Ass’n of Surgical Assistants v. National Board of Surgical Technology and Surgical Assisting.
No. 23-1344. 1/21/2025. D.Colo. Judge Tymkovich. Sherman Act Antitrust Violations—Requisite Market—Monopoly Power and Market Power—Conspiracy—Antitrust Injury.
January 21, 2025
The Association of Surgical Technologists (AST) represents surgical technologists, and the Association of Surgical Assistants (ASA) represents surgical assistants. Many states require surgical technologists and assistants to maintain professional certifications by accruing a certain number of continuing education credits or retaking a certification exam. The National Board of Surgical Technology and Surgical Assisting (NBSTSA) is a certifying body for surgical technologists and assistants. NBSTSA currently authorizes only AST to administer continuing education services. ASA and AST were formerly affiliated, and ASA offered its members recertification services through an agreement with AST. But at the end of 2020, ASA separated from AST to create a distinct professional organization. ASA then sought to become an NBSTSA education provider, but NBSTSA refused to authorize ASA to provide continuing education services on its behalf. ASA then sued NBSTSA and AST under the Sherman Act for antitrust violations and tortious business interference, alleging they are conspiring to maintain a monopoly over the recertification services market and are improperly blocking ASA’s entry into that market. NBSTSA and AST moved to dismiss ASA’s complaint under Fed. R. Civ. P. 12(b)(6). The district court granted the motion, concluding that ASA failed to establish (1) the requisite market, (2) monopoly power and market power, (3) a conspiracy between NBSTSA and AST, and (4) an antitrust injury.
On appeal, ASA challenged the dismissal on all grounds. First, defining the relevant market is a threshold requirement for antitrust claims because without referencing a legally sufficient market, courts cannot analyze whether a defendant is monopolizing anything. The relevant market includes both the product market and geographic market. ASA did not argue that it was excused from defining the relevant market. Here, ASA failed to address competing certification entities, their certificates, and the option to recertify via reexamination, so its product market definition is legally insufficient. And ASA’s failure to establish a sufficient product market necessarily means it also failed to define a legally sufficient geographic market.
Second, establishing monopoly or market power is also a prerequisite for antitrust claims. Assessing market and monopoly power requires courts to examine market share, barriers to market entry, the number of competitors in the market, market trends, and other relevant considerations. Because ASA failed to plead a legally sufficient market, it is impossible to assess whether AST and NBSTSA have monopoly or market power in the relevant market.
Third, allegations of a conspiracy must include an agreement to unreasonably restrain trade. Here, ASA made only circumstantial and conclusory allegations of conspiracy. Therefore, ASA’s complaint independently fails because it has not alleged a plausible conspiracy between NBSTSA and AST.
Lastly, ASA failed to plead an antitrust injury because (1) the relief it seeks is an order forcing NBSTSA into a business relationship with it, and declining to enter a business relationship with a startup is not a cognizable antitrust injury; and (2) it has not plausibly alleged it has lost anything.
The dismissal with prejudice of ASA’s complaint was affirmed.