United States District Court, N.D. Illinois, Eastern Division
SADHISH K. SIVA, Plaintiff,
AMERICAN BOARD OF RADIOLOGY, Defendant.
MEMORANDUM OPINION AND ORDER
JORGE ALONSO UNITED STATES DISTRICT JUDGE.
Sadhish K. Siva, brings this antitrust action against
defendant, the American Board of Radiology
(“ABR”), contending that the maintenance of
certification (“MOC”) requirements for
ABR-certified physicians violate sections 1 and 2 of the
Sherman Antitrust Act, 15 U.S.C. §§ 1-2. Defendant
has moved to dismiss. For the following reasons,
defendant's motion to dismiss is granted.
one of twenty-four member boards making up the American Board
of Medical Specialties, which certify physicians in
thirty-nine specialties and eighty-six subspecialties.
Plaintiff is a physician who is both licensed to practice
medicine and certified by ABR in diagnostic radiology.
are licensed by medical boards of the individual states,
generally after they receive a medical degree and pass a
three-step licensing examination. Most states require
physicians to complete continuing medical education
(“CME”) courses periodically in order to maintain
their license. Licensure is legally mandatory for any
addition to licensure, most clinical radiologists also seek
certification from ABR, which requires physicians like
plaintiff to take an examination to “determine if
[they] have acquired the requisite standard of knowledge[, ]
skill[, ] and understanding essential to the practice of
diagnostic radiology.” (Compl. ¶¶ 18-19;
see Id. ¶¶ 88-89). Unlike licensure, board
certification is technically voluntary, but, as a practical
matter, according to plaintiff, it is “increasingly
mandatory for radiologists across the country” because
radiologists' essential partners in the health care
industry require it of them. (Id. ¶ 42.) For
example, hospitals often require radiologists to be
ABR-certified to obtain consulting and admitting privileges;
insurance companies require them to be certified to obtain
(higher) reimbursements and malpractice coverage; and medical
corporations and other employers require them to be certified
before they will consider them for employment.
most of ABR's history, its certifications were lifelong.
By 2002, however, before plaintiff had completed his training
in radiology, ABR had eliminated lifetime certificates and
begun issuing only time-limited ten-year certificates. ABR
imposed a new “maintenance of certification”
(“MOC”) program, which required ABR-certified
radiologists to renew their certification every ten years by
passing a “cognitive examination” and
periodically completing “Practice Quality
Improvement” projects. (Id. ¶ 22.) Under
a grandfather rule, radiologists who initially became
certified prior to the imposition of the MOC program are not
required to participate in MOC. For all other radiologists,
MOC is mandatory to maintain a valid certificate.
to plaintiff, ABR has itself admitted that the MOC program,
at least initially, did not meet its “aims” of
“aid[ing] in continuous learning and continuous
improvement.” (Id. ¶ 31.) ABR has twice
revamped its MOC program, but, in all three incarnations,
plaintiff alleges, “there is no evidence of an actual
causal relationship between MOC and any beneficial impact on
physicians, patients, or the public.” (Id.
¶ 48.) Nevertheless, ABR-certified radiologists,
including plaintiff, have been required to pay allegedly
exorbitant amounts for MOC and to meet burdensome testing and
education requirements, or risk their status as
Count I, plaintiff claims that ABR has tied its initial
certification product to its newer maintenance of
certification product in violation of section 1 of the
Sherman Antitrust Act, forcing radiologists to purchase MOC
to their detriment and the detriment of ABR's would-be
competitors. These competitors include the National Board of
Physicians and Surgeons (“NBPAS”), which seeks to
provide MOC services but has been unable to gain purchase in
the market, allegedly due to ABR's tying. In Count II,
plaintiff claims that ABR has violated section 2 of the
Sherman Act by illegally monopolizing the market for MOC.
Finally, in Count III, plaintiff asserts a state-law claim of
unjust enrichment, alleging that ABR has wrongfully retained
the benefit of funds paid for MOC services that served no
useful purpose to the physicians who purchased them, given
that there is no demonstrable link between MOC services and
improvement in the quality of care certified radiologists
motion under Federal Rule of Civil Procedure 12(b)(6) tests
whether the complaint states a claim on which relief may be
granted.” Richards v. Mitcheff, 696 F.3d 635,
637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must
include “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The short and plain statement under
Rule 8(a)(2) must “‘give the defendant fair
notice of what . . . the claim is and the grounds upon which
it rests.'” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)).
federal notice-pleading standards, a plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Id.
Stated differently, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Allegations that are as consistent with lawful conduct as
they are with unlawful conduct are not sufficient; rather,
plaintiffs must include allegations that “nudg[e] their
claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570. “In reviewing the
sufficiency of a complaint under the plausibility standard,
[courts must] accept the well-pleaded facts in the complaint
as true, but [they] ‘need[ ] not accept as true legal
conclusions, or threadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements.'” Alam v. Miller Brewing Co.,
709 F.3d 662, 665-66 (7th Cir. 2013) (quoting Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009)).
seeks relief via the Clayton Act, 15 U.S.C. §§ 15,
26, which provides a private right of action for treble
damages to any person “injured in his business or
property by reason of anything forbidden in the antitrust
laws[.]” 15 U.S.C. § 15. Section 1 of the Sherman
Antitrust Act prohibits “[e]very contract, combination
in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce . . . ” 15 U.S.C. §
1. This language has long been interpreted to “outlaw
only unreasonable restraints” of trade.
State Oil Co. v. Khan, 522 U.S. 3, 10 (1997).
Section 2 of the Sherman Act makes it unlawful to
“monopolize, or attempt to monopolize, . . . any part
of the trade or commerce among the several States.” 15
U.S.C. § 2.
SHERMAN ACT SECTION 1-TYING
alleges that defendant, which dominates the market for
initial certification, violates the Sherman Act by tying its
MOC services to its initial certification product, forcing
radiologists to purchase MOC in order to receive any
continuing benefit from initial certification.
A tying arrangement is “an agreement by a party to sell
one product but only on the condition that the buyer also
purchases a different (or tied) product, or at least agrees
that he will not purchase that product from any other
supplier.” N. Pac. R. Co. v. United States,356 U.S. 1, 5-6 (1958). Such an arrangement violates § 1
of the Sherman Act if the seller has “appreciable
economic power” in the tying product market and if the
arrangement affects a substantial ...