change or Transfer Venue [146]. The Court also DENIES Plaintiff's Request for Judicial Notice [155].
IT IS SO ORDERED.
Notes
Plaintiff also filed an "Objection to Defendant's 'Non-Request' for Judicial Notice" in response to Defendant's Reply to the Motion to Transfer. ECF 158. Plaintiff objects to two websites that were cited in Defendant's Reply but were neither attached to a declaration nor included in a request for judicial notice. See Def. Reply Transfer 16-17, ECF 156 The Court, however, has not relied on either source in its decision and, therefore, declines to address this objection further.
Defendant also asks the Court to take judicial notice of the 2014 U.S. News & World Report rankings. The Court instead finds that the complaint incorporates this doctrine by reference. See United States v. Ritchie ,
The Court notes that Defendant cites the per se rules in its analysis and that neither party addresses the legal sufficiency of Plaintiff's claim under the rule of reason. Though horizonal restraints can-under some circumstances-be unlawful per se , the Court finds that analyzing Plaintiff's First and Second Claims under the rule of reason is likely most appropriate in this case, which involves an otherwise lawful joint venture involving certain horizontal restraints. See Am. Needle ,
To the extent that Defendant's argument hinges on the difference between limiting what the school can charge students applications and what the provider can charge the College for its services, the effect of this difference is a factual issue that cannot be resolved at this stage in the proceedings.
The litany of cases cited by Defendant on this point are inapposite: they were all decided either on a motion to summary judgment or after trial. See Def. Mot. Dismiss 30-31 (citing cases).