ok that's that's granted i will keep track of time and i suggest that you do so to see don't get thrown off when we call it ok so much so you have a total of fifteen minutes in your opening court went well beyond its purview when it dismissed with prejudice the plaintiffs trying friends there are five reasons that ruling should be reversed st the court took it upon itself to restate the time claims entirely pla are forced to purchase mock products as well the district court got it exactly backwards and then dismissed its own claim but let me ask you a question about the tying claim and you can help me i thought the the big key issue here was single product vs separate products and i want you to help me on how to think about this now it seems to me that the objective of every internist is to be  certified and the a b a the a b a i am has set up two ways to be certified depending on where the internist is in his or her career right initial certification and then was what the a b m is selling is the certifications what's the flaw in that approach particularly when you look at the typical time claim where there are two products am selling two different product certification has always been a one time snapshot assessment postgraduate medical education and residency training that's what it's been the ninety years that it's mock quote means something different and quote from certifications and mock is designed to help keep internists current so that that's the difference between the two products and the history of the two products support separate demands mark is a continuing professional development product that has been sold separately from certifications not only by hundreds of other vendors or in the decades but also by a b i and itself but here's what i don't understand counsel the complaint of the plaintiffs is we're not certified if if each of the plaintiffs that are named ended up being certified there'd be there'd be purchase certifications and then when they did not buy the mock product the certifications were revoked and that and that's the type a b i am forces these were planted and inter that you are believing there is but in any case my my my question is this as as we look at mock mock involves horses of study taking examinations completing satisfying all the requirements how now that shows that there is some reflection of skill and training that's involved and it's not solely a reflection of the purchasing power impact now when you look at it that way how should that affect are any trust analysis so that's not a pure product as you are b d projects are not unique to mock and in fact the speed should have been satisfied in those new been satisfied by other vendors for decades without without those other vendors selling certification and i think b i am in reaching its decision now we have alleged discipline our complaint that there is no connection after years of studies and research there is no connection between mock and any benefit to doctors patients or  that you will let you you allege of beneath that the same or similar statements of fact and others to the same effect have been made by a b i am and its agents repeatedly over the years in addition to appearing on the website now you're obviously that speaks to the fraud part of your claim and i and i want we are claiming the project misrepresentations are or when they were made and where well but where in the complaint if you say there's no mystery we're in the complaint do you allege that the plaintiffs read or intended to help keep internists current and different vendors i guess approach that in different ways and that's that's the goal of all of them so that is the market and i think it does i'm professional development products as a result of a b i and tying and monopolization it has created a captive market market for that particular product giving consumers here in the internet i s no choice but to buy the mark product well how is the market different or is the market for the purpose of the monopoly when opposition claim different than the but good morning and thank you your honor lesley john on behalf of the aptly american board of internal medicine may it please the court this case is about the right of the american decided that it would require physicians to demonstrate that they were remaining current in the in the in their knowledge in the medicine in order to maintain their aboard certifications now a claim appellants claim that they're entitled to lifetime certification because they would rather not take the periodic examinations but that is not the product that they've bought this is one of a hand full of cases this case the last route case and the see the cases against certification organisations and three different courts have all looked at these allegations and each one has reached the same conclusion that they simply don't amount to an antitrust claim whether it be tying or monopolization or  enrichment and they certainly don't amount to a rico violation and this is the only case in which that particular fraud claim has been asserted now the parties agree on two key points appellants agree with a p i am that a b i am should not be prevented from determining its own standards and the appellant's also agree a b i am should not be required to accept any other continuous professional development or c p d product as a substitute for its certification or m o c and those areas of agreement can be a found in the appellants opening brief at pages ken twenty one and sixty now those two areas of agreement show the fundamental flaws that are inherent in appellants claim that really really really failure seeking here that they no longer be required to have to participate in m o c to maintain their certifications they ask that a b i am not revoke the certifications but in fact they could only get that re if a p i am were forced to accept their standards or another organization standards in lieu of its own but fundamentally that's not the product they bought and the only product a b i am has offered which is board certification and board certification that offered a limited time certification which by its terms would expire unless the  here and so the rule of reason would require as per se that there be two separate products that there not be forcing so in that respect that the test for tying is the same whether it's per se or our rule of reason but what the rule of reason does is it also adds in a nother requirement and that requirement is that in fact you show an effect on competition in the tight product market and the effect of competition in the tight product market here the tide product market is m o c or maintenance of certification now in his argument  appellants counsel confuses it because he says the tide product market is contingent condition continuous professional development but it's not if you look at the allegations in the amended complaint it's m o c continuous professional development is something that could be different so for instance taking continuing medical education and in fact a b i am excepts continuing medical education from any number of providers that allegation can be found in the amended complaint so here if it's if it's rule of reason you have to show an effect in the tide market not and that something quite frankly the allegations in the amended complaint don't give and i would just direct your attention to the cases  this court in the massachusetts school of law at andover versus a b a us vs brown university those cases quite clearly establish that rule of reason applies when considering rules adopted by professional societies and the court went on to say and this is in the massachusetts school of andover case even when their behavior resembles conduct usually subject to a person approach ground but we don't raise that on our motion to dismiss we raise the separate product and the forcing issues as well as the rule of reason issue on the motion to dismiss we haven't raised that as a separate  can you speak to the point particularly please yes so i would cement respectfully that fraud is not played here with particularity so looking let's look at those particular paragraphs o employer or other health care entity read a newsletter and nine hundred and ninety nine when there are no allegations about who this newsletter was sent to how it was disseminated it disseminated and who considered it and then you turn to paragraph one hundred and thirty five which is the a b i am website which contains statements such as m o c makes a difference and there are no allegations  follow that up that make it plausible that again every single hospital employer health care provider or other entity in the health care industry somehow looks at misrepresentations but none of the kinds of factual of ehrman's to support that are found in the amended complaint we don't know how it is ab i am if it does communicates with this know thousands of hospitals around the united states each making its own decision on whether it is going to look to board certification or not look to port certification so that this we have no details about how in fact this massive fraud is supposedly perpetrated and i think it's most telling when it comes to the facts surrounding each of the four specific  in this case who claim that a hospital made it may have made a decision about their at mending privileges and yet there are none of the details about what that hospital considerate what process that hospital followed we don't know anything that would allow us to conclude in fact that any of these entities wore aware of any of these statements on a website much less relied upon them when making any decisions  focus on him o c and initial certification as one product that we disagree with does that mean that we have to reverse on the monopolization no i don't think so you honor because for the monopolization claim there has to be anti competitive conduct at its core and there must be an abuse of monopoly power and so for instance let's let's let's look at the forcing issue here the appellant's of course claim that they were forced to purchase m  but in fact all of these appellants could purchase and take the initial certification exam without ever later purchasing maintenance of certification and in fact one of the  at the case law in cases involving professional certification the courts have in fact recognized that certifying organizations that give like a b i am does a seal of approval but don't do anything to constrain others to follow it such as in this case hospitals or employers does not violate the antitrust laws and so fundamentally there  is contingent of course on a finding of monopoly power in a relevant market and here are the relevant market that's alleged for purposes of this particular count is am oh see it's not continuous professional development and it's not certification if you look at the amended complaint it's maintenance of certification and so there really is no adequate relevant market for failure to plead relevant markets could i just ask the follow up there about forcing how do we conclude that internists aren't forced to buy at this stage in the litigation in light of the to the facts in this case so for instance dr menal oh who never who did purchase an initial certification and never purchased maintenance of certification i think that certainly shows that the his purchase of initial certification was not contingent on the later purchase of maintenance of certifications i think that is one way you can look at it i think you can also look at it in the way that the nd circuit indicated in the smugglers notch homeowners case which is a case where which looked at when you're entering into the transaction and you know that in fact you're going to a program for certification and aspects of that program war initially passing your initial board certification exam and then that that certification would expire after the set period of time ten years without eight passed subsequent examinations and so when they up front ot that product they knew there would be a continuing obligation as part of the certification program that they would have to demonstrate in fact that they possess the requisite knowledge to hold themselves out and say yes i am a b i am or a board certified so there is no forcing because there is the knowledge up front at the time of purchase of what certification entails and that was the periodic demonstration  but i suppose that the used to be the most basic form of your argument is that they don't have to go through a b i m to practice yes your honor so for instance if you look at the amended complaint the amended complaint is quite clear that board certification is not required to practice medicine in the united states that is simply a function of state boards of medicine that license doctors you only need a license in your state to practice medicine board certification is not required board certification is more like the stamp of approval that you can hold yourself out to have special qualifications some some some patients and employers look to that others do not but it is not a requirement to practice medicine in any state in the united states which is a fact that is allegations of they say you most a lot of places will let you practice your a malpractise rates are going to go higher reimbursements going to be an issue so is it really feasible to practice without certification and  something that should be a subject of discovery as opposed to you know at this juncture with a motion to dismiss to resolve well many i would submit many internists do in fact practice medicine without a certification and there are many things that might affect how much you're paid what you're admitting privileges are things like where you attended medical school and many other factors but it really comes back to you know what is at issue in this case and whether in fact there is a tying claim and whether or not there is  one product or two products and that really goes back to the supreme court test in jefferson parish about the character of jimmy and and whether there is to me and for the tie in to product in absence of the tying product and here be a palin's want to hold themselves out as being on board certified there is no separate demand for that type of product in absence of the tying that for products to be treated as distinct that tied product must at a minimum be one that consumers might wish to purchase separately without also purchasing that type tying product and here there simply are no allegations of fact sufficient to move this case along to make a plausible case that there are in fact two products here because there is no consumers there are no allegations sh present complex issues a fact that were not susceptible for resolution on summary judgment much less than a motion to dismiss so another fact question that arose from your  in the complaint that speaks of that that's another example of an affirmative defense that maybe i am trying to raise standards professional society internist aren't keeping up all sorts of things that can only be resolved after discovery