Siva v. American Board of Radiology, No. 21-2334 (7th Cir. 2022)
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The Board, a private, nonprofit provider of medical certifications to radiologists, is dominant in the market for radiology certifications. All states permit physicians who are not Board-certified to practice medicine, provided they possess a valid state medical license. Siva, a Board-certified radiologist, says that most insurers will not grant in-network status to physicians who are not Board-certified; uncertified physicians are often shut out from meaningful employment opportunities. When the Board began selling certifications in 1934, radiologists who passed the examination would remain certified for life. The Board later shifted to “initial certification” and “maintenance of certification” (MOC). Radiologists who wish to remain Board-certified must participate in and pay for the MOC program annually, which requires continuing education credits from third parties, completing “practice improvement” activities, and passing Board-administered examinations.
The Seventh Circuit affirmed the dismissal of Siva’s antitrust suit. Siva argued that MOC should be thought of not as part of the Board’s certification product but as a unique product in its own right and that the Board’s decision to revoke the certification of radiologists who refuse to participate in the MOC program reflects not a benign product redesign but rather an illegal tying arrangement that violates the Sherman Act, 15 U.S.C. 1. Siva cannot identify a distinct product market in which it is efficient to offer MOC separately from certification.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 21-2334 SADHISH K. SIVA, Plaintiff-Appellant, v. AMERICAN BOARD OF RADIOLOGY, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:19-cv-01407 — Jorge L. Alonso, Judge. ____________________ ARGUED FEBRUARY 16, 2022 — DECIDED JUNE 28, 2022 ____________________ Before RIPPLE, SCUDDER, and KIRSCH, Circuit Judges. SCUDDER, Circuit Judge. In antitrust law, “easy labels do not always supply ready answers.” Broadcast Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 8 (1979). This appeal is a prime example of the need to look through labels to substance. Doing so reveals a pleading failure. At the outset of litigation, the burden falls to the plainti to articulate—in a short and plain statement—a plausible theory of his case. On this score Sadhish Siva has fallen short, so we a rm the district court’s 2 No. 21-2334 dismissal of his antitrust complaint challenging an alleged tying arrangement by the American Board of Radiology. I A The Board is a private, nonpro t provider of medical certi cations to radiologists—one of 24 such entities nationwide, each dedicated to a di erent medical specialty. Upon completing medical school and a residency program, newly minted radiologists can seek certi cation through the Board. Radiologists who pass the Board’s exam and pay the required fee become “Board certi ed.” The Board is the dominant rm in the market for radiology certi cations. Strictly speaking, Board certi cation is optional. As we recently explained, “all states permit physicians who choose not to become (or remain) Board certi ed to practice medicine,” provided they possess a valid state medical license. Assoc. of Am. Physicians & Surgeons, Inc. v. Am. Bd. of Med. Specialties, 15 F.4th 831, 832 (7th Cir. 2021). In medicine as in law, state licensing boards typically require doctors to complete a certain number of continuing medical education (or CME) credits each year to remain licensed to practice. But none require physicians to obtain Board certi cation. Even so, plainti Sadhish Siva, a Board-certi ed radiologist, says certi cation is “an economic necessity without which a successful medical career is impossible.” Most insurers will not grant in-network status to physicians who are not Board certi ed. And, partially as a result, uncerti ed physicians are often shut out from meaningful employment opportunities at hospitals, health systems, practice groups, and other medical employers. Accordingly, Siva alleges, “almost No. 21-2334 3 all [practicing] radiologists today have found it necessary to purchase [Board] certi cations.” When the Board began selling certi cations in 1934, radiologists who passed the Board examination would remain certi ed for life. But in the early 2000s the Board shifted away from lifelong certi cations to a model with two components: “initial certi cation” and “maintenance of certi cation” or MOC. Passing the Board exam now confers only initial certi cation. Radiologists who wish to remain Board certi ed must now participate in and pay for the MOC program each year. Those who do not will lose their certi cations and su er any attending professional consequences. What that means, Siva asserts, is that just as initial certi cation is voluntary in name only, radiologists have no choice but to participate in the MOC program. The MOC program has three main components. First, the program requires radiologists to obtain a certain number of CME credits each year from third-party CME providers. The complaint indicates that this requirement is largely “redundant of other CME obligations radiologists already have for State medical licensure and other professional purposes.” Second, the MOC program requires radiologists to complete certain “practice improvement” activities designed to teach new skills and practice techniques, though the complaint tells us little about what these activities are or how often they must be completed. Third, radiologists must pass certain Board-administered examinations or tests. MOC has taken various forms over the years, with most changes involving its testing component. In 2002 the Board began selling only 10-year certi cations that could be renewed by passing “onerous, full-day, high stakes, closed 4 No. 21-2334 book [recerti cation] examinations every ten years.” Starting in 2006, the Board charged radiologists an annual MOC participation fee in addition to fees associated with the 10-year exams. Then, in 2013, the Board unveiled “MOC 2.0,” which added annual evaluations on top of the 10-year recerti cation exams. Finally, 2019 saw the introduction of “MOC 3.0,” the program’s current iteration, which dropped the 10-year exam altogether in favor of what the Board calls an Online Longitudinal Assessment program or OLA. OLA tests consist of two multiple choice questions emailed to radiologists each week, or 104 per year, of which a radiologist must answer 52 correctly to pass. According to the complaint, OLA questions are very easy, so few radiologists are likely to fail. When the Board adopted the MOC program in the early 2000s, it imposed the requirement only prospectively. Radiologists who became Board certi ed prior to MOC’s arrival, therefore, are “grandfathered” into lifetime certi cations regardless of whether they participate in (or pass) the MOC program. The Board nevertheless o ers these radiologists the opportunity to partake in the MOC program voluntarily. According to one study cited in the complaint, however, only 14% do so. B The Board says this is all legitimate and lawful. It is in the certi cations business, after all, and a certifying entity gets to decide what applicants must do to earn its stamp of approval. On this view, the Board believes it was well within its rights to redesign its certi cation process to require participation in its MOC program—to move from a model of one-time, lifelong certi cation to a new design it says ensures radiologists No. 21-2334 5 remain well-quali ed to practice radiology throughout their careers. But Siva sees things di erently. He contends that MOC should be thought of not as part of the Board’s certi cation product but as a unique product in its own right. And so, Siva claims, the Board’s decision to revoke the certi cation of radiologists who refuse to participate in the MOC program re ects not a benign product redesign but rather an illegal tying arrangement that violates § 1 of the Sherman Act, 15 U.S.C. § 1. A tying arrangement is “an agreement by a party to sell one product but only on the condition that the buyer also purchases a di erent (or tied) product.” N. Pac. R. Co. v. United States, 356 U.S. 1, 5 (1958). Not all ties are prohibited, though. Indeed, many “are fully consistent with a free, competitive market.” Illinois Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 45 (2006). A tie is illegal only when the seller “exploit[s] … its control over the tying product to force the buyer into the purchase of a tied product” and in so doing “coerces the abdication of buyers’ independent judgment as to the ‘tied’ product’s merits and insulates it from the competitive stresses of the open market.” Je erson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12–13 (1984) (quoting Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 605 (1953)); see also Sheridan v. Marathon Petroleum Co. LLC, 530 F.3d 590, 592 (7th Cir. 2008) (explaining that the “traditional antitrust concern” with ties “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”). “When such ‘forcing’ is present,” the Supreme 6 No. 21-2334 Court has underscored, “competition on the merits in the market for the tied item is restrained and the Sherman Act is violated.” Je erson Parish, 466 U.S. at 12. Courts applying Je erson Parish have found such anticompetitive forcing when four elements are present. As a threshold matter, the challenged tying arrangement must involve two separate products or services. See Reifert v. S. Cent. Wisconsin MLS Corp., 450 F.3d 312, 317 (7th Cir. 2006). From there the plainti must allege that the defendant has “su cient economic power in the tying product market to restrain free competition in the tied product market,” that “the tie a ects a notinsubstantial amount of interstate commerce in the tied product,” and that the defendant “has some economic interest in the sales of the tied product.” Id. Siva asserts that the Board’s conduct checks each box. His chain of reasoning entails a few links. Prior to introducing the MOC program, the Board sold only lifetime certi cations to radiologists who had recently completed a residency program. In Siva’s view, then, certi cation represents a one-time, “knowledge-based assessment of postgraduate medical education and training.” But the MOC program, as the Board’s own bylaws acknowledge, serves a di erent purpose: “[t]o promote lifelong and continuous learning, professional growth, quality, and competence.” That latter purpose, Siva alleges, has long been served by a separate category of products—what Siva calls continuing professional development or CPD products. The term CPD encompasses a variety of “educational and developmental activities”—seminars, conferences, videos, and the like—aimed at “promot[ing] the development of both medical and nonmedical competencies, including professionalism, and No. 21-2334 7 interpersonal, managerial and communication skills.” According to Siva’s complaint, a robust market for CPD products (populated by medical schools, hospitals, professional societies, and other organizations) has existed for decades separate from and alongside the market for certi cations. Siva’s basic contention is that the Board’s MOC program— requiring, as it does, radiologists to complete a variety of continuing education activities to retain their certi cations—is nothing but a cleverly named CPD product, just like any other available in that separate market. By Siva’s account, then, the Board has used its monopoly in certi cation—a one-time, early-career assessment of competency—to force radiologists to purchase a lifetime subscription to its CPD o ering, a product some radiologists would like to buy from other providers in the CPD market. And that scheme, Siva says, has all the makings of an illegal tying arrangement under § 1 of the Sherman Act. C The district court dismissed Siva’s complaint, concluding that it had not plausibly alleged the rst element of a tying claim—that certi cation and MOC are two separate products. The district court did not quibble with Siva’s assertions that “MOC is a kind of CPD product” and that CPD products have long been sold separately from certi cations, a factor the Supreme Court has indicated points toward a nding of separate products. Instead, the district court reasoned that even if MOC was a CPD product by another name, that fact “d[id] not separate it from [the Board’s] core certi cation product because it does not account for the fact that MOC has been essentially integrated into the certi cation product in a way that no other CPD product has.” And so, because “radiologists 8 No. 21-2334 buy [MOC] to maintain [Board] certi cation,” the court concluded that MOC “is not ‘fungible’ with CPD products that do not serve that purpose,” and thus could not be thought of as a separate product from certi cation. Siva declined the district court’s invitation to amend his complaint and instead appealed, asserting that the court’s analysis re ected legal error. II At the pleading stage, Siva bears the burden of alleging facts giving rise to a plausible inference that, after discovery, he will be able to prove each element of his tying claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (explaining that a plainti must allege “enough facts to state a claim for relief that is plausible on its face”). Ensuring compliance with this standard is particularly important in the antitrust context so as to avoid “the potentially enormous expense of [antitrust] discovery in cases with no reasonably founded hope” of success. Id. at 559 (cleaned up); see also Assoc. of Am. Physicians & Surgeons, 15 F.4th at 835 (recognizing that “Twombly bars [a] discover- rst, plead-later approach” in part because “modern antitrust litigation is expensive”). We agree with the district court that Siva failed to carry his pleading burden, though we reach that conclusion for di erent reasons. A The separate-products question in tying law is notoriously murky. A savvy lawyer can describe any product as a tie of its components, and any tie as a single product. To cut through the metaphysics, the Supreme Court has set out a separateproducts test rooted in the purpose of the rule against tying— No. 21-2334 9 to prevent monopolists from leveraging power in one market to restrict competition in a second. See Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 1700d1 (4th ed. 2015) (Areeda & Hovenkamp). That forbidden result can occur, the Court has explained, only where “there is a su cient demand for the purchase of [the tied product] separate from [the tying product] to identify a distinct product market in which it is e cient to o er [the tied product] separately from [the tying product].” Je erson Parish, 466 U.S. at 21–22. The question “whether one or two products are involved” thus turns on “the character of the demand for the two items.” Id. at 19. Courts performing this inquiry must assess market demand “at the pre-contract rather than post-contract stage”— before the alleged tying arrangement went into e ect. Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 469 (7th Cir. 2020) (citing Areeda & Hovenkamp ¶ 1802d6). Doing otherwise by looking at market demand in the post-tie world runs the risk of “immuniz[ing] the worst-case scenario of a successful tie by which a monopolist successfully leverages a monopoly in the tying product into a monopoly in the tied product.” Areeda & Hovenkamp ¶ 1745d1. From this pre-contract vantage point, a number of objective indicators of market demand help answer the separateproducts question. Some useful considerations are “how the market participants have sold and purchased the [items],” Viamedia, 951 F.3d at 469, whether the two items are “separately priced and purchased,” Je erson Parish, 466 U.S. at 20, and whether they are “distinguishable in the eyes of buyers.” Id. at 19. But one factor courts may not consider, the Supreme Court has made clear, is “the functional relation between” the 10 No. 21-2334 two items. Id. And so, “the mere fact that two items are complements, [or] that ‘one … is useless without the other,’ … does not make them a single ‘product’ for purposes of tying law.” United States v. Microsoft Corp., 253 F.3d 34, 86 (D.C. Cir. 2001) (quoting Je erson Parish, 466 U.S. at 19). The focus is not on how the products function together, but on how consumer demand for them interacts. Assessing consumer demand may be especially di cult when a defendant creates a product bundle that has not been marketed in the past. See id. at 89 (explaining that “[t]he per se rule’s direct consumer demand and indirect industry custom inquiries are, as a general matter, backward-looking and therefore systemically poor proxies for overall e ciency in the presence of new and innovative integration”). In such cases, a nding of separate products may, by deeming bene cial innovation illegal, undermine antitrust’s goal of promoting consumer welfare. It is therefore essential to distinguish between those cases in which a defendant has “discovered a desirable new way of combining inputs into a better product,” and those that represent only “an anticompetitive tie that no one has tried before.” Areeda & Hovenkamp ¶ 1746. To do so, it is helpful to ask whether, in the past, “buyers were putting the items together to operate in the same manner as the defendant’s bundle.” Id. ¶ 1746a. If they were, the new bundle is more likely to be a tie than a truly innovative new product. See id. B Siva sees a straightforward tying arrangement here: the Board, to his eye, has leveraged its monopoly in the certi cation market to force radiologists to purchase MOC, a No. 21-2334 11 CPD product some radiologists would prefer to purchase elsewhere. If we start with “how the market participants have sold and purchased the [items],” it is easy to see that CPD products and certi cations are separate products. Viamedia, 951 F.3d at 469. Prior to the creation of the MOC program, Board certi cations were valid for life, and radiologists separately purchased CPD products from third-party vendors, both to comply with state licensing requirements and, one imagines, for their own betterment as medical professionals. Siva’s complaint identi es various institutions—medical schools, professional societies, clinics, and the like—that have sold CPD products to radiologists “for decades” without selling accompanying certi cation products. All told, “the character of the demand” for CPD products is distinct from that for certi cations, so they are separate products under Je erson Parish, 466 U.S. at 19. On that much everyone seems to agree. And Siva says that is the end of the matter: if CPD products and certi cations are separate products, and (as he alleges) MOC is a CPD product, then MOC and certi cations must also be separate products. Likewise, Siva adds, because radiologists for decades “were putting [CPD products and certi cations] together to operate in the same manner as the [Board’s] bundle,” there is no risk that tying liability here would sti e bene cial innovation. Areeda & Hovenkamp ¶ 1746a. The Board, appealing to the nature of certi cations, resists this conclusion. Because a certifying entity “has the right to set its own certi cation standards,” the Board says, its decision to exercise that right to modify its certi cation product to contain a CPD-style component is not subject to antitrust 12 No. 21-2334 scrutiny. After all, only the Board can o er “a program to maintain its own certi cation.” The district court saw things much like the Board. In its view, the long history of separate demand for CPD products and certi cations did not indicate separate products here, because “MOC has been essentially integrated into the certi cation product in a way that no other CPD product has.” As the district court put it, “a maintenance-of-certi cation program that lacks the imprimatur of the certifying entity has no value to any physician seeking to demonstrate that he has obtained and maintained certi cation.” Recall, though, that we must assess market demand from a pre-tie rather than a post-tie perspective. See Viamedia, 951 F.3d at 469. In the pre-tie world, Board certi cation was not something that needed to be “maintained” through completion of any CPD program; it was valid for life. So the district court was right to observe that “CPD products serve a di erent purpose from certi cation and had nothing to do with it” prior to the introduction of the MOC program. But the district court never went the next step to see that, in Siva’s view, this is precisely the problem: CPD products, he alleges, still have nothing to do with certi cation—in other words, consumer demand for the two products remains distinct. As such, Siva says, the Board’s decision to name its CPD product “maintenance of certi cation” is nothing but a clever means of disguising a tying arrangement. Siva therefore urges that we see through that strategic naming decision—that marketing ploy—in conducting the separate-products analysis. A fanciful example shows that Siva must be right. Suppose that, instead of the MOC program as it currently stands, the Board decided it would revoke the certi cations of any No. 21-2334 13 radiologist who did not purchase a monthly subscription of Board-branded o ce supplies. Further suppose that the Board calls its o ce-supplies subscription program “maintenance of certi cation.” It is easy to see that, despite the name, the arrangement concerns separate products. Consumer demand for o ce supplies has nothing to do with consumer demand for radiology certi cations. The Board’s decision to call its o ce supplies “maintenance of certi cation” does not make the two distinct products (radiology certi cations and o ce supplies) one. See William Shakespeare, Romeo and Juliet, act II, sc. ii (“What’s in a name? That which we call a rose by any other name would smell as sweet.”). The Board sells medical certi cations. As to o ce supplies, its “imprimatur” is irrelevant: radiologists do not demand the Board’s stamp of approval as to their taste in pens and staplers. Just so here, on Siva’s account. In reaching the conclusion that certi cation and MOC were a single product in part because of the degree of “integrat[ion]” between the two, the district court improperly approached the analysis from a post-tie perspective. See Viamedia, 951 F.3d at 469. And in crediting the Board’s characterization of its product over the well-pleaded and contrary allegations in Siva’s complaint, the district court also “may have drifted beyond reviewing the legal su ciency of [Siva’s] allegations into a fact- nding role.” Zimmerman v. Bornick, 25 F.4th 491, 493 (7th Cir. 2022). The mere fact that, as the district court found, “radiologists buy [MOC] to maintain [Board] certi cation,” does not mean that MOC “is not ‘fungible’ with CPD products that do not serve that purpose”—it may just mean that alleged the tying arrangement has worked as planned. 14 No. 21-2334 As the Supreme Court has explained, while rms are entitled to “substantial latitude” to design and redesign products in the pursuit of “legitimate business interests, … none of that means a party can relabel a restraint as a product feature and declare it immune from § 1 scrutiny.” Nat’l Collegiate Athletic Ass’n, 141 S. Ct. 2141, 2163 (2021) (cleaned up). We are therefore not required to accept the label the Board has given its product. We must instead determine what its product is—or, more precisely, what Siva’s complaint alleges it to be—guided by the Supreme Court’s precedents. We know that CPD products and certi cation products exist in separate markets. And so we must decide whether Siva has alleged su cient facts to make it plausible that MOC is in fact a CPD product that competes on the merits in that separate CPD market. C Siva has fallen short. He alleges that the Board has leveraged its monopoly in radiology certi cations to restrain trade in the market for continuing education CPD products. But just as the Board cannot escape tying liability by naming a CPD product “maintenance of certi cation,” Siva cannot survive dismissal by asserting in conclusory fashion that MOC is a CPD product. See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (explaining that conclusory allegations are “not entitled to be assumed true” at the pleading stage). Saying so is not enough: he must instead plead facts making it plausible that MOC is a substitute for other CPD products. See Reifert, 450 F.3d at 318 (“Products and services are in the same market when they are good substitutes for one another.”). To do so, the well-pleaded facts in Siva’s complaint must permit an inference of what economists call “cross-price elasticity” between MOC and other CPD o erings, such that—in No. 21-2334 15 a world without the tying arrangement—an increase in the price of other CPD products relative to MOC would shift sales to MOC. Id. at 319. Put in plainer English, the two products must be “reasonabl[y] interchangeab[le]” in the minds of relevant consumers, Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962), meaning that a radiologist shopping for CPD products might see the Board’s MOC program as a viable option for lling that need. To know whether the required cross-price elasticity could plausibly exist, it is essential to de ne not only what a CPD product is, but also what consumer demand in the CPD market looks like. Paragraph 99 of Siva’s complaint reveals that the CPD market is, at bottom, a market for educational content across a broad range of topics, including: value-based delivery and cost reduction, clinical knowledge and skills, patient experience, practice improvement, diversity and inclusion, interprofessional practice, doctor wellness and burnout, patient safety, working in teams, health care disparities, and population health. Paragraph 100, meanwhile, describes the variety of educational “[m]ethods and tools” employed by CPD vendors: [L]ectures, clinical case conferences, morbidity and mortality conferences, panel discussions, audience response systems, team-based learning, video or digital presentations, small group or paired interactions, online learning, coaching and mentoring, self-re ection and self-assessment, peer observation and feedback, patientled activities, debate formats, and simulations. 16 No. 21-2334 … Performance (i.e., the outcome or e ectiveness of the CPD product) is usually measured by examinations and simulations. Crucially, Siva’s complaint indicates that demand for this content seems to be driven largely by state licensing requirements. As the complaint explains, the rst CPD products appeared in the 1940s and 1950s, and they “proliferated in the ensuing years, especially as they became required for State medical licensure, which typically requires 40–50 hours of CME credit every two years.” The complaint goes on to explain that, as a result, “[t]he terms CME and CPD are sometimes used interchangeably or in tandem, for example as ‘CPD/CME.’” The “CPD market” described in Siva’s complaint thus seems primarily to be one for educational content accredited to satisfy state CME requirements. To the extent there exists a standalone market for non-accredited CPD products, Siva’s complaint tells us next to nothing about it. With that market structure in mind, we turn to the dispositive question: whether the complaint’s well-pleaded allegations permit an inference that radiologists would see the Board’s MOC product as a true competitor in the CPD market as Siva describes it. He says the answer is yes. His complaint asserts that the MOC program “encompasse[s]” all of the same educational topics using “[a]ll or many” of the same educational formats, making it just like any other CPD product available on the market. But a closer look at the complaint’s description of MOC undermines that assertion. Recall that the MOC program has three main components: (1) a requirement that radiologists obtain a certain number of CME credits each year “from third party CME providers”; (2) an examination component currently consisting of the No. 21-2334 17 weekly OLA tests; and (3) a series of so-called “practice improvement projects.” Siva’s theory of the case starts to come undone at the rst requirement. By his own characterization, demand for CPD products is really just demand for educational content that satis es state CME requirements. But there is no indication in the complaint that the Board itself actually produces, o ers, or otherwise has a nancial stake in any accredited CME products. Instead, MOC’s primary feature is a requirement that radiologists purchase CME (or CPD) products from other providers—the same medical schools, hospitals, professional societies, and other organizations that have long o ered CPD/CME products. Indeed, it seems radiologists could not purchase these products from the Board even if they wanted to—the Board does not o er them. Two conclusions ow from that observation. The rst is that MOC is an “unlikely substitute[ ]” for a run-of-the-mill CPD/CME o ering. Reifert, 450 F.3d at 319. No radiologist looking to ful ll his state CME obligations, in other words, would do so by purchasing MOC, because MOC simply imposes a redundant obligation that he purchase those credits elsewhere. The CPD/CME market is a market for educational content, Siva’s complaint tells us, but the MOC program contains no such content. MOC thus does not plausibly compete in the market for CPD/CME products. Our second point is that, for this reason, the alleged MOC tie poses no risk of foreclosing competition in the market for CPD/CME products— the hallmark of an illegal tying arrangement and the lynchpin of Siva’s theory of the case. See id. at 320. Do not let the acronyms distract. What all of this means in concrete terms is that Siva has failed to allege that the Board’s 18 No. 21-2334 challenged conduct could plausibly give rise to the result forbidden by the rule against tying—the use of monopoly power in one market (radiology certi cations) to restrict competition in a second market (continuing education products). Put another way, despite Siva’s conclusory assertions that the Board’s maintenance of certi cation program is a continuing education product, the well-pleaded facts point in the opposite direction—that the Board does not o er any product that could plausibly compete in the continuing education market. Our conclusion holds even when we consider the MOC program’s remaining two components—the Board-administered OLA tests and practice improvement projects. To be sure, unlike the CME-credit requirement, these features of the MOC program actually involve Board-created educational content. But Siva’s complaint gives us no reason to think radiologists would view these tests and activities as viable CPD products in their own right. Radiologists cannot earn CME credits by completing the weekly OLA tests or the practiceimprovement projects. Nor does it seem radiologists would buy them for any other reason. Indeed, to hear Siva tell it, these aspects of the program are good for nothing at all: the exams are “onerous and ine ective” and “wholly super uous,” he says, and the practice improvement activities are “burdensome and meritless” “makework with no value.” All told, Siva says radiologists “receive nothing of bene t in return” for the MOC fees they are forced to pay. The program, he concludes, is “worthless”—a moneymaking scheme that provides no independent professional value to radiologists. We do not doubt the sincerity of Siva’s frustrations with the MOC program, but these allegations do not help him No. 21-2334 19 plead an unlawful tying arrangement. To the contrary, they con rm our earlier conclusion that no radiologist shopping for CPD products would voluntarily purchase MOC if given the option. The products are not substitutes. As the Supreme Court in Je erson Parish explained, “when a purchaser is ‘forced’ to buy a product he would not have otherwise bought even from another seller in the tied product market, there can be no adverse impact on competition because no portion of the market which would otherwise have been available to other sellers has been foreclosed.” 466 U.S. at 16. If MOC is truly useless as a CPD product, in other words, then forcing radiologists to buy it poses no threat to competition in the CPD market. The arrangement is therefore innocuous from an antitrust perspective—at least on the allegations in Siva’s present complaint. That result makes sound sense. Siva alleges that the Board is a monopolist in radiology certi cations, but he does not assert that it obtained that monopoly unlawfully. See 15 U.S.C. § 2 (prohibiting only “monopoliz[ing]” and “attempt[ing] to monopolize”). If that is true, then the Board is well within its rights to charge a monopoly price for its certi cations. See Verizon Commc’ns Inc. v. Law O ces of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) (explaining that “[t]he mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system”). What is more, it may choose whether to collect that monopoly price all at once or over time. It would seem perfectly lawful, therefore, for the Board to charge radiologists an annual fee to maintain their certi cations in good standing. And there is no reason for the result to change if, in addition to the annual fee, the Board makes them jump through some hoops as well. As long as those 20 No. 21-2334 hoops do not harm competition in a second market, the Sherman Act is not violated. The only factual allegation in the complaint that might indicate that MOC is not worthless is Siva’s claim that some radiologists who are grandfathered into lifetime certi cations nevertheless purchase MOC unbundled from certi cation. For these radiologists, participating in the MOC program has no bearing one way or the other on their continued certi cation. And so they must have decided to pay for access to the MOC program for some other reason. But what is missing from this portion of the complaint is some factual allegation that these radiologists have purchased MOC instead of some other CPD o ering available on the market—that they are buying MOC as their CPD product of choice. Without such an allegation, we are left to conclude that Siva has failed to plead a plausible claim for tying. He has not plausibly alleged that MOC is a viable competitor in the market for CPD products. He therefore cannot identify a “distinct product market in which it is e cient to o er [MOC] separately from [certi cation].” Je erson Parish, 466 U.S. at 21–22. And more fundamentally, there is no chance that, as currently pled, the Board’s decision to force radiologists to purchase MOC could possibly restrain “competition on the merits in the [CPD] market.” Id. at 12. * * * Much of Siva’s pleading de cit here stems from not attending to the commands of Federal Rule of Civil Procedure 8. To survive dismissal, a complaint must articulate “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). But Siva’s No. 21-2334 21 complaint is neither short nor plain—its 379 paragraphs span nearly 80 pages. We understand, of course, that complex antitrust claims may lend themselves to lengthier complaints. But in Siva’s case, that added length clouded rather than clari ed his theory of the case. Having undertaken our own fresh, thorough review of Siva’s complaint, “accepting all wellpleaded factual allegations as true and drawing permissible inferences in [Siva’s] favor,” Aluminum Trailer Co. v. Westchester Fire Ins. Co., 24 F.4th 1134, 1136 (7th Cir. 2022), we conclude that the district court was right to dismiss it for failure to state a tying claim under § 1 of the Sherman Act. The district court’s judgment is AFFIRMED.
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