Citations
- 801 F. Supp. 2d 1163
Full opinion text
MEMORANDUM OPINION AND ORDER
BROWNING, District Judge.
THIS MATTER comes before the Court on: (i) Defendant Conocophillips’ Motion to Dismiss, filed April 1, 2011 (Doc. 64); (ii) Defendant ExxonMobil Corporation’s Motion to Dismiss Plaintiffs Second Amended Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), filed April 1, 2011 (Doc. 66); and (iii) Defendant ASTM International’s Motion to Dismiss Plaintiffs Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), or in the Alternative, to Strike Certain Allegations Pursuant to Fed.R.Civ.P. 12®, filed April 1, 2011 (Doc. 67). The primary issues are: (i) whether the claims asserted by Plaintiff Plant Oil Powered Diesel Fuel Systems, Inc. (“POP Diesel”) are ripe; (ii) whether POP Diesel adequately pled allegations plausibly showing that the Defendants engaged in an conspiracy in violation of § 1 of the Sherman Act, 15 U.S.C. § 1; and (iii) whether POP Diesel has adequately pled a claim for tortious interference with business contracts under New Mexico law. The Court dismisses without prejudice POP Diesel’s claims that are based on the Fit-for-Purpose Guidelines as unripe. The Court dismisses POP Diesel’s antitrust claims over which it has subject-matter jurisdiction, because POP Diesel fails to allege a plausible conspiracy. Because POP Diesel’s state law claims are predicated on its antitrust claims and because POP Diesel does not allege contractual relations with which the Draft Standard Specification for Triglyceride Burner Fuel for use of triglyceride diesel fuel in larger-sized commercial and industrial burners, numbered WK 21463 (the “Draft ASTM Triglyceride Standard”) would interfere, the Court also dismisses POP Diesel’s claim for interference with prospective business advantage.
FACTUAL BACKGROUND
POP Diesel develops, manufactures, and sells triglyceride diesel fuel — fuel consisting of vegetable oil and animal fat — and related equipment that permits and manages the use of triglyceride diesel fuel in residential, commercial, and industrial burners and in diesel engines. See Second Amended Complaint Jury Demand ¶ 1, at 2, filed April 1, 2011 (Doc. 1)(“SAC”). POP Diesel also owns and operates a state-licensed triglyceride diesel fuel processing and filling station in state of New Mexico, which it opened in 2006 as the first such station in the United States of America. See SAC ¶ 4, at 3. The cities of Albuquerque, Las Cruces, and Santa Fe and the town of Taos in New Mexico have all pledged to assist POP Diesel in establishing the first state-wide network of triglyceride fuel filling stations in the country. See SAC ¶ 5, at 3. POP Diesel’s feedstock for making triglyceride diesel fuel at this time consists primarily of waste vegetable oils and greases obtained from restaurants and from industrial and agricultural operations, of which there is a virtually unlimited supply. See SAC ¶ 6, at 3.
Defendants ExxonMobil Corporation and ConocoPhillips Company (together “the Defendant Oil Companies”), are two of the world’s largest producers and sellers of petroleum-based diesel fuel, which competes with triglyceride diesel fuel, but which POP Diesel alleges is inferior to triglyceride diesel fuel for use in burners and diesel engines, for reasons of cost, performance, product safety, and environmental impact. SAC ¶¶ 7-9, at 3-4. Each of the Defendant Oil Companies is a member of Defendant ASTM International, one of the largest standard-setting organizations in the world. See SAC ¶¶ 8, 11-15, at 4-5. ASTM promulgates quality standards for many products, including fuel oils, which have been adopted by reference in federal and state statutes throughout the United States, including New Mexico. See SAC ¶ 13, at 4. ASTM’s “membership is composed of three categories: producers, consumers, and general interest (academic, etc.) ... [and] [i]ts specifications are written by technically qualified committees composed of members from the three categories.” Application of Am. Soc’y for Testing & Materials, 231 F.Supp. 686, 688 (E.D.Pa.1964).
This case involves ASTM’s pending promulgation, with the Defendant Oil Companies’ alleged involvement, of a proposed new standard and guidelines for biofuels that would limit the use of triglyceride diesel fuel and related products, including those of POP Diesel. POP Diesel alleges that the Defendants conspired with numerous other entities. See SAC ¶¶ 17-19, at 5-6. POP Diesel asserts that the co-conspirators of which it knows include certain members of ASTM’s Triglyceride Burner Fuel Working Group and Subcommittee P of ASTM Committee D02, including: (i) the National Biodiesel Board and Ralph F. Turner, Chair of the Triglyceride Burner Fuel Working Group, acting on behalf of biodiesel interests; (ii) Barbara Parry and Steve Spence of Newalta, acting on behalf of interests connected with recycled engine oil for burners; (iii) Marie F. Calhoon of Transmontaigne Inc., acting on behalf of interests connected with the petroleum industry; and (iv) other members of the Triglyceride Burner Fuel Working Group and Subcommittee P of ASTM Committee D02. See SAC ¶ 18, at 6. POP Diesel contends that the co-conspirators and the Defendant Oil Companies all have an economic interest in the exclusion of triglyceride diesel fuel from the relevant markets, because
triglyceride diesel fuel may tend to displace competing products manufactured, marketed, or promoted by the co-conspirators, including petroleum-based diesel fuel, recycled engine oil, and so-called biodiesel, a blend of 95 percent petroleum-based diesel fuel and 5 percent of a substance that starts out as triglycerides, but the molecules of which end up being physically and chemically transformed into a different substance .... Specifically, the co-conspirators are primarily affiliated with and representatives of petroleum companies, including, but not limited to, the Defendant Oil Companies; corporate agricultural interests that have invested heavily in biodiesel production facilities; companies that collect and render waste triglycerides, which have also invested heavily in biodiesel production facilities; sellers of petroleum fuel oil and recycled engine oil for use in burners; manufacturers and sellers of biodiesel; and related interests that service petroleum and biodiesel producers.
SAC ¶ 17, at 5-6.
1. The Relevant Markets.
The relevant product and geographic markets for purposes of this action are: (i) the diesel fuel market for residential, commercial, and industrial burners in the United States, and (ii) the diesel fuel market for diesel engines in the United States (“the Relevant Markets”). SAC ¶ 21, at 7. POP Diesel competes in the Relevant Markets against the Defendant Oil Companies, as well as against other producers and sellers of diesel fuel. See SAC ¶ 24, at 7.
2. The Draft ASTM Triglyceride Standard.
ASTM’s largest committee, titled D02, Petroleum Products and Lubricants (“Committee D02”), of which the Defendant Oil Companies are members, promulgates standards, specifications, classifications, test methods, and guidelines for liquid fuels in the diesel fuel industry. SAC ¶¶ 8, 10, 15, at 4, 5. To date, Committee D02 has approved for mixing with petroleum-based diesel fuel a non-petroleum blend stock, commonly known as “biodiesel,” that meets ASTM Standard Specifications Biodiesel Fuel Blend Stock B100 for Middle Distillate Fuels D6751. SAC ¶ 33, at 9. ASTM Standard Specifications D396 and D975 approve up to five percent biodiesel blended with petroleum-based diesel fuel for use in burners and diesel engines, respectively. See SAC ¶ 33, at 9.
POP Diesel alleges that, because of the five-percent cap, biodiesel represents only an incremental step in reducing net greenhouse gas emissions as compared with the near one-hundred percent use of triglyceride diesel fuel POP Diesel’s equipment permits. See SAC ¶ 35, at 10. The Defendant Oil Companies do not oppose biodiesel, which poses no threat to petroleum-based diesel fuel because of the five-percent cap. See SAC ¶ 35, at 10. POP Diesel contends that supporting the five-percent cap on biodiesel in ASTM Standard Specifications D396 and D975 allows the Defendant Oil Companies to portray themselves as favoring renewable energy. See SAC ¶ 35, at 10. POP Diesel further contends that biodiesel blended with petroleum fuels makes use of existing pipeline, rail, road and other infrastructure, whereas “triglyceride diesel fuel is handled, transported, and stored in equipment that is apart and segregated from the infrastructure supporting petroleum.” SAC ¶ 35, at 10. Without federal tax incentives, which expired at the end of 2009, the manufacture of biodiesel is largely not cost-effective or economically or commercially feasible, and many biodiesel facilities today are sitting idle. See SAC ¶ 36, at 10.
Several years ago, burner manufacturers seeking insurance coverage for the use of triglyceride diesel fuel asked ASTM Committee D02 to develop a standard for triglyceride diesel fuel to be used in burners. See SAC ¶ 37, at 10. Underwriters Laboratories, an insurance actuarial firm, would not rate burners using triglyceride diesel fuel, and some insurers therefore would not offer coverage, unless and until ASTM first adopted a standard specification for triglyceride diesel fuel for burners. See SAC ¶ 37, at 10-11. Various subcommittees of Committee D02 refused to adopt a specification for triglyceride diesel fuel burners. See SAC ¶ 39, at 10. POP Diesel alleges that this refusal is the result of the petroleum-based diesel fuel interests that dominate these subcommittees and that these interests “oppose any standard for triglyceride diesel fuel that may lead to triglyceride diesel fuel’s supplanting petroleum-based diesel fuel.” SAC ¶ 38, at 11. The request was then referred to Committee D02’s Subcommittee P, Recycled Petroleum Products (the “Subcommittee”). SAC ¶ 40, at 11. The Subcommittee established a Triglyceride Burner Fuel Working Group (the “Working Group”). SAC ¶ 40, at 11. “The Defendant Oil Companies, either directly or indirectly, are all members of or active participants in the D02 Committee, the Subcommittee, and the Working Group,” and, POP Diesel alleges, each has an interest in preserving the status quo embodied in ASTM Standard Specifications D396 — for burners — and D975 — for diesel engines- — -with the five-percent biodiesel cap. See SAC ¶ 41, at 11-12.
The Subcommittee and the Working Group have created and approved the Draft ASTM Triglyceride Standard. SAC ¶ 42, at 12. POP Diesel asserts that the Draft ASTM Triglyceride Standard contains numerous, material misstatements of fact made with the purpose and effect of excluding sellers of triglyceride diesel fuel and related products, including POP Diesel, from the Relevant Markets. See SAC ¶44, at 12-17. During the June 2010, ASTM semi-annual meeting, POP Diesel’s President, Claude Convisser, voiced objections to the Draft ASTM Triglyceride Standard at the meetings of both the Working Group and the Subcommittee. See SAC ¶¶ 45-47, at 17. During Convisser’s comments at the Working Group meeting, ExxonMobil stated that it would vote against the Draft ASTM Triglyceride Standard if ASTM deleted the alleged misrepresentation in Section 1.2 — that “[t]h[e fuels specified herein] are not intended for use” in residential and smaller burners, diesel internal combustion engines, and marine applications — to which Convisser had objected. SAC ¶ 48, at 18. Convisser subsequently provided the Working Group and Subcommittee with written objections to the Draft ASTM Triglyceride Standard. See Complaint ¶ 47, at 17. Convisser’s oral and written objections described, among other things, the following alleged material misrepresentations in the Draft ASTM Triglyceride Standard:
(i) Table 1 of the Draft ASTM Triglyceride Standard contains “Detailed Requirements for Triglyceride Burner Fuels,” which refers to thirty-eight ASTM-approved test methods allegedly applicable to triglyceride diesel fuel. Complaint ¶ 44(a), at 12. These test methods, however, all involve tests for the properties of petroleum-based diesel fuel and have never been validated as having applicability to triglyceride diesel fuel. These test methods thus provide invalid criteria for disqualifying triglyceride diesel fuel from fitness for use in burners. See SAC ¶ 44(a), at 12-13.
(ii) Section 1.2 of the Draft ASTM Triglyceride Standard states that “[t]he fuels specified herein are not intended for blending with conventional [petroleum] fuel oils for this purpose.” SAC ¶ 44(b), at 13. POP Diesel contends this statement is false because triglyceride diesel fuel and petroleum-based diesel fuel used in burners are miscible, meaning that, when stored in a heated tank before combustion, they blend in a homogeneous mixture. POP Diesel further asserts that there is no evidence that burners cannot operate on a blend of triglyceride diesel fuel and petroleum-based diesel fuel, and that such use is common without harm to burner equipment. POP Diesel’s burner equipment functions, POP Diesel contends, with any blend of triglyceride diesel fuel and petroleum-based diesel fuel. POP Diesel further contends that ASTM will likely rely on this language when it develops future specifications for diesel engines. See SAC ¶ 44(b), at 13-14.
(iii) Section 1.2 of the Draft ASTM Triglyceride Standard also states that “[the fuels specified herein] are not intended for use in ... [certain specified burners], such as residential burners or small pressure atomization burners nor are they intended for use in internal combustion engines.” SAC ¶ 44(c), at 14. POP Diesel asserts, on the contrary, that triglyceride diesel fuel, properly managed, operates in all such burners and diesel internal combustion engines. See SAC ¶ 44(c), at 14.
(iv) Sections 5.3.1 and 5.3.2 of the Draft ASTM Triglyceride Standard define triglyceride burner fuel so as to exclude triglyceride diesel fuel that originates from household, non-commercial sources, so as to exclude its use from residential burners. POP Diesel asserts, on the contrary, that triglyceride diesel fuel can originate from household, non-commercial sources, and, properly managed, is suitable for use in residential burners. See SAC ¶ 44(d), at 14-15.
(v) Section 5.3.2 of the Draft ASTM Triglyceride Standard also, according to POP Diesel, falsely states that “[t]he extra equipment and maintenance required to handle this fuel ... may preclude its use in small and/or unattended installations.” SAC ¶ 44(e), at 14. POP Diesel asserts, on the contrary, that its burners do not require extra equipment or maintenance or an attendant. See SAC ¶ 44(e), at 14.
(vi) The Draft ASTM Triglyceride Standard limits to thirty the total acid number for triglyceride diesel fuel, as set forth in Table 1, and in Sections X1.2 and Xl.5.1. POP Diesel asserts, on the contrary, that when used with its equipment, triglyceride diesel fuel may have an acid number in excess of thirty, and is safe and appropriate for use in residential, commercial, and industrial burners. See SAC ¶ 44(f), at 15.
(vii) Section Xl.4.4.2 of the Draft Standard states that, because “[t]he viscosity of [triglyceride diesel fuel] can change significantly with relatively small temperature differences in the range of temperatures at which the burner operates, ... burner manufacturers and triglyceride fuel users should consider the viscosity characteristics of the range of potential triglyceride burner fuels very carefully.” SAC ¶ 44(g), at 15. POP Diesel asserts, on the contrary, that higher viscosity is not a problem for burner and diesel engine equipment that preheats triglyceride diesel fuel to lower its viscosity, as does POP Diesel’s equipment. See SAC ¶ 44(g), at 15.
(viii) Section Xl.4.1 of the Draft ASTM Triglyceride Standard states with regards to the temperature at which a substance turns from solid to liquid state: “An increase in pour point can occur when triglyceride burner fuel is subjected to cyclic temperature variations that can occur in the course of storage.” SAC ¶ 44(h), at 16. POP Diesel asserts, on the contrary, that there is no evidence that such temperature variations lead to a significant change in the pour point of triglyceride diesel fuel. See SAC ¶ 44(h), at 16-17.
(xi) Section 1.4 of the Draft ASTM Triglyceride Standard states: “Nothing in this specification shall preclude observance of national or local regulations, which can be more restrictive.” SAC ¶ 44(i), at 17. POP Diesel contends that there is “no factual basis to suggest that governments may have cause to adopt even more restrictive standards.” SAC ¶ 44(i), at 17.
POP Diesel further asserts that numerous irregularities, and breaches of ASTM’s own policies and procedures, have marked the ASTM’s Committee D02’s, the Subcommittee’s, and the Working Group’s approval process for the Draft ASTM Triglyceride Standard. See SAC ¶ 52, at 18-22. POP Diesel alleges the following irregularities:
(i) ASTM’s Regulations Governing Technical Committees (“ASTM’s Regulations”) state in the relevant part of § 19.2.2.4: “Accurate minutes should be kept of all ASTM-sponsored meetings.” SAC ¶ 52(a), at 19. The Bylaws of Committee D02 state at § 9.3.2: “Minutes shall be circulated within 60 days following a meeting.” SAC ¶ 52(b), at 19. POP Diesel alleges that no minutes were taken or circulated for an ASTMsponsored meeting of the Working Group in Kansas City, Missouri, in late June 2010, during which Exxon-Mobil stated that it would vote against the Draft ASTM Triglyceride Standard if the Working Group or Subcommittee deleted language stating triglyceride diesel fuel is not appropriate for residential and smaller burners, diesel internal combustion engines, and marine applications. See SAC ¶ 52(a), at 19.
(ii) ASTM’s Regulations further states in § 19.2.2.4 that “[t]he minutes of the preceding meeting should be approved before the start of the following meeting.” SAC ¶ 52(c), at 19. Without the Working Group’s or the Subcommittee’s prior approval, at their meeting on December 8, 2010, the Chair of the Subcommittee appended a set of purported minutes for the June 2010 Working Group meeting to the Subcommittee report to the D02 Committee on the December 9, 2010 Working Group meeting. The draft of the purported Working Group minutes made no mention of ExxonMobil’s statement that it would vote against the Draft ASTM Triglyceride Standard if limiting language was deleted. See SAC ¶ 52(c), at 19.
(iii) At the December 9, 2010 meeting, the Working Group’s agenda said that the meeting “will continue until all business is completed.” SAC ¶ 52(d), at 20. While “Committee D02 permitted unlimited discussion and debate on all of the other twenty or so ASTM Standards on the agenda,” over POP Diesel’s objection, the Committee “voted to submit Convisser’s comments accompanying his negative vote on the Draft ASTM Triglyceride Standard to electronic balloting, rather than allow for discussion and debate at the meeting.” SAC ¶ 52(d), at 20.
(iv) ASTM has not provided material to POP Diesel in response to Convisser’s request for access to the data and reports on triglyceride diesel fuel that the Subcommittee and Working Group had considered in formulating the Draft ASTM Triglyceride Standard. See SAC ¶ 52(e), (f), at 20-21.
(v) Contrary to the “usual and customary ASTM practice of trying to work through differences prior to an actual committee meeting,” the Working Group and Subcommittee did not contact Convisser following his submission in September of written comments accompanying his negative vote and before the December meeting. SAC ¶ 52(g), at 21. Instead, the Subcommittee contacted Convisser the week before the December meeting and asked him to withdraw his negative comments, which Convisser declined to do. See SAC ¶ 52(g), at 21. At the December meeting, the Committee D02 “presented on a large display screen” its responses to Convisser’s objections to the Draft ASTM Triglyceride Standard, but provided no hard copies. See SAC ¶ 52(h), at 21.
POP Diesel asserts that, “[a]s the world’s largest publicly traded international oil and gas company, ExxonMobil has the influence and market power to ensure that ASTM adopts the Draft ASTM Triglyceride Standard in its current form.” SAC ¶ 49, at 18. POP Diesel alleges that members of the Subcommittee not affiliated with the Defendant Oil Companies “repeatedly stated that many of Convisser’s objections had substantive merit,” but nonetheless “refused to adopt and approve any of Convisser’s proposed changes because such adoption and approval would antagonize the Defendant Oil Companies.” SAC ¶ 52(i), at 21-22. The Subcommittee voted twelve-to-one in favor of adopting the Draft ASTM Triglyceride Standard and forwarding it to Committee D02. See SAC ¶ 53, at 22. POP Diesel asserts:
When ASTM makes the negative comments of Convisser and other negative voters on the Draft ASTM Triglyceride Standard available for voting by electronic ballot, ASTM regulations provide that the ballot will remain open for 30 days. Given the denial of discussion and debate afforded Convisser’s negative comments at the Committee D02 meeting in Jacksonville, voters, if permitted to vote, will in all likelihood override his negative vote and approve the Draft ASTM Triglyceride Standard.
SAC ¶ 54, at 22.
3. The Fit-For-Purpose Guidelines.
POP Diesel also asserts that, in response to its objections, the Defendant Oil Companies have also moved aggressively to have ASTM restrict future approval of triglyceride diesel fuels for diesel engines. See SAC ¶ 55, at 23. POP Diesel alleges that the Defendants have caused Committee D02 to begin the promulgation of “FiLfor — Purpose” Guidelines that limit standards for future diesel engine fuels to petroleum-based diesel fuel or biodiesel, as currently described in ASTM Standard Specification D975. SAC ¶ 55, at 23. These Fib-for-Purpose Guidelines are anticipatory standards governing research and development of future products, in that they specify how a new and potentially as yet undeveloped product must function, and how it must fit with existing products and processes to meet ASTM standards. See SAC ¶ 56, at 23. POP Diesel argues that these Fib-for-Purpose Guidelines are detrimental to innovation, research, and development, in that they tend to limit and channel innovation towards existing products and processes, and protect existing products and processes from future competition. See SAC ¶ 56, at 23.
POP Diesel contends that, like the Draft ASTM Triglyceride Standard, the purpose and effect of the Fib-for-Purpose Guidelines will be to stifle innovation, and to exclude Pop Diesel and other sellers of alternative diesel fuels from the Relevant Markets. See SAC ¶ 59, at 23. For example, the Fib-For-Purpose Guidelines’ definition of “hydrocarbon oil,” a key term, will favor biodiesel, while excluding triglyceride diesel fuel. SAC ¶ 59, at 23(a), at 23. The Fit-For-Purpose Guidelines shift the future burden of validating triglyceride diesel fuel to its producers, small firms that cannot afford the testing that it is the function of ASTM to provide. See SAC ¶ 59, at 23, at 24-25. Like the Draft ASTM Triglyceride Standard, the Fit-For-Purpose Guidelines rely on standards and tests applicable to petroleum-based diesel fuel, with no proven applicability to triglyceride diesel fuel. See Complaint ¶¶ 59(c)-(d), at 26-28. POP Diesel alleges that ConocoPhillips is the technical contact for parts of the Fit-for-Purpose Guidelines, see SAC ¶ 59(a), (b), at 24, and that a “former employee of ExxonMobil is actively participating in the drafting” a related guideline, see SAC ¶ 59(c), at 25. POP Diesel contends, upon information and belief, that the Defendant Oil Companies may have other FiL-for-Purpose Guidelines in some stage of ASTM development unknown to POP Diesel that have the same purpose and effect as they attribute to the Guidelines. See Complaint ¶ 62, at 27.
In sum, POP Diesel alleges that, in concert, the Defendant Oil Companies and ASTM are in the process of promulgating the Draft ASTM Triglyceride Standard and the FiL-for-Purpose Guidelines with the purpose and effect of excluding triglyceride diesel fuel and POP Diesel’s products from the Relevant Markets. See SAC ¶¶ 63-64, at 30. The Defendants intend imminently to present the Draft ASTM Triglyceride Standard to the Committee D02 membership for a vote on its adoption. See SAC ¶ 43, at 12. Once the Draft ASTM Triglyceride Standard is adopted and published, numerous states will incorporate it by reference into law pursuant to existing statutes, such as N.M.S.A.1978, § 57-19-29. See SAC ¶ 13, at 4.
PROCEDURAL BACKGROUND
POP Diesel brings this action under Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, and 28 U.S.C. §§ 1331 and 1337, to redress the alleged violations of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1; its state counterpart, N.M.S.A.1978, § 57-1-1; and New Mexico common law against intentional interference with prospective business advantage, for damages and to enjoin the Defendants from agreeing, combining, and conspiring to bring about the adoption of an industry standard and guidelines for triglyceride diesel fuel, the purpose and effect of which POP Diesel alleges will be to exclude it and other sellers of triglyceride diesel fuel from diesel fuel markets in the United States.
On February 1, 2011, POP Diesel filed its Motion and Application for Temporary Restraining Order and Order to Show Cause, requesting a temporary restraining order and preliminary injunction. See Doc. 5 (“TRO Motion”). The Court held a hearing on the TRO on March 1, 2011. At the hearing, POP Diesel stated that its most imminent harm was that ASTM would submit the Draft ASTM Triglyceride Standard to an electronic ballot, because, if approved, the standard would automatically become the law by reference in over thirty states, including New Mexico. See Transcript of Hearing at 7:2-10 (taken March 1, 2011), filed April 10, 2011 (Doc. 69)(“Tr.”)(Shulman). POP Diesel contended that it had not had adequate opportunity to makes its views known in ASTM and that the Draft ASTM Triglyceride Standard is inaccurate. See Tr. at 7:11-19 (Court, Shulman). POP Diesel acknowledged that “once the standards is enacted it’s not written in stone,” “[i]t can be changed,” and “[t]he change will go into law.” Tr. at 18:13-15 (Schulman). POP Diesel also conceded that, while it hopes to expand, it is currently doing business only in New Mexico, with approximately thirty trucks using its fuel. See Tr. at 19:3-21 (Court, Schulman). POP Diesel also stated that it was “not sure” if adoption of the Draft ASTM Triglyceride Standard would “shut down the vehicles” in New Mexico. Tr. at 20:24-21:2 (Court, Schulman). POP Diesel then clarified that “[tjhis standard deals with burner fuel, which is not vehicle fuel,” and that it is “not currently marketing oil for burners,” but asserted that it is “preparing to market burners.” Tr. at 22:4-17 (Court, Schulman). POP Diesel also represented that it sought injunctive relief for only the Draft ASTM Triglyceride Standard, because the Fit-For-Purpose Guidelines are “sufficiently far from the voting stage.” Tr. at 26:21-27:2 (Schulman).
ASTM stated that it was ready to issue the ballot on the Draft ASTM Triglyceride Standard. See Tr. at 29:1-5 (Court, Edward). ASTM represented that the ballot would be open for thirty days, after which time the ASTM Committee on Standards would have sixty days in which to review the process to make certain that there were no procedural irregularities. See Tr. at 29:5-13 (Edward). POP Diesel’s criticisms and the Working Group’s response would accompany the ballots. See Tr. at 30:5-11 (Edward). Additionally, if one-third of the votes oppose the Draft ASTM Triglyceride Standard, the standard is returned to committee for redrafting. See Tr. at 30:20-23 (Edward). POP Diesel would have the right to take an appeal of the Committee D02’s decision to the Committee on Standards, which could not be heard before October 2011, and, failing there, to the ASTM Board of Directors, which could not be heard before April 2012. See Tr. at 32:3-18 (Edward). The Draft ASTM Triglyceride Standard would not become law while the appeal was pending, giving POP Diesel the ability to forestall the Draft ASTM Triglyceride Standard from becoming law for at least thirteen months. See Tr. at 32:19-21, 34:1 (Court, Edward). In light of ASTM’s representations, POP Diesel acknowledged that it did not face imminent injury. See Tr. at 42:4-10 (“Court: I guess the sense I get is that we’re not in ... an imminent situation.... Do you get the same impression? MR. SHULMAN: Yes, Your Hon- or, I do.”). On April 18, 2011, the Court issued its Memorandum Opinion and Order, denying POP Diesel preliminary injunctive relief without prejudice to POP Diesel renewing its request in the future, because POP Diesel had not shown imminent harm would result if the Court did not issue a preliminary injunction.
The Defendants now move the Court to dismiss the SAC. The Defendants contend that POP Diesel lacks Article III standing, because it has not suffered an injury, and that its claims are not ripe, because any future injury is speculative and contingent on uncertain events. The Defendants further contend that POP Diesel has not suffered an antitrust injury, because, as POP Diesel represented at the March 1, 2011 TRO hearing, POP Diesel is not in the burner market, which the Draft ASTM Triglyceride Standard will affect, and that the Fih-for-Purpose Guidelines, which affect the diesel engine market — in which POP Diesel is active — are in their early stages. The Defendants assert that POP Diesel fails to set forth allegations that make its conspiracy claims plausible and that the Noerr-Pennington doctrine bars POP Diesel’s claims. The Defendants also assert that POP Diesel has not alleged business relationships with which the Defendants have interfered. The Defendants further contend that POP Diesel has conceded that its claims are subject to full-rule-of reason review, and that if the Court does not dismiss POP Diesel’s claims, it should strike POP Diesel’s allegations purporting to assert a per se or “quick look” claim and seeking treble damages.
On April 22, 2011, POP Diesel filed its Combined Memorandum of Law in Opposition to Defendants’ Motions to Dismiss the Second Amended Complaint and in Opposition to Defendant ASTM International’s Alternative Motion to Strike Certain Allegations in the Second Amended Complaint. See Doc. 74 (“Response”). POP Diesel responds that, because it seeks injunctive relief, the harm it seeks to avoid is adequately imminent and its claims are ripe. POP Diesel asserts that the Court should not consider its statements at the March 1, 2011 when determining whether it has suffered an antitrust injury without converting the motions into motions for summary judgment and giving POP Diesel an opportunity to brief accordingly after discovery. POP Diesel further asserts that it adequately pled plausible allegations of a conspiracy and that the Noerr-Pennington doctrine does not remove standard-setting organizations from antitrust liability. POP Diesel also asserts that it alleged sufficient facts showing intentional interference with prospective advantage.
On May 6, 2011, ASTM filed its Reply in Support of its Motion to Dismiss Plaintiffs Second Amended Complaint Pursuant to Fed.R.CivJP. 12(b)(1) and 12(b)(6), or in the Alternative, to Strike Certain Allegations Pursuant to Fed.R.Civ.P. 12(f). See Doc. 76 (“Reply”). ASTM reasserted the Defendants’ arguments from their motions, and contend that POP Diesel concedes in its Response that it has suffered no Article III or antitrust injury. ASTM asserts that the Court should consider POP Diesel’s concession without converting the motions to dismiss into motions for summary judgment.
LEGAL STANDARD FOR MOTIONS TO DISMISS UNDER RULE 12(b)(1)
“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994) (citations omitted). A plaintiff generally bears the burden of demonstrating the court’s jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to raise the defense of the court’s “lack of jurisdiction over the subject matter” by motion. Fed.R.Civ.P. 12(b)(1). The United States Court of Appeals for the Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint’s allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981). But when the attack is aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.
Alto Eldorado Partners v. City of Santa Fe, No. CIV 08-0175 JB/ACT, 2009 WL 1312856, at *8-9 (D.N.M. Mar. 11, 2009) (Browning, J.) (citations omitted). As the United States Court of Appeals for the Fifth Circuit has stated:
[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction — • its very power to hear the case- — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.
Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)).
When making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). In those instances, a court’s reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987)). Where, however, the court determines that jurisdictional issues raised in rule 12(b)(1) motion are intertwined with the case’s merits, the court should resolve the motion either under rule 12(b)(6) or under rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.1999); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir.1997). ‘When deciding whether jurisdiction is intertwined with the merits of a particular dispute, ‘the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.’ ” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003)(quoting Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.2002)).
LAW REGARDING RULE 12(b)(6)
Under rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994) (citation omitted). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009); Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991). A complaint challenged by a rule 12(b)(6) motion to dismiss does not need to set forth detailed factual allegations, but a plaintiffs burden to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (stating that a plaintiffs complaint must set forth more than a threadbare recital “of the elements of a cause of action, supported by mere conclusory statements”). To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. at 1940.
ANALYSIS
The Court has subject-matter jurisdiction over POP Diesel’s claims that are founded on the passage of the Draft ASTM Triglyceride Standard, because POP Diesel has alleged a harm and the potential harm is adequately imminent. POP Diesel’s claims that are founded on the Fit-For-Purpose Guidelines, however, are not ripe, because the standards are at their early stages, and whether and in what form the Fit-For-Purpose Guidelines will be enacted is uncertain. The Court dismisses POP Diesel’s antitrust claims over which it has subject-matter jurisdiction, because POP Diesel fails to allege a plausible conspiracy. Because POP Diesel’s state law claims are predicated on its antitrust claims and because POP Diesel does not allege contractual relations with which the Draft ASTM Triglyceride Standard would interfere, the Court also dismisses POP Diesel’s claim for interference with prospective business advantage.
I. THE COURT HAS SUBJECT-MATTER JURISDICTION OVER POP DIESEL’S DRAFT ASTM TRIGLYCERIDE STANDARD CLAIMS, BUT NOT OVER ITS FIT-FOR-PURPOSE GUIDELINES CLAIMS.
The Defendants contend that the Court lacks subject-matter jurisdiction over this case. They contend that POP Diesel lacks standing and its claims are not ripe, because it has not suffered an Article III or antitrust injury, and faces only a speculative future injury that may not come to pass. They assert that, because the harm POP Diesel seeks to avoid in the diesel burner market, in which POP Diesel does not currently participate, will not come to pass unless members of Committee D02 vote to adopt the Draft ASTM Triglyceride Standard, and even then it is subject to appellate review within ASTM, including review of procedural irregularities, POP Diesel’s claims are not ripe. The Defendants further assert that the harm POP Diesel seeks to avoid from the Fit-For-Purpose Guidelines is more attenuated than the harm it alleges may flow from the Draft ASTM Triglyceride Standard, because, as POP Diesel conceded, the Fit-For-Purpose Guidelines are at an early stage of development. See, e.g., ConocoPhillips’ Memorandum at 10-11 (“[POP Diesel”] apparently relies on threatened harm, but it makes no showing as required to establish standing under Article III that any potential harm is anything ‘more than a possibility,’ or that ‘the threat of injury [is] both real and immediate’ and ‘certainly impending.’ (citations omitted)); ASTM’s Memorandum at 9 (“[T]he Draft TG Standard remains subject to an uncertain outcome in the main committee vote and possible appeals, and ... the Fit-For-Purpose Guides remain in the early drafting stages and are not alleged to be voted upon imminently.”).
POP Diesel responds that it has sufficiently alleged Article III harm and that its claims are ripe. POP Diesel contends:
Once the Draft ASTM Triglyceride Standard is put to a vote of the ASTM membership, the ballot will remain open for just 30 days. Given the market power and influence of the Oil Company Defendants and the reticence of other ASTM members to oppose the Oil Company Defendants, the Draft ASTM Triglyceride Standard will likely be adopted, rendering POP Diesel[ ]’s claims for injunctive relief ripe for adjudication now. Likewise, POP Diesel[] has alleged that defendants and the Co-conspirators “have ... moved aggressively” to promulgate the Fib-for-Purpose Guides. The “mere proposal” of the Fit-for-Purpose Guides, coupled with the Draft ASTM Triglyceride Standard, unreasonably restrains competition in the Relevant Markets to develop new and innovative fuels (that is, non-petroleum based fuels), including triglyceride fuels, because the Fit-for-Purpose Guides will unreasonably restrict approval of such new fuels. Producers of innovative fuels will be less likely to undertake to develop new fuels because, following adoption of the Fit-for-Purpose Guides, the fuels will be less likely to be approved by ASTM.
Response at 17-18 (citations to the record omitted). The parties elaborated on the approval process at the preliminary injunction hearing. ASTM stated that it was ready to issue the ballot on the Draft ASTM Triglyceride Standard. See Tr. at 29:1-5 (Court, Edward). ASTM represented that the ballot would be open for thirty days, after which time the ASTM Committee on Standards would have sixty days in which to review the process to make certain that there were no procedural irregularities. See Tr. at 29:5-13 (Edward). POP Diesel’s criticisms and the Working Group’s response would attend the ballots. See Tr. at 30:5-11 (Edward). Additionally, if one-third of the votes oppose the Draft ASTM Triglyceride Standard, the standard is returned to committee for redrafting. See Tr. at 30:20-23 (Edward). POP Diesel would have the right to take an appeal of the Committee D02’s decision to the Committee on Standards, which could not be heard before October 2011, and, failing there, to the ASTM Board of Directors, which could not be heard before April 2012. See Tr. at 32:3-18 (Edward). The Draft ASTM Triglyceride Standard would not become law while the appeal was pending, giving POP Diesel the ability to forestall the Draft ASTM Triglyceride Standard from becoming law for at least thirteen months. See Tr. at 32:19-21, 34:1 (Court, Edward). The Court agrees that POP Diesel’s Draft ASTM Triglyceride Standard claims adequately allege an Article III injury and are ripe. POP Diesel’s Fit-for-Purpose Guidelines claims, however, are not ripe.
A. POP DIESEL’S DRAFT ASTM TRIGLYCERIDE STANDARD CLAIMS ARE RIPE, BUT ITS FIT-FOR-PURPOSE GUIDELINES CLAIMS ARE NOT.
Article III of the United States Constitution requires that a live case or controversy for a federal court to have jurisdiction over a dispute. See U.S. Const, art. Ill, § 2. “The existence of a case and controversy is a prerequisite to all federal actions, including those for ... injunctive relief.” Presbytery of N.J. of Orthodox Presbyt. Church v. Florio, 40 F.3d 1454, 1462 (3d Cir.1994). The limitation on federal subject-matter jurisdiction to “cases or controversies” has both a standing and a ripeness component, which are two sides of the same coin. Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 411 & nn. 12-13 (3d Cir.1992). “[Rjipeness tells us when a Case proper party may bring an action and ... standing tells us who may bring the action.” Presbytery of N.J. of Orthodox Presbyt. Church v. Florio, 40 F.3d at 1462. To demonstrate Article III standing, “a plaintiff must have suffered an ‘injury in fact’ that is ‘distinct and palpable’; the injury must be fairly traceable to the challenged action; and the injury must be likely redressable by a favorable decision.” Hinds County v. Wachovia Bank N.A., 700 F.Supp.2d 378, 392 (S.D.N.Y.2010) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (other citations omitted). Any potential harm must be “more than a possibility,” and a plaintiff must show that “the threat of injury [is] both real and immediate” and “certainly impending.” Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1282 (10th Cir. 2002) (internal quotation marks omitted)). The United States Court of Appeals for the Second Circuit stated in Ross v. Bank of America, 524 F.3d 217 (2nd Cir.2008):
Injury in fact is a low threshold, which we have held “need not be capable of sustaining a valid cause of action,” but “may simply be the fear or anxiety of future harm.” [Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006) ]. “Moreover, the fact that an injury may be outweighed by other benefits, while often sufficient to defeat a claim for damages, does not negate standing.” Id. at 265. The burden rests on the party asserting jurisdiction to clearly allege facts demonstrating standing. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).
524 F.3d at 222. The determination whether a claimant has suffered injury-in-fact is assessed “at of the time the action is brought.” Smith v. U.S. Court of Appeals for the Tenth Circuit, 484 F.3d 1281, 1285 (10th Cir.2007)(quotations and citations omitted).
A federal court’s jurisdiction also requires a dispute to be ripe. See New Mexicans for Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir.1995) (stating that the ripeness inquiry “bears on the court’s subject matter jurisdiction under the case or controversy clause of Article III”). The ripeness inquiry is concerned with the “timing” of the dispute, unlike standing which is concerned with whether a proper party is raising the dispute. Regional Rail Reorg. Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974). “As a general rule, determinations of ripeness are guided by a two-factor test, ‘requiring [a court] to evaluate both the fitness of the issue for judicial resolution and the hardship to the parties of withholding judicial consideration.’ ” Sierra Club v. Yeutter, 911 F.2d 1405, 1415 (10th Cir.1990) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). The “central focus” of the fitness aspect of the ripeness inquiry is “whether the case involves uncertain or contingent future events that may not oc cur as anticipated, or indeed may not occur at all.” New Mexicans for Richardson v. Gonzales, 64 F.3d at 1499 (citations omitted). The hardship aspect “typically turns upon whether the challenged action creates a direct and immediate dilemma for the parties.” New Mexicans for Richardson v. Gonzales, 64 F.3d at 1499 (internal citations and quotation marks omitted). “[Rjipeness overlaps in some respects with standing, most notably in the shared requirement that the [plaintiffs] injury be imminent rather than conjectural or hypothetical.” Ross v. Bank of America, 524 F.3d at 226.
The Court concludes that POP Diesel’s claims that are based on the Draft ASTM Triglyceride Standard are up to constitutional muster, but that POP Diesel’s claims that are based on the Fih-ForPurpose Guidelines are not ripe. In Volvo North America Corp. v. Men’s International Professional Tennis Council, 857 F.2d 55 (2d Cir.1988), the Second Circuit addressed whether members of an alleged tennis cartel had standing to bring claims based on the cartel’s proposed rules, and whether the claims were ripe. The plaintiffs alleged that the defendants had “conspired in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1982), to monopolize and restrain trade in the markets for the production of men’s professional tennis events, the tennis-playing services of men’s professional tennis players, and the rights to broadcast men’s professional tennis events” 857 F.2d at 57. The plaintiffs also brought pendant state law claims for tortious interference with prospective business relations and unfair competition. The plaintiffs complained of the cartel’s four proposed rules:
[The plaintiffs] claim that certain proposed restrictions would further limit their ability to compete in the market for men’s professional tennis events. Among these proposed rules is a “Special Event” Rule, which would require all owners, agents, consultants, and associates of a sanctioned event to agree not to “promote” any Special Event during the week of any Grand Prix tournament. Since Grand Prix tournaments occupy forty-eight weeks of the year, this rule allegedly would preclude any person associated with an existing sanctioned event from producing any Special Events at all. There is also a proposed rule, known as the “Best Interest” Rule, which would give MIPTC the right to refuse to sanction any event whenever “in the sole judgment of the MIPTC” sanctioning that event would not serve “the best interest of the sport.” Another proposal, the “Conflicts of Interest” Rule, would allow MIPTC to prohibit owners and producers from inviting certain players to participate in their tournaments as “wild cards.” And last, there is a proposed rule that would permit MIPTC to serve as the exclusive representative and agent for the pooled sale of television broadcasting rights to sanctioned events.
857 F.2d at 61 (footnotes omitted). The defendants sought to dismiss the plaintiffs’ challenge to the proposed rules pursuant to rule 12(b)(1) on the ground that this challenge was not ripe. The district court did not address the ripeness challenge, dismissing the antitrust claims on other grounds, and “the tortious interference claim ... was dismissed on the ground that appellants had not alleged any business relations between themselves and a third party that were harmed by appellees’ behavior.” 857 F.2d at 62.
The Second Circuit vacated the district court’s dismissal and remanded. The Second Circuit first considered the defendants’ ripeness argument. The Second Circuit held that the challenge to the proposed “Special Events Rule” was ripe, because it was having a present anti-competitive effect and its future application was straight forward, making it unnecessary to await future developments. The Second Circuit further held, however, that the challenges to the other three rules were not yet ripe, because future events would clarify how they would be enacted and applied:
Appellees moved to dismiss appellants’ challenge to MIPTC’s four proposed rules on the ground that this challenge was not ripe for adjudication. The district court did not address this argument, and appellees have not raised it on appeal. Nevertheless, to the extent that “issues of ripeness involve, at least in part, the existence of a live ‘Case or Controversy,’ ” Regional Rail Reorg. Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (footnote omitted), we should consider such issues sua sponte. See, e.g., Suburban Trails, Inc. v. New Jersey Transit Corp., 800 F.2d 361, 365 (3d Cir.1986); American Trucking Ass’ns v. I.C.C., 747 F.2d 787, 790 (D.C.Cir.1984); Johnson v. Sikes, 730 F.2d 644, 647-48 (11th Cir.1984); 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3532.1, at 135 (2d ed. 1984) (“Wright, Miller & Cooper”).
As the Supreme Court has noted, the purpose of the ripeness doctrine “ ‘is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.’ ” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). Ripeness therefore “ ‘is peculiarly a question of timing,’ ” id. (quoting Regional Rail Reorg. Act Cases, 419 U.S. at 140, 95 S.Ct. 335, and it cautions courts against adjudicating “ ‘contingent future events that may not occur as anticipated, or indeed may not occur at all,’ ” id. at 580-81, 105 S.Ct. 3325 (quoting Wright, Miller & Cooper § 3532). Two additional factors, “ ‘the fitness of the issues for judicial decision’ ” and “ ‘the hardship to the parties of withholding court consideration,’ ” also inform any analysis of ripeness. Id. at 581, 105 S.Ct. 3325 (quoting Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. 1507)) The fitness of an issue for judicial decision depends at least in part on the extent to which the issue is “purely legal, and will not be clarified by further factual development.” Id.; see also Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. 1507 In considering the hardship to the parties of withholding consideration, a court must be mindful that “ ‘[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.’ ” Regional Rail Reorg. Act Cases, 419 U.S. at 143, 95 S.Ct. 335 ... (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 67 L.Ed. 1117 (1923), re aff'd, 263 U.S. 350, 44 S.Ct. 123, 67 L.Ed. 1144 (1923)).
As appellees argued before the district court, the fact that the proposed rules “may never be enacted, or alternatively, may be enacted in a form which completely alleviates plaintiffs’ concerns,” seems to suggest that any challenge to the proposals is premature. “The difference between an abstract question and a ‘case or controversy’ is one of degree, [however], and is not discernible by any precise test.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). In some instances, “the prospect or fear of future events may have a real impact on present affairs, ” Wright, Miller & Cooper § 3532.2, at 113, such that a preemptive challenge is ripe. See, e.g., Bowsher v. Synar, 478 U.S. 714, 727 n. 5, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 201, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983); Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Pennsylvania v. West Virginia, 262 U.S. at 593, 43 S.Ct. 658 In the antitrust context in particular, a rule that has yet to be enacted or enforced may be ripe for review if its mere proposal is likely to inhibit competition. See, e.g., North Am. Soccer League v. National Football League, 465 F.Supp. 665(S.D.N.Y.1979) (“NASL v. NFL ”) (district court entertained an antitrust challenge to a proposed amendment to the constitution and bylaws of the National Football League that would have prevented NFL owners from acquiring any interest in another major team sport), complaint dismissed, 505 F.Supp. 659 (S.D.N.Y.1980), aff'd in part, rev’d in part, and remanded, 670 F.2d 1249 (2d Cir.), cert. denied, 459 U.S. 1074, 103 S.Ct. 499, 74 L.Ed.2d 639 (1982).
Applying the foregoing principles to the facts as alleged in the amended complaint, we conclude that appellants’ challenge to the Special Events Rule is ripe for consideration. Appellants claim that this rule is having a present anti-competitive effect because “persons or entities involved with Special Events and ... persons involved with MIPTC-sanctioned events are inhibited and deterred from entering into contracts with ProServ and IMC that extend into the future ... because they fear that ProServ and IMC will be compelled by the new rule to break either their agreements involving Special Events or their agreements involving MIPTC-sanctioned events.” Likewise, appellants allege that “owners and producers of MIPTCsanctioned events, including Volvo, are afraid to enter into long-term agreements with ProServ or IMC for fear that the defendants will force them to choose between breaching their contract with the player-agent and losing their MIPTC sanction.” In our view, these allegations plausibly suggest how the proposed rule may have “a real impact on present affairs”; and under these circumstances, to withhold consideration until the rule is actually adopted might work considerable hardship on appellants. We note also that the proposal, as alleged, appears to be straightforward: it threatens to prohibit persons associated with sanctioned events from producing any Special Events. Thus, its effect is unlikely to be clarified substantially by whatever “further factual development” would accompany its enactment. For these reasons, we conclude that appellants’ challenge to the Special Event Rule is ripe for consideration.
We believe, however, that any challenge to the three remaining proposals would be premature, even though appellants have suggested various ways in which these rules might have an impact on present affairs. The amended complaint states that the Best Interest Rule, which would give MIPTC the power to refuse to sanction any event that would not serve “the best interest of the sport,” is having a present anticompetitive effect because owners and producers of sanctioned events “must exercise extreme care ... to comply with all demands of [MIPTC] because of fear that [MIPTC] will otherwise utilize the new rule to refuse to sanction or withdraw the sanction of’ a given event. Likewise, appellants claim that the Conflicts of Interest Rule — which would allow MIPTC to prohibit certain players from participating in sanctioned events as wild cards — is having a present anti-competitive effect because “owners and producers of MIPTC-sanctioned events are being deterred from entering into any contractual relationships with player-agents ... for fear that ... the ongoing business relationship with the player-agent will cost that event its sanction or its cont[r]ol over its Wild Cards.” Finally, appellants claim that the rule relating to pooled television broadcasting rights is having a present anticompetitive effect because “it deters television companies from entering into long-term television contracts ... because of concerns about (1) the competition with an MIPTC contract with a television company for a substantial package of television broadcast rights to MIPTCsanctioned events, and (2) the legal effects of [the] rule.” These alleged present effects are all more attenuated, however, than the alleged present effect of the Special Events Rule. It is also much more difficult to predict how appellees will choose to employ the three remaining rules should they be enacted; thus, unlike the effect of the Special Events Rule, the effect of the other proposed rules may be clarified by the further factual development that would accompany their adoption.
We therefore hold that appellants’ challenges to the proposed Best Interest Rule, the Conflicts of Interest Rule, and the rule relating to the pooling of television broadcasting rights are not ripe for review. In the event that these rule