"... plaintiffs cannot establish that initial certification and MOC are two separate products capable of being tied; plaintiffs’ own allegations demonstrate that initial certification and MOC comprise complementary, continuous components of ABIM’s certification. They are not separate products. For that reason as well, plaintiffs’ claims that ABIM has unlawfully created and maintained monopoly power in violation of Section 2 of the Sherman Act fails. Because they have not met their burden of plausibly alleging the tying of two products, they cannot point to any unlawful (i.e., anticompetitive) conduct.In defense of their argument, the ABIM attorneys attempted to use two franchise analogies citing Krehl v. Baskin-Robbins Ice Cream Co. and the rejection of a tying claim brought by a Subway franchisee to plead the case that initial certification and MOC are not separate products, but rather one product.
On 30 April 2019, the plaintiffs' opposition to ABIM's Motion to Dismiss was filed. The plaintiffs' attorneys wasted no time countering ABIM's motion to dismiss (starting on page 2 with references removed):
"ABIM relies mostly on franchise cases to argue MOC is not a separate product. Putting aside for the moment that all of the cases it cites were decided on a fully developed factual record at summary judgment or after trial, ABIM’s franchise analogy misses the mark. Physician care is not Baskins Robbins ice cream, and patient treatment is not a Subway sandwich. Hence, the notion that ABIM can force MOC on internists in service of an illusory nationwide standard unilaterally imposed by ABIM offends the free market principles that are the hallmark of medical care in this country. Plain and simple, MOC is a failed and extremely costly product that ABIM, using its undisputed market power, forces internists to buy. Its exploitation of internists is further aggravated because while ABIM deceptively wraps itself in the mantle of self-regulation, it has no legislative, regulatory, or administrative authority at all and answers to no one, and certainly not to the internist community it misleadingly claims to be self-regulating."Read the whole rebuttal.
P.S.: Unless you feel your medical practice is just a fast food franchise, please support the physician-plaintiffs in this important legal effort to end MOC nationwide for all subspecialties.