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Plaintiff, an emergency medicine physician, filed this action on September 25, 1990, following the American Board of Emergency Medicine's ("ABEM") refusal to permit Plaintiff to take its examination as a prerequisite to certification as an ABEM Diplomate. Plaintiff filed an amended complaint ("the First Amended Complaint") on February 7, 1991, asserting causes of action under Sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1 et seq., and seeking relief pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. § 12 et seq. On January 13, 1994, the Second Amended Complaint was filed, adding one hundred and seventy-five additional Plaintiffs, all individual physicians who allege to have similar claims, and thirty Defendants, including the Council of Emergency Medicine Residency Directors ("CORD") and twenty-eight teaching hospitals whom Plaintiffs allege are co-conspirators with Defendant ABEM. Specifically, in the Second Amended Complaint, Plaintiffs allege that ABEM conspired with CORD and the hospital Defendants to unreasonably restrict competition between ABEM certified and non-certified emergency physicians, including Plaintiffs, by eliminating ABEM's prior alternative qualification for eligibility to sit for ABEM's certification examination on the basis of years of practice in the field of emergency medicine (referred to as the "practice-track"), under which Plaintiffs may have been eligible to sit for and successfully pass the examination thereby requiring ABEM's certification. Plaintiffs allege that ABEM and the hospital Defendants perpetuated this restraint through a conspiracy involving various professional organizations in the field of emergency medicine, including CORD, as a result of the activities of various physicians whom had achieved ABEM certification under the "practice-track" and were either employed or affiliated with the hospital Defendants' residency programs in emergency medicine. Familiarity with the further proceedings and orders of this court, addressing the sufficiency of the First Amended Complaint, Daniel v. American Board of Emergency Medicine, 802 F. Supp. 912 (W.D.N.Y. 1992), and various issues related to Plaintiffs' discovery requests, is presumed.
Plaintiffs assert that each of the hospital Defendants "have purposeful, systematic, and routine contacts with New York medical students and medical schools" through FREIDA and the MATCH, Plaintiffs' Memorandum of Law at IV-1 - IV-3, and their claims are sufficiently related to the Defendants' participation in these programs so that it is "not unfair" to find that Plaintiffs' claims arise out of such participation. Plaintiffs' Memorandum of Law at IV-2. Defendants maintain that FREIDA and the MATCH do not grant them access to residents, and thus do not constitute the transaction of business in New York. Defendants' Joint Reply Memorandum at p. 39. Defendants further argue that "ABEM's closure of the practice track the source of Plaintiffs' injury bears no `direct relation' to the administrative services afforded by FREIDA and the Match." Defendants' Joint Reply Memorandum at p. 39.
The present controversy arose as the result of ABEM's closure of the practice track, thereby denying Plaintiffs eligibility to sit for ABEM's emergency medicine certification examination, and from working for hospitals which require physicians practicing emergency medicine to be ABEM certified or eligible. Second Amended Complaint at ¶¶ 3-12. While Plaintiffs argue that the hospital Defendants participated in ABEM's conspiracy by accepting only ABEM certified or eligible physicians to practice in their emergency departments, and used services such as FREIDA and the MATCH to recruit residents for their residency programs, such conduct is not the transacting of business in New York and, hence, is insufficient to permit *230 jurisdiction over the hospital Defendants under Section 302(a) (1).
When ABEM was established in 1976, the two available roads for achieving eligibility to become certified for ABEM's Diplomate status were the "residency" path, whereby the applicant physician was required to complete an approved three-year residency training program in emergency medicine, and the "practice track," which required the applicant to complete seven thousand hours and sixty months of practice in emergency room medicine, with twenty-four months of continuing emergency medicine practice. In accordance with its original charter provisions, ABEM discontinued the "practice track" on June 30, 1988 and now relies exclusively on the residency path for eligibility to sit for ABEM's examination. To become ABEM certified, upon completion of the initial qualification, following either the former "practice track" or the current residency path, physicians must also pass a certification examination. Plaintiffs allege that by promoting ABEM certification as the benchmark of quality and fitness to practice emergency medicine within the national health marketplace and then closing the practice track, ABEM and its co-conspirators ensured a high demand for the emergency medicine resident training programs now required by ABEM and offered by the hospital Defendants.
Plaintiffs' conspiracy theory, upon which they seek to predicate jurisdiction in conformance with their burden, posits that the hospital Defendants, acting through their individual physician "agents," as alleged by Plaintiffs, control several emergency medicine standard setting organizations, including ABEM, CORD, the American College of Emergency Physicians ("ACEP"), and the *234 Residency Review Committee for Emergency Medicine ("RRC-EM"), and acting through these organizations, agreed to close the ABEM practice track, thereby excluding competitor non-ABEM certified emergency physicians from the market. This conspiracy, according to Plaintiffs, among the hospital Defendants, ABEM, CORD, and the other emergency medicine organizations, ACEP, the Society for Academic Emergency Medicine ("SAEM"), the University Association for Emergency Medicine ("UA/EM"), the Society for Teachers of Emergency Medicine ("STEM"), the Association of Academic Chairs in Emergency Medicine ("AACEM"), the American Medical Association's ("AMA") Section on Emergency Medicine, and the RRC-EM, also involved an agreement not to permit any alternative routes to attain ABEM certification, required that all directors, faculty, and attending physicians in emergency medicine be ABEM certified, and promoted ABEM certification as the sole standard of competency for emergency department physicians. Plaintiffs' Memorandum of Law at V-8 - V-59.
According to Plaintiffs, the conspiracy involves an agreement among ABEM, CORD, and the hospital Defendants which included the elimination of the practice track by ABEM, the rejection by various professional organizations of "alternative pathways" to residency programs to attain ABEM certification, RRC-EM's setting of special requirements including ABEM certification for faculty in emergency medicine residency programs, ACEP and ABEM's encouragement of hospitals to hire ABEM certified emergency physicians, and the refusal of each hospital Defendant to hire emergency physicians who are not ABEM certified or eligible. Plaintiffs' Memorandum of Law at V-8 - V-11; V-102 - V-103.
Plaintiffs contend that as the result of the alleged shortage of ABEM certified or eligible physicians, there have been significant increases in ABEM certified or eligible emergency physicians' incomes, and a high demand for board certified or eligible physicians, and for positions in emergency medicine residency programs. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 1723, 1802. An ACEP Accreditation Study in August of 1991 indicated that 77% of hospitals did not require ABEM certification or eligibility of their emergency physicians, however, according to this study, many physicians believed that within a few years, ABEM certification would be a requirement at 50% of the hospitals. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 1803, 1820, 1833-1836. After the survey, ACEP investigated the feasibility of creating a graduate medical education track in order to allow those physicians who were not eligible to take the ABEM examination another route to ABEM certification. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 1803, 1820, 1833-1836. However, the members of ACEP ultimately were unwilling to endorse any such alternative proposals. See, e.g., Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 1884-1886. Additionally, as noted, CORD voted unanimously to oppose alternative methods of residency training that would ultimately lead to ABEM certification. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. No. 1909. CORD so voted because the program directors "believe training that is not equivalent [to emergency medicine residency training] undermines the legitimacy and credibility of the residency training programs." Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. No. 1909.
As an additional prerequisite to personal jurisdiction under Section 302(a) (2), there must have been at least one overt act by one of the co-conspirators in furtherance of the unlawful plan. Chrysler Capital Corp., 778 F. Supp. at 1267 (any act by a conspirator in furtherance of the unlawful plan is an overt act). Plaintiffs assert that the primary corrupt agreements and overt acts in which the hospital Defendants' agents participated are the closure of the practice track, the refusal to extend the cutoff date or reopen the practice track, the creation of new practice tracks for internal medicine physicians only, imposing the RRC-EM's requirements for faculty and staff of emergency medicine residency training programs, the rejection of alternative residency programs, establishing policies encouraging the public to seek services of board certified physicians and hospitals to employ only board certified physicians, and the refusal of the hospitals to hire qualified, experienced emergency physicians solely because they are not ABEM certified or eligible. Plaintiffs' Memorandum of Law at V-102 - V-103. Plaintiffs allege that each of these overt acts "was committed for the purpose of protecting the residency programs, ensuring a high demand for the defendant hospitals' residency training program and protecting the graduating residents from competition in the marketplace, in order to ensure continuing demand for the defendants' programs in the future." Plaintiffs' Memorandum of Law at V-103. Assuming that a corrupt conspiracy or combination, in which Defendants participate, exists, the acts alleged by the Plaintiffs should be considered overt acts in furtherance of this agreement. However, as discussed, the Plaintiffs have failed to present facts demonstrating that the hospital Defendants agreed among themselves, or through the various co-conspirator professional emergency medicine organizations, to impose certification requirements for positions or privileges within each individual institution directly affecting Plaintiffs. 2b1af7f3a8