ABR Wins Round 2 in its Antitrust Lawsuit

Judge Alonso dismissed the amended class-action lawsuit against the ABR on January 8, continuing the trend of denying a duel by trial in the ongoing saga of various doctors against the ABMS hegemony. You can read his opinion (~15 pages) here (and my most recent prior lawsuit-related post is here).

I can’t speak for its legal merits/basis, but as a non-lawyer, it’s pretty uninspiring. He largely turfs his interpretation to the prior ABIM lawsuit ruling.

The synopsis is that the judge is not convinced that initial certification (IC) and maintenance of certification (MOC) are different products because they were never sold separately. While IC was sold by itself, MOC was merely added decades later and never sold as a standalone product (never mind that a real monopoly would smartly generally avoid doing such a thing in real life).

This is probably a flaw in US antitrust law. When Microsoft got hammered for bundling Internet Explorer with Windows, Microsoft argued that IE was an inseparable part of Windows. This bundling crushed the browser war competition, further cemented Microsoft’s dominance, and stifled innovation for years. But part of what caused Microsoft to lose that argument was that IE was available on Mac, proving it could be a separate product. That detail, which in real life is functionally ancillary nonsense, was nonetheless key to proving Microsoft’s violation of the Sherman Antitrust Act.

Judge Alonso also doesn’t buy that there are separate markets for IC and MOC, not agreeing with the plaintiff’s new argument that MOC is essentially the same thing as other CME offerings. I agree that’s a hard sell, but he does discount that the NBPAS is selling its own MOC product as proof that separate demand for MOC exists (and that said NBPAS is struggling to compete given the ABMS monopoly in physician certification).

Would opening the gates to further scrutiny help? Should there be a chance to develop evidence? Would seeing some raw material from the ABR change the narrative?

It is true, as plaintiff argues, that many of the cases on which both parties rely throughout their briefs were decided, unlike this case, at the summary judgment stage or later, after the parties had the opportunity to develop evidence in discovery.

But then Alonso goes on to say he doesn’t believe the evidence will bear out the claims, so he’s not interested in seeing it. And even if it did:

On top of all of this, even if the Court assumes that initial certification and MOC are separate products, the Court still fails to see in what sense the tying arrangement alleged here poses a risk of foreclosure of competition in the tied market. “The traditional antitrust concern with [a tying arrangement] is that if the seller of the tying product is a monopolist, the tie-in will force anyone who wants the monopolized product to buy the tied product from him as well, and the result will be a second monopoly.”

The argument here is that essentially only MOC from the ABR has value because the ABR has a monopoly on IC. That MOC, even if untied, would be its own monopoly, because MOC from any other entity in this context would be meaningless. This is probably true in the current regulatory climate but is also guaranteed by rulings like Alonso’s.

Ultimately, the issue in medical certification isn’t necessarily the tying of MOC. It may be meaningless rent-seeking, but it may well be within the purview of the ABMS member boards. The underlying problem is that the complex regulatory and credentialing environment now includes (historically optional) certification to such an extent that no competitor can feasibly provide an alternative to initial certification. And this lack of competition and accountability has led to bloated organizations with outsized revenues and debatable value.

Although the Court doubts at this point that plaintiff will be able amend the complaint to state a claim, it cannot say so with certainty, so the dismissal is without prejudice and with leave to amend. Alternatively, plaintiff may elect to stand on the amended complaint and ask the Court to enter a final and appealable judgment.

And so, round two formally concludes.

Any amended complaint is due by February 5, 2021, but I suspect this may be the end given the legal costs. One guy against a monolithic organization with deep pockets was always going to be a tough battle. I doubt there’s much more here to amend for Alonso’s sake, but certainly appealing a final judgment to a higher court would be conceivable.

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