Snow v. Align Technology, Inc.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SIMON AND SIMON, PC; VIP No. 24-1703 DENTAL SPAS, D.C. No. 3:20-cv-03754- Plaintiffs - Appellants, VC v. ALIGN TECHNOLOGY, INC., OPINION Defendant - Appellee. MISTY SNOW; EMILY VO; KATIE No. 24-1783 CAMPBELL; CECELIA GARAY; CELESTE HAMILTON; D.C. No. STEPHANIE RICKENBAKER; 3:21-cv-03269- ANGELA CARNAGHI; JENNIFER VC EZZIO; JAIME GOOCH; TRACY MOUND; JUSTIN HANSEN; ELISABETH SKIBBA, Plaintiffs - Appellants, v. ALIGN TECHNOLOGY, INC., Defendant - Appellee. 2 SIMON AND SIMON, PC V. ALIGN TECH., INC. Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding Argued and Submitted April 10, 2025 San Francisco, California Filed October 5, 2026 Before: Sidney R. Thomas, Richard A. Paez, and Eric D. Miller, Circuit Judges. Per Curiam Opinion; Concurrence by Judge Miller SUMMARY * Antitrust The panel reversed the district court’s summary judgment in favor of Align Technology, Inc., and remanded in antitrust class actions brought by two groups of plaintiffs under section 2 of the Sherman Act, 15 U.S.C. § 2. Plaintiffs alleged that Align, maker of a dental aligner known as Invisalign and a handheld intraoral scanner called iTero, engaged in an anticompetitive scheme to monopolize the aligner and scanner markets. Plaintiffs alleged that Align refused to deal with its competitor by terminating a digital * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  SIMON AND SIMON, PC V. ALIGN TECH., INC. 3 interoperability agreement between Invisalign and TRIOS, a rival intraoral scanner made by 3Shape. The panel held that under the burden-shifting framework applied in section 2 cases under the Sherman Act, including refusals to deal, a plaintiff must first establish a prima facie case of anticompetitive conduct. At step two, the burden shifts to the defendant to provide a procompetitive, nonpretextual business justification for its refusal to deal. At step three, the burden shifts back to the plaintiff to rebut the asserted justification, either as not legitimately procompetitive or as pretextual. If the plaintiff cannot rebut the justification, then the plaintiff must demonstrate that the anticompetitive harm of the refusal to deal outweighs any procompetitive effect. The panel held that at step one, plaintiffs established a prima facie case. The market at issue was the aligner market. As to this market, all three Aspen Skiing factors were satisfied. Align unilaterally ended a voluntary and profitable course of dealing when it terminated interoperability with 3Shape; it refused to sell at the prevailing retail price; and it refused to provide 3Shape with products that were already sold in a retail market to other customers. At step two, Align met its burden by asserting that it terminated interoperability to strengthen its position in patent litigation against 3Shape. At step three, the panel held that plaintiffs presented sufficient evidence to create genuine disputes of material fact over whether Align’s proffered justification was legitimately procompetitive. Plaintiffs also presented sufficient evidence to create genuine disputes of material 4 SIMON AND SIMON, PC V. ALIGN TECH., INC. fact over whether Align’s proffered justification was pretextual. Concurring in the judgment, Judge Miller wrote that the court’s opinion made a significant and unwarranted expansion of refusal-to-deal liability by holding that a plaintiff can prevail whenever a jury thinks that the anticompetitive harm of the refusal to deal outweighs any competitive benefit. Judge Miller nonetheless concluded that plaintiffs presented sufficient evidence to create a genuine dispute of material fact on whether Align’s proffered justification for terminating interoperability was pretextual. He therefore agreed with the decision that the district court erred in granting summary judgment to Align on the section 2 refusal-to-deal claim and that the case should be remanded for trial. But because he did not agree with the expansion of the legal standard for refusal-to-deal claims, he concurred only in the judgment. COUNSEL Joshua P. Davis (argued) and Matthew I. Summers, Berger Montague PC, San Francisco, California; Joseph E. Samuel Jr. and Eric L. Cramer, Berger Montague PC, Philadelphia, Pennsylvania; Rio S. Pierce (argued), Hagens Berman Sobol Shapiro LLP, Berkeley, California; Steve W. Berman, Theodore Wojcik, and Joseph M. Kingerski, Hagens Berman Sobol Shapiro LLP, Seattle, Washington; John Radice and April Lambert, Radice Law Firm PC, Princeton, New Jersey; for Plaintiffs-Appellants. Kannon K. Shanmugam (argued), Anna J. Goodman, Anna P. Lipin, Brian M. Lipshutz, and James Durling, Paul Weiss  SIMON AND SIMON, PC V. ALIGN TECH., INC. 5 Rifkind Wharton & Garrison LLP, Washington, D.C.; Thomas A. Counts, Paul Hastings LLP, San Francisco, California; Adam M. Reich, Paul Hastings LLP, Chicago, Illinois; James M. Pearl and Emma Farrow, Paul Hastings LLP, Los Angeles, California; Michael F. Murray, Paul Hastings LLP, Washington, D.C.; Noah B. Pinegar, Paul Hastings LLP, New York, New York; Michael Whalen, Kirkland & Ellis LLP, Chicago, Illinois; for Defendant- Appellee. Patrick M. Kuhlmann (argued), Daniel E. Haar, Nickolai G. Levin, and John J. Sullivan, Attorneys, Antitrust Division; Alice A. Wang and Spencer D. Smith, Counsels to the Assistant Attorney General; David B. Lawrence, Policy Director; John W. Elias, Deputy Assistant Attorney General; Doha G. Mekki, Principal Deputy Assistant Attorney General; Jonathan S. Kanter, Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Amicus Curiae United States of America. Kathleen W. Bradish and David O. Fisher, American Antitrust Institute, Washington, D.C., for Amicus Curiae American Antitrust Institute. Matthew J. Dowd, Dowd Scheffel PLLC, Washington, D.C., for Amicus Curiae the Honorable Paul R. Michel. Gregory J. Werden, Arlington, Virginia, for Amicus Curiae Gregory J. Werden. 6 SIMON AND SIMON, PC V. ALIGN TECH., INC. OPINION PER CURIAM: Two groups of plaintiffs filed antitrust class actions against Align Technology, Inc., the maker of a popular dental aligner known as Invisalign and a handheld intraoral scanner called iTero. Plaintiffs claimed that as part of an anticompetitive scheme to monopolize the aligner and scanner markets in violation of section 2 of the Sherman Act, 15 U.S.C. § 2, Align refused to deal with its competitor by terminating a digital interoperability agreement between Invisalign and a rival intraoral scanner. The district court granted summary judgment to Align, reasoning that although Align may have been motivated in part by a desire to harm its competitor, its action was also based in part on a legitimate business justification. This was an incomplete application of the burden- shifting framework applied in section 2 cases under the Sherman Act, including refusals to deal. At step one, a plaintiff must establish a prima facie claim of anticompetitive conduct. The Aspen Skiing factors are especially probative of this inquiry in the refusal to deal context, but as the district court recognized, they are not a rigid list of elements. At step two, the burden shifts to the defendant to provide a procompetitive, nonpretextual business justification for its refusal to deal. At step three, the burden shifts back to the plaintiff to rebut the asserted justification, either as not legitimately procompetitive or as pretextual. If the plaintiff cannot rebut the justification, then the plaintiff must demonstrate that the anticompetitive harm of the refusal to deal outweighs any procompetitive benefit.  SIMON AND SIMON, PC V. ALIGN TECH., INC. 7 The district court erred in granting summary judgment because Plaintiffs have presented sufficient evidence to create genuine disputes of material fact over whether Align’s proffered justification was legitimately procompetitive and whether it was pretextual. Either of these grounds would be sufficient for Plaintiffs’ claims to proceed to trial. We therefore reverse and remand. I Align sells Invisalign, a dental aligner that replaces traditional braces and corrects the misalignment of teeth using a series of clear, removable appliances that gradually shift teeth to the desired position. Producing those appliances requires precise measurements of a patient’s mouth, so Align also sells iTero, a handheld scanner that allows dentists to take digital impressions of teeth. Align’s products are digitally integrated: iTero’s software allows dentists to submit scans directly to Align to place Invisalign orders. While iTero can be used to order non-Invisalign aligners, the process is costly and cumbersome, so iTero and Invisalign effectively constitute a closed system. Align is a major player in both the aligner and scanner markets. As a pioneer in clear aligners, Align holds hundreds of patents related to Invisalign, allowing it to occupy a market-leading position. During the period at issue in this case, Align controlled about ninety percent of the aligner market in the United States. With iTero, Align also leads the market for intraoral scanners, especially those that take digital images for making aligners. Align has enabled digital interoperability between Invisalign and a few competing scanners. For example, Align has agreed to make Invisalign compatible with 3M’s True Definition scanner and Dentsply Sirona’s CEREC 8 SIMON AND SIMON, PC V. ALIGN TECH., INC. Omnicam scanner. In December 2015, Align also entered into an agreement with 3Shape to make 3Shape’s TRIOS scanner interoperable with Invisalign. TRIOS is designed to be an open system that can be used to order aligners from different manufacturers. Align considers 3Shape to be its main competitor in the scanner market. Align’s agreement with 3Shape allowed both parties to terminate at will and preserved Align’s intellectual property rights, including its United States patents. During negotiations for the agreement and throughout the period of interoperability, Align asked 3Shape several times to make TRIOS compatible exclusively with Invisalign. 3Shape rejected those proposals, citing its commitment to an open system. Align and 3Shape’s partnership was short-lived. In December 2017, with one year remaining in the agreement, Align announced that it was terminating interoperability and would “no longer be able to accept digital scans for new Invisalign treatment and/or retention cases from TRIOS scanners in the United States.” While the majority of Invisalign orders continued to be placed through Align’s own iTero scanner, 3Shape’s TRIOS scanner represented a growing and popular non-iTero channel. Around the same time, several key patents related to Invisalign’s technology were set to expire, and Align was concerned about growing competition in the clear-aligner market once those patents expired. In particular, Align worried that open-system scanners like TRIOS could be used to order other clear aligners that would cut into Align’s market share. Align continued to accept digital scans from TRIOS outside of the United States, where interoperability did not terminate.  SIMON AND SIMON, PC V. ALIGN TECH., INC. 9 About a month before it terminated the agreement, Align filed six patent actions against 3Shape with the United States International Trade Commission and in federal district court, asserting infringement of twenty-six patents related to intraoral scanning. Align publicly stated that it would no longer “accept scans from US-based TRIOS scanners that infringe our patents.” Align and 3Shape ultimately settled the patent litigation. In the meantime, Align’s interoperability agreements with 3M and Dentsply Sirona remained intact. Align also sought to increase Invisalign sales through promotional programs and agreements. In one such program, known as “Fusion,” Align gave significant discounts on iTero scanners to dental providers who committed to submitting a minimum number of Invisalign cases annually for three years. In addition, Align negotiated promotional agreements with individual dental practices and dental service organizations, which manage multiple dental practices. Those agreements contained exclusivity clauses committing purchasers—including two of the largest dental service organizations in the country—to Align for several years. In 2020, two dental practices led by Simon & Simon, PC (Simon) brought a class action on behalf of dental practices that purchased aligners and scanners directly from Align. Simon alleged that Align violated section 2 of the Sherman Act by engaging in an anticompetitive scheme to monopolize the aligner and scanner markets. Simon described Align’s scheme as encompassing the unilateral termination of Align’s interoperability agreement with 3Shape as well as exclusive contracts, illegal bundling, and other objectionable programs. The district court denied Align’s motion to dismiss. 10 SIMON AND SIMON, PC V. ALIGN TECH., INC. In 2021, Misty Snow and fifteen individuals who purchased Invisalign aligners for personal use (Snow) brought their own class action on behalf of themselves and other consumers. Like Simon, Snow alleged that Align engaged in an anticompetitive scheme to monopolize the aligner and scanner markets. Specifically, Snow claimed that the scheme consisted of three components: (1) the unilateral termination of the interoperability agreement with 3Shape, (2) the Fusion program, which bundled Invisalign and iTero sales, and (3) exclusive contracts. Snow asserted violations of section 2. She also asserted claims under analogous state antitrust laws, allowing her to seek damages unavailable under federal law to indirect purchasers, such as consumers who purchased Invisalign from their dentists rather than directly from Align. See Ill. Brick Co. v. Illinois, 431 U.S. 720, 746 (1977). The district court denied Align’s motion to dismiss in relevant part. The district court consolidated the cases and granted Simon’s and Snow’s (Plaintiffs’) motions for class certification, certifying a nationwide damages class of direct aligner purchasers, a nationwide injunctive-relief class of indirect aligner purchasers, and damages classes of indirect aligner purchasers in ten States. Align then moved for summary judgment on the section 2 claims in both cases and the corresponding state- law claims in the Snow case. Align argued that it terminated interoperability not for anticompetitive reasons but because continuing interoperability could have weakened its position in the patent litigation by allowing 3Shape to assert various equitable defenses. During discovery, Align asserted the attorney-client privilege and objected to an interrogatory about the reason for terminating interoperability, and during the deposition of its Chief Executive Officer (CEO), it  SIMON AND SIMON, PC V. ALIGN TECH., INC. 11 objected on the same ground to questions about its decision- making process. The district court sustained Align’s claims of privilege. Plaintiffs then moved to preclude “Align’s argument that it terminated interoperability to protect its patent interests.” But the district court denied that motion, explaining that the legitimacy of Align’s business justification could likely “be adjudicated without reference to privileged materials.” At summary judgment, without access to the privileged information, Plaintiffs primarily relied on the testimony of their patent expert and on circumstantial evidence to argue that Align’s patent justification was pretextual. The district court granted summary judgment to Align. Quoting the American Bar Association’s model jury instructions, the court held that “[a] refusal to deal that is based in part on legitimate business reasons does not violate the antitrust laws, even if it is also motivated by the desire to harm competitors or does in fact harm competitors.” American Bar Ass’n, Model Jury Instructions in Civil Antitrust Cases, ch. 3.B.2, at 129 (2016). The court observed that “termination of the interoperability agreement was bound up in Align’s decision to initiate intellectual property litigation against 3Shape” because the litigation “raised the possibility that 3Shape would assert affirmative defenses . . . based partly on the fact that Align had been, and continued to be, in a business arrangement with 3Shape that involved the use of the allegedly-infringing scanners.” It concluded that “no reasonable jury could reject the notion that termination of the agreement was based ‘in part’ on legitimate business reasons.” 12 SIMON AND SIMON, PC V. ALIGN TECH., INC. II A. Legal Background Section 2 of the Sherman Act makes it unlawful to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 2. Simply possessing “monopoly power in the relevant market” does not violate section 2. United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966). A section 2 violation also requires “willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” Id. In other words, “the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.” Verizon Commc’ns Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004). This case involves allegations of anticompetitive conduct in the form of one business’s refusal to deal with a rival. As a general matter, businesses enjoy the right to refuse to deal with anyone, including their rivals. “In the absence of any purpose to create or maintain a monopoly,” the Sherman Act “does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U.S. 300, 307 (1919). Such refusals— even when they are made with the intent to harm competitors—often reflect “vigorous competition” that promotes consumer welfare. Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1078 (10th Cir. 2013) (Gorsuch, J.).  SIMON AND SIMON, PC V. ALIGN TECH., INC. 13 Nevertheless, the right to refuse to deal is “not unqualified.” Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 601 (1985). The Supreme Court has recognized narrow circumstances in which “a refusal to cooperate with rivals can constitute anticompetitive conduct and violate § 2.” Trinko, 540 U.S. at 408; see Otter Tail Power Co. v. United States, 410 U.S. 366, 374–75 (1973). The leading refusal-to-deal case is Aspen Skiing. There, Ski Co., the owner of three ski resorts in Aspen, Colorado, ceased offering an all-Aspen lift ticket that included access to a fourth, rival ski resort, Aspen Highlands (Highlands). 472 U.S. at 587–93. In its place, Ski Co. offered a three- resort ticket that excluded Highlands. Id. at 593–95. Highlands sued Ski Co. under section 2, and the jury was instructed that “if there were legitimate business reasons for the refusal” of Ski Co. to continue to deal with Highlands, “then the defendant . . . has not violated the law.” Id. at 597. The jury found for Highlands, thereby determining “that there were no valid business reasons for the refusal.” Id. at 604–05. The Supreme Court agreed that a reasonable jury could have concluded, based on the evidence, that Ski Co. violated section 2. Id. at 608. Ski Co. claimed that it terminated the all-Aspen ticket because usage could not be properly monitored, the system was administratively cumbersome, and Highlands offered inferior skiing services with which Ski Co. did not wish to be associated. Id. at 608–10. But Highlands offered evidence contradicting each of those proffered business reasons, and the jury credited Highlands’s evidence. Id. Accordingly, the Court concluded that Ski Co. had failed “to offer any efficiency justification whatever for its pattern of conduct,” id. at 608, and that it “was not motivated by efficiency concerns” but “was apparently 14 SIMON AND SIMON, PC V. ALIGN TECH., INC. motivated entirely by a decision to avoid providing any benefit to Highlands,” id. at 610. In MetroNet Services Corp. v. Qwest Corp., we identified three circumstances present in Aspen Skiing that the Supreme Court has “found significant” in analyzing refusal-to-deal claims. 383 F.3d 1124, 1132–33 (9th Cir. 2004). They include (1) “the unilateral termination of a voluntary and profitable course of dealing,” (2) “the defendant’s refusal to sell to the plaintiff at the prevailing retail price, . . . [which] indicated a willingness to sacrifice short-term benefits in order to obtain higher profits in the long run from the exclusion of competition,” and (3) the defendant’s refusal “to provide to . . . competitors products that were already sold in a retail market to other customers.” Id. Nonetheless, as the district court pointed out, “[t]here is indeed confusion in the case law” on the proper legal framework at the summary judgment stage. Because we remand this case for further proceedings, we take this opportunity to clarify the three-step framework. B. Burden-Shifting Framework To make out a refusal-to-deal claim under section 2, a plaintiff must first establish a prima facie case of anticompetitive conduct. The Aspen Skiing factors are a starting point for this inquiry. A plaintiff must put forward at least one of these factors, but courts should consider them flexibly, “on a case-by-case basis, focusing on the ‘particular facts disclosed by the record.’” Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 467 (1992) (Kodak). That is, while a plaintiff cannot establish a prima facie case when none of the factors are present, these factors do not impose a rigid checklist on all refusal-to-deal plaintiffs in all  SIMON AND SIMON, PC V. ALIGN TECH., INC. 15 industries. FTC v. Qualcomm Inc., 969 F.3d 974, 995 (9th Cir. 2020); see also Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 457 (7th Cir. 2020). Second, after the plaintiff has established a prima facie case, the burden shifts to the defendant to provide a legitimate business justification for its conduct. See Aspen Skiing, 472 U.S. at 608; Kodak, 504 U.S. at 483; Qualcomm, 969 F.3d at 991. A legitimate business justification is “a nonpretextual claim that [the defendant’s] conduct is indeed a form of competition on the merits because it involves, for example, greater efficiency or enhanced consumer appeal.” Qualcomm, 969 F.3d at 991 (quoting United States v. Microsoft Corp., 253 F.3d 34, 59 (D.C. Cir. 2001) (en banc) (per curiam)). Third, if the defendant makes this showing, the plaintiff may rebut the asserted justification by showing that it “does not legitimately promote competition or that the justification is pretextual.” Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1212 (9th Cir. 1997) (Image Tech. Servs.) (emphasis added). The plaintiff can do so by pointing to direct or circumstantial evidence, including evidence of the defendant’s anticompetitive intent. See Aspen Skiing, 472 U.S. at 602–03. Whether a justification is legitimately procompetitive is a separate inquiry from whether it is pretextual, though in certain circumstances, the same evidence can support both showings. If, however, “the plaintiff cannot rebut the monopolist’s procompetitive justification, ‘then the plaintiff must demonstrate that the anticompetitive harm of the conduct outweighs the procompetitive benefit.’” Qualcomm, 969 F.3d at 991 (quoting Microsoft, 253 F.3d at 59); see also Kodak, 504 U.S. at 486; Viamedia, 951 F.3d at 462, 464. This inquiry incorporates the “rule of reason,” a “balancing approach” to 16 SIMON AND SIMON, PC V. ALIGN TECH., INC. “consider[] whether the monopolist’s conduct on balance harms competition.” Microsoft, 253 F.3d at 59. This term was first used by the Supreme Court “to describe the proper inquiry under both sections of the [Sherman] Act.” Id. (citing Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 61–62 (1911)). We have also held that “the three-part burden- shifting test under the rule of reason is essentially the same” for section 1 and section 2 cases. Qualcomm, 969 F.3d at 991 (citing Standard Oil, 221 U.S. at 61–62 and Microsoft, 253 F.3d at 58–59). We consider each prong of the third step of the framework in turn: whether a justification legitimately promotes competition, whether it is pretextual, and whether “the anticompetitive harm of the conduct outweighs the procompetitive benefit.” Qualcomm, 969 F.3d at 991 (quoting Microsoft, 253 F.3d at 59). 1. Whether the Justification Legitimately Promotes Competition The district court did not fully address the first method by which a plaintiff can rebut a defendant’s justification at step three: by showing that it “does not legitimately promote competition.” Image Tech. Servs., 125 F.3d at 1212; see also Aspen Skiing, 472 U.S. at 585 n.39 (recognizing that “evidence that the conduct was not related to any apparent efficiency” supports a refusal-to-deal claim) (quoting Robert H. Bork, The Antitrust Paradox 157 (1978) (emphasis omitted)). This rebuttal method can rely on evidence of the asserted justification’s lack of procompetitive effects. Cf. Image Tech. Servs., 125 F.3d at 1218 (requiring that “the jury account for the procompetitive effects” of the intellectual property laws when they are asserted as a business  SIMON AND SIMON, PC V. ALIGN TECH., INC. 17 justification “[u]nder the fact-based approaches of Aspen Skiing and Kodak”); Oahu Gas Serv., Inc. v. Pac. Res., Inc., 838 F.2d 360, 368–69 (9th Cir. 1988) (finding that the defendant’s refusal to produce propane because it “would have resulted in a negative return” given “then-existing price controls” was legitimately procompetitive). 2. Whether the Justification Is Pretextual The district court correctly articulated the second method by which a plaintiff may rebut a defendant’s justification at step three: by demonstrating that the proffered “justification is pretextual.” Image Tech. Servs., 125 F.3d at 1212. Before the district court, Align argued that a defendant is not liable if it can identify any conceivable justification for its conduct, even if the record does not show that the defendant was motivated by that justification. At oral argument, Align effectively abandoned this broad reading of Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., 836 F.3d 1171, 1184 (9th Cir. 2016). We agree that the district court rightly rejected this standard as “a test akin to rational basis review of economic legislation under the Equal Protection Clause.” See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993) (“[B]ecause we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.”). Although the proffered business justification need not be the only reason for the defendant’s decision, it must be a real one. 3. Consideration of Disproportionate Anticompetitive Harm The district court did not address the role of disproportionate anticompetitive harm in the third step of the 18 SIMON AND SIMON, PC V. ALIGN TECH., INC. framework. We address it here to provide guidance to the district court on remand, as the parties hotly dispute this issue. 1 Align first argues that “balancing . . . has no basis in this [c]ourt’s precedents,” relying on Qualcomm. True, we did not weigh procompetitive benefit and anticompetitive harm in the refusal-to-deal claim in Qualcomm. But in Qualcomm, the plaintiff failed to establish a prima facie refusal-to-deal claim in the first instance. Therefore, there was no need to consider the defendant’s proffered business justification at step two or any other related issue at step three. Qualcomm, 969 F.3d at 991. Thus, we had no occasion to consider whether the plaintiff could introduce “balancing” evidence. Nonetheless, we unequivocally suggested that the rule of reason applies to section 2 refusal-to-deal claims in the following passage: 2 [I]f a plaintiff successfully establishes a prima facie case under § 2 by demonstrating anticompetitive effect, then the monopolist may proffer a procompetitive justification for its conduct. If the monopolist asserts a procompetitive justification—a 1 Simon, Snow, the government as amicus curiae, and the American Antitrust Institute as amicus curiae each propose slightly different iterations of a burden-shifting framework with “balancing.” We agree that the case law and the leading antitrust treatise support a fact-intensive framework. To the extent the government argues that disproportionate anticompetitive harm should be considered at step two, we disagree. Under Qualcomm, it is appropriately considered at step three. 969 F.3d at 991. 2 The court in Qualcomm identified other differences between the tests for section 1 and section 2 claims, without any indication that the rule of reason was not implicated in refusal-to-deal section 2 claims. 969 F.3d at 991–92.  SIMON AND SIMON, PC V. ALIGN TECH., INC. 19 nonpretextual claim that its conduct is indeed a form of competition on the merits because it involves, for example, greater efficiency or enhanced consumer appeal—then the burden shifts back to the plaintiff to rebut that claim. If the plaintiff cannot rebut the monopolist’s procompetitive justification, then the plaintiff must demonstrate that the anticompetitive harm of the conduct outweighs the procompetitive benefit. 969 F.3d at 991 (internal quotation marks and citations omitted). We hold, as Qualcomm implied, that the rule of reason is part of our refusal-to-deal framework. Trinko, which pre-dated Qualcomm, did not create a carve-out for refusal-to-deal cases from the rule of reason; it simply held that refusal-to-deal claims must “fit within the limited exception recognized in Aspen Skiing,” Trinko, 540 U.S. at 409. This holding is not inconsistent with the application of the rule of reason. Indeed, the Supreme Court suggested in Kodak that the rule of reason applies to refusal-to-deal claims. 504 U.S. at 486 (acknowledging that Kodak may prevail at trial in a case with a refusal-to-deal claim, as “[i]t may be that . . . any anti-competitive effects of Kodak’s behavior are outweighed by its competitive effects”); see also Aspen Skiing, 472 U.S. at 605 (recognizing that “it is relevant to consider” whether the defendant’s conduct “impaired competition in an unnecessarily restrictive way”). We agree with the Seventh Circuit that for refusal-to-deal claims, just like other section 2 claims, “considering both procompetitive benefits and anticompetitive harms is 20 SIMON AND SIMON, PC V. ALIGN TECH., INC. necessary to answer the ultimate question of whether competition was harmed.” 3 Viamedia, 951 F.3d at 462. Align next argues that this approach defies “sound principles of antitrust policy,” citing Areeda and H. Hovenkamp for the proposition that “[c]ourts do not ‘balanc[e] . . . the social gains from refusing to deal or cooperate with rivals based on legitimate business purposes against the losses resulting from that refusal.’” In full, however, Areeda and H. Hovenkamp state as follows: [T]he [Supreme] Court [in Aspen Skiing] did not call for any balancing of the social gains 3 The concurrence dismisses the discussion of balancing in Viamedia, Inc. v. Comcast Corp., 951 F.3d 429 (7th Cir. 2020), as unnecessary to the result, essentially dicta. We respectfully disagree with the concurrence: Viamedia’s reasoning about balancing was a holding necessary to its disposition of the appeal. In Viamedia, the defendant argued that one ground to affirm the district court’s judgment on the refusal-to-deal theory in its favor was that “[t]here is no ‘balancing’ of benefits and harms.” 951 F.3d at 461. The Seventh Circuit rejected that argument and held that refusal-to-deal claims under section 2 are “rule of reason cases.” Id. at 463. And one ground for reversing the district court’s grant of judgment on the pleadings on this theory, the court said, was that “the calculation of procompetitive benefits net of anticompetitive harms does not easily lend itself to a pleading standard.” Id. at 462. If there were any doubt, the Seventh Circuit explicitly directed that on remand, “the remainder of the case should settle into the traditional analysis followed in rule of reason cases”—including, if appropriate, that the plaintiff “demonstrate that the anticompetitive harm of the conduct outweighs the procompetitive benefit.” Viamedia, 951 F.3d at 463–64 (internal quotation marks and citation omitted). The concurrence also contends that the Seventh Circuit and other courts of appeals have not “read Viamedia to establish such a rule.” We are not aware of any refusal-to-deal case, or even any section 2 case, in any appellate court at the summary judgment stage that has declined to follow Viamedia.  SIMON AND SIMON, PC V. ALIGN TECH., INC. 21 from refusing to deal or cooperate with rivals based on legitimate business purposes against the losses resulting from that refusal. Rather, the Court classified conduct or intention as either lawful or not on the basis of the presence or absence of legitimate business purposes. Of course, the Court’s proposition generates several subordinate questions. 3B Philip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles & Their Applications ¶ 772c2 (5th ed. 2022)). We agree that the Supreme Court did not address “balancing” in Aspen Skiing, as it was not presented with the issue. The Supreme Court decided Aspen Skiing based on whether the evidence presented at trial supported the jury’s conclusion that no “valid business reasons” justified Ski Co.’s conduct, not on whether evidence of disproportionate anticompetitive harm could have supported Highland’s claim. 472 U.S. at 605. After acknowledging the Court’s holding in Aspen Skiing, Areeda and H. Hovenkamp proceed to list further questions generated by that case. Areeda & H. Hovenkamp, supra, ¶ 772c2. They then express that, in their view, [c]ondemnation [for a refusal-to-deal claim under section 2] would be appropriate only for conduct that (1) clearly injures an actual or prospective rival either (2a) with no good business justification at all, or (2b) with a business justification that is poorly fitted to 22 SIMON AND SIMON, PC V. ALIGN TECH., INC. the result or wholly disproportionate to the harm that is inflicted. Id. (emphasis added). With this language, Areeda and H. Hovenkamp make it clear that consideration of “wholly disproportionate . . . harm” in our refusal-to-deal framework is a proper inquiry. See also Viamedia, 951 F.3d at 461 n.13. We recognize that an interest in harming rivals “is virtually always present” in business decisions, Areeda & H. Hovenkamp, supra, ¶ 773f, and that businesses often make decisions that harm their competitors. That’s why our burden-shifting framework considers disproportionate harm to “competition, not competitors.” Qualcomm, 969 F.3d at 993 (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977)). While Trinko described Aspen Skiing as “at or near the outer boundary of § 2 liability,”4 540 U.S. at 409, the Court neither overruled Aspen Skiing nor required federal courts to adopt evidentiary requirements that render it “virtually impossible [for refusal-to-deal 4 We agree with amicus curiae American Antitrust Institute’s argument, relying on Erik Hovenkamp, The Antitrust Duty to Deal in the Age of Big Tech, 131 Yale L.J. 1483, 1502–07 (2022), that the concerns motivating the Court in Trinko are not present here. Trinko dealt with a “primary” refusal to deal, in which Verizon was alleged to have used its monopoly power in its primary market (local phone networks) to refuse to aid competitors in that same market. This case, by contrast, addresses a “secondary” refusal to deal, as Align is alleged to have used its monopoly power in its primary market (aligners) to refuse to deal in a secondary market (oral scanners). See also Areeda & H. Hovenkamp, supra, ¶ 771c (explaining why “antitrust analysis would be greatly improved if the courts recognized a more robust distinction between ‘primary’ and ‘secondary’ refusals to deal”). This distinction addresses the concurrence’s concern about refusal-to-deal liability potentially facilitating collusion, disincentivizing competition, or forcing courts to act as central planners.  SIMON AND SIMON, PC V. ALIGN TECH., INC. 23 plaintiffs] to win.” See Erik Hovenkamp, The Antitrust Duty to Deal in the Age of Big Tech, 131 Yale L.J. 1483, 1497 & 1497 n.71 (2022); see also Viamedia, 951 F.3d at 455. We clarify only what is likely obvious from our case law in this area: that “the three-part burden-shifting test under the rule of reason [that] is essentially the same” for section 1 and section 2 claims also applies to section 2 refusal-to-deal claims. Qualcomm, 969 F.3d at 991; cf. Viamedia, 951 F.3d at 461 n.13 (“Otherwise we could arrive at absurd outcomes . . . ‘an act might benefit the defendant very slightly while doing considerable harm to the rest of the economy, and it would be lawful.’”) (quoting Areeda & H. Hovenkamp, supra, ¶ 651b3). III With those principles in mind, we consider whether the district court’s grant of summary judgment was appropriate. We review the district court’s decision de novo, viewing the evidence in the light most favorable to Plaintiffs as the non- moving parties to determine whether there are any genuine issues of material fact. See Teradata Corp. v. SAP SE, 124 F.4th 555, 572 (9th Cir. 2024). A. Market Definition We note at the outset that the parties disagree over the definition of the relevant market. Align contends that interoperability, not the Invisalign aligner, is the product in question, and that it has never sold interoperability in an existing market. That is unpersuasive. Like the all-Aspen pass in Aspen S