Williams Hicks v. Pga Tour, Inc. , 897 F.3d 1109 ( 2018 )


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  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    WILLIAMS MICHAEL HICKS;            No. 16-15370
    KENNETH HARMS, as Class
    Representative Plaintiffs and         D.C. No.
    Individual Plaintiffs; MATTHEW   3:15-cv-00489-VC
    ACHATZ; BRANDON ANTUS;
    CHAD ANTUS; ANDREW BARNES;
    CHRIS BERRY; MICHAEL BESTOR;        OPINION
    DUANE BOCK; DAVID BROOKER;
    MARK CARNES; STEVEN CATLIN;
    BRUCE CLENDENEN; GRAEME
    COURTS; MICHAEL DARBY;
    HENRY DIANA; DON DONATELLO;
    MICHAEL DORAN; JAMES
    EDMONDSON; DEAN ELLIOTT;
    JOSEPH ETTER; BRENT EVERSON;
    MICAH FUGITT; DAMON GREEN;
    JAY HAAS, JR.; STEVEN HALE;
    MATTHEW HAUSER; ADAM
    HAYES; WILLIAM HEIM;
    JONATHAN JAKOVAC; TOM JANIS;
    JIMMY JOHNSON; CHRIS JONES;
    NICK JONES; STEVE KAY;
    ANTHONY KNIGHT; SHAY
    KNIGHT; MITCH KNOX; KURTIS
    KOWALUK; RONALD LEVIN; JOHN
    LIMANTI; BRENNEN LITTLE;
    SCOTT MARTIN, Esquire,
    Attorney; RICH MAYO, JR.;
    DANIEL MCQUILKEN; ERIC
    2              HICKS V. PGA TOUR
    MELLER, Esquire, Attorney;
    MATTHEW MINISTER; CHARLES
    MOHR; TODD MONTOYA; TONY
    NAVARRO; DONALD NELSON;
    TRAVIS PERKINS; JOSEPH
    PYLAND; BRIAN REED; CHAD
    REYNOLDS; MIGUEL RIVERA;
    DAVID ROBINSON; SCOTT
    SAJTINAC; ANDREW SANDERS;
    FRED SANDERS; CORBY SEGAL;
    SHAWN SEGARS; BRIAN SMITH;
    RUSSEL STARK; BRAD
    SWEARINGEN; PAUL TESORI;
    ROBERT THOMPSON; SCOTT
    TWAY; STEVE UNDERWOOD;
    MARK URBANEK; RUSTY URESTI;
    BRETT WALDMAN; NEIL
    WALLACE; AARON WARK;
    JEFFERY WILLETT; BARRY
    WILLIAMS; MICHAEL MAZZEO;
    JOHN YARBROUGH; JUSTIN YORK;
    DENNIS TURNING; STEPHEN
    WILLIAMS; TERRY R. ENGLEMAN;
    THOMAS FLETCHER; ALAN BOND;
    EDWARD E. WILLIS; ROBERT J.
    MCFADDEN; PETER AMBROSETTI;
    KENNETH A. TOLLES; JOSEPH
    DUPLANTIS; BRADLEY WHITTLE;
    PETER JORDAN; WESTON SCOTT
    WATTS; JOSHUA E. DICKINSON;
    DAVID B. PARSONS; PETER
    VANDERRIET; MARK CRUNDEN;
    JOHN M. BUCHNA; COLIN BYRNE;
    HICKS V. PGA TOUR   3
    LINN STRICKLER; CHAD
    ROSENAK; MATTHEW
    BEDNARSKI; MARTIN COURTOIS;
    KENNY BUTLER; JEFF DOLF;
    MARCEL LABAS; RUSSELL
    CRAVER; JAMES WALTERS; JAMES
    SMITH; PATRICK V. ESWAY, JR.;
    MARK HUBER; JON CUSTER;
    LEWIS B. PULLER III; JIM
    THOMAS; MARK E. MILLER,
    Esquire, Attorney; MATTHEW
    HALL; ERIC SCHWARZ; JOHN R.
    ADCOX; JOHN VENN; JOHN EGAN;
    MATTHEW TRITTON; JAMES
    SPRINGER, Esquire, Attorney;
    TERRY TRAVIS; RICHARD J.
    MOTACKI; ROBERT DICKERSON;
    TIM GOODELL; ROBERT VAIL;
    TODD NEWCOMB; GREG W.
    MARTIN; NOAH ZELNIK; BRENT
    HENLEY; CHRISTOPHER S.
    FIEDLER; PHILIP LOWE; DAVID
    PATTERSON; KEVIN MCARTHUR;
    RICHARD M. SCHLAACK; DAVID
    H. RAWLS; BOB BURNS; MICHAEL
    J. WAITE; HARRY BROWN; DAVID
    A. KERR; BRIAN H. SULLIVAN;
    ANDREW DAVIDSON; ALLAN
    MELLAN; DAVID WOOSLEY;
    RONALD MCCANN; DANIEL
    SCHLIMM; STEVE GREENWOOD;
    ANTHONY WILDS; MICHAEL
    MARONEY; ANDREW MARTINEZ;
    4                    HICKS V. PGA TOUR
    KYLE KOLENDA; DAVID LAWSON;
    JOHN L. SMITH; MICHAEL
    MIDDLEMO; SPENCER SEIFERT;
    LADDEN CLINE; THOMAS G.
    WILLIAMS; MICHAEL CARRICK;
    CALVIN HENLEY; GEORGE
    ASSANTE; WALTER WORTHERN,
    JR.; TIMOTHY J. THALMUELLER;
    WILLIAM POORE; NORMAN R.
    BLOUNT, JR.; WILLIAM SPENCER;
    MARK HAMILTON; CHRISTIAN
    HEATH HOLT; DAMIAN LOPEZ,
    Plaintiffs-Appellants,
    v.
    PGA TOUR, INC.,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Northern District of California
    Vince Chhabria, District Judge, Presiding
    Argued and Submitted October 12, 2017
    San Francisco, California
    Filed July 27, 2018
    HICKS V. PGA TOUR                                5
    Before: Sidney R. Thomas, Chief Judge, and Michael Daly
    Hawkins and Kathleen M. O’Malley,* Circuit Judges.
    Opinion by Chief Judge Thomas
    SUMMARY**
    Antitrust
    The panel affirmed in part and vacated in part the district
    court’s dismissal of antitrust and related state law claims of
    professional golf caddies who participate in golf tournaments
    run by the PGA Tour, arising out of the Tour’s requirement
    that the caddies wear bibs containing advertisements at
    professional golfing events.
    The panel held that the district court was not required to
    convert the Tour’s Fed. R. Civ. P. 12(b)(6) motion to dismiss
    to a summary judgment motion because the court did not
    consider any material outside the pleadings.
    The panel held that the district court properly concluded
    that the caddies had consented to wearing the bibs, based on
    the text of a tournament participation form, considered with
    the caddies’ concession that the Tour had required them to
    *
    The Honorable Kathleen M. O’Malley, United States Circuit Judge
    for the U.S. Court of Appeals for the Federal Circuit, sitting by
    designation.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    6                   HICKS V. PGA TOUR
    wear bibs for decades. The district court also did not err in
    concluding that the caddies failed to allege plausibly that the
    Tour secured their consent through economic duress. The
    caddies therefore failed to state claims for breach of contract
    and quasi-contract relief, California state law publicity
    claims, a Lanham Act false endorsement claim, or a plausible
    economic duress claim.
    The panel held that the district court properly determined
    that the caddies had not alleged plausible product markets to
    support their antitrust claims. The panel held that, even if
    advertisements to golf fans constituted a unique product
    market, “in-play” or “in-action” advertising during
    professional golf tournaments—either in any format or
    endorsements alone—did not constitute a unique submarket.
    Agreeing with other circuits, the panel concluded that the
    caddies’ proposed product markets were facially
    unsustainable because they failed to include many reasonably
    interchangeable products.
    The panel held that the district court therefore correctly
    dismissed the caddies’ antitrust claims, as well as their
    California unfair competition claim. The panel, however,
    vacated the dismissal with prejudice of these claims because
    the district court made a simple denial of leave to amend
    without adequate explanation. The panel remanded for the
    district court to reconsider its decision to deny the caddies
    leave to amend the antitrust and unfair competition claims.
    HICKS V. PGA TOUR                        7
    COUNSEL
    Arthur R. Miller (argued), The Lanier Law Firm P.C., New
    York, New York; Benjamin T. Major (argued), Kevin P.
    Parker, Richard D. Meadow, and W. Mark Lanier, The Lanier
    Law Firm P.C., Houston, Texas; for Plaintiffs-Appellants.
    Jeffrey A. Mishkin (argued) and Anthony Dreyer, Skadden
    Arps Slate Meagher & Flom LLP, New York, New York;
    Raoul D. Kennedy, Skadden Arps Slate Meagher & Flom
    LLP, Palo Alto, California; for Defendant-Appellee.
    OPINION
    THOMAS, Chief Judge:
    This appeal concerns various antitrust and related state
    law claims of professional golf caddies (“Caddies”) who
    participate in golf tournaments run by the PGA Tour (“the
    Tour”) arising out of the Tour’s requirement that they wear
    bibs containing advertisements at professional golfing events.
    The district court dismissed all claims with prejudice. We
    affirm the dismissal, but remand the case to allow the district
    court to reconsider whether to grant the Caddies leave to
    amend their federal antitrust and California unfair
    competition claims.
    I
    Henry Longhurst, the renowned British golf writer and
    commentator, once wrote: “A good caddie is more than a
    mere assistant. He is a guide, philosopher, and friend.” The
    professional caddie has evolved from simply carrying bags
    8                    HICKS V. PGA TOUR
    and locating errant shots to providing valuable insights on
    course topography, club selection, and reading shots.
    Caddies serve as coaches, strategists, and counselors to
    professional golfers.
    The Tour operates three tours of professional golf
    tournaments throughout the United States. It requires caddies
    to wear specified uniforms at the tournaments, including a
    “bib”—a loose-fitting sleeveless garment on the upper body
    used for identification. For each tournament, the Tour
    generally works with a local host (“Local Host”). The Local
    Hosts and Tour seek to secure and retain sponsors, including
    title sponsors for the tournaments. Sponsors pay Local Hosts
    and the Tour to secure advertising space at the tournaments.
    At issue in this case is the advertising space on the bibs worn
    by the Caddies during the tournaments.
    Local Hosts and the Tour design the bibs. The bibs bear
    a tournament logo and sponsors’ logos, which are often
    integrated together. With exposure to live tournament,
    television, and webcast audiences, advertising space on the
    bibs is valued at approximately $50 million annually. Local
    Hosts and the Tour receive the entirety of these revenues.
    The Caddies receive none.
    Although individual professional golfers employ the
    Caddies as independent contractors, the Tour and Local Hosts
    require the Caddies to wear the bibs. The Caddies must sign
    a Caddie Registration and Regulations Form (“the Form”) in
    order to participate in any Tour tournament. The Form notes
    that “[i]n consideration of PGA TOUR’s services in
    cosponsoring the Tournament,” the Caddies “grant and assign
    to PGA TOUR, without limitation, [their] individual
    television, radio, motion picture, photographic, electronic, . . .
    HICKS V. PGA TOUR                      9
    and all other similar or related media rights with respect to
    [their] participation in the Tournament.”
    The Form also provides a list of regulations that the
    Caddies must adhere to, which in relevant part state:
    2.     Caddies shall wear uniforms and
    identification badges as prescribed by the host
    tournament and PGA Tour. All caddies are
    required to wear solid-colored, Khaki-style
    long pants, which touch the top of the shoe, or
    solid-colored, knee-length, tailored shorts or
    skorts and a collared shirt while on club
    property. T-shirts, jeans, culottes, skirts,
    capris, cut-off shorts and cargo-style shorts
    are not permitted. Acceptable colors shall be
    determined at the discretion of the
    Tournament Director.
    3. Caddies shall wear smooth rubber-sole
    shoes, preferably tennis or basketball shoes.
    Permissible colors are limited to white and
    earth tones such as navy, blue, black, brown,
    tan, gray, dark green and the like. Bright
    colors that are intended to draw attention to a
    person’s footwear are not acceptable.
    Footwear with a closed toe is required. Flip
    flops, open-toed sandals and other similar
    shoes are not permitted. Closed-toe Crocs are
    acceptable provided they conform with the
    colors described above. GOLF SPIKES are
    prohibited.
    10                     HICKS V. PGA TOUR
    4. Caddies’ clothing must conform to the
    Player Endorsement Policy as stated in the
    PGA TOUR Player Handbook and
    Tournament Regulations.1
    The Player Endorsement Policy (“Endorsement Policy”)
    referenced in Regulation Four prohibits endorsing specific
    categories of products, places limitations on the size and
    location of endorsements, and specifies that “[a]ll
    sponsorships, endorsements and promotional activities by
    members, whether during or outside PGA TOUR
    competitions, are subject to the approval of the PGA
    TOUR.”2
    The Tour and Local Hosts have threatened to prevent
    caddies who refuse to wear the bibs from participating in
    tournaments. They have also directly contacted golfers to
    determine whether the golfers would decline to hire caddies
    who refused to wear the bibs. These tactics, combined with
    the Tour’s requirement that each golfer have a caddy to
    participate in a tournament, maximize the value of bib
    advertising during tournament play.
    The Caddies contend that the Tour and Local Hosts
    cannot compel them to wear the bibs. Relatedly, they allege
    that by requiring the Caddies to wear the bibs, the Tour and
    1
    The excerpted text comes from the version of the Form used for the
    2014–2015 Tour season. The Tour added Regulation Four concerning the
    Player Endorsement Policy during the 2012 Tour season. Otherwise, the
    Tour has made no relevant changes to the excerpted text since 2010.
    2
    The Caddies do not dispute the authenticity of the Form or
    Endorsement Policy, which are referenced in the operative complaint and
    were submitted to the district court by the Tour.
    HICKS V. PGA TOUR                              11
    Local Hosts have inhibited their endorsement rights under the
    Endorsement Policy.3 Based on these allegations, the
    Caddies assert contract, equitable quasi-contract, economic
    duress, publicity, and unfair competition claims under
    California law.4 See, e.g., 
    Cal. Civ. Code § 3344
    (a)
    (discussing publicity claims); 
    Cal. Bus. & Prof. Code § 17200
    (defining “unfair competition”). They also allege a false
    endorsement claim under the Lanham Act. 
    15 U.S.C. § 1125
    .
    Finally, the Caddies assert antitrust claims under Sections 1
    and 2 of the Sherman Act. 
    15 U.S.C. §§ 1
    , 2.
    For their antitrust claims, the Caddies allege two relevant
    product markets: the Endorsement Market and the Live
    Action Advertising Market. They define the Endorsement
    Market as “the national market for the endorsement of
    products and services by participants in professional golf
    tournaments.” Without the Tour’s requirement that the
    Caddies wear bibs, the Caddies and golfers would be the only
    sellers in this market. Indeed, the Caddies and golfers are the
    only visible and recognizable individuals who participate in
    golf tournaments.
    According to the Caddies, the Tour’s audience is a
    distinct advertising market given its unique demographic.
    The majority of Tour fans are older, Caucasian, travel via
    airplane for business, and are interested in products such as
    financial planning and vacation traveling.             These
    3
    The Caddies’ operative complaint names the Tour as the only
    defendant.
    4
    The parties agree that California law applies to all of the state law
    claims.
    12                   HICKS V. PGA TOUR
    characteristics allegedly distinguish the average Tour fan
    from the average fan of other major sports.
    Moreover, endorsements from the Caddies and golfers
    during tournament play are purportedly more effective than
    other forms of golf-related advertising. A golf fan can ignore
    other forms of advertising by flipping the page of a magazine,
    clicking away from an online advertisement, or fast-
    forwarding through television commercials with a DVR. In
    contrast, a golf fan cannot ignore an in-action endorsement
    from a caddy or golfer. The Caddies contend that this
    enhanced effectiveness, combined with a unique degree of
    price-flexibility provided by the possibility of hiring golfers
    and caddies of varying skill levels, establishes the plausibility
    of the Endorsement Market.
    The Caddies define the slightly more expansive Live
    Action Advertising Market as “the national . . . market for in-
    play or in-action commercial advertising at professional golf
    events between commercial breaks.” In addition to
    endorsements from the Caddies and golfers, this market
    includes advertising space on and around the golf course that
    live tournament, television broadcast, and webcast audiences
    can see during in-play tournament action. The Tour and
    Local Hosts provide the advertising space on and around the
    course. The Caddies contend that the Live Action
    Advertising Market constitutes a plausible product market for
    similar reasons as above.
    The Caddies allege three antitrust claims reliant on these
    proposed product markets. First, they contend that the Tour
    and Local Hosts violate Section 1 of the Sherman Act by
    agreeing to require the Caddies to wear the bibs, which
    unreasonably restrains trade by reducing the product supply
    HICKS V. PGA TOUR                      13
    in the relevant markets. Second, the Caddies allege that the
    Tour violates Section 2 of the Sherman Act by monopolizing
    or attempting to monopolize the relevant markets through the
    use of coercive and threatening conduct. Finally, the Caddies
    allege that the Tour also violates Section 2 by engaging in
    coercive reciprocal dealing—a variant of tying. Specifically,
    the Caddies contend that the Tour leverages monopoly power
    in the market for professional golf tournaments by selling the
    right to participate in golf tournaments to the Caddies on the
    condition that the Caddies sell their endorsement services to
    the Tour.
    In February 2015, the Caddies first raised these claims
    and sought class certification in district court. The Caddies
    amended their complaint as of right in response to a motion
    to change venue and amended again with the Tour’s consent.
    The Tour then filed a motion to dismiss the Caddies’ Second
    Amended Complaint. It argued that the Caddies failed to
    plead any plausible claims for relief because the Caddies
    consented to wearing the bibs and the proposed antitrust
    product markets were implausible. The district court agreed.
    The district court concluded that Regulation Two in the
    Form was unambiguous and authorized the Tour to require
    the Caddies to wear bibs. It focused specifically on the
    italicized language below:
    2.    Caddies shall wear uniforms and
    identification badges as prescribed by the host
    tournaments and PGA Tour. All caddies are
    required to wear solid-colored, Khaki-style
    long pants, which touch the top of the shoe, or
    solid-colored, knee-length, tailored shorts or
    skorts and a collared shirt while on club
    14                  HICKS V. PGA TOUR
    property. T-shirts, jeans, culottes, skirts,
    capris, cut-off shorts and cargo-style shorts
    are not permitted. Acceptable colors shall be
    determined at the discretion of the
    Tournament Director.
    The district court recognized that “[i]n isolation” the
    italicized “language might appear ambiguous.” The court
    elaborated:
    On the one hand, a person might understand
    the first sentence of the paragraph to mean
    that caddies must wear whatever ‘uniforms’
    the host tournament and the Tour decide to
    ‘prescribe,’ without limitation . . . . On the
    other hand, one might understand the second
    sentence of the paragraph to be modifying the
    first one, so that the kinds of ‘uniforms’ a host
    tournament and Tour may ‘prescribe’ include
    the type and color of the pants and shirts
    caddies may wear, and nothing more.
    It noted that the former interpretation authorizes the Tour to
    require the Caddies to wear bibs, but the latter does not.
    However, the district court determined that in the “context
    of this case,” the contractual provision was unambiguous. It
    relied on the Caddies’ concession in their supplemental brief
    opposing the Tour’s motion to dismiss that “the PGA Tour
    has required caddies to wear bibs for decades.” This
    “context,” along with the operative complaint’s allegation
    that the Caddies “are forced to wear identical bibs during a
    given tournament,” confirmed that the contractual provision
    has a single reasonable interpretation: “[T]he caddies agreed
    HICKS V. PGA TOUR                       15
    the Tour could make them wear bibs.” In light of this
    conclusion, and the fact that the operative complaint
    confirmed that the Tour had not relinquished this contractual
    right, the district court dismissed the breach of contract claim
    with prejudice.
    The district court’s conclusion that the Caddies’ had
    consented to wear the bibs led it to dismiss with prejudice the
    unjust enrichment, publicity, and Lanham Act false
    endorsement claims as well because each claim required a
    lack of consent. The Caddies’ claim that they signed the
    Form under economic duress was similarly dismissed with
    prejudice because the Caddies “embark[ed] upon a profession
    whose practitioners have long been required to wear bibs.”
    The district court also dismissed with prejudice the
    Caddies’ antitrust claims for failure to plead a plausible
    product market.        It assumed when considering the
    Endorsement Market and the Live Action Advertising Market
    that professional golf fans constituted a unique market for
    certain advertisers. Even so, the court reasoned that while the
    various forms of advertisements aimed at this demographic
    have their differences, the Caddies failed to allege facts “from
    which one could plausibly conclude that these different
    methods of advertising to golf fans are not reasonably
    interchangeable.” For example, “[i]f it became too expensive
    to put a logo on a bridge” or a bib, “there is no logical reason
    a company wouldn’t decide instead to put its logo on a
    magazine ad, or on a wall in golf course clubhouses, or any
    number of other places.” It concluded that the proposed
    markets were “artificial [and] contorted to meet [the
    Caddies’] litigation needs.”
    16                  HICKS V. PGA TOUR
    Finally, the district court dismissed the Caddies’
    remaining California unfair competition claim with prejudice
    given its resolution of other related claims. The Caddies
    timely appealed the district court’s dismissal of all claims.
    We review de novo the district court’s dismissal of the
    Caddies’ complaint under Rule 12(b)(6) for “failure to state
    a claim upon which relief can be granted.” Vega v. United
    States, 
    881 F.3d 1146
    , 1152 (9th Cir. 2018). “To survive a
    motion to dismiss, a complaint must contain sufficient factual
    matter, accepted as true, to ‘state a claim to relief that is
    plausible on its face.’” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678
    (2009) (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    ,
    570 (2007)). “A claim has facial plausibility when the
    plaintiff pleads factual content that allows the court to draw
    the reasonable inference that the defendant is liable for the
    misconduct alleged.” 
    Id.
     (citing Twombly, 
    550 U.S. at 556
    ).
    Applying this standard is a “context-specific task” that
    requires drawing on “judicial experience and common sense.”
    
    Id. at 679
    .
    II
    The district court properly concluded that the Caddies had
    consented to wearing the bibs and that they did not do so
    under economic duress.
    A
    As an initial matter, the district court was not required to
    convert the Tour’s Rule 12(b)(6) motion to a summary
    judgment motion, as the Caddies allege, because it did not
    consider any material outside the pleadings.
    HICKS V. PGA TOUR                      17
    When ruling on a Rule 12(b)(6) motion, if “matters
    outside the pleadings are presented to and not excluded by the
    court, the motion must be treated as one for summary
    judgment under Rule 56. All parties must be given a
    reasonable opportunity to present all the material that is
    pertinent to the motion.” Fed. R. Civ. P. 12(d).
    The “pleadings” include more than just the complaint.
    We can consider “exhibits attached to the Complaint or
    matters properly subject to judicial notice.” Daniels-Hall v.
    Nat’l Educ. Ass’n, 
    629 F.3d 992
    , 998 (9th Cir. 2010).
    Moreover, “[w]e may also consider documents whose
    contents are alleged in a complaint and whose authenticity no
    party questions, but which are not physically attached to the
    [plaintiff’s] pleading.” Northstar Fin. Advisors Inc. v.
    Schwab Invs., 
    779 F.3d 1036
    , 1043 (9th Cir. 2015) (brackets
    in original) (internal quotations and citation omitted).
    “[T]hose ‘facts’ [in a plaintiff’s complaint] which have since
    been conclusively contradicted by plaintiffs’ concessions” are
    also appropriate for consideration. Chongris v. Bd. of
    Appeals of Town of Andover, 
    811 F.2d 36
    , 37 (1st Cir. 1987);
    see also, e.g., McCorkle v. Bank of Am. Corp., 
    688 F.3d 164
    ,
    170, 172 (4th Cir. 2012) (affirming the district court’s
    dismissal of a claim based on a “concession made at oral
    argument [before the district court] by counsel for
    Plaintiffs”).
    Here, the district court did not consider any matters
    requiring conversion under Rule 12(d). The Caddies’
    concession in their motion to dismiss briefing that “the PGA
    Tour has required caddies to wear bibs for decades” was
    appropriate to consider when ruling on the Rule 12(b)(6)
    motion. See, e.g., Chongris, 
    811 F.2d at 37
    ; McCorkle,
    688 F.3d at 170, 172. In relying on this concession, the
    18                   HICKS V. PGA TOUR
    district court did not “pull[ ] a single statement out of [the
    Caddies’] argument and interpret[ ] it as vitiating all the
    factual allegations made in [their] complaint.” Campanelli v.
    Bockrath, 
    100 F.3d 1476
    , 1481 (9th Cir. 1996). Instead, this
    concession is entirely consistent with the allegations in the
    operative complaint that the Tour has “nett[ed] millions of
    dollars each year from bib advertising,” that the Caddies
    “could have collectively earned over $50 million during the
    2013–2014 golf season and similar sums during other
    seasons at issue in this lawsuit,” and that the Tour has
    “justif[ied] the practice because ‘that is the way it has been.’”
    The Caddies fail to direct us to any factual allegations
    inconsistent with its concession.
    The district court’s request for, and the parties’ joint
    submission of, “judicially noticeable facts . . . about when the
    PGA Tour started requiring caddies to wear bibs during
    tournaments” and when the tournaments began having
    “sponsored” names also did not result in consideration of
    materials outside the pleadings. The Caddies admit that “the
    district court did not directly cite th[is] evidence.” We need
    not consider whether the materials in these submissions were
    judicially noticeable at the pleading stage because the district
    court “excluded” the materials by failing to rely on them
    when ruling on the motion to dismiss. Fed. R. Civ. P. 12(d).
    B
    The district court properly concluded that the Caddies had
    consented to wear the bibs. The text of the Form, considered
    with the Caddies’ concession that “the PGA Tour has
    required [them] to wear bibs for decades,” confirms the
    Caddies’ unambiguous consent to wearing bibs.
    HICKS V. PGA TOUR                        19
    “Whether language in a contract is ambiguous is a
    question of law.” Daniel v. Ford Motor Co., 
    806 F.3d 1217
    ,
    1224 (9th Cir. 2015) (quoting Producers Dairy Delivery Co.
    v. Sentry Ins. Co., 
    718 P.2d 920
    , 925 (Cal. 1986)). If a
    contract is ambiguous, it presents a question of fact
    inappropriate for resolution on a motion to dismiss.
    ASARCO, LLC v. Union Pac. R.R. Co., 
    765 F.3d 999
    ,
    1008–09 (9th Cir. 2014).
    We attempt to “ascertain [the parties’] intention solely
    from the written contract, if possible.” Starlight Ridge S.
    Homeowners Ass’n v. Hunter-Bloor, 
    99 Cal. Rptr. 3d 20
    , 25
    (Ct. App. 2009). We begin by assuming contract terms
    have their “plain, ordinary, popular or legal meaning.”
    Hayter Trucking, Inc. v. Shell W. E&P, Inc., 
    22 Cal. Rptr. 2d 229
    , 238 (Ct. App. 1993). If the “ordinary and popular
    sense” leaves doubt regarding a word’s meaning, we
    “consider the circumstances under which the contract was
    made[,] the matter to which it relates[,] . . . [and any] special
    meaning [ ] given to [words] by usage.” Starlight Ridge, 99
    Cal. Rptr. 3d at 25.
    The parties’ “prior course of dealings” is relevant in this
    regard. Marin Storage & Trucking, Inc. v. Benco Contracting
    & Eng’g, Inc., 
    107 Cal. Rptr. 2d 645
    , 652 (Ct. App. 2001).
    Considering the parties’ course of dealing advances
    California law’s “fundamental goal of contract
    interpretation,” namely “to give effect to the mutual intent of
    the parties as it existed at the time of contracting.” Skilstaf,
    Inc. v. CVS Caremark Corp., 
    669 F.3d 1005
    , 1014–15 (9th
    Cir. 2012) (internal alterations and citation omitted); see also
    Kashmiri v. Regents of Univ. of Cal., 
    67 Cal. Rptr. 3d 635
    ,
    660 (Ct. App. 2007) (noting that contract law aims to “protect
    the reasonable expectations of the parties” (quoting Ben-Zvi
    20                  HICKS V. PGA TOUR
    v. Edmar Co., 
    47 Cal. Rptr. 2d 12
    , 15 (Ct. App. 1995))).
    After all, a term is not ambiguous “because of
    ‘[d]isagreement concerning the meaning of a phrase,’ or ‘the
    fact that a word or phrase isolated from its context is
    susceptible of more than one meaning.’” State v. Cont’l Ins.
    Co., 
    281 P.3d 1000
    , 1004 (Cal. 2012) (quoting Castro v.
    Fireman’s Fund Am. Life Ins. Co., 
    253 Cal. Rptr. 833
    , 836
    (Ct. App. 1988)); 
    id.
     at 1004–05 (A contract “cannot be found
    to be ambiguous in the abstract.” (quoting Bank of the West
    v. Superior Court, 
    833 P.2d 545
    , 552 (Cal. 1992))).
    With these principles in mind, the district court correctly
    concluded that Regulation Two provides unambiguous
    authorization for the Tour to require that the Caddies wear
    bibs. Regulation Two states that “[c]addies shall wear
    uniforms and identification badges as prescribed by the host
    tournament and PGA Tour.” Both ordinary usage and the
    parties’ course of dealing confirm that the Tour’s ability to
    “prescribe[ ] . . . uniforms . . . [that] [c]addies shall wear”
    authorizes the bib requirement.
    A uniform is commonly understood as a “dress of a
    distinctive design or fashion worn by members of a particular
    group and serving as a means of identification.” Merriam-
    Webster’s Collegiate Dictionary 1292 (10th ed.1996). The
    identical bibs that the Tour requires fall within this common
    definition because individuals watching Tour tournaments are
    able to identify the Caddies by the bibs they wear. Indeed, a
    caddy simply wearing khaki pants and a collared blue polo
    shirt would satisfy the Tour’s leg wear and shirt requirement,
    but the individual would be indistinguishable from many golf
    fans on the course. Placing a bib on the same caddy “serv[es]
    as a means of identif[ying]” the individual as a caddy, rather
    than a golf spectator. 
    Id.
    HICKS V. PGA TOUR                              21
    The Caddies’ concession that “the PGA Tour has required
    caddies to wear bibs for decades” further confirms that the
    bibs fall within Regulation Two’s use of the word
    “uniforms.” In the context of the parties’ course of dealing,
    a reasonable caddy signing the Form would reach a single
    conclusion: Regulation Two’s reference to “uniforms”
    included the bibs that the Tour “prescribed.”5
    C
    The district court also did not err in concluding that the
    Caddies failed to allege plausibly that the Tour secured their
    consent through economic duress.
    Economic duress can excuse an innocent party’s
    contractual obligations when the other contracting party does
    “a wrongful act which is sufficiently coercive to cause a
    reasonably prudent person faced with no reasonable
    alternative to succumb to the perpetrator’s pressure.” Rich &
    Whillock, Inc. v. Ashton Dev., Inc., 
    204 Cal. Rptr. 86
    , 89 (Ct.
    App. 1984). The doctrine only applies when the party
    seeking relief “had no ‘reasonable alternative’ to the action it
    now seeks to avoid (generally, agreeing to contract).”
    CrossTalk Prods., Inc. v. Jacobson, 
    76 Cal. Rptr. 2d 615
    , 623
    (Ct. App. 1998). No reasonable alternative may exist “when
    the only other alternative is bankruptcy or financial ruin.”
    Rich & Whillock, 204 Cal. Rptr. at 89. “If a reasonable
    5
    The Caddies’ contention that the Player Endorsement Policy alters
    this conclusion is also incorrect. The Form notes that “[c]addies’ clothing
    must conform to the Player Endorsement Policy.” However, under the
    Player Endorsement Policy all “endorsements . . . are subject to approval
    by the PGA Tour.” The Player Endorsement Policy—a policy referenced
    in the Form—would not allow endorsements to the extent they conflict
    with the Form’s requirement that the Caddies wear bibs.
    22                      HICKS V. PGA TOUR
    alternative was available, and there hence was no compelling
    necessity to submit to the coercive demands, economic duress
    cannot be established.” CrossTalk Prods., 76 Cal. Rptr. 2d at
    623.
    The Caddies failed to allege a “wrongful act which [was]
    sufficiently coercive” or that they faced “no reasonable
    alternative [but] to succumb to the perpetrator’s pressure.”
    Rich & Whillock, 204 Cal. Rptr. at 89. As the district court
    noted, the Caddies “embark[ed] upon a profession whose
    practitioners have long been required to wear bibs, and who
    therefore have not been able to display logos on the part of
    the shirt covered by the bib.” In these circumstances, “the
    caddies[’] allegation that they were coerced into this
    arrangement on threat of extreme economic hardship is not
    plausible.”
    D
    In sum, the Caddies failed to state claims for breach of
    contract and quasi-contract relief because they consented to
    wearing the bibs.6 The Caddies also fail to state California
    6
    The Caddies’ quasi-contract claims include unjust enrichment,
    quantum meruit, and money had and received. The Caddies’ consent to
    wearing the bibs in exchange for participation in the tournaments defeats
    these claims. See, e.g., Durell v. Sharp Healthcare, 
    108 Cal. Rptr. 3d 682
    ,
    699 (Ct. App. 2010) (“[A]n unjust enrichment claim does not lie where the
    parties have an enforceable express contract.”); Newport Harbor Ventures,
    LLC v. Morris Cerullo World Evangelism, 
    212 Cal. Rptr. 3d 216
    , 228 (Ct.
    App. 2016) (“Quantum meruit recovery that is contrary to an express
    contractual term is not allowed.”); Rutherford Holdings, LLC v. Plaza Del
    Rey, 
    166 Cal. Rptr. 3d 864
    , 871 (Ct. App. 2014) (“In an action on an
    express contract, a claim for money had and received is permitted where
    there has been a total failure of consideration.”).
    HICKS V. PGA TOUR                        23
    state law publicity claims or a Lanham Act false endorsement
    claim because they consented to wearing the bibs and
    assigned to the Tour their “individual television, radio,
    motion picture, photographic, electronic, . . . and all other
    similar or related media rights with respect to [their]
    participation in the Tournament[s].” Newcombe v. Adolf
    Coors Co., 
    157 F.3d 686
    , 691–92 (9th Cir. 1998) (noting that
    publicity claims under both California common law and
    California Civil Code § 3344 require lack of consent); Abdul-
    Jabbar v. Gen. Motors Corp., 
    85 F.3d 407
    , 410 (9th Cir.
    1996) (indicating that a Lanham Act false endorsement claim
    requires the “unauthorized” use of someone’s identity).
    Finally, as discussed above, the Caddies fail to excuse their
    consent by pleading a plausible economic duress claim.
    III
    The district court also properly determined that the
    Caddies had not alleged plausible product markets to support
    their antitrust claims.
    A
    Plaintiffs must plead a relevant market to state an antitrust
    claim under the Sherman Act, unless they assert a per se
    claim. Newcal Indus., Inc. v. Ikon Office Sol., 
    513 F.3d 1038
    ,
    1044–45 (9th Cir. 2008). While plaintiffs need not plead a
    relevant market with specificity, “[t]here are . . . 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.” 
    Id. at 1045
    .
    24                  HICKS V. PGA TOUR
    The relevant market must include both a geographic
    market and a product market. Big Bear Lodging Ass’n v.
    Snow Summit, Inc., 
    182 F.3d 1096
    , 1104 (9th Cir. 1999). The
    latter, which is relevant to the present appeal, “must
    encompass the product at issue as well as all economic
    substitutes for the product.” Newcal Indus., 
    513 F.3d at 1045
    .
    Economic substitutes have a “reasonable interchangeability
    of use” or sufficient “cross-elasticity of demand” with the
    relevant product. 
    Id.
     (quoting Brown Shoe v. United States,
    
    370 U.S. 294
    , 325 (1962)). Including economic substitutes
    ensures that the relevant product market encompasses “the
    group or groups of sellers or producers who have actual or
    potential ability to deprive each other of significant levels of
    business.” 
    Id.
     (quoting Thurman Indus., Inc. v. Pay ‘N Pak
    Stores, Inc., 
    875 F.2d 1369
    , 1374 (9th Cir. 1989)).
    Within a general product market, “well-defined
    submarkets may exist which, in themselves, constitute
    product markets for antitrust purposes.” Brown Shoe,
    
    370 U.S. at 325
    . To plead an antitrust claim based on a
    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.” Newcal Indus., 
    513 F.3d at 1045
    . “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 characteristics and uses, unique
    production facilities, distinct customers, distinct prices,
    sensitivity to price changes, and specialized vendors.’” 
    Id.
    (quoting 
    370 U.S. at 325
    ).
    HICKS V. PGA TOUR                              25
    B
    Applying these principles here, the district court properly
    concluded that the Caddies had failed to plead any plausible
    product markets.7 The plausibility of the Caddies’ proposed
    markets depends on two assumptions: (1) that advertisements
    to golf fans constitute a unique product market and (2) that
    “in-play” or “in-action” advertising during professional golf
    tournaments (i.e., between commercial breaks)—either in any
    format or endorsements alone—constitutes a unique
    submarket. Even if we accept the former assumption,
    “judicial experience and common sense” require rejecting the
    latter. Iqbal, 
    556 U.S. at 679
    . As the district court noted,
    the Caddies’ proposed submarkets8 are “not natural,”
    “artificial,” and “contorted to meet their litigation needs.”
    7
    The Caddies conclusorily allege that at least some of the Tour’s
    conduct constitutes a per se antitrust violation, which would excuse the
    requirement to plead a relevant product market. Big Bear Lodging,
    
    182 F.3d at 1104
    . However, they do not challenge on appeal the district
    court’s failure to consider their claims under the per se framework. We
    also are unpersuaded that the Caddies’ antitrust claims, as currently
    pleaded, reveal the type of conduct “that courts’ ‘considerable experience’
    has revealed to have ‘manifestly anti-competitive effects,’ and no
    ‘redeeming virtue,’ such that judges can ‘predict with confidence that it
    would be invalidated in all or almost all instances under the rule of
    reason.’” Cal. ex rel. Harris v. Safeway, Inc., 
    651 F.3d 1118
    , 1147 (9th
    Cir. 2011) (quoting Leegin Creative Leather Prods., Inc. v. PSKS, Inc.,
    
    551 U.S. 877
    , 886–87 (2007)).
    8
    The Caddies’ proposed markets are actually sub-submarkets.
    Advertising to golf fans is a submarket of the general advertising market.
    Advertising during live golf tournaments, whether through endorsements
    alone or all means, is a further submarket of the submarket of advertising
    to golf fans.
    26                  HICKS V. PGA TOUR
    The Caddies’ submarkets—the Endorsement Market and
    the Live Action Advertising Market—omit many economic
    substitutes. Companies aiming to target professional golf
    fans can do so by airing commercials during golf-related
    television programs, radio broadcasts, or podcasts. They can
    advertise on golf-related websites or social media pages.
    They can also directly target golf fans by advertising through
    a search engine or social media platform that provides
    advertisers insights on users’ online history. As the district
    court noted, “[i]f it became too expensive to put a logo on a
    bridge” during a golf tournament, “there is no logical reason
    a company wouldn’t decide instead to put its logo on a
    magazine ad, or on a wall in golf course clubhouses, or any
    number of other places.”
    The Caddies offer four arguments to contest this
    conclusion. First, they note that advertising during the live-
    action of golf tournaments cannot be avoided by “flipping the
    page, clicking out of an ad, . . . fast[ ] forwarding with [a]
    DVR,” or leaving the room during a commercial break.
    Second, they claim that “endorsements made by the endorser
    during competition provides a unique, exponentially more
    effective opportunity to improve brand recognition and
    validity when compared to endorsements made in print or in
    television commercials.” Third, they contend that advertising
    during live golf tournament action provides an element of
    price flexibility because “the vast majority of companies
    purchasing live action advertisements are smaller companies
    who cannot or do not want to pay for advertising via
    television commercials.”          Finally, they claim that
    “econometric studies . . . will demonstrate that purchasers in
    the [proposed markets] will not switch to products outside of
    th[ose] market[s] in response to a small but significant and
    non-transitory price increase by [the Tour] . . . to such a
    HICKS V. PGA TOUR                        27
    degree that the price increase is unprofitable.” None of these
    arguments withstand modest scrutiny.
    The fact that golf fans can avoid some forms of
    advertising fails to indicate that these advertising formats are
    not “reasonabl[y] interchangeab[le]” with the products in the
    proposed markets. Newcal Indus., 
    513 F.3d at 1045
    . The
    Caddies’ alternative conclusion rests on the implausible
    assumption that a distinct group of golf fans watches
    tournament broadcasts but either consumes no other forms of
    golf media or is uninfluenced by advertisements in all other
    forms of golf media. The vast majority of golf fans who
    watch tournament broadcasts certainly consume other forms
    of golf media. Although these fans likely avoid some
    advertisements in other golf media, the assumption that they
    are not influenced by one or more of the diverse forms of
    advertisements discussed above is implausible. Moreover,
    even if a distinct group of golf fans exists that is only
    influenced by live action advertising, for whatever reason, the
    Caddies provide no explanation why this group of fans is
    distinct for advertising purposes from the typical group of
    golf fans.
    The Caddies’ claims of increased effectiveness and price
    flexibility also fail to support their proposed markets. The
    price of endorsement advertising during golf tournaments
    would reflect any increased effectiveness compared to other
    forms of advertising. This increased effectiveness would not
    place the advertising format in a distinct market because, as
    discussed above, companies can reach golf consumers
    through other formats. The price flexibility in the proposed
    markets also fails to demonstrate their plausibility. Although
    small companies can advertise in the proposed markets by
    hiring a lone little-known player or caddy, these same
    28                  HICKS V. PGA TOUR
    companies could advertise through smaller golf periodicals,
    less frequented websites, and radio programs.
    Finally, the Caddies’ last claim is a legal conclusion
    veiled as a factual allegation that we do not consider when
    ruling on a motion to dismiss. Navajo Nation v. Dep’t of the
    Interior, 
    876 F.3d 1144
    , 1163 (9th Cir. 2017) (“We do not . . .
    assume the truth of legal conclusions merely because they are
    cast in the form of factual allegations . . . .” (citation
    omitted)). The Caddies merely restate a test for market
    definition without any factual elaboration.            Theme
    Promotions, Inc. v. News Am. Mktg. FSI, 
    546 F.3d 991
    , 1002
    (9th Cir. 2008) (noting that one method of determining
    whether a proposed market is viable is assessing “whether a
    monopolist in the proposed market could profitably impose
    a small but significant and nontransitory price increase”).
    In sum, the district court properly concluded that the
    Caddies’ proposed product markets are “facially
    unsustainable” because they fail to include many
    “reasonabl[y] interchangeab[le]” products. Newcal Indus.,
    
    513 F.3d at 1045
    .
    C
    Our conclusion is consistent with the opinions of our
    sister circuits. In Chapman v. New York State Division for
    Youth, 
    546 F.3d 230
    , 237–38 (2d Cir. 2008), the Second
    Circuit affirmed the dismissal of antitrust claims because the
    plaintiffs’ proposed product market of “restraint training
    services to private child care providers” did not “encompass
    all interchangeable substitute products.” The plaintiffs
    “failed to show how the market for restraint training services
    to child care providers is any different from the larger market
    HICKS V. PGA TOUR                          29
    for restraint training services to other businesses, agencies,
    and organizations.” 
    Id. at 238
     (emphasis in original). Even
    after granting all factual inferences in the plaintiffs’ favor, the
    court affirmed the dismissal of the claims because “[t]he
    unifying characteristic of th[e] market is that each purchaser
    needs to restrain individuals, not just children.” 
    Id.
    (emphasis added).
    Similarly, in PSKS, Inc. v. Leegin Creative Leather
    Products, Inc., 
    615 F.3d 412
    , 417–19 (5th Cir. 2010), the
    Fifth Circuit affirmed the dismissal of the plaintiff’s claim
    that vertical resale price maintenance agreements violated the
    Sherman Act because neither of the two proposed product
    markets “encompasse[d] interchangeable substitute products
    or recognize[d] the cross-elasticity of demand.” The first
    proposed market—limited to a specific brand of women’s
    accessories—was implausible because there was “no
    structural barrier to the interchangeability of [the specific
    brand of] products with goods produced by competing
    manufacturers.” 
    Id. at 418
    . The second proposed market for
    “brand-name women’s accessories” was also implausible
    because the plaintiff failed to allege why name brand goods
    “are not interchangeable with non-brand name” women’s
    accessories. 
    Id. at 416, 418
    .
    Moreover, many courts have rejected antitrust claims
    reliant on proposed advertising markets limited to a single
    form of advertising. See, e.g., Am. Online, Inc. v.
    GreatDeals.Net, 
    49 F. Supp. 2d 851
    , 858 (E.D. Va. 1999)
    (dismissing the plaintiff’s monopolization claim in part
    because it attempted to “restrict the market to e-mail
    advertising [even though] [t]here are numerous substitutes for
    e-mail advertising, some of which are less expensive,
    including use of the World Wide Web, direct mail, billboards,
    30                   HICKS V. PGA TOUR
    television, newspapers, radio, and leaflets, to name a few”);
    Huron Valley Publ’g Co. v. Booth Newspapers, Inc., 
    336 F. Supp. 659
    , 662 (E.D. Mich. 1972) (denying the plaintiff’s
    motion for a preliminary injunction on monopolization claims
    in part because “the relevant market includes all modes of
    retail advertising” and not just “newspaper advertising alone”
    as the plaintiff argued); see also AD/SAT, Div. of Skylight,
    Inc. v. Associated Press, 
    181 F.3d 216
    , 228–29 (2d Cir. 1999)
    (affirming grant of summary judgment for the defendant in
    part because “the market for rush electronic delivery of
    advertisements to newspapers is not a viable one” because
    “there is significant cross-elasticity of demand for rush and
    non-rush delivery services”).
    D
    In sum, the district court correctly dismissed the Caddies’
    antitrust claims for failure to allege a relevant product market.
    Newcal Indus., 
    513 F.3d at 1044
    ; see also Freeman v. San
    Diego Ass’n of Realtors, 
    322 F.3d 1133
    , 1146 n.14 (9th Cir.
    2003) (“[D]istinct product markets are crucial to a tying
    claim.”).
    This conclusion also confirms that the district court
    properly dismissed the Caddies’ California unfair competition
    claim that the Tour’s conduct was “unlawful, unfair or
    fraudulent.” 
    Cal. Bus. & Prof. Code § 17200
    . The Caddies
    failed to plead that any of the Tour’s conduct was unlawful or
    unfair. Berryman v. Merit Prop. Mgmt., Inc., 
    62 Cal. Rptr. 3d 177
    , 185 (Ct. App. 2007) (“[A] violation of another law is a
    predicate for stating a cause of action under the [unfair
    competition law’s] unlawful prong.”); Chavez v. Whirlpool
    Corp., 
    113 Cal. Rptr. 2d 175
    , 184 (Ct. App. 2001) (“If the
    same conduct is alleged to be both an antitrust violation and
    HICKS V. PGA TOUR                            31
    an ‘unfair’ business act or practice for the same reason . . . the
    determination that the conduct is not an unreasonable
    restraint of trade necessarily implies that the conduct is not
    ‘unfair’ towards consumers.”). Their allegations that the
    Tour “misled bib sponsors into believing that Plaintiffs
    voluntarily consented to wearing the bibs without
    compensation” also fail under the fraud prong because the
    Caddies did consent to wearing the bibs.
    E
    While we agree with the district court that the Caddies
    failed to plead a plausible product market, we vacate the
    dismissal with prejudice of the antitrust and California unfair
    competition law claims.9 “Dismissal with prejudice and
    without leave to amend is not appropriate unless it is clear on
    de novo review that the complaint could not be saved by
    amendment.” Eminence Capital, LLC v. Aspeon, Inc.,
    
    316 F.3d 1048
    , 1052 (9th Cir. 2003). “A simple denial of
    leave to amend without any explanation by the district court
    is subject to reversal.” 
    Id.
     “Such a judgment is ‘not an
    exercise of discretion; it is merely abuse of that discretion and
    inconsistent with the spirit of the Federal Rules.’” 
    Id.
    (quoting Foman v. Davis, 
    371 U.S. 178
    , 182 (1962)).
    The district court made a “simple denial of leave to
    amend” here without adequate explanation. 
    Id.
     It only noted
    that the Caddies were not “able to explain how they could
    state an antitrust claim using a plausible product market
    definition.” This insufficient consideration of the factors
    9
    As discussed above, if the Caddies plead facts that support an
    antitrust claim, these facts may also support a valid California unfair
    competition claim.
    32                   HICKS V. PGA TOUR
    discussed in Foman constitutes an abuse of discretion
    considering that the district court only dismissed the
    complaint once, the Tour fails to identify any specific
    prejudice it would experience, and we cannot conclude that
    amendment would be futile. See, e.g., 
    id.
     (“[P]rejudice to the
    opposing party . . . carries the greatest weight” when deciding
    whether to grant leave to amend.). Therefore, we remand this
    issue for the district court to reconsider its decision to deny
    the Caddies leave to amend the antitrust and unfair
    competition claims.
    IV
    In summary, because the Caddies consented to wearing
    the bibs while not in a state of economic duress, the district
    court properly dismissed with prejudice the contract, quasi-
    contract, California publicity, Lanham Act false endorsement,
    and economic duress claims. The district court properly
    dismissed the antitrust claims for failure to state a relevant
    market and the California unfair competition claims for
    failure to plead that any of the Tour’s conduct was unlawful,
    unfair, or fraudulent. However, we remand the case to the
    district court to reconsider its decision to deny the Caddies
    leave to amend their federal antitrust and California unfair
    competition claims.
    AFFIRMED in part; VACATED in part; and
    REMANDED.
    Each party to bear its own costs.
    

Document Info

Docket Number: 16-15370

Citation Numbers: 897 F.3d 1109

Filed Date: 7/27/2018

Precedential Status: Precedential

Modified Date: 7/27/2018

Authorities (21)

James Chongris and George Chongris v. Board of Appeals of ... , 811 F.2d 36 ( 1987 )

adsat-a-division-of-skylight-inc-v-associated-press-newspaper , 181 F.3d 216 ( 1999 )

Donald Newcombe v. Adolf Coors Company Foote, Cone and ... , 157 F.3d 686 ( 1998 )

Newcal Industries v. Ikon Office Solution , 513 F.3d 1038 ( 2008 )

PSKS, Inc. v. Leegin Creative Leather Products, Inc. , 615 F.3d 412 ( 2010 )

Chapman v. New York State Division for Youth , 546 F.3d 230 ( 2008 )

Thurman Industries, Inc. v. Pay 'N Pak Stores, Inc. , 875 F.2d 1369 ( 1989 )

Louis P. Camjudgesli v. Robert L. Bockrath, and Daniel ... , 100 F.3d 1476 ( 1996 )

Daniels-Hall v. National Education Ass'n , 629 F.3d 992 ( 2010 )

Eminence Capital, Llc, and Jay Spechler v. Aspeon, Inc. ... , 316 F.3d 1048 ( 2003 )

Kareem Abdul-Jabbar v. General Motors Corporation Leo ... , 85 F.3d 407 ( 1996 )

arleen-freeman-individually-and-on-behalf-of-all-others-similarly-situated , 322 F.3d 1133 ( 2003 )

big-bear-lodging-association-sleepy-forest-resorts-a-california , 182 F.3d 1096 ( 1999 )

Bank of the West v. Superior Court , 2 Cal. 4th 1254 ( 1992 )

Brown Shoe Co. v. United States , 82 S. Ct. 1502 ( 1962 )

Foman v. Davis , 83 S. Ct. 227 ( 1962 )

Bell Atlantic Corp. v. Twombly , 127 S. Ct. 1955 ( 2007 )

Leegin Creative Leather Products, Inc. v. PSKS, Inc. , 127 S. Ct. 2705 ( 2007 )

Ashcroft v. Iqbal , 129 S. Ct. 1937 ( 2009 )

Huron Valley Publishing Co. v. Booth Newspapers, Inc. , 336 F. Supp. 659 ( 1972 )

View All Authorities »