185 F.3d 606 (6th Cir. 1999), 96-2529, Am. Council Podiatric Phys. v Am. Bd. Podiatric Surg.

Docket Nº:AMERICAN COUNCIL OF CERTIFIED PODIATRIC PHYSICIANS AND SURGEONS, PLAINTIFF-APPELLANT (96-2529/2530)/ CROSS-APPELLEE,
Citation:185 F.3d 606
Case Date:July 22, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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185 F.3d 606 (6th Cir. 1999)

AMERICAN COUNCIL OF CERTIFIED PODIATRIC PHYSICIANS AND SURGEONS, PLAINTIFF-APPELLANT (96-2529/2530)/ CROSS-APPELLEE,

v.

AMERICAN BOARD OF PODIATRIC SURGERY, INC., DEFENDANT-APPELLEE; DEFENDANT-APPELLANT (97-1224), AMERICAN PODIATRIC MEDICAL ASSOCIATION, DEFENDANT-APPELLEE/ CROSS-APPELLANT (97-1223).

Nos. 96-2529, 96-2530, 97-1223 and 97-1224

United States Court of Appeals, Sixth Circuit

July 22, 1999

Argued: December 17, 1998

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 93-72995--Bernard A. Friedman, District Judge.

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Mark A. Cantor, Brooks & Kushman, Southfield, MI, H. Laddie Montague, Jr., Patricia D. Gugin (briefed), Berger & Montague, Philadelphia, PA, Alan M. Sandals (argued), Sandals, Langer & Taylor, Philadelphia, PA, for Plaintiff-Appellant/Cross-Appellee.

Philip J. Kessler (argued and briefed), Laurie J. Michelson (briefed), Butzel Long, Detroit, MI, Gordon J. Walker (briefed), Birmingham, MI, for Defendant-Appellee.

Thomas M. Hitch (argued and briefed), McGinty, Jakubiak, Frankland, Hitch & Henderson, East Lansing, MI, for Defendant-Appellee/Cross-Appellant.

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Philip J. Kessler (argued and briefed), Butzel Long, Detroit, MI, Thomas M. Hitch (argued and briefed), McGinty, Jakubiak, Frankland, MI, for Defendant-Appellee/Cross-Appellant in No. 96-2530.

Before: Merritt, Norris, and Gilman, Circuit Judges.

OPINION

Alan E. Norris, Circuit Judge.

Plaintiff American Council of Certified Podiatric Physicians and Surgeons ("ACCPPS") brought claims under the Sherman Act, the Michigan Antitrust Reform Act, the Lanham Act, and the common law prohibition against intentional interference with prospective economic advantage against the American Board of Podiatric Surgery, Inc., ("ABPS") and the American Podiatric Medical Association ("APMA"). Plaintiff appeals the district court's partial grant of defendants' motion for summary judgment, the grant of the ABPS's renewed motion for judgment as a matter of law following a jury verdict for plaintiff, and the denial of its request for injunctive relief. The ABPS cross-appeals the district court's denial of its motion for attorney's fees. The APMA cross-appeals the denial of its motion for sanctions pursuant to Fed. R. Civ. P. 11. Subsequent to the filing of the briefs in this case, plaintiff filed a motion to strike portions of the ABPS's brief.

I. BACKGROUND

A. Factual Background.

i. The parties.

The APMA is the oldest and largest organization of podiatrists in the United States. Of the 12,500-13,000 podiatrists in the United States, over 10,000 are members of the APMA. The Council on Podiatric Medical Education ("CPME") is the educational arm of the APMA. The United States Department of Education recognizes the CPME to accredit podiatric colleges, and the CPME accredits the seven colleges of podiatric medicine. The APMA has authorized the CPME to recognize organizations which provide board certification for podiatrists, but the CPME gets no board-recognition authority from the federal government.

The ABPS, which has its origins in the APMA, is the oldest and largest podiatrist certification board in the United States. The CPME has approved the ABPS as a certifying board of podiatric surgeons. Over 4,000 podiatrists are currently certified by the ABPS.

Plaintiff, younger and smaller than the ABPS, also certifies podiatric surgeons. It was created by and is recognized by the American Association of Podiatric Physicians and Surgeons ("AAPPS"). A third board, the American Podiatric Medical Specialties Board ("APMSB"), also certifies podiatrists, but it is not a party to this litigation. The parties spend much time debating which is the more reputable and professional board, but the merits of their positions are irrelevant to this appeal.

ii. The challenged conduct.

Plaintiff bases all of its claims on allegedly false or misleading statements made by the ABPS and the APMA. The ABPS sent out three mass mailings over several years to sectors of the health care community. In 1988, the ABPS sent a letter to between 7,000 and 8,000 hospitals and insurance companies concerning podiatrist certification boards. In the fall of 1991, the ABPS sent a second mass mailing to approximately 6,000 hospitals. A third mailing was sent in October, 1992, to insurance carriers and managed care organizations. Along with these letters, the ABPS included informational brochures. In addition to these ABPS mailings, the APMA allegedly sent out materials of its own which disparaged plaintiff and supported the ABPS. The content of these mailings is discussed in more detail later in this opinion.

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Plaintiff claims that the ABPS and the APMA conspired to issue the challenged statements and thereby to reduce plaintiff's presence as a competitor in the market for podiatrist certification. Not only did the APMA conspire with the ABPS, plaintiff claims, but also it conspired with its own members to falsely disparage plaintiff and undermine its reputation as a certifying board. According to plaintiff, before the mass mailings it was a rising competitor in the market for podiatrist certification, but after the mailings, its market share dwindled, benefitting the ABPS.

iii. The ABPS's share of the market.

Plaintiff has provided the following undisputed data concerning the market shares of the three certifying boards.

Total # of Year applicants ABPS ACCPPS APMSB 1987-88 762 420 (55.1%) 141 201 1988-89 685 368 (53.7%) 210 107 1989-90 565 429 (75.9%) 103 33 1990-91 660 474 (71.8%) 94 92 1991-92 500 339 (67.6%) 95 67 1992-93 564 433 (76.7%) 59 72 1993-94 739 558 (75.5%) 98 83 1994-95 790 600 (75.9%) 111 79

Plaintiff claims that in apparent contradiction to having such a large market share, the ABPS charges approximately twice as much for podiatrists to take its exam than does plaintiff.

B. Prior Proceedings.

In 1991, plaintiff sued the APMA for violations of the Lanham Act and for intentional interference with business relationships. The parties settled, and plaintiff's claims were dismissed with prejudice on April 17, 1992. In July, 1993, plaintiff filed a six-count complaint against the ABPS and the APMA. Plaintiff alleged violations of the Lanham Act, § 1 of the Sherman Act (agreement in restraint of trade), § 2 of the Sherman Act (illegal monopolization, attempted monopolization, and conspiracy to monopolize), corresponding violations of the Michigan Antitrust Reform Act, and the common law tort of intentional interference with prospective economic advantage. Defendants moved for summary judgment on all counts, and the district court granted the motion with regard to all claims except the Lanham Act claim against the ABPS. The Lanham Act claim was dismissed against the APMA because, according to the district court, all the events on which the APMA's Lanham Act liability was based occurred before April 17, 1992, and the dismissal of the plaintiff's earlier Lanham Act claims against the APMA precluded the later suit. After being dismissed from the case, the APMA filed a motion for sanctions against the plaintiff, pursuant to Fed. R. Civ. P. 11.

The remaining parties proceeded to trial on the Lanham Act claims. After the jury returned a verdict for plaintiff, plaintiff requested injunctive relief prohibiting the ABPS from making any further misstatements. Not only did the district court deny plaintiff's request, the court granted the ABPS's renewed motion for judgment as a matter of law. In a separate opinion, the district court denied the APMA's request for sanctions. The ABPS subsequently sought attorney's fees, a request that was also denied.

Plaintiff appeals the partial grant of the motion for summary judgment, the grant of the renewed motion for judgment as a matter of law, and the denial of injunctive relief. The APMA cross-appeals the district court's refusal to impose sanctions on plaintiff, and the ABPS cross-appeals the denial of its motion for attorney's fees. Finally, plaintiff asks this court to strike portions of the ABPS's appellate brief.

II. DISCUSSION

A. Plaintiff's motion to strike portions of the ABPS's brief.

Plaintiff complains that, when arguing that the district Judge correctly granted the ABPS's motion for judgment as a matter of law, the ABPS cites in its brief affidavits that were not before the jury. In considering whether sufficient evidence was presented to a jury to support

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a verdict, a court may not consider evidence not before the jury. See United States v. Bonds, 12 F.3d 540, 552 (6th Cir. 1993) ("A party may not by-pass the fact-finding process of the lower court and introduce new facts in its brief on appeal.") (citation and internal quotation marks omitted). The ABPS quotes from the affidavit of a Dr. Coles, and cites to three other affidavits, although those materials were not presented to the jury in any manner.

The ABPS relies upon the affidavits in an impermissible manner. Two of the primary issues on this appeal are whether plaintiff presented sufficient evidence that health care professionals, such as Dr. Coles, were actually deceived by the alleged misrepresentations of the ABPS, and whether such deception of health care professionals caused injury to plaintiff. These affidavits are cited to persuade this court that...

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