In the
United States Court of Appeals
For the Seventh Circuit
No. 24-1994
EMILY ELIZABETH LAZAROU, et al.,
Plaintiffs-Appellants,
v.
AMERICAN BOARD OF PSYCHIATRY AND NEUROLOGY,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-cv-01614 — Jeremy C. Daniel, Judge.
ARGUED JANUARY 8, 2025 — DECIDED OCTOBER 29, 2025
Before SCUDDER, JACKSON-AKIWUMI, and MALDONADO,
Circuit Judges.
JACKSON-AKIWUMI, Circuit Judge. This antitrust appeal
asks us to decide whether the American Board of Psychiatry
and Neurology (“ABPN”) is causing unfair competition in the
continuing medical education market. The psychiatrists who
brought this suit allege that ABPN uses its monopoly over
specialty certifications to force them to purchase ABPN’s
“maintenance of certification” product. But their theory that
2 No. 24-1994
this arrangement violates antitrust law can only succeed if
psychiatrists and neurologists view ABPN’s product as a viable alternative to fulfilling their continuing medical education
requirements. We addressed a similar question in Siva v.
American Board of Radiology, 38 F.4th 569 (7th Cir. 2022), and
found that a different medical specialty board’s product was
not a viable alternative for doctors seeking continuing medical education credit. Although the allegations against ABPN
differ from those in Siva, they still do not allow us to find an
illegal tying of ABPN’s products—a prerequisite for stating
this type of antitrust claim. We therefore affirm the district
court’s dismissal of the case and its dismissal with prejudice.
I
We review de novo a district court’s Rule 12(b)(6) dismissal. Right Field Rooftops, LLC v. Chi. Cubs Baseball Club, LLC,
870 F.3d 682, 688 (7th Cir. 2017). In doing so, we take all wellpleaded facts in a complaint as true and draw all reasonable
inferences in favor of the plaintiff. Id.; Stanley v. City of Sanford, 606 U.S. – (slip op. at 1) (2025). Given this standard, we recite
the following factual allegations as they appear in the
amended complaint (hereinafter complaint).
By law, doctors must obtain a license from state medical
boards to practice medicine in a particular state. To remain
licensed, most states require doctors to complete a certain
number of continuing medical education (“CME”) hours. As
described in the complaint, CME consists of educational
activities to “maintain, develop, or increase the knowledge,
skills, and professional performance” of doctors. The
complaint focuses on two categories of CME products:
Category 1 and Category 2. Doctors earn Category 1 credits
No. 24-1994 3
by either purchasing products from any accredited vendor or
completing educational activities and applying to the
American Medical Association (“AMA”) for “direct credit.”
One of the ways doctors can earn Category 2 credits (and the
only way discussed in the complaint) is by purchasing CME
self-assessment products. In many states, doctors can also
apply Category 2 credits towards Category 1 requirements.
Licensed doctors may also purchase certifications from
medical specialty boards in specialties such as, as relevant
here, psychiatry or neurology, or in subspecialties like forensic psychiatry. While board certification is not legally required, almost all medical organizations, according to the
complaint, require board certification for employment, hospital privileges, and even coverage by health insurance plans.
ABPN is one such medical specialty board. Psychiatrists
and neurologists may apply for a certification from ABPN after completing medical school and residency training. Doctors’ one-time purchase of a certification does not guarantee
them a lifelong certification. To maintain their specialty certification, they must purchase ABPN’s maintenance of certification (“MOC”) product annually for a $175 fee. Otherwise,
ABPN revokes the certifications of doctors who do not purchase its MOC product. ABPN is the only vendor from which
doctors with its certification can secure MOC, and ABPN sells
MOC only to doctors with its certification.
ABPN’s MOC has two main components: Activity Requirements and an Assessment Requirement. As part of the
Activity Requirements, every three years doctors must obtain
90 CME credits and complete one Improvement in Medical
Practice (referred to as “PIP”) activity. Of the 90 CME credits,
66 must be CME Category 1 and 24 must be CME Category 2
4 No. 24-1994
self-assessment credits (not to be confused with the MOC Assessment Requirement).
For the MOC Assessment Requirement, doctors can either
complete an Article-Based Pathway every three years or pass
a Recertification Exam every ten years. The Recertification
Exam involves a day-long, proctored, and closed book exam
that ABPN develops and administers. The Article-Based Pathway entails passing 30 short exams associated with a medical
journal or article of ABPN’s choosing. For this pathway, doctors can take a maximum of 40 short exams and must successfully complete 30 of them. If unable to complete 30 out of 40
exams, doctors must take the ten-year Recertification Examination.
Completing either Assessment Requirement allows
doctors to waive some of their Activity Requirements credits.
When a doctor successfully completes an Article-Based
Pathway, ABPN waives 16 out of the 24 CME Category 2 selfassessment credits. ABPN similarly waives 8 out of the 24
CME Category 2 self-assessment credits for doctors who take
the Recertification Examination. These requirements are
diagrammed below.
No. 24-1994 5
ABPN’s MOC Requirements
Activity Requirements
90 CME Credits every 3 years:
• 66 CME Category 1
* Purchase from CME vendor; or
* Complete educational activities for direct credit
from AMA
• 24 CME Category 2 self-assessment
* 16 waived with successful Article-Based Pathway
* 8 waived with successful Recertification Exam
and
PIP activity every 3 years
Assessment Requirement
Article-Based Pathway every 3 years
or
Recertification Exam every 10 years
The plaintiffs in this case are two licensed psychiatrists:
Dr. Emily Elizabeth Lazarou and Dr. Aafaque Akhter. Dr.
Lazarou is a practicing psychiatrist whose certification lapsed
when she did not receive an accommodation as a nursing
mother and was thus unable to complete her Recertification
Exam. Without a certification, she can no longer practice
telepsychiatry in Florida, Texas, Mississippi, or Illinois, where
she is licensed.
6 No. 24-1994
Dr. Akhter is currently an ABPN-certified psychiatrist but
complains about the time, money, and effort it takes to complete MOC requirements to maintain his certification. Dr.
Akhter passed ABPN’s ten-year Recertification Examination
and applied to the AMA to receive direct credit for CME Category 1 credits. The AMA granted him 60 Category 1 credits
separate from CME credits he had already purchased to fulfill
his MOC Activity Requirements. Dr. Akhter then used the 60
credits to meet state licensure requirements, instead of purchasing CME from CME-accredited vendors. He is licensed to
practice medicine in Connecticut, Florida, Hawaii, Massachusetts, and New York.
Dr. Lazarou and Dr. Akhter brought claims on behalf of
themselves and a proposed class action alleging that ABPN’s
tying of its certifications and MOC violates Section 1 of the
Sherman Act, 15 U.S.C. § 1, and results in unjust enrichment
under state law. After Plaintiffs filed a second amended complaint, ABPN moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6). The district court dismissed the complaint, finding several flaws in Plaintiffs’ tying theory. It also
concluded dismissal with prejudice was justified because
Plaintiffs had multiple opportunities to amend their complaint.
II
A
The Sherman Act prohibits “certain agreements or practices ... because of their pernicious effect on competition and
lack of any redeeming virtue.” N. Pac. Ry. Co. v. United States,
356 U.S. 1, 5 (1958). One such prohibited practice is a tying
arrangement. Id. A tying arrangement is “an agreement by a
No. 24-1994 7
party to sell one product but only on the condition that the
buyer also purchases a different (or tied) product.” Id. “Not
all ties are prohibited, though. Indeed, many ‘are fully consistent with a free, competitive market.’” Siva, 38 F.4th at 573
(quoting Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 45
(2006)).
“A tie is illegal only when the seller exploits its control
over the tying product to force the buyer into the purchase of
a tied product.” Id. (quoting Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12–13 (1984)) (citation modified). This coerces the buyer to abdicate “independent judgment as to the
‘tied’ product’s merits and insulates it from the competitive
stresses of the open market.” Id. at 573–74 (quoting Jefferson
Parish, 466 U.S. 2, 12–13). This anticompetitive forcing is a violation of the Sherman Act. Id. at 574.
Anticompetitive forcing exists where four elements are
present: (1) the tying arrangement involves two separate
products or services; (2) the seller has “sufficient economic
power in the tying product market to restrain free
competition in the tied product market”; (3) “the tie affects a
not-insubstantial amount of interstate commerce in the tied
product”; and (4) the seller “has some economic interest in the
sales of the tied product.” Id. (quoting Reifert v. S. Cent. Wis.
MLS Corp., 450 F.3d 312, 317 (7th Cir. 2006)).
The first element, otherwise known as the separateproducts question, is rooted in “prevent[ing] monopolists
from leveraging power in one market to restrict competition
in a second [market].” Id. at 575 (citing Phillip E. Areeda &
Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust
Principles and Their Application ¶ 1700d1 (4th ed. 2015)). This
can result “only where there is a sufficient demand for the
8 No. 24-1994
purchase of the tied product separate from the tying product
to identify a distinct product market in which it is efficient to
offer the tied product separately from the tying product.” Id.
(quoting Jefferson Parish, 466 U.S. at 21–22) (citation modified).
Thus, the separate-products question “turns on ‘the character
of the demand for the two items’ .... before the alleged tying
arrangement went into effect.” Id. (quoting Jefferson Parish, 466
U.S. at 19). Courts look to several “objective indicators of
market demand” to answer this question: “how the market
participants have sold and purchased the [items];” “whether
the two items are ‘separately priced and purchased;’” and
“whether they are ‘distinguishable in the eyes of buyers.’” Id.
at 576 (first quoting Viamedia, 951 F.3d at 469; and then
quoting Jefferson Parish, 466 U.S. at 20). However, we cannot
consider “the functional relation between the two items.” Id.
(citation modified). Rather, we focus “on how consumer
demand for [the products] interacts,” not on “how the
products function together.” Id.
B
ABPN argues that Plaintiffs must establish a reasonable
comparison between MOC and doctors’ state licensure. This
is wrong. As in Siva, Plaintiffs here must only “plead facts
making it plausible that MOC is a substitute for other [CME]
products.” 38 F.4th at 578.
But to survive dismissal, it is not enough for Plaintiffs to
assert “in conclusory fashion that MOC is a [CME] product.”
Id. at 579. Instead, the allegations must allow an inference of
“cross-price elasticity” between MOC and other CME offerings. Id. This means that “in a world without the tying arrangement—an increase in the price of other [CME] products
relative to MOC would shift sales to MOC.” Id. (citing Reifert,
No. 24-1994 9
450 F.3d at 319). The question, in effect, is whether the relevant consumers see the two products as “reasonably interchangeable.” Id. (quoting Brown Shoe Co. v. United States, 370
U.S. 294, 325 (1962)) (citation modified).
For example, in Siva, our court found that, as alleged, a
radiology board’s MOC was not a substitute for the rest of the
market’s CME and thus, no illegal tie existed. Id. at 580–81.
The MOC product in that case involved slightly different
components from ABPN’s MOC. To maintain their radiology
certifications, doctors had to: (1) obtain certain CME credits
from a third-party vendor every year; (2) complete an examination component consisting of weekly tests; and (3) fulfill a
series of practice improvement projects. Id. at 579. We held
that the first requirement was not a likely substitute for CME
because it would be redundant to purchase MOC to then be
told to buy CME elsewhere. Id. Moreover, CME provided educational content, but MOC’s first requirement did not. Id. As
to the second and third requirements, these did involve educational content. Id. at 580. However, we found there was “no
reason to think radiologists would view these tests and activities as viable [CME] products” since they could not “earn
CME credits by completing [them].” Id. Even the Siva plaintiff
had described the tests and activities as “onerous” and “superfluous.” Id. Although the radiology board indeed had a
monopoly, we concluded, it was not an antitrust violation because there was no impact to competition and no market foreclosed. Id.
C
As in Siva, the market at issue is an educational content
market for doctors’ continuing education obligations. We
conclude that Plaintiffs do not plausibly allege that ABPN’s
10 No. 24-1994
monopoly over specialty certifications is causing unfair competition in that market. The complaint does not “permit an
inference that [psychiatrists and neurologists] would see
[ABPN’s] MOC product as a true competitor” in the CME
market. Siva, 38 F.4th at 579.
Plaintiffs resist this conclusion. According to them, their
complaint addresses Siva’s shortcomings by alleging that (1)
ABPN’s MOC contains educational content and (2) doctors
use ABPN’s MOC to meet state CME licensure requirements
partially or in full.
On the first point, we see a split picture. Plaintiffs do plausibly allege that ABPN’s Assessment Requirement provides
educational content, like CME does, in the form of articlebased or recertification examinations. However, in their reply
brief, Plaintiffs explain that only the Assessment Requirements can lead to direct CME credit and are therefore equivalent to other CME products. ABPN’s Activity Requirements
are different and, Plaintiffs concede, not CME-equivalent.
Presumably, Plaintiffs make this concession because the Activity Requirements, for the most part, simply redirect doctors
to purchase CME credits from accredited vendors. And, as the
district court noted, Plaintiffs do not allege that ABPN is accredited to provide CME products that satisfy its own Activity Requirements. As such, ABPN’s Activity Requirements
continue to “impose[] a redundant obligation that [doctors]
purchase those credits elsewhere.” Siva, 38 F.4th at 579 (referring to the radiology board’s first requirement that doctors
obtain a certain number of CME credits from third-party vendors).
On the second point—that doctors use MOC to meet their
state licensure CME requirements—Plaintiffs present two
No. 24-1994 11
theories (which will be the subject of our next subsections).
First, Plaintiffs allege that many states accept MOC participation as full satisfaction of CME requirements, without the
need to obtain any additional Category 1 credits. We refer to
this as the “full satisfaction theory.” Second, Plaintiffs allege
that doctors who complete the Recertification Examination
may apply to the AMA for direct CME credit and use those
credits towards state licensing requirements. We refer to this
as the “direct credit theory.”
Both theories fail. Even if MOC fully or partially satisfies
doctors’ state licensure CME requirements, we cannot reasonably infer that doctors view MOC as reasonably interchangeable with CME, thereby causing unfair competition in the
CME market. This is because, setting aside any benefit MOC
has as state licensure CME requirements are concerned, MOC
forces doctors to spend, as Plaintiffs allege, a “substantial cost
in money, time, and effort.” We address both theories in more
detail below.
1. The Full Satisfaction Theory
Plaintiffs offer New Hampshire and Washington as examples of states that accept MOC participation to fully satisfy
state licensing CME requirements. Generally, for doctors to
maintain their state license in New Hampshire or Washington, they would need to purchase 100 Category 1 CME credits
every two years (or 50 credits per year) from an accredited
vendor. Alternatively, doctors could participate in MOC,
which only requires 90 CME credits every three years (or 30
credits per year) as part of its Activity Requirements. Because
MOC Activity Requirements demand fewer CME credits (30
compared to New Hampshire and Washington’s requirement
of 50), Plaintiffs argue that doctors prefer to purchase MOC
12 No. 24-1994
and, as a result, vendors accredited to sell CME lose out on
the purchase of an additional 20 credits. As previewed earlier,
this theory fails because it does not account for the MOC
product’s requirements in their entirety.
On the surface, MOC Activity Requirements would seem
attractive to doctors seeking to purchase fewer CME credits.
But the MOC requirement does not end there. The Activity
Requirements also include a PIP activity. And then there is
the Assessment Requirement. So doctors signing up to buy
fewer CME to satisfy their state licensure CME obligations,
would also have to spend considerable time, money, and
effort completing a PIP, taking 30 article-based exams every
three years or a Recertification Examination every ten years,
or both if they are initially unsuccessful in passing the 30
article-based exams—all in addition to paying a $175 fee for
MOC. Even in a world where CME prices increase relative to
MOC, we cannot infer, from these facts, that the price increase
“would shift sales to MOC.” Siva, 38 F.4th at 578. In other
words, we cannot infer that psychiatrists and neurologists
shopping for CME products would see ABPN’s MOC as “a
viable option for filling that need.” Id.
2. The Direct Credit Theory
We turn to Plaintiffs’ second theory about how doctors use
MOC to meet their state licensure CME requirements and
therefore MOC, as Plaintiffs see it, is a substitute for other
CME products. With their second theory, Plaintiffs argue that
psychiatrists and neurologists can apply ABPN’s Assessment
products to satisfy state CME requirements. This was the case
with Dr. Akhter, who took ABPN’s ten-year Recertification
Examination and earned 60 Category 1 “direct credits” from
the AMA, which he applied toward his state licensing
No. 24-1994 13
requirements rather than buy CME from accredited vendors.
We test this theory with an example Plaintiffs offer in their
briefs.
Plaintiffs point to Hawaii and Massachusetts, where Dr.
Akhter is licensed. Hawaii and Massachusetts each require
100 CME Category 1 credits every two years (or 50 credits per
year). Doctors who purchase MOC would have 66 CME Category 1 credits (or 22 credits per year) secured from a vendor
as part of their Activity Requirements. 1 They would then need
to make up, if licensed in Hawaii and Massachusetts, about
28 credits per year. Overlooking the 8-credit gap, Plaintiffs argue that doctors take the Recertification Examination to cover
the remaining 20 credits per year, instead of purchasing additional CME.2 This equation is diagrammed below.
1 In briefing, Plaintiffs repeatedly assert that doctors would gain 90
CME Category 1 credits from meeting their MOC Activity Requirements. This contradicts the complaint, which alleges that only 66 of the 90 CME requirements for MOC are Category 1, with the remaining 24 being Category 2.
2 It is worth noting that 60 credits divided over the ten-year period
before a Recertification Exam lapses results in 6, not 20, credits per year. In any event, because the theory nonetheless fails, we assume Plaintiffs’ 20 credits are true for purposes of our discussion.
14 No. 24-1994
Plaintiffs’ Direct Credit Theory on an Annual Basis
State CME Category 1 CME MOC’s Direct Credit Additional Category 1 Purchased for MOC’s from AMA CME Needed Requirement Activity Requirements
50 — 22 — 20 = 8
This theory fails for some of the same reasons the full satisfaction theory fails. It is implausible that a doctor would pay
for the MOC product simply to avoid purchasing, for example, 20 credits per year for about three years (assuming doctors receive 60 direct credits, as Dr. Akhter did). 3 This is because this pathway forces doctors, as Dr. Akhter and Dr.
Lazarou themselves allege, to invest more time, money, and
effort in the long run. Recall, to participate in the MOC program Dr. Akhter would have had to: (1) pay the $175 MOC
fee; (2) separately purchase up to 90 CME credits from an accredited vendor (as part of the Activity Requirements); (3) fulfill a PIP activity (again, to meet the Activity Requirements);
and (4) complete a Recertification Exam (for the Assessment
Requirement). 4 It does not follow that a doctor would opt for
3 ABPN argues that states allow doctors to apply direct credit only for
the same year that they complete the Recertification Exam. For support,
they cite Iowa’s regulations which, according to ABPN, state it “may accept certification or recertification ... [only] during the cycle in which the
certification or recertification is granted.” But that language is nowhere to
be found in Iowa’s regulations. See Iowa Admin. Code R. 653-11.2(2). At
this stage, we draw the reasonable inference that doctors may apply direct
credit over several years. Right Field Rooftops, 870 F.3d at 688.
4 Plaintiffs do not allege that the Article-Based Pathway, consisting of
30 short exams, similarly yields direct credit from the AMA. Even if direct No. 24-1994 15
this longer list of requirements as opposed to annually purchasing their state’s required CME from an accredited vendor. As such, it is difficult to imagine that doctors would see
ABPN’s MOC as reasonably interchangeable with CME
simply because of AMA’s direct credit opportunities.
In sum, Plaintiffs have alleged a more detailed tying theory than the one in Siva. But, like the plaintiffs in Siva, they
have failed to plausibly allege that doctors see ABPN’s MOC
product as reasonably interchangeable with CME. Even if the
price of other CME products were to increase relative to
MOC, the investment required to fulfill the MOC program
makes it implausible that doctors would shift to purchase
MOC. See Siva, 38 F.4th at 578. In so holding, we do not mean
to suggest antitrust plaintiffs must present a compelling, or
even probable, economic theory to survive a motion to dismiss. But where taking an antitrust plaintiff’s theory as true
requires accepting a premise we find implausible, the plaintiff
fails to meet the facial plausibility standard articulated in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“common sense” plays
a role in the plausibility inquiry). Since Plaintiffs’ allegations
do not meet this standard, they fail the separate-products test,
and as a result, Plaintiffs’ theory of illegal tying also fails.
III
Plaintiffs also challenge the district court’s decision to dismiss their complaint with prejudice and without leave to
amend. Plaintiffs assert their second amended complaint was
credit was possible, doctors would nonetheless be forced to pay ABPN the $175 fee and complete the rest of the Activity Requirements outlined above as part of the MOC product.
16 No. 24-1994
only the first opportunity they had to address our court’s
holding in Siva given its publication date. So, they say, a third
amended complaint, if permitted, would really be their second, not fourth, bite at the apple. We review the district
court’s decision for abuse of discretion. Adebiyi v. S. Suburban
Coll., 98 F.4th 886, 895 (7th Cir. 2024).
District courts “should freely give leave [to amend a complaint] when justice so requires.” Fed. R. Civ. P. 15(a)(2)).
“Although leave to amend is ordinarily ‘freely given,’ we
have ‘recognized, on many occasions, that a district court
does not abuse its discretion by denying a motion for leave to
amend when the plaintiff fails to establish that the proposed
amendment would cure the deficiencies identified in the earlier complaint.” Jauquet v. Green Bay Area Cath. Educ., Inc., 996
F.3d 802, 812 (7th Cir. 2021) (quoting Gonzalez-Koeneke v. West,
791 F.3d 801, 807 (7th Cir. 2015)).
As the district court noted, Plaintiffs had several opportunities to amend their complaint. At least one of those opportunities came after our court’s decision in Siva. On appeal,
Plaintiffs do not argue why the court’s dismissal was an abuse
of discretion or how they could address the identified deficiencies through an amendment. On these facts, we see no
abuse of discretion.
IV
Plaintiffs’ complaint reveals a monopoly for sure: ABPN
controls certain specialty certifications and the MOC market.
However, Plaintiffs’ allegations fall short of plausibly alleging
an illegal monopoly that ties APBN certifications and MOC to
the detriment of the CME market at large. We therefore
No. 24-1994 17
AFFIRM the district court’s decision to dismiss Plaintiffs’
claims, and to do so with prejudice.
18 No. 24-1994
MALDONADO, Circuit Judge, dissenting. I am concerned
with the continuous heightening of the pleading standards for
antitrust claims in this circuit. This trend produces more
prolix complaints filled with factual allegations that
apparently still don’t make the cut for suggesting liability.
Here, for example, despite Plaintiffs’ 51-page complaint,
replete with details suggesting that CMEs and MOCs are
similar in both form and function, the majority affirms
dismissal of Plaintiffs’ complaint because “the complaint does
not permit an inference that psychiatrists and neurologists
would see ABPN’s MOC product as a true competitor in the
CME market.” Maj. Op. at 10. As the majority sees it, even if
MOC, like CME, contains educational content, and even if
psychiatrists and neurologists can use MOC to meet state
CME licensure requirements, psychiatrists and neurologists
do not “view MOC as reasonably interchangeable with CME”
because MOC involves a “substantial cost in money, time,
and effort.” Id. at 11.
Because the majority sets the pleading standard too high,
I respectfully dissent. Below, I briefly review the evolution of
pleading standards for antitrust claims from the
promulgation of Rule 8 to our opinion in Siva v. Am. Bd. of
Radiology, 38 F.4th 569 (7th Cir. 2022). Then, I discuss why I
believe that Plaintiffs here have met their pleading burden
under Siva to survive dismissal. Lastly, I touch on what I view
as the majority’s speculative conclusion that MOC’s diverse
requirements make the program definitively less attractive to
psychiatrists and neurologists such that no doctor would seek
to fulfill their state licensure obligations via MOC rather than
CME. Throughout, the thrust of my concern is that the
majority’s decision to affirm dismissal of Plaintiffs’
No. 24-1994 19
complaint, even in light of amendments tailored to Siva,
amounts to changing the goal posts in the middle of the game.
I.
In the antitrust context, pleading standards have become
increasingly rigorous since the promulgation of the Federal
Rules of Civil Procedure in 1938. Rule 8, by its plain text,
requires only that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). But construction of Rule 8 has
evolved to require detailed factual allegations, making
plausible an inference of liability to justify the costs of
discovery. As a result, in practice, antitrust complaints have
become far from “short and plain.” Meanwhile, courts have
essentially been invited to weigh plausible inferences,
potentially denying judicial access to worthy litigants who
need discovery to develop their claims. I trace below key
developments in the increasing stringency of our pleading
standards.
First, in Conley v. Gibson, the Supreme Court read Rule 8
as requiring only that a plaintiff’s complaint “give the
defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” 355 U.S. 41, 47 (1957).
Discovery and pretrial proceedings would flesh out the
details. Defendants retained “the liberal opportunity for
discovery and the other pretrial procedures established by the
Rules to disclose more precisely the basis of both claim and
defense and to define more narrowly the disputed facts and
issues.” Id. at 47–48, 48 n.9 (citing Rules 12(e), 12(f), 12(c), 26– 37, 56, and 15).
20 No. 24-1994
However, some especially complex cases—in particular,
sprawling antitrust conspiracies—required defendants to
incur significant costs to demonstrate weaknesses in claims
that could have been screened at the outset of litigation. As a
result, in Bell Atlantic Corp. v. Twombly, where plaintiffs
alleged a nationwide antitrust conspiracy among the four
dominant telecommunications companies in the United
States, the Supreme Court tightened Rule 8’s pleading
standard by requiring that a complaint contain “enough facts
to state a claim to relief that is plausible on its face.” 550 U.S. 544, 570 (2007); id. at 561, 63 (noting that the “famous
observation” in Conley, 355 U.S. at 45–46, that “a complaint
should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief”
“has earned its retirement.”).
Evincing a commitment to cost efficiency, the Supreme
Court explained that “when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief,
‘this basic deficiency should … be exposed at the point of
minimum expenditure of time and money by the parties and
the court.’” Id. at 558 (quoting 5 Wright & Miller § 1216, at
233–34). In Twombly, the potential time and money outlay was
“obvious.” Id. at 559. Plaintiffs sought to represent a gigantic
putative class of 90 percent of all telephone or internet
subscribers in the United States against the four largest
telecommunications firms alleging an antitrust conspiracy
spanning seven years. Id. As a result, discovery would have
required sifting through voluminous communications among
the firms to “reveal evidence of illegal agreement.” Id. at 556.
No. 24-1994 21
We applied Twombly’s cost-conscious language in another
case alleging a nationwide antitrust conspiracy: Ass'n of Am.
Physicians & Surgeons, Inc. v. Am. Bd. of Med. Specialties, 15
F.4th 831, 832 (7th Cir. 2021) (“Swap major
telecommunications providers for hospitals, insurers, and the
American Board of Medical Specialties … and you get this
case.”). There, plaintiffs argued that a medical board violated
§ 1 of the Sherman Act where it “had conspired individually
with perhaps as many as 80% of hospitals across the country”
as well as “with an unspecified number of health insurers”
“to force doctors” into the MOC program. Id. at 833.
Dismissing plaintiffs’ complaint for failure to state their
antitrust conspiracy claim, we emphasized that “Twombly
bars the discover-first, plead-later approach” and “[f]or good
reason: modern antitrust litigation is expensive. Only by
requiring plaintiffs to plead facts plausibly suggesting
conspiracy can we ‘avoid the potentially enormous expense
of discovery in cases with no reasonably founded hope that
the discovery process will reveal relevant evidence to support
a § 1 claim.’” Id. at 835 (quoting Twombly, 550 U.S. at 559).
Then, in Siva, we expanded Twombly’s cost-conscious
language beyond antitrust conspiracy to affirm dismissal of
MOC-related tying claims under § 1 of the Sherman Act. 38
F.4th at 575. This time, the claims were rooted in contract. Id.
at 572–73 (asserting that a medical board illegally tied
certification of radiologists to the board’s MOC program). We
explained that to survive a motion to dismiss, plaintiffs had
to plead facts “permit[ting] an inference of what economists
call ‘cross-price elasticity’ between MOC and other [CME]
offerings” in order to “mak[e] it plausible that MOC is a
substitute for other [CME] products” Id. at 578. Specifically, a
plaintiff must “define not only what a [CME] product is, but
22 No. 24-1994
also what consumer demand in the [CME] market looks like”
to determine whether a consumer “would see the Board’s
MOC product as a true competitor in the [CME] market” and
would “voluntarily purchase MOC if given the option.” Id. at
579–80; see id. at 581 (quoting Jefferson Parish Hosp. Dist. No. 2
v. Hyde, 466 U.S. 2, 22 (1984)) (alterations in original) (a
plaintiff must identify a “distinct product market in which it
is efficient to offer [MOC] separately from [certification].”).
And a plaintiff must make these showings without appealing
to the potential revocation of their certifications to bootstrap
their claims. Id. at 577–78.
Put simply, we have come a long way from “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” FED. R. CIV. P. 8(a)(2).
II.
That brings us to this case, which has numerous factual
parallels to Siva. Both allege that a medical board has a nationwide monopoly on certifications and unlawfully ties those
certifications to the board’s MOCs by requiring certified
specialists to purchase MOCs to maintain certification status.
Both involve a violative contract (not a conspiracy) and just
one participant in the antitrust violation alleged (not four as
in Twombly, or “80% of hospitals across the country,” an
“unspecified number of health insurers,” and a medical
board, as in Ass'n of Am. Physicians & Surgeons, Inc.). Both
cases come down to whether plaintiffs are able to “plead facts
making it plausible that MOC is a substitute for other [CME]
products.” Siva, 38 F.4th at 578.
No doubt recognizing the similarities between the two
cases, after Siva was published, Plaintiffs here amended their
No. 24-1994 23
complaint to address Siva’s specific pleading requirements. I
think that they did so successfully.
Deploying various theories under which a consumer
“would see the Board’s MOC product as a true competitor in
the [CME] market,” Plaintiffs plead sufficient facts to “mak[e]
it plausible that MOC is a substitute for other [CME]
products.” Siva, 38 F.4th at 578–79. First, Plaintiffs allege that
psychiatrists and neurologists seeking to fulfill state CME
obligations often do so by purchasing MOC because “[s]tate
medical boards accept MOC in place of other CME products
for licensure.” Further, “AMA, the organization responsible
for developing and implementing the CME credit system,
gives CME Category 1 credits to doctors who purchase MOC
that can be used for state licensure purposes.”
And unlike the plaintiff in Siva, who argued that the MOC
program at issue was “worthless” and worse than CMEs, see
Siva, 38 F.4th at 580, here, Plaintiffs merely say that MOCs
provide no value above and beyond CMEs. As Plaintiffs
contend, MOCs and CMEs are roughly equivalent in the
market for continuing education products because both
“promote individual ‘involvement in lifelong learning.’”
These allegations are a stark departure from the complaint in
Siva, which suggested that “[t]he [CME] market is a market
for educational content … but the MOC program contains no
such content,” thereby defeating the plausibility of any
inference that one could be a substitute for the other. 38 F.4th
at 579.
Further, Plaintiffs plausibly allege that consumers would
“voluntarily purchase MOC if given the option.” See Siva, 38
F.4th at 580. Plaintiffs assert that a small portion of
psychiatrists and neurologists who are “grandfathered in”
24 No. 24-1994
and not required to purchase MOC to maintain their
certification, still buy MOC. Plaintiffs allege that these
“grandfathered in” psychiatrists and neurologists “have
purchased MOC instead of some other [CME] offering
available on the market” and that “they are buying MOC as
their [CME] product of choice.” See Siva, 38 F.4th at 581. Given
that in Siva we held that “[t]he 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 certifications nevertheless purchase MOC
unbundled from certification,” id., Plaintiffs’ allegations of the
same here would seem, by Siva’s own terms, to “permit an
inference of … ‘cross-price elasticity,’” see id. at 578.
For all of the foregoing reasons, under the pleading
standards set forth in Siva, I think Plaintiffs’ non-conclusory,
factual allegations permit an inference that CMEs and MOCs
are “reasonably interchangeable in the minds of relevant
consumers.” See id. at 578 (cleaned up). This is not a case
“‘with no reasonably founded hope’ of success,” id. at 575
(quoting Twombly, 550 U.S. at 559), where plaintiffs are
attempting a “discover-first, plead-later approach,” Assoc. of
Am. Physicians & Surgeons, 15 F.4th at 835. Instead, as I see it,
Plaintiffs’ 51-page complaint sets forth sufficient factual
allegations to carry Plaintiffs’ heavy pleading burden.
III.
The majority, however, finds that despite Plaintiffs’ Sivatailored amendments to their complaint, Plaintiffs still have
not stated a claim upon which relief can be granted. In my
view, the majority’s concerns are mostly speculative and are
improper bases for dismissal.
No. 24-1994 25
For example, the majority holds that because MOCs are
more involved than CMEs, requiring PIP activities, articlebased exams, and recertification exams, no psychiatrist or
neurologist would view MOCs as interchangeable with
CMEs. Maj. Op. 11. And the majority concludes that because
of this “substantial cost in money, time, and effort,” it “cannot
infer” that if CME prices increased, sales would shift to MOC.
Id.
But this case is about medical education products—which,
as Plaintiffs explain, promote “individual, self-directed
lifelong learning and the development of both medical and
non-medical competencies”—not about widgets. There is no
reason to believe, without the benefit of discovery, that
because one manner of learning involves different sorts of
assessments, or more assessments, or sometimes costs
marginally more, there would be no market for it. How
psychiatrists and neurologists might accomplish an
“individual, self-directed” course of study is not something
that we can discern or properly make guesses about at the
motion to dismiss stage. After discovery, it is possible that
Plaintiffs may not be able to prove their tying claim. But, at
the motion to dismiss stage, drawing all reasonable factual
inferences in Plaintiffs’ favor and assuming the truth of their
allegations, Plaintiffs have plausibly alleged that consumers
would “voluntarily purchase MOC if given the option.” Siva,
38 F.4th at 580; see also In re Harley-Davidson Aftermarket Parts
Marketing, Sales Practices & Antitrust Litig., 2025 WL 2374859
at *13–14 (7th Cir. Aug. 15, 2025) (Lee, J., concurring and
dissenting in part) (noting the perils of substituting the court’s
own economic judgment for the allegations in the complaint
in order to affirm dismissal of a plaintiff’s tying claims);
Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S.
26 No. 24-1994
232, 236 (1974)) (“[A] well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts
is improbable, and ‘that a recovery is very remote and
unlikely.’”).
Because I think that Plaintiffs here complied with the
pleading standards set forth in Siva, plausibly alleging that
CMEs and MOCs are reasonably interchangeable, I would
reverse the district court’s dismissal of Plaintiffs’ complaint so
that discovery could proceed.