Newcal Industries, Inc., et al. v. Ikon Office Solutions, et al.

Five lessors of copier equipment (collectively "Newcal")
appeal the dismissal of their complaint for failure to state viable
Sherman Act antitrust, Lanham Act, and RICO claims
against Defendant IKON.1 We reverse.
1General Electric Corporation ("GE") bought and enforced some flexed
IKON contracts and is included as a Defendant for its role in the allegedly
anti-competitive scheme.

I

Newcal and IKON compete to lease name-brand copier
equipment to commercial customers.2 They also compete to
provide service contracts for the maintenance of that equipment
during the term of the lease. When a lease approaches
the end of its term, a new competition begins for the lease of
upgrade equipment. Similarly, when a service contract
approaches the end of its term, a new competition begins to
buy out the service contract and to provide lease-end services.
Newcal alleges that IKON engaged in an ongoing scheme
to defraud IKON customers by amending those customers'
lease agreements and service contracts without disclosing that
the amendments would lengthen the term of the original
agreement. The purpose of extending the contracts was to
shield IKON customers from competition in the aftermarkets
for upgrade equipment and for lease-end services. That is, by
extending the term of the original contract, IKON was able to
raise the contract's value, which in turn raised the price to
Newcal and other competitors of buying out that contract in
the aftermarkets for equipment upgrades and lease-end services.
IKON, it is alleged, obtained lease extensions from its customers
without disclosing that the contract amendments the
customers signed would result in an extension on the term of
the original lease or service agreement. In fact, IKON allegedly
deliberately misled its customers to believe that the contract
amendments would not affect the original contract's
term.

Newcal, which competes with IKON both in the primary
market for equipment leases and in the aftermarket for equip-
2Because this case is an appeal from a dismissal under Fed. R. Civ. P.
12(b)(6), we accept as true all facts alleged in the complaint, and we draw
all reasonable inferences in favor of Plaintiffs-Appellants, Newcal.
ment upgrades, brought claims under the Sherman Act, alleging
antitrust violations, under the Lanham Act, alleging false
advertising, and under RICO, alleging racketeering activity
predicated on mail and wire fraud. Newcal also requested a
declaration under the Declaratory Judgment Act, 28 U.S.C.
§ 2201, that IKON's fraudulently procured contracts were
invalid.

On December 24, 2004, the district court dismissed the
declaratory complaint and denied Newcal's request for leave
to amend that complaint. The district court held that Newcal
lacked standing to request a declaration of third parties' contractual
rights, and it concluded that amendments to the
declaratory complaint would be futile. In the same order, the
district court dismissed all other claims under Rule 12(b)(6),
but it granted Newcal's request for leave to amend those
claims.

Newcal filed a first amended complaint, pleading its fraud
allegations with greater specificity and adding greater detail
to its antitrust and Lanham Act claims. IKON again moved to
dismiss under Rule 12(b)(6), and the district court granted the
motion, holding that Newcal had failed to allege a legally
cognizable "relevant market" under the Sherman Act, that it
had failed to allege any false statement of fact under the Lanham
Act, and that it had failed to meet RICO standing
requirements. The district court dismissed the complaint with
prejudice. This timely appeal followed.

II

A

The first question we must address is whether Newcal's
antitrust claims allege any legally cognizable "relevant market."

We conclude that they do, and we therefore remand
those claims to the district court.
[1] In order to state a valid claim under the Sherman Act,
a plaintiff must allege that the defendant has market power
within a "relevant market." That is, the plaintiff must allege
both that a "relevant market" exists and that the defendant has
power within that market.3

There is no requirement that these elements of the antitrust
claim be pled with specificity. See Cost Management Services,
Inc. v. Washington Natural Gas Co., 99 F.3d 937, 950
(9th Cir. 1996). An antitrust complaint therefore survives a
Rule 12(b)(6) motion unless it is apparent from the face of the
complaint that the alleged market suffers a fatal legal defect.
And since the validity of the "relevant market" is typically a
factual element rather than a legal element, alleged markets
may survive scrutiny under Rule 12(b)(6) subject to factual
testing by summary judgment or trial. See High Technology
Careers v. San Jose Mercury News, 996 F.2d 987, 990 (9th
Cir. 1993) (holding that the market definition depends on "a
factual inquiry into the ‘commercial realities' faced by consumers")
(quotations omitted).

There are, however, some legal principles that govern the
definition of an antitrust "relevant market," and a complaint
may be dismissed under Rule 12(b)(6) if the complaint's "relevant
market" definition is facially unsustainable. See Queens
3Newcal brings four of its six antitrust claims under Section 1 of the
Sherman Act, 15 U.S.C. § 1, which governs restraints of trade and tying,
and it brings the remaining two claims under Section 2 of the Sherman
Act, 15 U.S.C. § 2, which governs monopolization and attempted monopolization.
The "relevant market" and "market power" requirements apply
identically under the two different sections of the Act, meaning that the
requirements apply identically to all six of Newcal's claims. Compare
Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1444 (9th Cir.
1995) (restraint of trade), with Datagate, Inc. v. Hewlett-Packard Co., 60
F.3d 1421, 1423-24 (9th Cir. 1995) (tying), and with Eastman Kodak Co.
v. Image Technical Services, Inc., 504 U.S. 451, 481 (1992) (monopolization).
For purposes of this opinion, therefore, there is no need to distinguish
or differentiate among Newcal's various claims; its market
allegations are either sufficient or insufficient for all six claims.
City Pizza, Inc. v. Domino's Pizza, Inc., 124 F.3d 430, 436-37
(3d Cir. 1997).

[2] First and foremost, the relevant market must be a product
market.4 The consumers do not define the boundaries of
the market; the products or producers do. Brown Shoe v.
United States, 370 U.S. 294, 325 (1962).

[3] Second, the market must encompass the product at issue
as well as all economic substitutes for the product. Id. As the
Supreme Court has instructed, "The outer boundaries of a
product market are determined by the reasonable interchangeability
of use or the cross-elasticity of demand between the
product itself and substitutes for it." Id. As such, the relevant
market must include "the group or groups of sellers or producers
who have actual or potential ability to deprive each
other of significant levels of business." Thurman Industries,
Inc. v. Pay ‘N Pak Stores, Inc., 875 F.2d 1369, 1374 (9th Cir.
1989).

[4] Third, although the general market must include all economic
substitutes, it is legally permissible to premise antitrust
allegations on a submarket. That is, an antitrust claim may,
under certain circumstances, allege restraints of trade within
or monopolization of a small part of the general market of
substitutable products. In order to establish the existence of a
legally cognizable submarket, the plaintiff must be able to
show (but need not necessarily establish in the complaint) that
the alleged submarket is economically distinct from the general
product market. In Brown Shoe, the Supreme Court listed
several "practical indicia" of an economically distinct submarket:
"industry or public recognition of the submarket as a
separate economic entity, the product's peculiar characteris-
4Antitrust law requires allegation of both a product market and a geographic
market. Newcal alleges a geographic market of the United States,
and IKON does not challenge that allegation. The only question on appeal
is whether Newcal alleged a legally viable product market.
tics and uses, unique production facilities, distinct customers,
distinct prices, sensitivity to price changes, and specialized
vendors." 370 U.S. at 325.

In its first amended complaint, Newcal listed four product
markets: (1) "replacement Copier Equipment for IKON and
GE customers with Flexed IKON Contracts," (2) "Copier Service
for IKON and GE customers with Flexed IKON Contracts,"
(3) "Copier Service for Canon and Ricoh brand
Copier Equipment," and (4) "Copier Equipment."

[5] The district court held that the last two of those markets
failed to support Newcal's claims because Newcal nowhere
alleged that IKON holds market power in the nationwide market
for copier equipment leases or in the nationwide market
for Canon and Ricoh-brand copier equipment service. We
agree with that conclusion. Newcal does not allege that IKON
holds power within those markets.

The district court also concluded that the first two markets
were not legally cognizable, finding that the boundaries of
those markets impermissibly depended on a contractuallycreated
group of consumers. Relying primarily on the Third
Circuit's opinion in Queens City Pizza, Inc. v. Domino's
Pizza, Inc., 124 F.3d 430 (3d Cir. 1997), and secondarily on
this court's opinion in Forsyth v. Humana, Inc., 114 F.3d
1467 (9th Cir. 1997), the district court held that such a
contractually-created group cannot constitute a "relevant market"
for antitrust purposes.

Newcal responds to the district court's analysis by arguing
that Queens City Pizza and Forsyth are inapposite to its
claims and that the more analogous case is Eastman Kodak
Co. v. Image Technical Services, Inc., 504 U.S. 451 (1992),
which permitted an antitrust plaintiff to restrict its alleged
market to consumers of Kodak-brand products.

We agree with Newcal. Under Eastman Kodak, Newcal's
market definition does not fail as a matter of law, at least on
a Rule 12(b)(6) motion.

In Queens City Pizza, the Third Circuit confronted an antitrust
complaint against Domino's Pizza, brought by a group
of Domino's franchisees. 124 F.3d at 433-34. As part of their
franchise contract, the franchisees had specifically agreed to
make their pizzas with only Domino's-approved ingredients
and supplies, and they had agreed to purchase those inputs
only from the Domino's corporation or from a Domino'sapproved
supplier. Applying these contractual provisions,
Domino's purchased approximately 90 percent of its franchisees'
inputs from external suppliers and sold them to its
franchisees at a markup. Id. at 433-34.

The franchisees sued Domino's for monopolization of the
market for pizza ingredients. They restricted the relevant market
definition to the market for Domino's-approved inputs,
excluding from their market definition many substitutable
brands of dough, tomato sauce, and paper cups. They further
restricted the relevant market to Domino's franchisees, alleging
that the franchisees constituted a cognizable submarket of
the general market for Domino's-approved inputs. Id. at 435.
The Third Circuit held that the franchisees' market definition
was legally deficient because the boundaries of the submarket
depended on a contractual obligation. Id. at 438. The
Third Circuit noted that market boundaries must be based on
economic substitutability of the relevant product, and the only
thing that prevented franchisees from substituting other
brands for Domino's-approved pizza ingredients was an
explicit contractual provision that the franchisees knowingly
and voluntarily signed. Id. That contractual provision did not
change the fundamental nature of the inputs, which remained
economically substitutable with other brands of the same
inputs; the provision merely changed the plaintiffs' legal freedom
to choose substitutes. The Third Circuit held that the
contractually created difference among otherwisesubstitutable
products was insufficient to create an economically
distinct antitrust submarket. Id.

The Third Circuit also grounded its holding in the fact that
the primary market for franchise agreements is a competitive
market. Id. at 440. The court reasoned that the franchisees
should have been aware, at the time that they chose to enter
a Domino's franchise rather than, say, a Pizza Hut franchise,
that Domino's would retain exclusive rights to provide them
with ingredients. Id. That reasoning was particularly relevant
in that case, as the court noted, because the product itself was
a "contractual framework" in which the franchisees' rights
and obligations were clearly defined. Id. In other words,
because the product was a written agreement that was
intended to regulate rights and obligations for the foreseeable
future and because there was a competitive market for substitutable
written agreements that might have contained different
rights and obligations, the franchisees must have made a conscious
and voluntary choice to bind themselves to Domino's
aftermarket restrictions. The implication of that reasoning was
that competition in the primary market for franchise agreements
sufficed to discipline anticompetitive conduct in the
aftermarket for pizza supplies. If Domino's abused its contractual
rights, it would lose business in the primary market;
fewer people would choose to enter a Domino's franchise.

Based on this reasoning, the Third Circuit held that the
alleged submarket of Domino's franchisees must fail. The
only thing that segregated the members of the submarket from
the members of the general market was an explicit contractual
provision that the franchisees knowingly and voluntarily
signed, and Domino's ability to abuse that contractual power
would be restrained by competition in the primary market for
franchise agreements.

The other case cited by the district court was Forsyth v.
Humana, Inc., 114 F.3d 1467 (9th Cir. 1997). In that case, we
applied reasoning similar to the reasoning in Queens City
Pizza to affirm summary judgment against an antitrust plaintiff.
Consumers of Humana health insurance policies sued
Humana, claiming that the insurance company obtained discounts
from acute care hospitals without passing those discounts
to consumers in the form of lower premiums. Id. at
1472. The antitrust theory was a monopolization claim, in
which the plaintiffs alleged that Humana colluded with the
relevant hospitals to give the hospitals a monopoly over the
market for Humana insureds. Id. at 1475-76. Similar to the
franchisees' claim in Queens City Pizza, the insureds' antitrust
claim defined the "relevant market" to include only those
hospital consumers who had Humana insurance policies. In
other words, the plaintiffs claimed a submarket whose boundaries
depended entirely on a written contract. Id. at 1476. And
just as the Third Circuit had done in Queens City Pizza, we
rejected that market definition, holding that explicit contractual
provisions limiting Humana insureds to certain hospitals
could not form the boundaries of an antitrust submarket. Id.

We also concluded that contractual obligations were not a
cognizable source of market power. In other words, the relevant
hospitals lacked market power in the general market for
all economically substitutable hospital care; the only reason
that they had a "monopoly" over Humana insureds was that
the Humana insureds had signed a contract explicitly granting
the hospitals that power. Id. The antitrust claim therefore
failed.

The Supreme Court's opinion in Eastman Kodak Co. v.
Image Technical Services, Inc., 504 U.S. 451 (1992), has
some characteristics in common with Queens City Pizza and
Forsyth, but it also has some critical differences. The general
market at issue in Eastman Kodak was the market for longterm
service contracts to maintain durable equipment, such as
photocopiers and micrographic equipment. Id. at 455-56. The
Kodak corporation manufactured such equipment, but it also
offered replacement parts and long-term service agreements.

The antitrust plaintiffs in Eastman Kodak did not allege
that Kodak held power in the general market for all such
durable-equipment services; they alleged market power only
in a submarket consisting of those customers that had already
purchased Kodak-brand equipment and that needed replacement
parts and services for that particular equipment. Id. at
456-59. The antitrust theory was that Kodak was engaging in
illegal practices to prevent independent service companies
from competing with Kodak in the aftermarket for service of
Kodak-brand equipment. Owners of Kodak-brand equipment,
the plaintiffs alleged, were forced to purchase replacement
parts and services only from the Kodak corporation.

As in Queens City Pizza and Forsyth, the alleged market
was limited to consumers of a particular brand; it included
only those consumers who had knowingly and voluntarily
purchased Kodak equipment. The boundaries of the relevant
market, therefore, depended on the consumers' prior decision
to purchase a Kodak-brand product, just as the market boundaries
in Queens City Pizza depended on the consumers' prior
decision to enter a Domino's franchise agreement and the
market boundaries in Forsyth depended on the consumers'
prior decision to purchase a Humana insurance policy. Nevertheless,
the Supreme Court held that the definition of the relevant
market in Eastman Kodak was acceptable. Id. at 462-63.

The critical distinction between Eastman Kodak and the
two circuit court opinions was that the Kodak customers did
not knowingly enter a contract that gave Kodak the exclusive
right to provide parts and services for the life of the equipment.

In other words, the simple purchase of Kodak-brand
equipment (unlike the signing of a Domino's franchise agreement
or the purchase of a Humana insurance policy) did not
constitute a binding contractual agreement to consume Kodak
parts and services in the aftermarket. Equally critically, the
Supreme Court found that market imperfections, including
information and switching costs, prevented consumers from
discovering, as they were shopping for equipment, that the
Kodak brand would include a de facto commitment to consume
only supracompetitively priced Kodak-brand service
contracts. Id. at 473-78. The Supreme Court specifically discussed
and rejected the possibility that a consumer's decision
to purchase Kodak-brand equipment (in an indisputably competitive
equipment market) was functionally equivalent to the
signing of a contractual provision that gave Kodak the exclusive
right to service its equipment. The Court rejected that
analogy on the ground that the consumers could not, at the
time of purchase, reasonably discover that Kodak monopolized
the service market and charged supracompetitive prices
for its service. Id. Kodak's market power in parts and services,
therefore, did not arise from a knowing contractual (or
quasi-contractual) arrangement.

[6] Taking these cases together, three relevant principles
emerge. First, the law permits an antitrust claimant to restrict
the relevant market to a single brand of the product at issue
(as in Eastman Kodak). Second, the law prohibits an antitrust
claimant from resting on market power that arises solely from
contractual rights that consumers knowingly and voluntarily
gave to the defendant (as in Queens City Pizza and Forsyth).

Third, in determining whether the defendant's market power
falls in the Queens City Pizza category of contractuallycreated
market power or in the Eastman Kodak category of
economic market power, the law permits an inquiry into
whether a consumer's selection of a particular brand in the
competitive market is the functional equivalent of a contractual
commitment, giving that brand an agreed-upon right to
monopolize its consumers in an aftermarket. The law permits
an inquiry into whether consumers entered into such "contracts"
knowing that they were agreeing to such a commitment.

In determining whether this case is more like Queens City
Pizza and Forsyth or more like Eastman Kodak, there are four
relevant aspects of the complaint.

The first relevant aspect of the complaint is that it alleges
the existence of two separate but related markets in intrabrand
copier equipment and service. The first market is an initial
market for copier leases and copier service, which (as the district
court correctly found) is a competitive market in which
IKON has no significant market power. The second market is
a derivative aftermarket for replacement equipment, which
includes markets for lease "buy outs" and for "lease-end service."

As in all three of the cited cases, the relevant market
here is not the indisputably competitive market in which the
consumers first shop for the primary product. It is an aftermarket
in which the consumers claim that they should be able
to shop for a secondary product.5 In this case, the primary
product is the equipment lease and initial service contract, and
the secondary product is the replacement equipment and the
lease-end service contract. The complaint alleges that suppliers
go through a different economic calculus when competing
for consumers of replacement equipment and lease-end service
than they do when competing for consumers of initial
equipment leases and service contracts.

As noted, all three of the cases involve aftermarkets. The
alleged aftermarket in this case, however, is more like the
aftermarket in Eastman Kodak than the aftermarket in Queens
City Pizza and Forsyth in one critical respect: the aftermarket
here is wholly derivative from and dependent on the primary
market. The markets for pizza ingredients and paper cups
would exist whether or not there was a market for pizza chain
franchises, and the market for acute care hospitals would exist
whether or not there was a market for health insurance. But
the market for durable micrographic equipment parts and services
would not exist without the market for durable micro-
5In Queens City Pizza, the primary product was the franchise agreement,
and the secondary product was the pizza ingredients. In Forsyth, the
primary product was the insurance contract, and the secondary product
was the hospital care. In Eastman Kodak, the primary product was the
durable equipment, and the secondary product was the service.
graphic equipment, and the market for replacement copiers
and lease-end services would not exist without the market for
copier leases and copier services.

[7] The relevance of this point to the legal viability of Newcal's
market definition may not be intuitively obvious, but it
is nevertheless significant. One of the primary considerations
in Eastman Kodak was the uniqueness of Kodak-brand
replacement parts and the resultant power that Kodak gained
in the derivative services market. In other words, Kodak held
a natural monopoly in the submarket for Kodak-brand
replacement parts, which gave it a unique position in the
wholly derivative aftermarket for service contracts. Kodak
was then able to exploit that unique position to gain monopoly
power in the derivative services market as well, even though
its monopoly power in services was neither naturally nor contractually
created. Similarly, here, IKON has a contractuallycreated
monopoly over services provided under original
IKON contracts. That contractually-created monopoly (which,
under Queens City Pizza, is the power that does not count as
"market power" for Sherman Act purposes) then gives IKON
a unique relationship with those consumers, and the contractual
relationship gives IKON a unique position in the wholly
derivative aftermarket for replacement equipment and leaseend
services. The allegation here is that IKON is, like Kodak,
exploiting its unique position - its unique contractual
relationship - to gain monopoly power in a derivative aftermarket
in which its power is not contractually mandated.

The second relevant aspect of the complaint is that its allegations
of illegal restraints of trade and illegal monopolization
relate only to the aftermarket, not to the initial market. Newcal
does not allege that IKON has restrained trade in the market
for initial leases and service agreements, nor does it allege
that IKON holds power in the primary market. Newcal alleges
that the deceptive and fraudulent "flex" agreements restrain
competitors' ability to compete in the derivative aftermarkets
for replacement equipment, lease buy-outs, and lease-end services. Critically, those flex agreements are not part of the initial
market as they were in Queens City Pizza. IKON obtains
the flex agreements only after obtaining an initial lease or
contract. The flex agreements, therefore, are (allegedly) part
of the separate and derivative aftermarket.

The third relevant aspect of the complaint is its description
of the source of IKON's market power. According to the
complaint, IKON does not achieve market power in the aftermarket
through contractual provisions that it obtains in the
initial market. Rather, as noted, its market power allegedly
flows from its relationship with its consumers. The contractual
relationship (not any contractual provision) gives IKON
special access to its consumers, and IKON leverages that relationship
to gain flex agreements and lease extensions. In other
words, no provision of IKON's initial contract gives it the
power to provide replacement equipment, to extend the contract
beyond 60 months, to foreclose competitors' buy outs, or
to prevent competition in lease-end services. The alleged market
power, therefore, is not a contractual power in the same
sense that the alleged market power in Queens City Pizza and
Forsyth was a contractual power.

The fourth relevant aspect of the complaint is that it alleges
that market imperfections, as well as IKON's fraud and
deceit, prevent consumers from realizing that their choice in
the initial market will impact their freedom to shop in the
aftermarket. Just as the plaintiffs had in Eastman Kodak,
Newcal offers factual allegations to rebut the economic presumption
that IKON consumers make a knowing choice to
restrict their aftermarket options when they decide in the initial
(competitive) market to enter an IKON contract. Competition
in the initial market, therefore, does not necessarily
suffice to discipline anticompetitive practices in the aftermarket.

[8] In the end, then, we find that Newcal's allegations are
more like the allegations at issue in Eastman Kodak than
those at issue in Queens City Pizza. This case is not a case in
which the alleged market power flows from contractual exclusivity.
IKON is not simply enforcing a contractual provision
that gives it the exclusive right to provide replacement equipment
and lease-end services. Rather, it is leveraging a special
relationship with its contracting partners to restrain trade in a
wholly derivative aftermarket. We therefore reverse the district
court's holding that Queens City Pizza and Forsyth render
Newcal's complaint legally invalid.

[9] That holding, however, does not quite end the matter.
In considering the legal validity of Newcal's alleged market,
we must also determine whether IKON customers constitute
a cognizable subset of the aftermarket, such that they qualify
as a submarket not only under the general principles from
Eastman Kodak but also under the specific Brown Shoe standard.
That is, we have thus far concluded only that there is no
per se rule against recognizing contractually-created submarkets
and that such submarkets are potentially viable when the
market at issue is a wholly derivative aftermarket. Even when
a submarket is an Eastman Kodak submarket, though, it must
bear the "practical indicia" of an independent economic entity
in order to qualify as a cognizable submarket under Brown
Shoe. In this case, Newcal's complaint sufficiently alleges
that IKON customers constitute a submarket according to all
of those practical indicia. Newcal has therefore done enough
to survive a Rule 12(b)(6) motion.

Of course, nothing we have said here guarantees that - or
even speaks to whether - Newcal's complaint will survive a
summary judgment motion. The actual existence of an aftermarket
for replacement equipment, lease buy-outs, and leaseend
services is a factual question. The actual existence of a
separate economic entity (i.e. a submarket) that includes only
IKON's customers is a factual question. The actual existence
of IKON's market power within the alleged submarket is a
factual question. IKON's actual leveraging of its contractual
relationships (and resultant market power) to foreclose com-
petition in the derivative aftermarket is a factual question. The
initial market's actual ability, through cross-elasticity of
demand, to discipline anti-competitive conduct in the aftermarket
is a factual question. All of these questions remain
open for resolution - either for or against Newcal - upon
remand, and all of these questions are appropriate matters for
resolution on summary judgment if Newcal fails to discover
and present evidence to support its allegations. We conclude
only that Newcal's allegations state a claim upon which relief
could be granted, and we remand on that basis only.

B
[10] In addition to arguing that Newcal failed to allege a
relevant market, IKON asks us to affirm the district court's
dismissal order on the alternative ground that Newcal failed
to state claims based on exclusive dealing, tying, restraint of
trade, and attempted monopolization. IKON's arguments,
however, all hinge on factual disagreements rather than legal
deficiencies, such that the arguments do not support affirmance
of the Rule 12(b)(6) dismissal.

First, IKON argues that Newcal failed to state a claim for
exclusive dealing on the ground that the IKON contracts do
not, in fact, contain exclusive dealing provisions. This assertion
hinges on a factual question, namely the precise terms of
the IKON contracts. Newcal's complaint alleges that "IKON
and GE have entered into exclusive dealing arrangements
with their IKON Contracts, IKON Amendments and Flexed
IKON Contracts[.]" That allegation, which we must accept as
true, is enough to survive dismissal under Rule 12(b)(6).

Second, IKON argues that Newcal failed to state a claim
for tying because it failed to allege that IKON forces its consumers
to accept the tied product. Newcal specifically alleged,
however, that IKON has "been able to force purchasers of the
tying product who are locked in at the end of the original term
of the cost-per-copy lease by the Flexed IKON Contract to
buy the tied product[.]" Once again, that allegation suffices to
survive a motion to dismiss. IKON further argues that no set
of facts will be available to demonstrate that IKON has the
ability to force ties on its consumers because it lacks market
power in the tying product, namely the replacement copier
equipment. In support of that point, IKON cites Illinois Tool
Works, Inc. v. Independent Ink, Inc., 547 U.S. 28, 126 S.Ct.
1281 (2006), for the proposition that a plaintiff must prove
"market power in the tying product" in order to establish a
tying claim. Id. at 1293. IKON is undoubtedly right that Newcal
must prove market power in the tying product, but the
existence or non-existence of that market power is a factual
question. In fact, in Illinois Tool Works, the Supreme Court
eliminated a legal rule that patent holders would be presumed
to hold market power in patented products. The Court held
that a finding of monopoly "must be supported by proof of
power in the relevant market rather than by a mere presumption
thereof." Id. at 1291. The Court's reasoning, thus, supports
the conclusion that market power is in this case a factual
question. Resolution of the market power question on a Rule
12(b)(6) motion is therefore inappropriate in this case.

Third, IKON argues that Newcal's generic restraint of trade
claim should be dismissed. IKON's argument on this point
simply reiterates its assertion that Newcal failed to allege any
viable market. We have already addressed and rejected that
argument; IKON offers no independent reason to dismiss
Newcal's generic restraint of trade claim.

Fourth, IKON argues that Newcal failed to state its claims
of conspiracy to monopolize and attempted monopolization.
Once again, this argument simply reiterates the market arguments
without providing any independent reason to dismiss
the claims.
[11] In sum, Newcal's antitrust claims do not fail to state
a claim upon which relief may be granted.

III

The second question on appeal is whether Newcal sufficiently
alleged false or misleading statements of fact to support
its Lanham Act claim. The district court found that all
five of the statements identified in Newcal's complaint were
insufficient to support the claim. Because the district court's
conclusions with respect to four of those five statements
rested on factual findings rather than legal conclusions, we
reverse the Rule 12(b)(6) dismissal and remand Newcal's
Lanham Act claim.

Under the Lanham Act, a "prima facie case requires a
showing that (1) the defendant made a false statement either
about the plaintiff's or its own product; (2) the statement was
made in commercial advertisement or promotion; (3) the
statement actually deceived or had the tendency to deceive a
substantial segment of its audience; (4) the deception is material;
(5) the defendant caused its false statement to enter interstate
commerce; and (6) the plaintiff has been or is likely to
be injured as a result of the false statement, either by direct
diversion of sales from itself to the defendant, or by a lessening
of goodwill associated with the plaintiff's product." Jarrow
Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829 (9th
Cir. 2000).

[12] Newcal alleged all elements of a Lanham Act violation,
specifically listing the following five false or misleading
statements of fact: "(a) that IKON [ ] would deliver ‘flexibility'
in their ‘cost-per-copy' contracts and that they would
lower copying costs for consumers; (b) that IKON [ ] would
deliver 95% up-time service in their IKON Contracts; (c) that
original IKON Contracts were intended by IKON to be for a
fixed term of sixty (60) months and would expire at the end
of that term; (d) that IKON Amendments for sixty (60)
months applied only to the changes on the Amendment, not
to the entire fleet of IKON [ ] Copier Equipment of the consumer;
and (e) that IKON's ‘flexing' practices had been
declared legal by [the District] Court in its opinion of December
23, 2004."

The district court concluded that statement (a) constituted
"puffing," that statements (b) and (c) were not " ‘false or misleading
representations of fact' at the time they were made,"
and that statements (d) and (e) could not "reasonably be said
to have been made in ‘a commercial advertisement or promotion.'
"6

First, we agree with and affirm the district court's conclusion
that statement (a) constitutes "puffing." In Cook, Perkiss,
& Liehe v. Northern California Collection Service, Inc., 911
F.2d 242, 245 (9th Cir. 1990), we concluded that the determination
of whether an alleged misrepresentation "is a statement
of fact" or is instead "mere puffery" is a legal question that
may be resolved on a Rule 12(b)(6) motion. A statement is
considered puffery if the claim is extremely unlikely to induce
consumer reliance. Ultimately, the difference between a statement
of fact and mere puffery rests in the specificity or generality
of the claim. Id. at 246. "The common theme that seems
to run through cases considering puffery in a variety of contexts
is that consumer reliance will be induced by specific
rather than general assertions." Id. Thus, a statement that is
quantifiable, that makes a claim as to the "specific or absolute
characteristics of a product," may be an actionable statement
of fact while a general, subjective claim about a product is
non-actionable puffery. Id. In this case, statement (a) is not a
quantifiable claim and does not describe (or misdescribe) any
specific or absolute characteristic of IKON's service. Rather,
it is a general assertion that IKON provides its customers with
6IKON argues that Newcal waived all of its arguments except those
directed at the district court's first conclusion by failing to argue those
points before the district court in its opposition to the motion to dismiss.
According to IKON, the only question that Newcal preserved for appeal
is the question of whether statement (a) constitutes "puffing." We disagree.

There was sufficient argument in the opposition brief to preserve all
of Newcal's arguments for review.

low costs and with flexibility. That kind of general assertion
is classic puffery. The district court, therefore, was correct to
conclude that statement (a) could not support Newcal's Lanham
Act claim.

The second question we must address is whether statements
(b) and (c) were " ‘false or misleading statements of fact' at
the time they were made." With respect to statement (b), the
question of whether IKON does or does not actually "deliver
95% up-time service in their IKON Contracts" - as well as
the question of whether it actually had a 95% rate of up-time
service at the time that IKON made that statement - are factual
questions. Our review is limited to facts alleged in the
complaint. The complaint alleges that this statement was false
when made, and so it survives 12(b)(6) scrutiny.

With respect to statement (c), IKON correctly points out
that other parts of Newcal's complaint allege that initial
IKON contracts were limited to 60 months, which would support
the inference that statement (c) ("that original IKON
Contracts were intended by IKON to be for a fixed term of
sixty (60) months and would expire at the end of that term")
was true when made. But that inference could be proved false,
or the statement could be proved true but misleading. See
Cook, Perkiss, & Liehe, 911 F.2d at 245. Newcal alleges that
the assurance of a 60 month limitation on the contract was
misleading since IKON allegedly intended to - and allegedly
did - fraudulently extend those contracts. The validity of that
statement as an actionable statement therefore may depend on
whether IKON knew at the time that it made the statement
that it would fraudulently "flex" the contracts beyond their 60
month terms. And the question of IKON's knowledge and
intent is a factual question. With respect to statement (c),
therefore, there remains a factual question of whether the
statement was intentionally misleading at the time it was
made.

We therefore reverse the district court's holding with
respect to statements (b) and (c).

The final question is whether statements (d) and (e) could
"reasonably be said to have been made in ‘a commercial
advertisement or promotion.' " To constitute commercial
advertising or promotion, a statement of fact must be:
(1) commercial speech; (2) by the defendant who is
in commercial competition with the plaintiff; (3) for
the purpose of influencing consumers to buy defendant's
goods or services. While the representations
need not be made in a "classic advertising campaign,"
but may consist instead of more informal
types of "promotion," the representations (4) must be
disseminated sufficiently to the relevant purchasing
public to constitute "advertising" or "promotion"
within that industry.

Coastal Abstract Service, Inc. v. First American Title Insurance
Co., 173 F.3d 725, 735 (9th Cir. 1999) (quotation marks
omitted). Whether the relevant statements were "disseminated
sufficiently to the relevant purchasing public," id, may turn
out to be true or false, but the allegation suffices for purposes
of stating a claim. Newcal alleged that IKON made all five of
the alleged false statements "in commercial advertising and
promotion of [its] goods and services to all IKON and GE
customers[,] . . . by the broad dissemination of pieces of promotional
literature to thousands of accounts by IKON's and
GE's over 2,000 sales representatives and employees." Newcal
must be given an opportunity to prove that the alleged
statements were made in commercial advertising.

IKON's citation to Walker & Zanger, Inc. v. Paragon
Indus., Inc., 465 F.Supp.2d 956 (N.D. Cal. Dec. 1, 2006),
does not change this analysis. That case found on a motion for
summary judgment that the factually-established "handful of
statements to customers" did not constitute sufficient dissemination
in the industry at issue in that case. On remand, the district
court here will be free to reach the same conclusion, but
only after Newcal has had an opportunity to present evidence
in support of its allegations and has failed to meet its burden
of proof. IKON has offered no citation that would support dismissal
as a matter of law.

[13] We therefore reverse and remand Newcal's Lanham
Act claim. The complaint sufficiently alleges all elements of
a Lanham Act violation, including several false statements of
fact that were allegedly disseminated to the relevant market's
consumers. The district court correctly held that statement (a)
constitutes puffery, but statements (b)-(e) should have survived
the motion to dismiss and must therefore be remanded
for evidentiary development.

IV

The third question on appeal is whether Newcal has standing
to pursue its RICO claim. The district court concluded
that it does not. We reverse and remand.

The statutory provision that creates a RICO civil action, 18
U.S.C. § 1964(c), allows "[a]ny person injured in his business
or property by reason of a violation of" the RICO statute to
bring a civil suit for treble damages. To demonstrate RICO
standing, a plaintiff must allege that it suffered an injury to its
"business or property," 18 U.S.C. § 1964(c), as a proximate
result of the alleged racketeering activity, Holmes v. Securities
Investor Protection Corp., 503 U.S. 258 (1992). In other
words, RICO standing requires compensable injury and proximate
cause.

In this case, Newcal alleges two injuries. First, it claims
that IKON's fraud foreclosed "specific named customer
accounts" from competition, thereby decreasing Newcal's
market share. Second, Newcal claims to have paid a fraudulently
inflated price to buy out certain accounts that were
under flexed IKON contracts.

[14] Relying on Oscar v. University Students Co-Operative
Association, 965 F.2d 783, 785-86 (9th Cir. 1992) (en banc),
and Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303,
1311 (9th Cir. 1992), the district court first held that Newcal's
alleged injuries are speculative injuries, which were not compensable
under RICO. Since the district court issued its order,
we have overturned the rules on which the court relied. In
Diaz v. Gates, 420 F.3d 897, 900 (9th Cir. 2005) (en banc),
we held that an injury is compensable under RICO if the
injury constitutes "harm to a specific business or property
interest" and if the alleged business or property interest is
cognizable under state law. Id. The district court has not had
the opportunity to consider Diaz. We therefore remand the
RICO claim to the district court for reconsideration of the
compensable injury requirement under Diaz.

[15] In this circuit, three factors are relevant in determining
whether a plaintiff has shown proximate cause:

(1) whether there are more direct victims of the
alleged wrongful conduct who can be counted on to
vindicate the law as private attorneys general; (2)
whether it will be difficult to ascertain the amount of
the plaintiff's damages attributable to defendant's
wrongful conduct; and (3) whether the courts will
have to adopt complicated rules apportioning damages
to obviate the risk of multiple recoveries.

Ass'n of Wash. Pub. Hosp. Dists. v. Phillip Morris Inc., 241
F.3d 696, 701 (9th Cir. 2001). The existence of more-direct
victims defeats proximate cause if we can count on those
injured parties to "vindicate the law as private attorneys general"
or if the existence of other injured parties creates difficulties
of apportionment or risks of multiple recovery. Id. See
also Oregon-Laborers Health & Welfare Trust Fund v. Philip
Morris, Inc., 185 F.3d 957, 963-67 (9th Cir. 1999). The three
questions here, therefore, must be whether the direct victims
of IKON's fraud would be likely to sue IKON, whether the
existence of those victims would make it difficult to apportion
damages, and whether the existence of those victims would
create a risk of multiple recovery against IKON. Those questions
are all factual questions, which we cannot resolve on a
Rule 12(b)(6) motion in this case. We therefore remand to the
district court for further consideration of the proximate cause
requirement under the appropriate standard. See Mendoza v.
Zirkle Fruit Co., 301 F.3d 1163, 1168-69 (9th Cir. 2001)
(reversing a Rule 12(b)(6) dismissal because certain proximate
cause elements required factual development).

[16] IKON also argues, as an alternative basis for affirming
the district court's dismissal order, that Newcal failed to
allege a RICO enterprise. The definition of "enterprise" in the
text of the RICO statute is as follows: " ‘enterprise' includes
any individual, partnership, corporation, association, or other
legal entity, and any union or group of individuals associated
in fact although not a legal entity." 18 U.S.C. § 1961(4). We
recently held in Odom v. Microsoft Corp., 486 F.3d 541 (9th
Cir. 2007), that RICO's enterprise element does not require
the allegation or proof of any separate organizational structure.
Newcal's complaint alleges a sufficient enterprise-in-fact
under Odom.

Finally, IKON asks us to affirm dismissal on the ground
that Newcal failed to allege its fraud allegations with sufficient
particularity, as required under Fed. R. Civ. P. 9(b). Specifically,
IKON asserts that Newcal failed to identify the false
statements of fact that give rise to the fraud allegation. We
disagree.

[17] Newcal alleged several forms of misrepresentation and
deception in which IKON purportedly engaged. Also, the
complaint specifically alleges that GE, which bought and
enforced some flexed IKON contracts, knew about the fraud
and actively profited from the fraud. Because GE allegedly
knew about the fraud, participated in gathering profits from
the fraud, and did, in fact, profit from the fraud, its specific
intent can be inferred. These allegations are sufficient to satisfy
Rule 9(b).

V

The last question on appeal is whether the district court
abused its discretion when it dismissed Newcal's declaratory
complaint without granting leave to amend. We hold that it
did.

Newcal sought a declaration that all flexed IKON contracts
were void and unenforceable. The district court denied that
request on two grounds: (1) that Newcal lacked constitutional
standing to bring the action because it lacked a cognizable
interest in the enforceability of third-party contracts and (2)
that prudential considerations counseled against granting the
request because a declaratory judgment would not prevent
future litigation.

The district court erred in finding an absence of constitutional
standing. Newcal alleged in its declaratory complaint
that IKON had threatened to sue Newcal for "interfering with
its existing and potential business relationships." Newcal
sought a declaration that the business relationships with which
it interfered were not legally protectable because they were
obtained through fraud.

[18] On that basis, Newcal had a stake in the controversy
even though it was not a party to the relevant contracts. Cf.
Mardian Equipment Co. v. St. Paul Fire & Marine Ins. Co.,
2006 WL 2456214, at *5 (D. Ariz. Aug. 22, 2006) ("Here,
Plaintiff and St. Paul have no adverse legal interests."); Meccatech
v. Kiser, 2006 WL 2690063, at *5 & n.6 (D. Neb.
Sept. 18, 2006) (holding that the declaratory plaintiff faced
"no threat of pecuniary loss"). We have held under similar
circumstances that the threat of suit is enough to create standing,
such that the threatened party may seek a declaration that
the threatening party's putative rights are invalid. See, e.g.,
Societe de Conditionnement en Aluminium v. Hunter Engineering
Co., Inc., 655 F.2d 938 (9th Cir. 1981). The district
court therefore erred in holding that Newcal lacked constitutional
standing to bring its declaratory complaint.

[19] For similar reasons, the district court erred in holding
that the grant of declaratory relief would serve no useful purpose.
The district court cited United States v. Washington, 759
F.2d 1353, 1357 (9th Cir. 1985), for the proposition that a
court should deny declaratory relief "when it will neither
serve a useful purpose in clarifying and settling the legal relations
in issue nor terminate the proceedings and afford relief
from the uncertainty and controversy faced by the parties." In
Washington, the court below had issued a declaratory judgment
that the State of Washington owed a general obligation
and duty under treaty "to refrain from degrading or authorizing
the degradation of the fish habitat to an extent that would
deprive the treaty Indians of their moderate living needs." Id.
at 1355. The Ninth Circuit vacated that declaratory judgment
on the ground that it was too broad; it was not based "upon
concrete facts which underlie a dispute in a particular case."
Id. at 1357.

In this case, even a broad declaration that IKON's fraudulent
conduct has rendered invalid all of its fraudulently procured
contracts would be a declaration that is grounded in the
particular facts of the controversy before the court, namely
Newcal's allegedly tortious interference with all such current
and prospective contracts. Furthermore, that declaration
would meet the test that the district court announced. It would
"clarify or settle the legal relations in issue" (i.e. IKON's
legal right to recover from Newcal for tortious interference),
and it would "afford relief from the uncertainty faced by the
parties" (i.e. both Newcal's and IKON's uncertainty as to the
legal validity of IKON's tortious interference theory).
[20] We therefore reverse the district court's dismissal of
Newcal's declaratory complaint and remand. The threat of litigation
is a cognizable injury for standing purposes, and the
grant of declaratory relief would not be inadvisable under the
identified prudential considerations.

* * *

http://www.ca9.uscourts.gov/ca9/newopinions.nsf
/40DAC62E3E35A9A0882573D90051544E/$file/0516208.pdf?openelement