On a motion to dismiss, a district court may consider in addition to the complaint, exhibits attached to the complaint or matters properly subject to judicial notice as well as documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff’s pleading and facts in a plaintiff’s complaint which have since been conclusively contradicted by plaintiffs’ concessions. The district court properly dismissed this antitrust action because plaintiffs failed to properly allege a product market.  Advertising on bibs worn by golf caddies on professional golf tours was not a separate market or submarket since advertisers had many alternative means of reaching the target audience.  The mere fact that the audience couldn’t avoid the bibs as they could magazine or TV advertising was insufficient to make a separate market.

Ninth Circuit Court of Appeals (Thomas, C.J.); July 27, 2018; 2018 U.S. App. LEXIS 20905