Daniel v. American Board of Emergency Medicine

KATZMANN, Circuit Judge,

concurring in part and dissenting in part:

I concur in the majority’s well-reasoned determinations that personal jurisdiction in the Western District of New York does not exist over CORD and the Hospital Defendants, and that venue in the Western District is not supported for ABEM. I respectfully dissent, however, from the conclusion that transfer to another district is not in the interest of justice because the plaintiffs lack antitrust standing.

I respectfully disagree with the two conclusions underlying the majority’s view that the plaintiffs here cannot demonstrate standing: 1) that they have not demonstrated antitrust injury, and 2) that even if they could show antitrust injury, they do not have an adequate self-interest in securing relief to vindicate the public interest in antitrust enforcement.

Antitrust Injury

I believe the antitrust injury inquiry is in fact a simple one. The antitrust injury requirement “ensure[s] that ‘a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s behavior.’ ” Primetime 24 Joint Venture v. NBC, 219 F.3d 92, 103 (2d Cir.2000) (quoting Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990)). Here the allegations in the Second Amended Complaint meet this burden. They state that because the defendants closed the practice track and continue to forbid practice-track physicians from taking the certification exam, the plaintiffs are being “unreasonably restrained from competing in the market” for ABEM-certified emergency physicians, and that as a consequence, the plaintiffs “have been and continue to receive substantially less remuneration than ABEM certified emergency physicians.” ¶ 104. These allegations suffice, in my view, to allege losses stemming from a competition-reducing aspect or effect of the defendant’s behavior.

Indeed, this case is not unlike other antitrust cases in which courts have held that health care providers alleging harm from anti-competitive practices have demonstrated antitrust standing. In Brader v. Allegheny General Hospital, 64 F.3d 869 (3d Cir.1995), a physician claimed that a conspiracy had resulted in the termination of his hospital privileges, and that the loss of these privileges prevented him from obtaining privileges at other hospitals. Id. at 871-72. He alleged that this constituted a Sherman Act violation, id., stating that the defendants’ actions “prevented the Plaintiff and others from engaging in the practice of general vascular trauma surgery in the relevant market,” which “prevented competition in the relevant product market within the relevant geographic market.” Id. at 875-76. The court concluded that these allegations — which are similar in all important respects to the plaintiffs’ allegation here — sufficed to demonstrate antitrust injury. Id. at 876-77. See also Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 272-73 (3rd Cir.1999) (holding that a surgeon-plaintiff who had sued three hospitals for effectively excluding him from staff privileges had shown antitrust injury and antitrust standing).

The majority, however, concludes that the plaintiffs cannot possibly demonstrate antitrust injury because the plaintiffs’ “theory of remuneration is not simply that ABEM-certified doctors command super-competitive remuneration; their injury is the inability to do likewise.” Majority Op. *446at 438. To support the assertion that the plaintiffs seek to earn “super-competitive” wages, the majority makes several assertions about the relief the plaintiffs seek. In my view, these assertions are problematic.

First, the majority contends that the plaintiffs’ theory “was not that they were denied the competitive remuneration that the market would have awarded but for domination by the defendants’ cartel.” Majority Op. at 439. I believe, however, that this statement is belied by the Second Amended Complaint, which states that the plaintiffs have been deprived of the opportunity to “compete for the higher salaries paid to ABEM eligible and ABEM certified emergency physicians.” ¶ 104 (emphasis added). Because the complaint specifies that the plaintiffs, if they obtain the remedy they seek,-will compete with existing ABEM-eligible and ABEM-certified emergency physicians, the complaint makes clear that the plaintiffs do in fact seek the compensation that the market would have awarded them but for domination by the defendants’ cartel. True, these salaries will be higher than the plaintiffs’ current salaries. However, the plaintiffs’ demands are consistent with consumer benefit, in that increased supply could result in lower- salaries for ABEM-certified physicians in general, and lower prices for consumers of their services. In the end, if the practice-track exclusion is anti-competitive in violation of the Sherman Act, and plaintiffs are awarded the relief they seek, consumers will have more choices as they seek the highest quality ABEM-certified service at the lowest price — exactly the sort of outcome the Sherman Act is designed to foster. See Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958) (stating that the Sherman Act rests on the premise that competition “will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress” and adding that “the policy unequivocally laid down by the Act is competition”).

Second, the majority states that the “[pjlaintiffs do not ... sue to eliminate the eligibility criteria for ABEM certification that they claim allows defendants to limit market supply.” Majority Op. at 440. However, the Second Amended Complaint seeks to have ABEM “permit plaintiffs and the class they represent who, as of the date of judgment herein, or with the passage of time, meet ABEM’s practice track criteria ... to take the ABEM certification examination.” In my view, this would constitute the elimination of the eligibility criteria that the plaintiffs claim allows the defendants to limit market supply illegally.

Third, the majority states that the plaintiffs “do not seek an injunction allowing any licensed doctor to take the ABEM exam so that all who pass can receive board certification in emergency medicine.” Majority Op. at 440. This is true. However, this only means that the plaintiffs will earn “super-competitive” remuneration if one assumes that all restrictions on who may take the certification exam are illegally anti-competitive. The plaintiffs do not allege the illegality of restrictions other than the restriction on practice-track physicians. Whether excluding physicians who are neither residency-track nor practice-track physicians is lawful might be the subject of some other litigation brought by some other set of excluded plaintiffs. At this stage of this litigation, however, without further discovery, I believe we must accept not only the plaintiffs’ allegations that excluding practice-track physicians is illegally anti-competitive, but also the view — implicit in the complaint — that excluding all physicians other than residency-track physicians and *447practice-track physicians is reasonable and not illegal.25

Fourth, the majority states that the plaintiffs seek to restore practice-track eligibility only “temporarily.” • Majority Op. at 440. However, the Second Amended Complaint seeks to have the certification exam open to all class members “who; as of the date of judgment herein, or ivith the passage of time, meet ABEM’s practice track criteria.” (emphasis added). I believe the complaint thus seeks relief that is by no means temporary. A footnote in the majority opinion suggests that at oral argument plaintiffs’ counsel admitted that the sought-after remedy is less than permanent. Majority Op. at 440-41 n. 22. In the relevant portion of the oral argument, counsel was asked whether, because “demand is exceeding supply” in the market for emergency medicine services, the total cost of such services would stay the same, even if relief were granted. Oral Arg. Recording at 10:55:53. Counsel responded, in part, that even if demand is currently “exceeding supply,” that might change if a court granted the relief the plaintiffs seek, so that supply would increase to fulfill demand, and “have market forces take over entirely.” Id. at 10:56:10. Later, in response to a follow-up question, counsel stated that once practice-track physicians are permitted to take the certification exam, and supply has increased, “the violation presumably will have ceased.” Id. at 10:56:43. I view these responses as simply assuming hypothetically that market forces have taken over and violations have ceased because the plaintiffs have obtained the ongoing relief they seek. Neither response indicates a concession “that, at some future point, ... it would be appropriate to close the practice track.”

For these reasons, I do not believe that the plaintiffs seek to earn “super-competitive” wages, or any other relief that is inconsistent with their' allegations that 1) prohibiting practice-tráék physicians from taking the certification exam is illegally anti-competitive and 2) the plaintiffs have suffered antitrust injury as a consequence.

Of course, it may be that the plaintiffs are not entitled to relief on the merits. Perhaps the exclusion of practice-track physicians is entirely reasonable because, in fact, its pró-competitive benefits outweigh its anti-competitive effects. For example, perhaps physicians who would qualify for the exam only through practice experience are fundamentally less skilled than those who have completed an approved residency program. These issues, however, are classic “rule of reason” questions, distinct from the antitrust standing question.26 See Geneva Pharms. Tech. *448Corp. v. Barr Labs., Inc., 386 F.3d 485, 506-07 (2d Cir.2004) (summarizing rule of reason analysis); Angelico, 184 F.3d at 272-76 (holding that a surgeon-plaintiff who had sued three hospitals for effectively excluding him from staff privileges had antitrust standing, and distinguishing between antitrust standing and anti-competitive market effect under the rule of reason analysis); Fine v. Barry & Enright Prods., 731 F.2d 1394, 1397-99 (9th Cir.1984) (holding that a plaintiff who was not permitted to be a contestant on a game show because of restrictions on repeat appearances had standing to sue but did not demonstrate sufficient injury to the con: testant market under a rule of reason anal-, ysis).

The majority relies principally on Sanjuan v. American Board of Psychiatry and Neurology, Inc., 40 F.3d 247 (7th Cir.1995). I believe Sanjuan is fundamentally different from the case before us. In that case, the physician-plaintiffs had failed an oral examination of the American Board of Psychiatry and Neurology. See id. at 248. The plaintiffs had neglected to show that their exclusion harmed consumers, instead demonstrating only that it harmed the plaintiffs. See id. at 251 (observing that “[i]t is hard to see how the Board’s activities could amount to an exercise of market power, which entails cutting back output in the market and thus driving up prices to consumers,” and adding that “[w]hen challenged, plaintiffs revealed that they want to show injury to producers”). Sanjuan is thus a classic case of alleging harm to competitors, not competition, which, as the majority rightly points out, does not suffice for Sherman Act protection. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977) (“The antitrust laws, however, were enacted for ‘the protection of competition, not competitors.’ ”) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962)). Here, by contrast, the plaintiffs have alleged that the defendants have “severely limit[ed] the output of ABEM certified and ABEM eligible emergency physicians” and that “higher costs of ABEM emergency physicians have been passed on to consumers of ... such services.” Second Amended Complaint at ¶¶ 94, 96. Because they have alleged that relevant conduct does in fact harm consumers and not just themselves, I believe the plaintiffs in our case have alleged “injury of the type the antitrust laws were intended to prevent.” Brunswick Corp., 429 U.S. at 489, 97 S.Ct. 690.

The majority also cites to Todorov v. DCH Healthcare Authority, 921 F.2d 1438 (11th Cir.1991). I believe this case is also inapposite. In Todorov, an appeal from a summary judgment grant, the Eleventh Circuit concluded that if a local hospital granted the plaintiff-physician privileges to administer CT scans, that physician — a neurologist who did not specialize in CT scans — would “administer and interpret CT scans of the head less efficiently than the radiologists,” who would “reduce the price of CT scans of the head until [the plaintiff] could no longer participate in the market at a profit.” Id. at 1453. The plaintiff “eventually would either be driven from the market or reach some agreement with the radiologists to fix prices,” an outcome that “would not benefit consumers,” and the Seventh Circuit thus affirmed the grant of summary judgment to the defendants for lack of antitrust standing. Id. at 1453-55. Here, we consider the antitrust injury question on a motion to dismiss, when only limited discovery has been conducted. In this posture, there is no basis to conclude that 1) if practice-track physicians were permitted to sit for the certification exam, those who passed would provide emergency medicine *449services less efficiently than do residency-track physicians; 2) that residency-track physicians would reduce their prices until the practice-track physicians were either driven from the market or agreed to fix prices; and 3) that consumers would not benefit. Consequently, I do not believe Todorov affords a basis for concluding that the plaintiffs cannot show antitrust injury.27

Self-Interest in Securing Relief and the Associated General Contractors Factors

Second, the majority concludes that the plaintiffs cannot demonstrate standing based on one of the “other reasons” courts sometimes consider in analyzing antitrust standing. Majority Op. at 443. These additional factors, analyzed once antitrust injury has been demonstrated, were originally identified in Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) and are sometimes referred to collectively as the “efficient enforcer” analysis.

Here, the majority bases its conclusion on just one of the Associated General Contractors points: “[t]he existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement.” Id. at 542, 103 S.Ct. 897. The majority expresses concern that the plaintiffs have no “natural economic self-interest” in reducing the cost of emergency medical care to consumers. Majority Op. at 444. Of course, it cannot be the case that any plaintiff seeking to increase its income fails the Associated General Contractors analysis. Such a rule would essentially prohibit antitrust suits by competitors, which the majority acknowledges is simply not the law. Majority Op. at 439. Rather, the majority rests its holding on a different ground: that health insurers are better suited than the plaintiffs to vindicate the public’s interest in lower costs.

In Associated General Contractors, the Supreme Court grappled with the problem that a literal reading of section four of the Clayton Act “is broad enough to encompass every harm that can be attributed directly or indirectly to the consequences of an antitrust violation.” Id. at 529, 103 S.Ct. 897. As the majority, opinion here observes, Associated General Contractors concluded that Congress must have intended that litigation under section four of the Clayton Act “would be subject to constraints comparable to well-accepted common-law rules,” such as “foreseeability and proximate cause, directness of injury, certainty of damages, and privity of contract.” Id. at 532-33, 103 S.Ct. 897. To stay faithful to this congressional intent, the Court laid out the factors we now call the “efficient enforcer” analysis to “guide the exercise of judgment” in determining “whether a party injured by an antitrust violation may recover treble damages” under the Clayton Act. Id. at 536-37, 103 S.Ct. 897. The Associated General Contractors plaintiffs were unions alleging that a multi-employer association and its members coerced third parties and association members into business relationships with non-union firms. Id. at 520, 103 S.Ct. 897. Applying the multi-factor analysis, the Court held that these “allegations of conse*450quential harm” were “insufficient as a matter of law.” Id. at 545, 103 S.Ct. 897.

Associated General Contractors offers no guidance as to how many factors must weigh against a plaintiff in order to find that a Clayton Act remedy is precluded, or which factors are the most important. It seems clear, however, that the ultimate purpose of the “efficient enforcer” analysis is not to find the ideal plaintiff, nor the most altruistic one, nor the one most grievously injured by the anti-competitivé conduct. Rather, the purpose is to ensure that the statute is not read so broadly that any person who has been harmed by anti-competitive conduct, however remotely or indirectly, is granted a right to sue. See also Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 416-17, 124 S.Ct. 872, 157 L.Ed.2d 823 (Stevens, /., concurring) (observing that the Associated General Contractors interpretation of section four was intended to avoid duplicative recoveries and complex apportionment of damages, and stating that this interpretation “has thus adhered to Justice Holmes’ observation that the ‘general tendency of the law, in regard to damages at least, is not to go beyond the first step’ ”) (quoting Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 533, 38 S.Ct. 186, 62 L.Ed. 451 (1918)).

I simply do not believe it is necessary, in order to effectuate this purpose, to preclude suit by the plaintiffs in the present case solely because insurance companies appear to have a greater self-interest in vindicating the public interest in antitrust enforcement. In my view, the Associated General Contractors issues here are similar to those in Potters Medical Center v. City Hospital Association, 800 F.2d 568 (6th Cir.1986), in which the Sixth Circuit considered antitrust claims brought by a small hospital, Potters Medical Center, against the East Liverpool City Hospital, a nearby larger hospital. . Id. at 570-71. Potters alleged that City Hospital violated the Clayton Act by refusing to grant staff privileges to doctors with privileges at Potters, pressuring doctors with City Hospital privileges not to obtain Potters privileges, and harassing doctors to prevent them from referring patients to Potters. Id. at 571. The district court had ruled that the plaintiffs lacked antitrust standing based on a'multi-factor test similar to our “efficient enforcer” analysis and derived from Associated General Contractors. Id. at 575. The Sixth Circuit reversed, finding that 1) Potters was “clearly a competitor” in the market for inpatient physician services — a fact that weighed in favor of standing; 2) Potters’s injuries flowed directly from the alleged antitrust violation; 3) damages were somewhat speculative, but not enough to preclude standing; and 4) the risk of duplicative recovery was minimal. Id. at 576, 580. It seems that the identical multi-factor analysis would yield the same result in this case. Moreover, presumably, insurance companies would have been as well situated to demand that City Hospital grant staff privileges to Potters physicians as insurers are in our case to demand that the defendants reopen the practice track.. This possibility apparently did not trouble the Sixth Circuit.28

The majority attempts to differentiate Potters by suggesting that the plaintiffs here, unlike those in Potters, do not seek to “forbid exclusivity” by trying “to de*451stroy an anticompetitive arrangement.” Majority Op. at 441. However, as noted above, the plaintiffs here seek to forbid the exclusion of practice-track physicians from ABEM certification, which would destroy an allegedly anti-competitive arrangement. True, as the majority points out, their relief would preserve some exclusivity for the certification exam. Majority Op. at 442. But again, I believe this only means that the plaintiffs see some restrictions on who may take the exam as reasonable and legal, even though, they contend, prohibiting practice-track physicians from taking the exam is illegally anti-competitive. In the Sixth Circuit case, Potters itself engaged in the common practice of only granting staff privileges to certain physicians, Potters, 800 F.2d at 571, but this did not prohibit it from contesting the defendants’ allegedly illegally anti-competitive practices.

Thus, I cannot agree with the majority that the plaintiffs lack standing based on the Associated General Contractors “efficient enforcer” factors.

The Competitor/Consumer Baseline and the Likelihood of Success

I add only one further point concerning antitrust standing. A review of cases and commentaries indicates that courts do indeed dispute the circumstances under which a party that is neither a competitor nor a consumer may demonstrate antitrust injury or satisfy the Associated General Contractors analysis. However, I believe there is agreement that competitors and consumers constitute a baseline set of parties that generally do meet these tests. See Illinois ex rel. Ryan v. Brown, 227 F.3d 1042, 1046 (7th Cir.2000) (“[Normally only consumers or competitors have standing ....”); Carpet Group Int’l v. Oriental Rug Imps. Ass’n, 227 F.3d 62, 76-77 (3d Cir.2000) (“[Generally only competitors and consumers will suffer antitrust injury .... ”); Serpa Corp. v. McWane, Inc., 199 F.3d 6, 10 (1st Cir.1999) (“Competitors and consumers in the market where trade is allegedly restrained are presumptively the proper plaintiffs to allege antitrust injury.”); Fla. Seed v. Monsanto Co., 105 F.3d 1372, 1374 (11th Cir.1997) (stating that “[bjasically, a plaintiff must show that it is a customer or competitor in the relevant antitrust market” to show it is an efficient enforcer); Bell v. Dow Chem. Co., 847 F.2d 1179, 1183 (5th Cir.1988) (“Restraint in the market affects consumers and competitors in the market; as such, they are the parties that have standing to sue.”); Gen. Indus. Corp. v. Hartz Mountain Corp., 810 F.2d 795, 809 (8th Cir.1987) (“[Sjtanding to sue under the Sherman Act is limited to a consumer or competitor that proximately suffers antitrust injury.”) (quotation marks omitted); Bhan v. NME Hosps., Inc., 772 F.2d 1467, 1470 (9th Cir.1985) (stating that the efficient enforcer analysis requires “that the injured party be a participant in the same market as the alleged malefactors”); see also C. Douglas Floyd, Antitrust Victims Without Antitrust Remedies: The Narroiving of Standing in Private Antitrust Actions, 82 Minn. L.Rev. 1, 2 (1997) (observing that lower federal courts have distilled Supreme Court holdings to the principle that antitrust standing “should be limited, either absolutely or presumptively, to consumers or competitors adversely affected by the defendant’s anticompetitive conduct”). In my view, to suggest, as the majority does, that a competitor does not have standing if 1) the competitor seeks to earn a higher wage by ending some but not all exclusions from a market, or 2) some other class of competitors or consumers apparently has a greater self-interest in remedying the violation, departs from the mainstream of antitrust standing cases.

*452And, of course, here, we are not even deciding the standing issue conclusively. We need only decide whether the plaintiffs have a likelihood of demonstrating antitrust standing in another district, such that the plaintiffs have not “plainly fail[ed]” to demonstrate a meritorious claim. Adeleke v. United States, 355 F.3d 144, 152 (2d Cir.2004); see also Phillips v. Seiter, 173 F.3d 609, 611 (7th Cir.1999) (stating that transfer is inappropriate when “the case is a sure loser” after transfer, because transferring would simply “waste the time of another court”). For the reasons described above, I believe that the plaintiffs’ chances of success are significantly better than this.

Consequently, although I concur in the jurisdiction and venue analyses, I respectfully dissent from the majority opinion to the extent it refuses to transfer this matter to another district.

. Of course, not all exclusions are violations of the Sherman Act. See, e.g., White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963) (stating that vertical territorial limitations "may be allowable protections against aggressive competitors or the only practicable means a small company has for breaking into or staying in business” and hence permissible under the antitrust laws); Angelico, 184 F.3d at 276 n. 3 (stating in a health care exclusion case that "[g]roup boycotts or concerted refusals to deal are not always per se violations of the Sherman Act; rather, the analysis turns on the facial effects of the challenged practice.”); Retina Assocs., P.A. v. Southern Baptist Hosp., 105 F.3d 1376 (11th Cir.1997) (holding that a referral agreement between non-specialized ophthalmologists and a retina specialist, under which the plaintiffs, retina specialists, received virtually no referrals, was neither per se unreasonable nor illegal under the rule of reason analysis).

. Moreover, such questions simply cannot be resolved without significant additional discovery, a fact that the majority opinion seems to acknowledge, when it states that "[c]areful economic analysis is necessary to determine the overall competitive effect and consumer benefit from” permitting non-ABEM-certified emergency medicine physicians to become ABEM-certified. Majority Op. at 442 n. 24.

. Indeed, at least one commentator has concluded "[t]he Todorov court's approach to antitrust injury was wrong,” because, the antitrust injury question does not require the involved economic analysis engaged in by To-dorov, analysis that is more relevant "to anti-trast liability, to causation, and to determining the amount of damages.” Ronald W. Davis, Standing on Shaky Ground: The Strangely Elusive Doctrine of Antitrust Injury, 70 Antitrust LJ. 697, 750 (2003).

. It is worth noting that were we to transfer this case, we would presumably transfer it the Western District of Michigan, where ABEM is located, and where the plaintiffs’ applications were denied. Because Michigan is in the Sixth Circuit, if the Potters facts relating to antitrust standing are essentially similar to those here, as I believe they are, Potters would control.