UNITED STATES COURT OF APPEALS January 21, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

ASSOCIATION OF SURGICAL ASSISTANTS,

Plaintiff - Appellant,

v. No. 23-1344

NATIONAL BOARD OF SURGICAL TECHNOLOGY AND SURGICAL ASSISTING; ASSOCIATION OF SURGICAL TECHNOLOGISTS,

Defendants - Appellees. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:22-CV-02363-MEH) _________________________________ Robert D. Lantz, Lantz Law Group, Evergreen, Colorado, for Plaintiff-Appellant. John W. Mackay, Ray Quinney & Nebeker P.C., Salt Lake City, Utah (Brian R. Markley, Spencer Fane LLP, Overland Park, Kansas, and Jose A. Castro, Spencer Fane LLP, Denver, Colorado, with him on the brief) for Defendants-Appellees. _________________________________ Before TYMKOVICH, MATHESON, and McHUGH, Circuit Judges. _________________________________ TYMKOVICH, Circuit Judge. _________________________________

This case involves the certification process for two types of professionals who assist surgeons in the operating room: Surgical Technologists and Surgical Assistants. Appellate Case: 23-1344 Document: 59 Date Filed: 01/21/2025 Page: 2

Technologists ensure a sterile and organized environment, while Assistants directly aid the surgeon. Professional organizations serve each profession. The Association of Surgical Technologists (AST) represents Technologists, and the Association of Surgical Assistants (ASA) represents Assistants. The National Board of Surgical Technology and Surgical Assisting (NBSTSA) is one of several certifying bodies for both Technologists and Assistants.

Many states require Technologists and Assistants to maintain certifications to practice their respective professions. Like other professional certifications, maintaining these certifications requires either periodically logging enough continuing education credits or retaking a certification exam. This lawsuit is about who can provide continuing education services for recertifying NBSTSA certifications. To date, NBSTSA has only authorized AST to administer continuing education services. ASA wants to join it as an education provider.

After NBSTSA refused to authorize ASA to provide continuing education services on its behalf, ASA sued NBSTSA and AST for antitrust violations and tortious business interference. NBSTSA and AST moved to dismiss ASA’s Complaint. The district court granted that motion.

We affirm. As the district court correctly explained, ASA fails to establish the threshold requirement of an antitrust claim: the relevant market. Independently, it also failed to plead a plausible conspiracy or valid antitrust injuries.

2 Appellate Case: 23-1344 Document: 59 Date Filed: 01/21/2025 Page: 3

I. Background

A. Surgical Assistant and Surgical Technologist – Certifications

Unless otherwise noted, we take the following material factual allegations as true for purposes of reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where noted, and as the district court before us did, we take judicial notice of public information that is not reasonably subject to dispute. O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (taking judicial notice of information on N