Aya Healthcare Services , Inc.; Aya Healthcare , Inc. v. Amn Healthcare , Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AYA HEALTHCARE SERVICES , I NC.;
AYA HEALTHCARE , I NC.,
Plaintiffs-Appellants,
v.
AMN HEALTHCARE , I NC.; AMN
HEALTHCARE SERVICES , I NC.; AMN
SERVICES , LLC; M EDEFIS , I NC.;
SHIFTWISE , INC.,
Defendants-Appellees.
No. 20-55679
D.C. No.
3:17-cv-00205-
MMA-MDD
OPINION
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted July 26, 2021
Pasadena, California
Filed August 19, 2021

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2 AYA HEALTHCARE SERVICES V. AMN HEALTHCARE
Before: MILAN D. SMITH, JR. and JOHN B. OWENS,
Circuit Judges, and EDUARDO C. ROBRENO,*
District Judge.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY**
Antitrust
The panel affirmed the district court’s summary
judgment in favor of AMN Healthcare, Inc., in Aya
Healthcare Services, Inc.’s antitrust action involving the
non-solicitation provision within AMN’s contract with Aya
to provide travel nursing services to hospitals and other
healthcare facilities.
Both parties are healthcare staffing agencies that place
travel nurses on temporary assignments. To receive
spillover assignments, Aya contracted with AMN. The
contract included a provision prohibiting Aya from soliciting
AMN’s employees.
Aya alleged that the non-solicitation provision is an
unreasonable restraint prohibited by Section 1 of the
Sherman Act. The panel held that the non-solicitation
agreement is an ancillary—rather than a naked—restraint
* The Honorable Eduardo C. Robreno, United States District Judge
for the Eastern District of Pennsylvania, 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.

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AYA HEALTHCARE SERVICES V. AMN HEALTHCARE 3
because it is reasonably necessary to the parties’ pro-
competitive collaboration. Accordingly, the restraint is not
per se unlawful, but is subject to the rule-of-reason standard.
The panel held that Aya failed to satisfy its initial burden
under the rule-of-reason standard because it did not
demonstrate through direct or indirect evidence that a triable
issue of fact exists with respect to whether AMN’s non-
solicitation agreement has a substantial anticompetitive
effect that harms consumers in the relevant market.
The panel held that Aya’s claim for retaliatory damages
fails because it did not present any evidence of a cartel or a
concerted action in the termination of its agreement with
AMN.
COUNSEL
William A. Markham (argued), Dorn G. Bishop, and Jason
Eliaser, Law Offices of William Markham P.C., San Diego,
California, for Plaintiffs-Appellants.
David H. Bamberger (argued), DLA Piper LLP (US),
Washington, D.C.; Noah A. Katsell, DLA Piper LLP (US),
San Diego, California; for Defendants-Appellees.
Mary Helen Wimberly (argued) and Daniel E. Haar,
Attorneys; Elyse Dorsey, Counsel to the Assistant Attorney
General; Michael F. Murray, Deputy Assistant Attorney
General; Makan Delrahim, Assistant Attorney General;
Antitrust Division, United States Department of Justice,
Washington, D.C.; for Amicus Curiae United States of
America.

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4 AYA HEALTHCARE SERVICES V. AMN HEALTHCARE
OPINION
M. SMITH, Circuit Judge:
In 2010, Appellee AMN Healthcare, Inc. (AMN)
contracted with Appellant Aya Healthcare Services, Inc.
(Aya) to provide travel nursing services to hospitals and
other healthcare facilities. This case involves the non-
solicitation provision within that contract. We conclude that
this provision is both ancillary to the parties’ broader
agreement to collaborate, and a reasonable, pro-competitive
restraint. We therefore affirm the judgment of the district
court granting summary judgment to AMN.
FACTUAL AND PROCEDURAL BACKGROUND
Both parties are healthcare staffing agencies that “place
the travel nurses on temporary assignments.” Aya
Healthcare Servs., Inc. v. AMN Healthcare, Inc., —F.
Supp. 3d —, 2020 WL 2553181, at *1 (S.D. Cal. May 20,
2020). “Travel nurses are nurses and nurse technicians who
perform temporary, medium-term assignments in
understaffed hospitals and other healthcare facilities [ ] that
cannot have the assignments performed by their own
nurses.” Id. “[A]gencies place the travel nurses at hospitals
several ways: by directly placing the travel nurses at the
agencies’ hospital accounts and by indirectly placing the
travel nurses at hospitals through either an agency that
manages the hospitals’ travel nurse needs (managed service
provider or MSP) or electronic platforms that facilitate the
placements.” Id.
“AMN has been a leader in the healthcare staffing
industry for over thirty years.” Id. at *2. In 2009, AMN
became “the MSP of an increasing number of hospitals,” “in
addition to providing travel nurses to hospitals on direct

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AYA HEALTHCARE SERVICES V. AMN HEALTHCARE 5
placements.” Id. That same year, Alan Braynin founded
Aya, which places “nurses directly in hospitals” and
“indirectly through MSP programs, such as those of AMN.”
Id.
As AMN grew, it became unable to “fulfill the demand
of its hospital customers for travel nurse assignments.” Id.
AMN began referring “these ‘spillover assignments’ to its
network of subcontractors, or ‘associate vendors’ (AVs),
which were other healthcare staffing agencies,” including
Aya. Id. To receive such spillover assignments, Aya
contracted with AMN. Included in that contract was a
provision prohibiting Aya from soliciting AMN’s
employees.1 Aya signed its first AV agreement in 2010 and
began “provid[ing] travel nurses to AMN’s customers.” Id.
Aya eventually “became AMN’s largest AV.” Id.
“Around May 2015, Aya began actively soliciting
AMN’s travel nurse recruiters.” Id. This caused “the
parties’ business relationship [to] sour[],” and in September
2015, “AMN temporarily terminated Aya’s access to
AMN’s platform.” Id. The parties ultimately ended their
relationship, permanently terminating their prior AV
agreements in December 2015.
Aya filed its first amended complaint against AMN in
February 2017, alleging four claims pursuant to Sections 1
and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2, and
three California state law claims. The district court granted
AMN’s motion to dismiss without prejudice, holding that
Aya did not sufficiently allege that it had suffered antitrust
1 The provision remains under seal and, therefore, its text will not
be included here. We will refer to this provision as the parties’ “non-
solicitation agreement.”

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6 AYA HEALTHCARE SERVICES V. AMN HEALTHCARE
injuries, and deferred ruling on Aya’s state law claims. Aya
then filed a second amended complaint, again alleging three
California state law claims and realleging three federal
antitrust claims: a ‘per se’ claim and a quick-look/rule-of-
reason claim pursuant to Section 1 of the Sherman Act, and
a claim for attempted monopolization pursuant to Section 2
of the Sherman Act. The district court granted in part and
denied in part AMN’s motion to dismiss the amended
complaint, dismissing Aya’s tortious interference claim with
leave to amend, and allowing Aya’s federal claims and other
state law claims to proceed. Aya then amended its complaint
for a third time, realleging its tortious interference claim and
adding a Section 2 claim for monopolization. Aya claimed
that “it suffered ‘exclusionary damages’ as a result of
AMN’s non-solicitation covenant in the parties’ AV
agreements and ‘retaliatory damages’ as a result of AMN’s
decision to terminate its AV relationship with Aya.” Aya
Healthcare, 2020 WL 2553181, at *3.
Discovery commenced. Aya offered expert economics
testimony from Dr. Dov Rothman. Dr. Rothman attributed
Aya’s exclusionary damages to the non-solicitation
provision in its AV agreement with AMN during a limited
time period, between February 2013 and mid-2015.
Dr. Rothman quantified Aya’s retaliatory damages as its lost
profits resulting from the termination of the parties’ AV
agreement in 2015.
AMN then moved for summary judgment. In May 2020,
the district court granted the motion as to Aya’s claims for
retaliatory damages pursuant to Sections 1 and 2 of the
Sherman Act. The court determined that there was “no
evidence of a cartel of healthcare staffing agencies that all
agreed to refrain from soliciting or hiring each other’s
employees or to retaliate against Aya for reneging on such

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AYA HEALTHCARE SERVICES V. AMN HEALTHCARE 7
an agreement.” Id. at *18. The court further held that “Aya
[ ] failed to proffer evidence that AMN ha[d] sufficient
market power in the various markets identified for Aya’s
Section 2 claims, or that AMN’s conduct ha[d] harmed
competition.” Id. The district court ordered the parties to
submit supplemental briefing on whether it should grant
AMN’s motion for summary judgment as to Aya’s claims
for exclusionary damages.
In June 2020, after considering the supplemental
briefing, the district court granted AMN’s motion for
summary judgment on Aya’s claims for exclusionary
damages, and declined to exercise supplemental jurisdiction
over Aya’s state law claims. The district court concluded
that “Aya fail[ed] to raise a genuine issue of material fact
regarding whether AMN has market power.” In both orders
granting summary judgment, the district court found Dr.
Rothman’s work deficient and his studies unreliable.
On appeal, Aya first requests that we recognize a per se
rule against naked no-poaching restraints pursuant to Section
1 of the Sherman Act. Aya asserts that its evidence raises a
triable dispute as to whether AMN’s non-solicitation
provision constitutes a naked no-poaching restraint. Aya
then argues that its evidence establishes a triable dispute as
to whether AMN’s non-solicitation provision violates
Section 1 under the quick-look standard and the rule-of-
reason standard.2 Aya contends that it is entitled to
retaliatory damages under the Hammes doctrine because
AMN effectively ‘cartelized’ the labor market and retaliated
against Aya. Finally, Aya argues that it should have been
2 Aya’s Section 2 claims are not on appeal.

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8 AYA HEALTHCARE SERVICES V. AMN HEALTHCARE
allowed to introduce further evidence on new issues that the
district court examined sua sponte.
In response, AMN argues that the district court correctly
held that AMN was entitled to summary judgment on Aya’s
claims for exclusionary damages. AMN asserts that the
relevant non-solicitation provision is not of the type that has
been found per se unlawful. As such, the district court
properly applied the rule-of-reason standard, and determined
that the restriction was ancillary to a pro-competitive
collaboration. AMN further argues that Aya failed to show
a triable issue of fact as to whether the relevant provision
harmed competition.
The United States has also weighed in on the matter,
filing an amicus brief “to explain its views on the law
applicable to non-solicitation agreements between
competing employers.” It takes no position concerning the
appropriate disposition of this case.
STANDARD OF REVIEW
We review de novo a district court’s decision to grant
summary judgment. Lopez v. Smith, 203 F.3d 1122, 1131
(9th Cir. 2000) (en banc). We “must determine whether,
viewing the evidence in the light most favorable to the
nonmoving party, there are any genuine issues of material
fact and whether the district court correctly applied the
relevant substantive law.” Id.
ANALYSIS
A.
Section 1 of the Sherman Act bars “[e]very contract,
combination in the form of trust or otherwise, or conspiracy,

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AYA HEALTHCARE SERVICES V. AMN HEALTHCARE 9
in restraint of trade or commerce among the several States.”
15 U.S.C. § 1. The Supreme Court has interpreted this text
“to outlaw only unreasonable restraints.” State Oil v. Khan,
522 U.S. 3, 10 (1997); see also United States v. Joyce, 895
F.3d 673, 676 (9th Cir. 2018).
Restraints are generally categorized as horizontal or
vertical. A horizontal restraint is “an agreement among
competitors on the way in which they will compete with one
another.” NCAA v. Bd. of Regents, 468 U.S. 85, 99 (1984).
Vertical restraints are “restraints ‘imposed by agreement
between firms at different levels of distribution.’” Ohio v.
Am. Express Co., 138 S. Ct. 2274, 2284 (2018) (quoting Bus.
Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 730
(1988)).
We employ two different standards to determine whether
a particular restraint is unreasonable. Id. at 2283. The first
standard “involves a factual inquiry commonly known as the
‘rule of reason.’” Joyce, 895 F.3d at 676 (quoting Metro
Indus., Inc. v. Sammi Corp., 82 F.3d 839, 843 (9th Cir.
1996)). “The rule of reason weighs legitimate justifications
for a restraint against any anticompetitive effects.” Paladin
Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1156 (9th
Cir. 2003). “[N]early every [ ] vertical restraint” is “assessed
under the rule of reason.” Am. Express, 138 S. Ct. at 2284.
We “conduct a fact-specific assessment,” id., to
“distinguish[] between restraints with anticompetitive effect
that are harmful to the consumer and restraints stimulating
competition that are in the consumer’s best interest,” Leegin
Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877,
886 (2007).
The second standard is the per se standard, which
recognizes that “[a] small group of restraints are
unreasonable per se because they always or almost always

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10 AYA HEALTHCARE SERVICES V. AMN HEALTHCARE
tend to restrict competition and decrease output.” Am.
Express, 138 S. Ct. at 2283 (citation and internal quotation
marks omitted). “Such agreements or practices are
‘conclusively presumed to be unreasonable’ because of their
‘pernicious effect on competition and lack of any redeeming
virtue.’” Joyce, 895 F.3d at 676 (quoting N. Pac. Ry. Co. v.
United States, 356 U.S. 1, 5 (1958)). “Typically only
‘horizontal’ restraints . . . qualify as unreasonable per se.”
Am. Express, 138 S. Ct. at 2283–84.
However, not all horizontal restraints are analyzed
pursuant to the per se standard. Under the “ancillary
restraints” doctrine, a horizontal agreement is “exempt from
the per se rule,” and analyzed under the rule-of-reason, if it
meets two requirements. Rothery Storage & Van Co. v.
Atlas Van Lines, Inc., 792 F.2d 210, 224 (D.C. Cir. 1986);
see also L.A. Mem’l Coliseum Comm’n v. Nat’l Football
League, 726 F.2d 1381, 1395 (9th Cir. 1984) (noting that
“[t]he common-law ancillary restraint doctrine was, in
effect, incorporated into Sherman Act section 1”). These
requirements are that the restraint must be (1) “subordinate
and collateral to a separate, legitimate transaction,” Rothery
Storage, 792 F.2d at 224, and (2) “reasonably necessary” to
achieving that transaction’s pro-competitive purpose, United
States v. Addyston Pipe & Steel Co., 85 F. 271, 281 (6th Cir.
1898), aff’d, 175 U.S. 211 (1899); see also L.A. Mem’l,
726 F.2d at 1395 (“[T]he doctrine teaches that some
agreements which restrain competition may be valid if they
are ‘subordinate and collateral to another legitimate
transaction and necessary to make that transaction
effective.’” (citation omitted)).
“Naked restraints” are categorically not “ancillary
restraints.” Rothery Storage, 792 F.2d at 224 n.10. Thus,
naked horizontal restraints are always analyzed under the per

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AYA HEALTHCARE SERVICES V. AMN HEALTHCARE 11
se standard. A restraint is naked if it has “no purpose except
stifling of competition.” White Motor Co. v. United States,
372 U.S. 253, 263 (1963). Some examples of these restraints
include agreements among actual or potential competitors to
fix prices, e.g., Catalano, Inc. v. Target Sales, Inc., 446 U.S.
643, 647 (1980) (per curiam); rig bids, e.g., Joyce, 895 F.3d
at 677; or divide markets, e.g., Palmer v. BRG of Ga., Inc.,
498 U.S. 46, 49–50 (1990) (per curiam).
B.
It is undisputed that the parties’ non-solicitation
agreement constitutes a horizontal restraint. As the United
States notes, although the parties were “in a subcontractor-
subcontractee relationship,” the agreement “restricts AMN’s
actual or potential employer-rival, Aya, from competing
with AMN for its employees by soliciting them to work for
Aya.”
Accordingly, the threshold question on appeal is whether
the restraint in this case is naked or ancillary, and in turn,
whether it is per se unlawful or subject to the rule-of-reason,
respectively. The district court concluded that the non-
solicitation agreement was an ancillary restraint because
Aya admitted in its declarations that the agreement was “part
of a collaboration agreement to fulfill the demand of
hospitals for travel nurses,” which constitutes a pro-
competitive purpose.3 Aya Healthcare, 2020 WL 2553181,
3 The district court questioned whether the restraint was a no-
poaching agreement or a non-solicitation agreement and concluded that
it was a non-solicitation agreement. The United States argues that this
distinction is not determinative, and we agree. The relevant distinction
is whether the restraint is an ancillary restraint or a naked restraint, not
whether it is classified as a no-poaching agreement or non-solicitation
agreement. See Texaco Inc. v. Dagher, 547 U.S. 1, 7 (2006).

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12 AYA HEALTHCARE SERVICES V. AMN HEALTHCARE
at *12. On appeal, Aya contends that its evidence
established a triable dispute as to whether the non-
solicitation agreement is a naked horizontal restraint because
the provision is not necessary to the parties’ broader
agreement and is permanent, meaning it outlives the parties’
collaboration. Aya does not challenge the district court’s
conclusion that the non-solicitation agreement is subordinate
and collateral to its legitimate business collaboration with
AMN.
We agree with the district court that the challenged
restraint is reasonably necessary to the parties’ pro-
competitive collaboration. The purpose of the parties’
contract was to supply hospitals with traveling nurses. The
non-solicitation agreement is necessary to achieving that end
because it ensures that AMN will not lose its personnel
during the collaboration. As the district court noted, AMN
may want to “guard[] its investments and establish[] AV
relationships with only those agencies that agree, inter alia,
not to abuse the relationship by proactively raiding AMN’s
employees, AVs, and customers.” Id. at *14. Without the
restraint, AMN “would likely be less willing or unwilling to
deal with other agencies to supply travel nurses to hospitals
which, as Aya also recognize[d], already experience a
‘chronic shortage of nurses.’” Id. And with the restraint,
AMN may collaborate with its competitor for the benefit of
its client without “cutting [its] own throat.” Polk Bros., Inc.
v. Forest City Enters., Inc., 776 F.2d 185, 189 (7th Cir.
1985). The non-solicitation agreement, therefore, promotes
“competitiveness in the healthcare staffing industry”—more
hospitals receive more traveling nurses because the non-
solicitation agreement allows AMN to give spillover
assignments to Aya without endangering its “establish[ed]
network[] [of] recruiters, travel nurses, AVs, and of course,
hospital customers.” Aya Healthcare, 2020 WL 2553181,

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AYA HEALTHCARE SERVICES V. AMN HEALTHCARE 13
at *14. Accordingly, the restraint qualifies as an ancillary
restraint, which triggers a rule-of-reason analysis.4 See Polk,
776 F.2d at 189 (“A restraint is ancillary when it may
contribute to the success of a cooperative venture that
promises greater productivity and output.”); see also
Addyston Pipe, 85 F. at 289.
Aya’s best argument to the contrary is that the unlimited
duration of AMN’s non-solicitation agreement renders it a
naked restraint. Aya cites Blackburn v. Sweeney, 53 F.3d
825 (7th Cir. 1995), in support of this theory. In that case,
the Seventh Circuit held that an agreement between
competitors to not advertise in each other’s territory was per
se unlawful. Blackburn, 53 F.3d at 828–29. The court
rejected the defendant’s argument that the advertising
agreement was ancillary to the parties’ broader agreement to
dissolve its partnership because “it was not necessary for the
dissolution of the partnership” and—most importantly for
Aya’s argument—the agreement was “infinite [in]
duration.” Id. at 828. In holding that the duration of the
agreement was a fatal flaw, the court relied primarily on
Polk. Id. “Polk teaches that courts must look to the time an
agreement was adopted in assessing its potential for
promoting enterprise and productivity.” Id. Because the
agreement in Blackburn was made after the parties’ joint
venture concluded—and thus had no pro-competitive
4 A large portion of Aya’s opening brief argues that the district court
erred in declining to recognize a per se prohibition of naked “no-
poaching restraints.” The United States agrees that the per se rule applies
to naked non-solicitation agreements because it is “a form of labor-
market allocation that, when not an ancillary restraint, [ ] is per se
illegal.” Although the Government’s arguments have considerable
merit, we decline to decide this issue given our conclusion that the
challenged restraint is ancillary, and thus subject to the rule-of-reason.

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14 AYA HEALTHCARE SERVICES V. AMN HEALTHCARE
effects—the agreement was a naked restraint and per se
unlawful. See id. at 829.
AMN’s non-solicitation agreement more closely
resembles the restraint in Polk than the restraint in
Blackburn. Like Polk, this case involves a restraint that was
entered into at the same time the parties agreed to collaborate
on a joint venture. 776 F.2d at 189. And, because the
restraint “promoted enterprise and productivity at the time it
was adopted,” the restraint is properly characterized as
ancillary, not naked. Id. Whether “there is nothing left but
[the] restraint” after the joint venture ends “is the wrong
focus.” Id. Aya’s argument concerning the duration of the
non-solicitation agreement is therefore not compelling.
Furthermore, and contrary to the United States’ amicus
brief, AMN need not satisfy a less-restrictive-means test to
demonstrate that the non-solicitation agreement is an
ancillary restraint. Our opinion in Los Angeles Memorial
Coliseum Commission makes clear that the less restrictive
alternative analysis falls within the rule-of-reason analysis,
not the ancillary restraint consideration. See 726 F.2d
at 1395. Interestingly, the United States does not dispute this
interpretation. Instead, the United States requests that we
“clarify” that a district court “must engage in a distinct
reasonable-necessity analysis” that includes a less restrictive
means consideration.5 The United States does not cite any
5 At oral argument, the United States presented a different theory:
Appellees must demonstrate that the restraint is “a reasonably tailored
means of achieving the goal.” Freeman v. San Diego Ass’n of Realtors,
322 F.3d 1133, 1151 (9th Cir. 2003). We are not convinced that
“reasonably tailored” carries a materially different meaning than
“reasonably necessary.” In any event, the parties’ non-solicitation
agreement is both reasonably necessary to, and a reasonably tailored
means of achieving, pro-competitive collaboration.

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AYA HEALTHCARE SERVICES V. AMN HEALTHCARE 15
case law in support of this argument. Furthermore, its
proposition conflicts with the Supreme Court’s “reluctance
to adopt per se rules” in cases “where the economic impact”
of the restraints “is not immediately obvious.” Leegin,
551 U.S. at 887 (emphasis added) (citation omitted); see also
Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 58–59
(1977) (“[D]eparture from the rule-of-reason standard must
be based upon demonstrable economic effect rather than . . .
upon formalistic line drawing.”). We thus decline the United
States’ request to create new law within the ancillary
restraint doctrine.
C.
Given that the restraint is ancillary to the parties’ broader
agreement, the district court correctly subjected it to the rule-
of-reason standard. To determine whether a restraint
violates the rule-of-reason, we apply a three-step, burden-
shifting framework. Am. Express, 138 S. Ct. at 2284. First,
the plaintiff has the initial burden to prove
that the challenged restraint has a substantial
anticompetitive effect that harms consumers
in the relevant market. If the plaintiff carries
its burden, then the burden shifts to the
defendant to show a procompetitive rationale
for the restraint. If the defendant makes this
showing, then the burden shifts back to the
plaintiff to demonstrate that the
procompetitive efficiencies could be
reasonably achieved through less
anticompetitive means.
Id. (internal citations committed). Here, the district court
concluded that Aya failed to satisfy its initial burden: it did
not demonstrate that “a triable issue of fact exists with

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16 AYA HEALTHCARE SERVICES V. AMN HEALTHCARE
respect to harm to competition.” We agree with the district
court’s conclusion that Aya has not carried its burden at step
one.
There are two ways a plaintiff may prove that the
relevant restraint has a substantial anticompetitive effect that
harms consumers. First, the plaintiff may provide the court
with “[d]irect evidence of anticompetitive effects,” which
would include “proof of actual detrimental effects [on
competition], such as reduced output, increased prices, or
decreased quality in the relevant market.” Id. (alteration in
original) (internal quotation marks and citations omitted).
Second, the plaintiff may provide “[i]ndirect evidence,”
which “would be proof of market power plus some evidence
that the challenged restraint harms competition.” Id.
Aya’s direct evidence of harm to competition was a
claim of supracompetitive pricing in certain regional
markets. Relying on a study performed by its expert
economist, Dr. Dov Rothman, Aya argued that there were
increased prices for travel nurse services in markets in which
AMN makes at least 30% of overall sales, compared to
prices in markets in which AMN’s overall share of sales was
less than 15%. The district court rejected this argument for
two reasons. First, “Aya fail[ed] to proffer any evidence to
support its assertion that higher prices in certain markets
[were] attributable to the challenged provisions.” Aya’s
reliance on Dr. Rothman’s report did nothing to help its
argument because he also failed to support this assertion
with any economic analysis. Second, Aya’s direct evidence
was “deficient because Dr. Rothman’s study allegedly
showing supracompetitive prices [was] seriously flawed.”
The court found that “Dr. Rothman’s market share
calculations capture[d] AMN’s direct placements even
though [those placements] do not involve AMN

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AYA HEALTHCARE SERVICES V. AMN HEALTHCARE 17
collaborating with and imposing non-solicitation covenants
on AVs,” like Aya. The study, therefore, was “unreliable
and of marginal relevance.” Aya presented no evidence
“from which a reasonable juror could conclude that prices in
certain markets are supracompetitive or that rival agencies
are otherwise prevented from undercutting AMN on price.”
Aya does not directly challenge this holding on appeal.
Aya’s brief merely reiterates that “prevailing prices for
travel-nurse services have been supracompetitive in the
markets . . . where AMN controls a substantial part of the
overall workflow” and “the likely or only possible
explanation for supracompetitive prices . . . [is] the
persistent effect of AMN’s Trade Restraints.” This
conclusory argument does not address the district court’s
findings. Like it did in the district court, Aya fails to connect
the prevailing prices to the challenged non-solicitation
agreement and ignores the flaws in Dr. Rothman’s study.
Accordingly, we affirm the district court’s conclusion that
Aya did not proffer direct evidence of harm to competition.
Regarding indirect evidence, the district court found that
Aya failed to make the requisite showing of “market power
plus . . . harm[] [to] competition.” Am. Express, 138 S. Ct.
at 2284. “Market power is the ability to raise prices above
those that would be charged in a competitive market.”
NCAA, 468 U.S. at 109 n.38. In determining whether a
company has market power, we must first define the relevant
market. See Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d
1421, 1434 (9th Cir. 1995). As the district court noted, Aya
“define[d] the relevant markets” as the “[r]egional service
markets for the sale of travel nurses to hospitals,” the
“[r]egional labor markets for the labor of travel nurses,” and
the “national labor market for the labor of travel-nurse
recruiters.” Aya then argued that AMN has market power in

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18 AYA HEALTHCARE SERVICES V. AMN HEALTHCARE
those markets because AMN “wields extraordinary control
over the available workflow and plum assignments.” The
district court found this argument unconvincing, and we
agree. This conclusory contention “is a far cry from the
evidence of consumer preference, supracompetitive prices,
and lower quality services” that constitutes indirect evidence
of harm to competition. Next, Aya claimed that
Dr. Rothman’s proffered chart demonstrated “that AMN
ha[d] a 30% share or higher for a least one year between
2013 and 2015,” the time period in which Aya claims
exclusionary damages. The district court rejected this
argument as well, holding that “market share calculations
alone are insufficient to demonstrate a defendant’s market
power.” Because Aya did not provide “sufficient evidence
of significant barriers to entry or expansion” to accompany
its market share calculations, Aya failed to demonstrate
AMN could actually carry out a predatory scheme. Finally,
the district court found that Aya also failed to proffer
evidence of the non-solicitation agreement’s anticompetitive
effects, “which is required, in addition to a showing of
market power.”
Again, Aya does not directly challenge the district
court’s findings on appeal. Instead, Aya contends that the
district court’s rule-of-reason analysis was incorrect because
it “conflated proofs required for a Section 1 claim with those
required for a Section 2 claim.” According to Aya, the
district court required it to prove that AMN held “a
monopoly position in the relevant market, and it . . . used its
Trade Restraints to facilitate its exercise of monopoly
power.” Aya’s argument is not persuasive—the district
court properly conducted a rule-of-reason analysis pursuant
to the Supreme Court’s reasoning in American Express and
other circuits’ case law. See Am. Express, 138 S. Ct. at 2284;
Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 97 (2d

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AYA HEALTHCARE SERVICES V. AMN HEALTHCARE 19
Cir. 1998) (holding that market power alone does not suffice
as indirect evidence for a rule-of-reason analysis). Aya
presents no other argument challenging the district court’s
conclusion that it failed to proffer sufficient indirect
evidence that the non-solicitation agreement has a
substantial anticompetitive effect that harms consumers.
In summary, we agree with the district court’s
conclusion that Aya did not carry its initial burden to prove
that AMN’s non-solicitation agreement has a substantial
anticompetitive effect that harms consumers in the relevant
market. Aya therefore cannot demonstrate that the restraint
violates the rule-of-reason standard.6
D.
Aya contends that it can recover retaliatory damages
pursuant to the Hammes doctrine. Aya supports its argument
with two factual allegations: “(1) AMN ‘cartelized’ the
relevant labor markets by entering into bilateral no-poaching
agreements with nearly all other rival employers; and
(2) AMN took severe retaliatory action against the few
defectors, including Aya.” The district court properly
rejected this argument.
The Seventh Circuit’s decision in Hammes v. AAMCO
Transmissions, Inc., 33 F.3d 774 (7th Cir. 1994), involved
an actual cartel and an agreement to allocate the Indianapolis
6 Aya briefly argues that the district court erred in declining to rule
on its quick-look challenge of the non-solicitation agreement. The
quick-look standard, however, is not appropriate in this context—it is
applied “to business activities that are so plainly anticompetitive that
courts need undertake only a cursory examination before imposing
antitrust liability.” Dagher, 547 U.S. at 7 n.3. Because “per se liability
is unwarranted here,” the quick-look standard is also inapplicable. Id.

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20 AYA HEALTHCARE SERVICES V. AMN HEALTHCARE
transmission repair market. The cartel members agreed to
block the inclusion of one repair center in the arrangement
because that repair center refused to pay its share, and
eventually, it failed. Hammes, 33 F.3d at 777. The Seventh
Circuit reversed the district court’s dismissal of the excluded
repair center’s claim, holding that “[l]osses inflicted by a
cartel in retaliation for an attempt by one member to compete
with the others are certainly compensable under the antitrust
laws.” Id. at 783.
Unlike the excluded repair center in Hammes, Aya
provided the district court with no evidence of a cartel or of
any concerted action in relation to AMN’s termination of its
agreement with Aya. Accordingly, the district court found
Hammes inapplicable to Aya’s claim. On appeal, Aya does
not directly challenge the district court’s conclusions.
Instead, it merely repeats conclusory allegations that “AMN
effectively ‘cartelized’ the relevant labor markets.” This is
not enough to warrant reversal of the district court’s grant of
summary judgment in favor of AMN.7
CONCLUSION
The district court did not err in granting AMN’s motion
for summary judgment. The non-solicitation agreement is
an ancillary restraint and therefore is subject to the rule-of-
reason—not the per se rule. The agreement does not violate
the rule-of-reason because Aya failed to carry its burden of
7 Aya presents two other meritless claims. First, it contends that it
was entitled to injunctive relief. Because Aya loses on the merits of its
claims, it is not entitled to injunctive relief. Aya also asserts that it
“should have been allowed to introduce further evidence on new issues
that the district court examined sua sponte.” This is also baseless—Aya
was given many opportunities before the district court to submit
evidence, and it never sought leave to offer additional evidence.

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AYA HEALTHCARE SERVICES V. AMN HEALTHCARE 21
proving the agreement has a substantial anticompetitive
effect that harms consumers in the relevant market. Aya’s
claim for retaliatory damages also fails because it did not
present any evidence of a cartel or a concerted action in the
termination of its agreement with AMN.
AFFIRMED.

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