good morning everyone and welcome to the th circuit will take the cases in the order of the day it the st case for argument is jeremy conklin versus universe if washington edi pleading requirements for his antitrust claim where he alleges that you dubbed conspired with m d certifying boards and entities to restrict access to deal train physicians from accessing the c c s fellowship program at u double school not only is this restriction in the free market and reduction in consumer choice the exact type of antitrust injury that the sherman act is designed to prevent but it violates clear washington law prohibiting discrimination against osteopaths at all levels including an educational and training privileges is there any injury to competition or harm to competition other than lessening consumer choice so is there i mean at looking at the cases they talk about impact on output and price impact on services impact on quality or any of those injuries well there we might find those injuries your honor once we get to the discovery portion of restrictive to focus on the quality of the medical provider at issue the question is what the consumer prefers what the consumer wants what the consumer is going to choose and looking only at is really the only thing that is the that  is limited in this context i think maybe the best evidence that there is your honor is the very fact that the anti discrimination provision exists under washington law in many other state laws is that there's obviously a public policy here that some consumers p anything of that sort here or is it how is it material in any way of this and the policy it's material because we're placing an artificial restriction on the free market consumers prefer should have the choice of dio's or m d s many consumers p get around oh d as opposed to n d with with your client and again it's not just one extra here your honor in some of health in cases like olds and we haven't you haven't alleged that others want were denied  category exclusion of dio's that there is a artificial restraint on the market where deals must have this arbitrary certification from an m d board when state law medicare and the other discrimination provisions in washington law recognise that they are functionally equivalent and there shouldn't be no artificial restraint in the market here and it's and even though we don't have a shortage effect we have alleged that there is only less than a few there's a fraction of a percent of all start cardiac trick surgeons in the programs that train deal surgeons that should be recognized just as in the same light as how does that hurt competition with respect to output or quality or anything like that if you want to perform if you want to perform s fellowship you have to fall the empty path and there's and again that restricts consumer choice it restricts access and when we get to the discovery stage we might show and do that that raises prices or does something else but we don't have that information yet without the benefit of  about the causation here because isn't it true that had your client chosen in a c g m e accredited residency that this wouldn't become an issue he could have still gone out and  performed well he did complete some ac jimmy training your honor he also completed some osteopathic training and they said you have to have only the ac jimmy tour and you have to have only the empty training and we've all but i thought if he had finished an a c g any accredited residency that he then i didn't realize it was so you're saying that was an exclusionary you had to have only one you can now both correct so if he went back and did macy g m e accredited residency wasn't yeah but he can't have he can't right now go back and retrain that's in the complaint the medicare system won't allow that won't provide the funds for that and it's in the record that he he can't i mean the  problem here is that he's certified under the deal boards for these exact same standards the standards that should apply universally under federal and state laws and they didn't in this case you want to say i would like to see the recent times that you s fellowship at your medical school i'm going to talk about both the and i trust claim and time permitting the discrimination claim and basically planned this but my time evenly between the two of them but since council spent all of his time in the end i trust claim will focus st on that so i want to begin with the simple and your refutable proposition which i think is implicit in all the argument that has occurred up to now which is that and i trust last protect competition not competitors  so i'm just reading from admiral coerced another form of antitrust injury is coercive activity that prevents its victims from making free choices between market alternatives which seems to support what opposing counsel is saying at lessening consumer choices and well it depends on what you mean by choice for example is a situation where there was predatory pricing that was going on with the purpose of driving independent rice mills out of business in other words taking competitors in the market who were there removing them from competition and presumably like most predatory pricing schemes with the ultimate intent of recouping what you've lost in the predatory pricing by using monopolistic pricing there after so that was a classic example where the is harm to competition played so that the harm the competition that mr what i'm focused on in his argument was the alleged deprivation of consumer choice but i think your honor focused on the important part of that is which is consumer choice to be meaningful in a competitive sense has to be a choice between different alternatives and here all that the complaint pleads is that there should have been a swapping out that for this one available c c s fellowship instead of there being an d it should have been a do you know that's it there is actually no allegation in the entire complaint that there was any other dio who's ever wanted to get into a c c s fellowship and been denied so this is the only one and in terms of consumer choice there is a repeated allegation that these two physicians of the dio and the m t a are equal in the opening brief says they are functionally equivalent there's about twenty pages of the amended complaint that talks about how the board certification and training is equivalent and most important they are all trained through the same c c s fellowship so when they get out there in the marketplace they are the same same training same procedures no allegation in the complaint that a doctor of osteopathy performs surgery on newborns any different than a doctor of medicine and allopathy philoscia i'm struggling a little bit with that because if that's the case then why would the  eligibility requirements for this particular fellowship make a distinction and only allow some of the one type of accreditation to go through that's actually in the complaint and the reason is that dr contemn alleges in his complaint that you can't practice c c s surgery without board certification board certification in c c s surgery is only available through the american i can't remember which the board of harassing surgeons but it's american college of the wrath of surgeons is the only entity that grants sports certification dr conklin is not eligible through their requirements not the requirements of university washington through their requirements is not eligible for board certification in c c s so if we allowed somebody in who was not eligible for word sort of occasion we descension to be training somebody who is then not eligible to go out in the marketplace and perform c c s services so that we can laugh with the plaintiff have an antitrust claim against the  board that's refusing to sort of well he originally named a lot of defendants and he dropped those on his appeal so i think the answer to that is a no for reasons i said get out if you are put it doesn't matter for purposes and i would story what about this g m e accredited residency is that i mean if he had chosen that do you agree with what was represented here that that even if he had chosen that it would have solved the problem no i mean the complaint says that if he osteopathic physicians who are eligible for this fellowship so that's also a complaint if that's true does that in and of itself defeat the causation prong for you know to a legit antitrust claim my thinking am i trying to make too much well i haven't thought of it in terms of causation but in the reason i haven't thought of it is to me i have this simplistic notion that if all you're doing is trading out competitors there's no injury to competition which case after case is held but i would say that yes it certainly breaks the causal chain because it means that it's not a decision of the university of washington that deprived dr conklin this opportunity it is a career path that he chose you know your honor might have chosen to go or not your i don't want to personalize this somebody might choose to go to a non a b a accredited law school and that may have consequences later on down the road for what their career opportunities are and and i hate to be blunt but that's life you know that's the way life works in this instance what i think is important to remember is that there are a lot of cases out there which are largely ignored by dr conklin that talk about this notion of trading out competitors a lot of cases involving for example where there are  exclusive arrangements between a hospital and a group of radiologists or a group of the negatives and that relationship is terminated and a new group comes in and there's an allegation well that's and i trust injury that's a competitive injury case after case s no that's not a competitive and you have mccready in which there is a difference between psychiatry as an psychologists and the court held out lessening the consumer choice there was also an antitrust injury but  that is an instance where as your honor talked about it you're going to put in terms of our puts i would put it in terms of supply in that instance what the alleged and i trust violation was doing was compressing the available competitors to just psychiatr and excluding a whole group that consumers could have chosen from in this in since there was one c c s fellowship available and the only question is does it do yo get it or does an m d get it it doesn't increase the supply to the consumer it's just swapping out and so is a nd circuit put in the baloch law case that we talk about from the consumer's point of view nothing about the market has changed there has been a mere shuffling reshuffling of competitors there's no piece from this circuit that uses those words but the th circuit has said the same thing and coffey the six circuit district courts have said the same thing all we're talking about here is a reshuffling they hope of dio's for m d s which is not an effect on competition it has an effect on occupy and i think and i would add your eye that all of the cases they talk about about exclusions like for example mccready are situations where there are specific allegations of harm to competition harm case for example which is out of this circuit but the high interest set were excluded from this you know medical plan well in that case the podiatrist specifically alleged that they charge less that they charge less so there is a price impact and indeed they talk about how the plan fix cheaper than what these guys do and that's why they wanted to freeze me up all of these cases have harmed competition alleged in a way that this case the so let me briefly think i just have a minute allude to the discrimination cl tick through very quickly what we think are simple and dispositive answers to that claim st that statute which mr or haim correctly points out for him is certain kinds of discrimination against doctors of occupancy covers only and  no private right of action is a one in and that's the one he spilled the most think on but frankly i think it's because it's the more complicated of the three but but yes there's no private about it but the rationale seems to be that his position no there's no reason for an investigation here not not because pacifically they didn't have jurisdiction when i read it to say there's no reason for an investigation here because we don't cover fellowships we don't cover education training and that's what i believe they said which goes to  argument correct it does because it just means they are reading the statute exactly the same way we're reading the statute because the nd actually the st one is he's not licensed the nd argument is it covers only applications to practice for a hospital and there's no allegation that he applied to practice at the hospital i see i'm out of time now so unless the court has additional questions for me i'm happy to submit this and we asked the judge last night be a friend in all respects thank you i think you're as i like to turn to the anti discrimination argument now and the there is a misrepresentation of the record to say that the department of health said we don't investigate fellowships that was the washington commission a special commission that deals with physician misconduct that gave that answer it was not the department of health speaking for the department of health as a whole when the department of health spoke for the department of health as a whole it was during the bill when the bill was being signed and they said this has no fiscal impact on us we don't we're not the ones to deals with physician misconduct who gave that answer and that's the one that says based on our review or we're closing this report without an investigation because it does not rise to the level of an investigation is it does not involve patient well being that's the department of health answer your honor the other the commission is  he one that said we don't deal with fellowships the because that commission deals specifically with with physician misconduct and so your honor again and i want this is the point of the statute is an anti discrimination statute and we cite numerous cases in our briefs where private causes of action are inferred in anti discrimination statutes and in an important washington case burnside do some some paper the court looked at anti discrimination laws which by their own terms said these only apply to inhabitants of washington state and yet the court said if you're an if you're an inhabitant of california applying for a job in washington these laws also apply to you inhabitants is far too restrictive the purpose of the statute is per to prevent discrimination we must further and not frustrate that purpose by reading it so limited as to mean to only apply to washingtonians that would be that's exactly the interpretation that i was asking for here that dr cochran had to have his license in hand before the statues and has for a short actions applied to him serving a period of clinical postgraduate medical training in a post graduate program approved by the board so again the purpose of this is to pry broadly to residents fellows we also score to reverse thank you very much thank you thank you we appreciate the