NICSAND, INC., Plaintiff-Appellant, v. 3M COMPANY, Defendant-Appellee, 507 F.3d 442

SUTTON, J., delivered the opinion of the court, in which BOGGS, C. J., SILER, BATCHELDER, GILMAN, GIBBONS, ROGERS, COOK, McKEAGUE, and GRIFFIN, JJ., joined. MARTIN, J. (pp. 459-70), delivered a separate dissenting opinion, in which DAUGHTREY, COLE, and CLAY, JJ., joined. OPINION SUTTON, Circuit Judge.

Between 1987 and 2001, NicSand and 3M were the only nationwide suppliers in the market for do-it-yourself automotive sandpaper, and they competed for the business of six large retailers, which controlled 80% of the market and which (with one exception) offered their shelf space on an exclusive basis for a year at a time. NicSand developed this niche market and eventually gained a 67% share of it.

Between 1997 and 2001, however, it lost most of the market when 3M offered the large retailers greater up-front discounts and longer exclusive agreements than NicSand had offered in the past or apparently was willing to offer in the future. When NicSand filed an antitrust lawsuit to complain about 3M’s conduct, the district court dismissed the complaint for lack of antitrust standing and, more particularly, for lack of a cognizable antitrust injury.

Because 3M did not engage in below-cost- or predatory-pricing, because five of the six large retailers demanded exclusivity as a precondition for doing business, because the allegations show no more than that 3M competed with its rival on the same essential terms that NicSand and the large retailers had already established for this market and because the antitrust laws in the end protect competition, not competitors, we affirm. I. This case comes to us as an appeal from a Rule 12(b)(6) dismissal.

We thus look to NicSand’s allegations in the complaint (in truth, the first amended complaint) to determine the details of the dispute — who the parties are, how the market for do-it-yourself automotive sandpaper works and how the parties competed with each other. The parties. NicSand is an Ohio corporation based in Berea, Ohio, and has been in business since 1982. It makes a variety of products for automotive body repair, including automotive sandpaper (technically speaking, coated abrasives), which consumers use before, during or after painting a car or truck.

Sales of automotive sandpaper accounted for one-half of NicSand’s revenue in 1996. 3M is a Delaware corporation based in Maplewood, Minnesota. In addition to making a variety of other products, 3M produces automotive sandpaper. The market for do-it-yoivrself automotive sandpaper. NicSand “largely developed” the market for do-it-yourself automotive sandpaper, increasing the number of products offered in the market from 20 in 1987 to 80 in 2000. Am. Compl. ¶ 10.

The development of the market, NicSand claims, was “fueled primarily by [its] superior marketing, superior packaging, innovation, and superior value.” Id. ¶ 11. Between 1987 and 2000, just two companies supplied automotive sandpaper (and related products) in the national market: NicSand and 3M. As of 1995, NicSand was the dominant player, holding a 67% share of the market. NicSand and 3M did not sell their automotive sandpaper products directly to consumers; they instead relied on retailers to distribute the products through a “highly concentrated” retail market. Id. ¶ 14.

In 1997, just six large retailers — Advance Auto Parts, AutoZone, CSK Auto, Kmart, Pep Boys, Wal-Mart — controlled 80% of the retail market, while smaller retailers divided up the remaining 20% of the market. Perhaps due to the relatively “small value” of the market, five of the six large retailers sold just one brand of the product at a time, meaning they permitted Nic-Sand or 3M, but not both, to sell its products at the stores.

Id. ¶ 62. “In order to simplify planning and reduce costs,” the large retailers also re-negotiated these single-brand agreements just once a year, giving the supplier a year-long “de facto exclusive agreement” with each retailer. Id. ¶25.

In order to replace an existing supplier of automotive sandpaper, a new supplier not only had to offer favorable prices but also had to (1) produce a full line of do-it-yourself automotive sandpaper, (2) provide racks and other display equipment for the retailer, (3) provide a discount on the retailer’s first order and (4) purchase the retailer’s existing supply of the sandpaper.

Because the large retailers typically restocked the full line of sandpaper products five to seven times a year, buying out a retailer’s existing supply of the sandpaper could cost a supplier up to 14% to 20% of its annual revenues from that retailer. NicSand complied with these requirements in seeking to obtain the large retailers’ business, and by every measure it succeeded. By 1996, it was the exclusive supplier for four of the large retailers: Kmart, Advance Auto, CSK Auto and Au-toZone.

And along with 3M it supplied Pep Boys, the one large retailer that did not insist on an exclusive agreement. 3M was the sole supplier of the sixth large retailer- — -Wal-Mart. NicSand did not — and could not — compete for this business, because Wal-Mart sought a single supplier that could meet all of its sandpaper needs, which included providing two products that NicSand did not make: sandpaper for Wal-Mart’s power tool and paint departments. NicSand made substantial profits on its exclusive-sales agreements with four of the six large retailers.

In 1996, NicSand’s annual sales to Kmart totaled $475,000 with profit margins of 38%. In 1997, its sales to Advance Auto totaled $550,000 with margins of 49%, and its sales to CSK Auto totaled $369,000 with margins of 44%. In 1999, its sales to AutoZone totaled $2,200,000 with margins of 39%. Competition between the two companies from 1997 through 2001. According to NicSand, 3M sought to monopolize the market for do-it-yourself automotive sandpaper beginning in 1997.

To that end, 3M offered Kmart $300,000 in 1997 as an incentive to switch suppliers and to enter into an “explicit or sub rosa” exclusive-dealing agreement for “several years.” Id. ¶ 23. Kmart accepted 3M’s offer and told NicSand that it would not review price quotes from NicSand for a “few years.” Id. ¶ 26 (emphasis omitted). One year later, 3M did the same thing with Advance Auto and CSK Auto, offering the one $285,000 and the other $200,000 to switch suppliers and to enter into “multi-year” exclusive-dealing agreements. Id. ¶¶ 30, 32.

Advance Auto and CSK Auto accepted 3M’s offers and refused to discuss switching suppliers with NicSand “for at least a few years.” Id. ¶ 37. Two years later, in 2000, 3M offered a similar deal to AutoZone, which long had been NicSand’s largest customer. 3M offered AutoZone $1,000,000 to switch suppliers and to enter a “multi-year” exclusive-dealing agreement. Id. AutoZone accepted the offer. When contacted by NicSand, AutoZone refused to discuss switching back to NicSand as a supplier “for at least a few years.” Id.

By 2001, NicSand’s only remaining customers were Pep Boys (which sold Nic-Sand and 3M products) and several smaller retailers. With a significant drop in its sales volume, NicSand lost its economies of scale; its “raw material costs increased dramatically,” id. If 41; and it could no longer “fill existing orders at an appropriate cost,” id. ¶ 60. Because Nic-Sand could “no longer ... compete,” it left the market for do-it-yourself automotive sandpaper in 2001 and sought to reorganize under

Chapter 11 of the Bankruptcy Code. Id. ¶ 41. Since leaving the market, NicSand alleges that retailers (though it makes no allegations about suppliers like 3M) have raised consumer prices for do-it-yourself automotive sandpaper by as much as 70%. The complaint. On December 30, 2003, NicSand filed this lawsuit under § 4 of the Clayton Act, claiming that 3M had monopolized, or attempted to monopolize, the market for automotive sandpaper in violation of § 2 of the Sherman Act. See 15 U.S.C. §§ 2, 15.

The complaint sought (1) to recover NicSand’s “lost profits” or the “value” of NicSand’s business and (2) to treble those damages as permitted under the antitrust laws. Compl. at 9. The district court dismissed the complaint under Rule 12(b)(6) for lack of antitrust standing because NicSand “failed to ... plead an injury to competition resulting from 3M’s conduct.” 2005 WL 4704988, at 3. II. A. At first glance, one might fairly wonder whether a complaint like this one should be dismissed for lack of antitrust standing. Standing, in a conventional

Article III sense, requires just proof of actual injury, causation and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). And NicSand readily satisfies these requirements: It was injured (when it lost these accounts); 3M caused the injury (when it offered better terms to the retailers than NicSand had offered in the past); and NicSand’s request for damages will redress its injury (by permitting it to recover the profits — indeed, three times the profits — it made before 3M entered the picture).

Seemingly making matters easier for NicSand, we look at its complaint through the prism of Rule 12(b)(6), requiring us to accept all of its allegations and all reasonable inferences from them as true. Mich. Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 533 (6th Cir.2002). Yet antitrust standing and

Article III standing are not one and the same, and we not only may — but we must — reject claims under Rule 12(b)(6) when antitrust standing is missing. In the first place, an antitrust claimant must do more than make “allegations of consequential harm resulting from a violation of the antitrust laws,” and that is true even when the complaint is “buttressed by an allegation of intent to harm the [claimant].” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 545, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

Even when a complaint makes these allegations, it may not proceed when “[o]ther relevant factors — the nature of the [claimant’s] injury, the tenuous and speculative character of the relationship between the alleged antitrust violation and the [claimant’s] alleged injury, the potential for du-plicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy — weigh heavily against judicial enforcement.” Id.

Most pertinently for our purposes, antitrust standing “ensures that a plaintiff can recover only if the loss stems from a competition-recfcicmg aspect or effect of the defendant’s behavior.” Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990). Far from being “a mere technicality,” antitrust standing “is the glue that cements each suit with the purposes of the antitrust laws, and prevents abuses of those laws” by claimants seeking to halt the strategic behavior of rivals that increases, rather than reduces, competition. HyPoint Tech., Inc. v.

Hewlett-Packard Co., 949 F.2d 874, 877 (6th Cir.1991). In the second place, antitrust standing is a threshold, pleading-stage inquiry and when a complaint by its terms fails to establish this requirement we must dismiss it as a matter of law — lest the antitrust laws become a treble-damages sword rather than the shield against competition-destroying conduct that Congress meant them to be. “It is one thing to be cautious before dismissing an antitrust complaint in advance of discovery, but quite another to forget that proceeding to antitrust discovery can be expensive.” Bell Atl. Corp. v.

Twombly, — U.S. -, 127 S.Ct. 1955, 1966-67, 167 L.Ed.2d 929 (2007). Given the limited “success of judicial supervision in checking discovery abuse” and “the threat [that] discovery expense will push cost-conscious defendants to settle even anemic cases before reaching those proceedings,” id. at 1967, the federal courts have been “reasonably aggressive” in weeding out meritless antitrust claims at the pleading stage, Valley Prods. Co. v.

Landmark, 128 F.3d 398, 403 (6th Cir.1997); see Bell Atl., 127 S.Ct. at 1966 (“[Something beyond the mere possibility of [relief] must be alleged, lest a plaintiff with a largely groundless claim be allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.”) (internal quotation marks omitted). For these reasons, it should come as no surprise that, in the seminal antitrust standing case, the Supreme Court dismissed the claim under Rule 12(b)(6). See Associated Gen. Contractors, 459 U.S. at 545-46, 103 S.Ct. 897.

And our court has dismissed numerous lawsuits for lack of antitrust standing under Rule 12(b)(6). See Indeck Energy Servs. v. Consumers Energy Co., 250 F.3d 972, 977 (6th Cir.2000); Valley Prods., 128 F.3d at 407; Hodges v. WSM, Inc., 26 F.3d 36, 39 (6th Cir.1994); Peck v. Gen. Motors Corp., 894 F.2d 844, 848 (6th Cir.1990); Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1351-52 (6th Cir.1989); Tennessean Truckstop, Inc. v. NTS, Inc., 875 F.2d 86, 90 (6th Cir.1989); Axis, S.p.A. v. Micafil, Inc., 870 F.2d 1105, 1111 (6th Cir.1989); Southaven Land Co. v.

Malone & Hyde, Inc., 715 F.2d 1079, 1088 (6th Cir.1983); see also N.W.S. Mich., Inc. v. Gen. Wine & Liquor Co., 58 Fed.Appx. 127, 129-30 (6th Cir. Feb.6, 2003); Park Ave. Radiology As-socs., P.C. v. Methodist Health Sys., 198 F.3d 246, 1999 WL 1045098, at *7 (6th Cir.1999); Dry v. Methodist Med. Ctr. of Oak Ridge, Inc., 893 F.2d 1334, 1990 WL 3489, at *5 (6th Cir.1990). B. Of the various requirements for establishing antitrust standing, the one that concerns us here is antitrust injury, which is a “necessary, but not always sufficient,” condition of antitrust standing. Cargill, Inc. v.

Monfort of Colo., Inc., 479 U.S. 104, 110 n. 5, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986). An antitrust claimant must show more than merely an “injury causally linked” to a competitive practice; it “must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants’ acts unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977) (emphasis added).

At a minimum, this requirement means that one competitor may not use the antitrust laws to sue a rival merely for vigorous or intensified competition. “ ‘[I]t is inimical to [the antitrust] laws to award damages’ for losses stemming from continued competition,” Cargill, 479 U.S. at 109-10, 107 S.Ct. 484 (quoting Brunswick, 429 U.S. at 488, 97 S.Ct. 690) (second alteration in original), because “[t]he antitrust laws ... were enacted for ‘the protection of competition not competitors,’ ” Brunswick, 429 U.S. at 488, 97 S.Ct. 690 (quoting Brown Shoe Co. v.

United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962)); see id. (prohibiting competitor claim where the claimant sought in damages “the profits they would have realized had competition been reduced”). Accordingly, even though a claimant alleges that an injury is “causally related to an antitrust violation,” it “will not qualify as ‘antitrust injury’ unless it is attributable to an anticompetitive aspect of the practice under scrutiny.” Atl. Richfield, 495 U.S. at 334, 110 S.Ct. 1884.

Moreover, a “naked assertion” of antitrust injury, the Supreme Court has made clear, is not enough; an antitrust claimant must put forth factual “allegations plausibly suggesting (not merely consistent with)” antitrust injury.

Bell Atl., 127 S.Ct. at 1966; see id. at 1964-65 (“[A] plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... [A] complaint [must have] enough factual matter (taken as true) to suggest [that an antitrust injury occurred].”) (internal quotation marks omitted); id. at 1966 (“[T]he threshold requirement of Rule 8(a)(2) [is] that the plain statement [in the complaint] possess enough heft to show that the pleader is entitled to relief.”) (internal quotation marks omitted); id. (“[A] naked assertion ... gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility----”).

All of this is not to say that one competitor may never sue another under the antitrust laws. But courts typically have permitted such claims to proceed only when one of the rivals has engaged in some form of predatory pricing or illegal tying — when the rival has engaged in something more than vigorous price, product or service competition. See, e.g., Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 461-79, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (illegal tying); Utah Pie Co. v.

Cont’l Baking Co., 386 U.S. 685, 696-98, 87 S.Ct. 1326, 18 L.Ed.2d 406 (1967) (predatory pricing); Spirit Airlines, Inc. v. Nw. Airlines, Inc., 431 F.3d 917, 921 (6th Cir.2005) (predatory pricing); Le-Page’s Inc. v. SM, 324 F.3d 141, 155-57 (3d Cir.2003) (illegal tying); Bell v. Cherokee Aviation Corp., 660 F.2d 1123, 1127-32 (6th Cir.1981) (illegal tying). C.

In attempting to satisfy this requirement, NicSand targets three of 3M’s competitive tactics: (1) the up-front payments that 3M offered to the four retailers; (2) the multi-year terms of the agreements between 3M and the retailers; and (3) the exclusive nature of these agreements.

Because “the injury and damages” suffered by NicSand from these competitive practices, however, do not “match the rationale for finding [an antitrust] violation,” HyPoint Tech., 949 F.2d at 879—but indeed flow from the kind of competition that the antitrust laws were designed to foster— NicSand has not established a cognizable antitrust injury. The up-front discounts. NicSand first complains about the “cash payment[s]” that 3M offered four of the large retailers to obtain their business — $300,000 to Kmart in 1997, $285,000 to Advance Auto in 1998, $200,000 to CSK Auto in 1998 and $1 million to AutoZone in 2000.

Br. at 21; see Am. Compl. ¶¶ 21, 30, 32, 35. Even after accounting for these payments, however, NicSand concedes that 3M did not engage in any form of predatory pricing — it concedes in other words that 3M did not sell automotive sandpaper below cost with the goal of recouping its losses by charging monopolistic prices later. See NicSand’s Mem. in Opp. to 3M’s Mot. to Dismiss, JA 132 (“NicSand’s Amended Complaint Is Not Premised On Predatory Pricing.”); Reply Br. at 6. Given this concession and given the realities of this market, 3M’s payments do not show antitrust injury.

If the upfront payments, when combined with the price terms that 3M offered each of these large retailers, “are not predatory, any losses flowing from them cannot be said to stem from an anticompetitive aspect of defendant’s conduct. It is in the interest of competition to permit ... firms to engage in vigorous competition, including price competition.” Atl. Richfield, 495 U.S. at 340-41 (internal quotation marks and footnote omitted). The market conditions at the time 3M made these offers, according to NicSand’s own allegations, buttress the point.

In 1997, this market consisted primarily of six large retailers, and NicSand was the sole supplier of four of them. NicSand controlled 67% of the market and earned 38-49% profit margins on its sales to these four retailers. Am. Compl. ¶¶ 22, 31, 33, 36. NicSand gives no explanation why it has a right to preserve 38-49% margins — under the antitrust laws no less — on a product, sandpaper, that (so far as the complaint is concerned) does not take any ingenuity to make. Rather than upsetting the competition-enhancing goals of the antitrust laws, the payments furthered them.

The “payments” are nothing more than “price reductions offered to the buyers for the exclusive right to supply a set of stores under multi-year contracts.” Augusta News Co. v. Hudson News Co., 269 F.3d 41, 45 (1st Cir.2001). “[C]utting prices in order to increase business often is the very essence of competition”; and “mistaken inferences in cases such as this one are especially costly, because they chill the very conduct the antitrust laws are designed to protect.

We must be concerned lest a rule or precedent that authorizes a search for a particular type of undesirable pricing behavior end up by discouraging legitimate price competition.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 594, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks and citation omitted); accord Verizon Commc’ns Inc. v. Law Offices of Curtis V.

Trinko, LLP, 540 U.S. 398, 414, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004). “It would be ironic indeed if the standards” for establishing antitrust injury “were so low that antitrust suits themselves became a tool for keeping prices high.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 226-27, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993). One of the existing barriers to entry in this market, moreover, required would-be suppliers to offer up-front payments.

Before they would consider switching suppliers, the large retailers required new suppliers to offer to (1) purchase the retailer’s existing supply of automotive sandpaper and (2) provide a discount on the retailer’s first order. Together these demands could cost a new supplier up to 23% of its first year’s revenues. See Am. Compl. ¶¶ 48, 49, 51. All of this goes to show that, by offering up-front discounts to the retailers, 3M was merely offering them something that, generically speaking, they already insisted on receiving.

That 3M offered greater discounts, though still non-predatory discounts, to win the retailers’ business does not offend the antitrust laws, much less undermine the competitive environment those laws were designed to foster. The multi-year terms. Just as 3M’s advances amounted to legitimate competition, so did its decision to enter into multi-year agreements. Once again, 3M did nothing more than compete on terms that the market already required.

A would-be supplier does not violate the antitrust laws by offering a multi-year agreement in a market in which the retailers already require one-year “de facto” agreements. See id. ¶ 25. If the buyers in a market demand one thing, the antitrust laws do not prohibit an entrant from offering that same thing on slightly different terms. Cf.

Verizon Commc’ns, 540 U.S. at 411, 124 S.Ct. 872 (“Antitrust analysis must always be attuned to the particular structure and circumstances of the industry at issue.”); Eastman Kodak, 504 U.S. at 466-67, 112 S.Ct. 2072 (noting the importance o.f considering “actual market realities” when reviewing an antitrust claim). From the perspective of a retailer, mul-ti-year agreements permit the retailer to insist that the supplier charge lower prices. Committing to a multi-year agreement, indeed, is no different from buying in bulk.

From the perspective of a supplier, multi-year agreements ease an aspiring entrant’s ability to clear existing market barriers. Here, the large retailers demanded that a new supplier buy out the former supplier’s products and offer a discount on the first sale, all at a cost of up to 23% of the new supplier’s first year sales. It is far easier for a market entrant to clear these barriers when it is given several years, rather than just one, to recoup this investment.

See 2 Areeda & Hoven-kamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 348c (“[A] temporary purchase commitment that overcomes an entry barrier increases rather than reduces competition.”). Had 3M used illegal tying to obtain a multi-year agreement, that might be another matter. But NicSand makes no such allegation. Reply Br. at 11-12 (disclaiming any such contention). What Nic-Sand complains about instead is a quid pro quo — a multi-year (rather than a single-year) agreement for 3M in return for a substantial price discount (rather than a smaller discount) for the retailers.

Having previously paid NicSand prices generating 38-49% profit margins, the large retailers cannot be blamed for accepting better prices with 3M for several years, not just one. Contrary to NicSand’s suggestion, the multi-year nature of the agreements makes the accompanying advances less troublesome, not more so. It is true, as NicSand repeatedly asserts, that the advances made by 3M to the retailers outpaced NicSand’s yearly profits from sales to each of those retailers. See Reply Br. at 3; Supp. Br. at 9.

But given a reasonable estimate of the length of these “several year[]” agreements, say three to five years, NicSand’s complaint itself demonstrates that it could have competed for the exact same multi-year agreements with its customers. Am. Compl. ¶ 23. Had Nic-Sand approached its customers with similar deals, it could have expected profit margins of 17-39% on its sales to Kmart, Advance Auto, CSK Auto and AutoZone. Id. ¶¶ 21, 30, 32, 35.

While these margins would have been lower than the 38^19% margins NicSand realized before 3M’s entrance into the market, NicSand offers no explanation why this modest reduction in profit margins on a product of this sort is a concern of the antitrust laws. The exclusivity of the agreements. Unable to show that it suffered an antitrust injury from 3M’s vigorous price competítion and unable to show that it suffered an antitrust injury from 3M’s offer to extend the agreements to cover “at least a few years,” id. ¶ 37, NicSand argues that the exclusivity of the agreements establishes the requisite injury.

While exclusive agreements in some instances may create impermissible barriers for new entrants to a market and may permit a supplier to charge monopoly prices, see Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961), NicSand has not claimed — and cannot tenably claim — that it suffered these anticom-petitive effects.

As with NicSand’s other complaints, so here: we cannot ignore the demands of the marketplace in which these agreements arose. “Antitrust analysis must always be attuned to the particular structure and circumstances of the industry at issue.” Verizon Commc’ns, 540 U.S. at 411, 124 S.Ct. 872; see Bell Atl, 127 S.Ct. at 1972 (noting that industry history may provide “a natural explanation” for conduct). According to NicSand’s own complaint, all but one of the large retailers made exclusivity a condition for doing business with a new supplier.

NicSand of course complied with this requirement (and several others) in obtaining the business it held in 1997, and 3M complied with this requirement (and several others) in winning some of that business away. If retailers have made supplier exclusivity a barrier to entry, one cannot bring an antitrust claim against a supplier for acquiescing to that requirement. Put another way, NicSand has not sued 3M because it wants to share shelf space with its competitor; it sued 3M because it wants that shelf space all to itself — just as it had it in 1997.

This is just the kind of all-for-one-and-all-for-one competitor claim that the antitrust laws do not protect. Nor can NicSand plausibly argue that the exclusivity requirement created entry barriers for it in this market. Before 1997, NicSand controlled 67% of the market and used the existing barriers to entry — annual product reviews and exclusive shelf space — to preserve its lock on the market. From 1997 to 2000, 3M competed for and won the business of four retailers that NicSand formerly supplied. Through it all, however, NicSand was not a potential market entrant; it was the market leader.

Yet NicSand offers no explanation why it could not compete for these multi-year agreements nor why (in view of its high margins) it could not match 3M’s discounts. As the market leader, NicSand was on the inside looking out, and for whatever reason the company chose not to compete. See 2 Areeda & Hovenkamp, supra, ¶ 348d3 (“Of course, a foreclosure alleged to be illegal because it deters entry does not injure a plaintiff already in the market. Impeding the entry of others grants a benefit to those already in the market.”) (footnote omitted).

To the extent exclusivity created a market barrier, it was 3M that faced the problem, and it was 3M that overcame it. In 1997, according to the complaint, 3M won the business of Kmart with its “several years” offer; as the incumbent, NicSand had every opportunity to compete and yet it failed to do so. In 1998, 3M overcame a similar hurdle in obtaining the business of Advance Auto and CSK Auto; again, Nic-Sand faced no such barrier and yet still failed to compete.

In 2000, when NicSand was the exclusive supplier of only one big-box retailer, it still controlled a substantial portion of the market due to the volume of its business with AutoZone. Compare Am. Compl. ¶ 36 ($2,200,000 in sales to AutoZone), with id. ¶ 22 ($475,000 in sales to Kmart), id. ¶ 31 ($550,000 in sales to Advance Auto), and id. ¶ 33 ($369,000 in sales to CSK Auto). Yet 3M successfully competed for AutoZone’s business.

Though NicSand declared bankruptcy in 2001, it says nothing in the complaint about efforts before then to recoup the business from Kmart (which entered the 3M agreement in 1997) or from Advance Auto or CSK Auto (which entered the agreements in 1998). Nor does 3M’s size make a difference to the disposition of these allegations. See Brunswick, 429 U.S. at 487-88, 97 S.Ct. 690 (“Yet respondents’ injury ... bears no relationship to the size of ... its competitorf ].

Respondents would have suffered the identical loss but no compensable injury had the acquired centers instead ... been purchased by shallow pocket parents .... Thus, respondents’ injury was not of the type that the statute was intended to forestall.”) (internal quotation marks omitted). In the end, NicSand simply has not alleged facts establishing that the agreements in and of themselves created market-entry barriers that caused it a cognizable antitrust injury.

See Bell Atl, 127 S.Ct. at 1974 (holding that plaintiffs must allege “enough facts” to “nudge[] their claims across the line from conceivable to plausible”). NicSand’s injury also does not stem from 3M’s alleged monopolization of the market. For most of the time NicSand was losing business, it retained control of a significant share of the market. While NicSand complains about the up-front discounts 3M offered, it does not allege that 3M was selling below cost, and the numbers NicSand itself offers demonstrate that 3M’s advances were comfortably within NicSand’s multi-year profit margins.

While NicSand’s loss of business may have propelled 3M into a dominant market position, its injury does not correspond to any allegedly anticompetitive effect on the market but rather a truly competitive one. Any doubt about the appropriate resolution of this case can be laid to rest by Indeck Energy Services v. Consumers Energy Co., 250 F.3d 972 (6th Cir.2000). There an energy supplier (Indeck) alleged that a competitor (Consumers Energy) violated the antitrust laws by signing an exclusive supply contract with General Motors for a period of five to ten years. Id. at 975.

The contract came on the heels of similar contracts with “17 other large industrial/commercial customers,” through all of which Consumers Energy “succeeded in excluding competition from over 80 percent of the Relevant At Risk Market.” Id. (internal quotation marks omitted). Central to the resolution of that case, as to this one, was that “the only harm allegedly suffered by Indeck was in the company’s capacity as a competitor in the marketplace, not as a defender of marketplace competition.” Id. at 977. Indeck was the harder case.

Consumers Energy controlled 80% of the market when its contracts preserved its hold on the market, while NicSand controlled 67% of the market when it began losing its hold on the market. Consumers Energy entered into longer exclusive contracts (5-10 years) than 3M did (“several years,” “few years” or “multi-year”). And Consumers Energy did not unseat the dominant market leader (as 3M did) but instead hindered a potential market entrant.

Indeck was hardly a dominant supplier of energy, as it provided cogeneration services (recycling factory waste to create energy), which diminish a customer’s need for traditional energy rather than supply such energy. Indeck, in short, was more akin (far more akin) to a market entrant than Nic-Sand.

In its en banc papers, NicSand does not claim that Indeck (or for that matter any of our antitrust-injury precedents) should be overruled but insists that it can be distinguished — first on the ground that today’s case involves a series of contracts with several retailers as opposed to several contracts with one retailer. As a result, it submits, while Indeck’s harm resulted only from competition, Nic-Sand suffered not simply as a single competitor in the market, but as a proxy for all competitors and thus for all competition. But this seems to invert the relative vices and virtues of the two fact patterns.

While NicSand originally held all of the contracts with the retailers in question and lost them to competition, Indeck lost out on a single contract and alleged that it found itself in a market where a single dominant firm controlled 80% of the market with exclusive contracts of 5-10 years with all of the major industrial and commercial customers. If the harm to the market is the entry barriers established by “exclusive contracts,” it is Indeck, not Nic-Sand, that makes the better proxy for injury to competition in the market rather than harm to a competitor.

NicSand had the opportunity to compete for each of the contracts, while Indeck never had that opportunity because of the existing exclusive contracts. Nonetheless, we concluded in Indeck that there was no harm to competition because Indeck “failed to allege how [the exclusive contracts] have injured competition, especially in light of the discounted rates offered to the customers, in light of the fact that the exclusive contracts were of limited duration, and in light of the fact that the customers were free to seek other [providers] at the conclusion of the contracts.” 250 F.3d at 977-78.

We rested our decision on these grounds, and these grounds control us here-with Nic-Sand, if anything, having the less compelling complaint. When one exclusive dealer is replaced by another exclusive dealer, the victim of the competition does not state an antitrust injury. See 11 Areeda & Hovenkamp, supra, ¶ 1823b (“Clearly not a victim of antitrust injury is the exclusive dealing partner whose business relationship was terminated in favor of a different exclusive dealing partner”).

NicSand next maintains that In-deck can be distinguished on the ground that 3M’s exclusive dealing arrangements have eliminated a superior product, noting that NicSand allegedly provides a better variety of products and better service than 3M. Indeclc, it is true, noted that antitrust actions by marketplace competitors “must at least allege that exclusion of the competitor from the marketplace results in the elimination of a superior product or a lower-cost alternative” because these developments might show “that competition itself was harmed by an[] act of the defendant ].” 250 F.3d at 977.

But the court still rejected Indeck’s claim even though the company had alleged that its competitor’s conduct caused the market to become less diversified because Indeck provided “alternative sources of electrical power,” namely thermal power, while its competitor supplied only traditional electrical power. Id. at 975 (internal quotation marks omitted). As Indeck suggests, then, such an allegation may be necessary to establish antitrust standing for a competitor, but it is not sufficient.

Under NicSand’s reading, every competitor could proceed to discovery (and avoid showing a true antitrust injury) by asserting an unelaborated claim that it provides better service than its competitors. Indeck did not permit such a pleading and neither will we. Even aside from Indeck, NicSand suggests in its en banc papers, and the dissent echos the point, that it is an efficient defender of the marketplace because the retailers face a “collective action problem.” Dissent at 470.

In its view, this collective action problem- — that no retailer will accept the higher prices of one supplier in order to keep competition in the supply market when all the other retailers are accepting lower prices from a potentially emergent monopolist supplier — -justifies competitor standing in exclusive dealing cases. NicSand, however, did not raise this argument in the district court, and accordingly it is waived. What we have said here does not mean that a potential competitor may never bring an antitrust claim for exclusive dealing.

Had the large retailers and 3M conspired to eliminate NicSand from the market, that would be another matter. And should 3M use these contracts and.its current market dominance to establish unreasonable barriers to entry in the future, a potential competitor might have a legitimate antitrust claim. Nor is this to say that the future competitiveness of the market lacks protection if 3M chooses to impose monopolist prices down the road. Aggrieved retailers would have standing to sue for treble damages if that occurred.

See Indeck, 250 F.3d at 977 (“[A]s the direct victim of the alleged antitrust violation in this regard, [the customer] could prosecute its own cause of action should it deem the actions of [the supplier] inappropriate.”). “The existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement diminishes the justification for allowing a more remote party such as the [plaintiff] to perform the office of a private attorney general.

Denying the [plaintiff] a remedy on the basis of its allegations in this case is not likely to leave a significant antitrust violation undetected or unremedied.” Associated Gen. Contractors, 459 U.S. at 542, 103 S.Ct. 897 (footnote omitted). But to allow this litigation to continue on these allegations is to allow one monopolist to sue a competitor for seizing its market position by charging less for its goods. NicSand took advantage of the very same exclusivity it now attacks to charge prices that made it vulnerable to 3M’s offers in the first place.

If 3M does the same by charging excessive prices itself, it will expose itself either to competition or to a legitimate antitrust complaint from retailers or excluded competitors. But until then, as the district court rightly concluded, NicSand has suffered no antitrust injury, and until then NicSand has no antitrust standing to bring this case. The dissent worries that our decision will drive out all but the “omniscient [antitrust] plaintiffs that happen to know every relevant factual detail before the inception of litigation.” Dissent at 462.

That is not true, and there is no reason this decision should have any such effect. The key failing in NicSand’s complaint is not that it has too few details but that it has too many. While we must accept all of a claimant’s allegations as true at this stage of a case, that does not mean we must ignore those allegations when they defeat the claim and when they show the claimant is doing nothing more than invoking the antitrust laws to protect a competitor, not competition. See Brunswick, 429 U.S. at 488, 97 S.Ct. 690.

In considerable detail, NicSand’s amended complaint explained the market for do-it-yourself automotive sandpaper, see Am.

Compl. ¶¶ 25, 46, 47, 48, 51, explained that the relevant retailers demanded exclusivity by refusing to stock more than one brand of the sandpaper at a time, see id. ¶ 47, explained that the relevant retailers had “de facto” one-year exclusive agreements with their suppliers, see id. ¶ 25, explained how all of the relevant retailers demanded up-front payments before they would switch suppliers, see id. ¶¶ 21, 30, 32, 35, highlighted Nic-Sand’s domination of that market under these precise conditions, see id. ¶ 15, detailed the 38^9% profit margins NicSand earned before 3M entered the picture (presumably to enhance NicSand’s request for treble damages), see id. ¶¶ 22, 31, 33, 36, and spelled out the amounts of the upfront discounts that 3M offered four of the retailers, see id. ¶¶ 21, 30, 32, 35.

Confirming what the details in its amended complaint showed, NicSand disclaimed in its response to the Rule 12(b)(6) motion that 3M had engaged in predatory pricing or illegal tying. When “the complaint itself gives reasons” to doubt plaintiffs theory, Bell Atl, 127 S.Ct. at 1972, and when later pleadings confirm those doubts, it is not our task to resuscitate the claim but to put it to rest. Nothing prevents a plaintiff from pleading itself out of court, which is all that happened here.

The dissent suggests that we can resuscitate this claim by returning to Nic-Sand what it has given away — a predatory-pricing claim. When a party concedes that it is not bringing a claim, however, no purpose of Rule 12(b)(6) is served by overlooking the concession, and there is nothing “misleading,” Dissent at 463, about reading and accepting the concession. Plainly and simply, the company acknowledged that “NicSand’s Amended Complaint Is Not Premised On Predatory Pricing.” JA 132; Reply Br. at 6.

The plaintiff remains the master of its complaint, and when it says that it is not bringing a predatory-pricing claim, we should take it at its word. Nor, to be fair to NicSand’s counsel, was this an unusual concession to make. “[P]redatory pricing schemes are rarely tried, and even more rarely successful.” Matsushita Elec. Indus., 475 U.S. at 589, 106 S.Ct. 1348. Success requires not just below-cost pricing but a product market that will allow the would-be monopolist to raise prices later without the threat of new market entrants. Id. at 591 n. 15, 106 S.Ct. 1348.

NicSand, in short, had ample reasons for conceding that 3M did not engage in a predatory-pricing scheme, and we should accept the concession. The claim also cannot be revived based on the allegation that retail prices have risen a total of 70% since NicSand left the market. Dissent at 469. An allegation about retail prices in the context of a case against a supplier does not by itself show that the supplier engaged in anticompetitive conduct and does not show that NicSand’s injury “flows from that which makes [3M’s] acts unlawful.” Brunswick, 429 U.S. at 489, 97 S.Ct. 690.

Res ipsa loquitur is not a theory of antitrust injury, and it surely is not one after the Supreme Court’s decision in Bell Atlantic, which set out to eliminate this kind of loose antitrust pleading. Just as in Bell Atlantic, where the Court held that, “[w]ithout more, parallel conduct does not suggest conspiracy,” 127 S.Ct. at 1966, so here: a price increase by retailers, without more, does not suggest anticompetitive behavior by suppliers.

NicSand’s speculations show at most the “possibility” of an entitlement to relief, id., which is just what Bell Atlantic said would not suffice at the pleading stage, id. (requiring “allegations plausibly suggesting (not merely consistent with)” an entitlement to relief). While it is assuredly true that Bell Atlantic “in fact makes simpler the task before us in this case” than it was before the Supreme Court’s decision, Dissent at 462, it is hard to see how that decision makes it “simpler” to rule in the plaintiffs favor, as the dissent contends, id.

The dissent adds that “[i]t is not the appropriate response under the law to answer anticompetitive conduct with more anticompetitive conduct,” suggesting that the only way NicSand could have responded to 3M’s courtship of NicSand’s customers over a four-year period would be to compete illegally. Id. at 465. But why compete illegally if, as NicSand’s amended complaint says, it had 38-49% margins before 3M entered the competitive picture? Such profits surely left NicSand negotiating options over a four-year period between competing illegally and invoking the antitrust laws to preserve these margins.

The dissent expresses skepticism about our decision in Indeck, relying on a commentator who has questioned the decision. See id. at 466 n. 8. But no party to this case, as we have noted, has asked us to reconsider Indeck. And, what is more, the central criticism leveled by the commentator concerns the statement in Indeck upon which the dissent principally relies, id. at 459 — Indeck’s requirement that the antitrust plaintiff must show the “elimination of a superior product or a lower-cost alternative,” Indeck, 250 F.3d at 977; see Ronald W.

Davis, Standing on Shaky Ground: The Strangely Elusive Doctrine of Antitrust Injury, 70 Antitrust L.J. 697, 747-48 (2003). As we have explained, Maj. Op. at 456, Indeck’s injury-to-the-market language need not detain us here because it is at most a necessary, but not a sufficient, condition for proving antitrust standing. See Indeck, 250 F.3d at 977 (A competitor plaintiff “must at least allege” injury to the market.) (emphasis added).

And NicSand cannot meet another necessary requirement-that it suffered an antitrust injury, as opposed to the ill effects of price competition, which understandably “hurts,” Dissent at 463, but which does not by itself state a cognizable antitrust claim. See Maj. Op. at 456. Otherwise, every time an allegedly “superior product or a lower-cost alternative” was eliminated from the market by competition, the producer of that product would have antitrust standing. That is not what Indeck said or did. III. For these reasons, we affirm.