In a script we have seen before, the Plaintiffs brought the action pursuant to the Clayton Antitrust Act, 15 U.S.C. §§ 15 and 26 to recover treble damages, injunctive relief, costs of the suit, and reasonable attorney’s fees arising from violations of Sections 1 and 2 of the Sherman Act (28 U.S.C. §§ 1 and 2). The suit alleges that there is illegal tying of the ABIM’s initial board certification product to its maintenance of certification® (MOC®) product in violation of Section 1 of the Sherman Act and illegal monopolization and monopoly maintenance in violation of Section 2 of the Sherman Act. In addition, the suit alleges that ABPN's conduct has caused it be be unjustly enriched at the expense of the Plaintiffs and the other Class members.
The Complaint details the alleged harms experienced by the Plaintiffs and the numerous changes to ABPN MOC® the Plaintiffs and Class members endured since its implementation. In addition, the Complaint alleges:
"Between 2004 and 2017, after the advent of ABPN MOC, ABPN’s “Program service revenue” account exceeded its “Program service expenses” account by a yearly average of $8,777,319, as reported in its Forms 990 for those years. During that same period of time, ABPN’s “Net assets or fund balances” account skyrocketed 730%, from $16,508,407 to $120,727,606. In other words, at year-end 2017, as ABPN MOC revenue continued to grow, ABPN net assets (assets less liabilities) more than septupled, which included, according to its 2017 Form 990, almost $102 million in cash, savings, and securities."The Complaint also details allegations of unjust enrichment by the President and CEO of the ABPN, Larry R. Faulkner, MD:
In 2007, he was paid total compensation of $500,726 as Executive Vice President. Dr. Faulkner became ABPN President and CEO in 2009. In 2017, the last year for which data could be located, his total compensation as President and CEO was $2,872,861, including a bonus of $1,884,920.This lawsuit follows on the heels of two other class action antitrust lawsuits filed against the American Board of Internal Medicine and the American Board of Radiology.
As I've said before, it is critical working physicians see the legal battle against MOC® for what it is: not a campaign against continuing medical education, but rather a campaign against the massive runaway train of economic exploitation, self-enrichment, and micro-management of our professional lives that are now the hallmark of ABMS and its member boards.
I encourage all working physicians donate to our GoFundMe page to help support the next phase of the litigation as ABIM, ABR, and ABPN prepare their responses to the lawsuits.