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Tenth Circuit Rejects Surgical Assistants’ Appeal In Surgical Credentials Monopolization Case
02/04/2025On January 21, 2025, the Tenth Circuit Court of Appeals affirmed the United States District Court for the District of Colorado’s dismissal of the Association of Surgical Assistants’ (ASA) challenge to the National Board of Surgical Technology and Surgical Assisting’s (NBSTSA) certification regime. Ass’n of Surgical Assistants v. Nat’l Bd. of Surgical Technology and Surgical Assisting; Association of Surgical Technologists, No. 23-01344 (10th Cir., Jan. 21, 2025). The Tenth Circuit agreed with the district court’s finding that the ASA failed “to establish the threshold requirement of an antitrust claim: the relevant market.” Id. at 2. The court also held that the ASA did not sufficiently allege that the NBSTSA blocked it from entering as an alternative provider of continuing education credits for surgical assistants and failed to plead a plausible conspiracy or valid antitrust injuries.
The NBSTSA is a certifying body for both surgical technologists and surgical assistants and currently only authorizes the Association of Surgical Technologists (AST), representing surgical technologists, to administer recertification services. The ASA, representing surgical assistants, was a part of the AST until 2020 when it split from the AST and sought to become an NBSTSA authorized education provider. The NBSTSA refused to authorize the ASA to provide continuing education services.
The ASA alleged that NBSTSA executives participated in a scheme to ensure that only the AST could administer recertification services and block the ASA from entering the market to provide recertification services to its members. The alleged conspiracy resulted in the ASA being unable to provide recertification services to its members and forced ASA members to pay additional fees to the AST for recertification. The ASA claimed that its exclusion from the services recertification market by the NBSTSA violated both Section 1 and Section 2 of the Sherman Act. The district court granted the NBSTSA and AST’s motion to dismiss for failure to state a claim, concluding that the ASA failed to establish the requisite product market, monopoly power and market power, a conspiracy between NBSTSA and AST, and antitrust injury.
On appeal, the Tenth Circuit agreed with the district court’s findings on all issues. Writing for the court, Judge Tymkovich held that the ASA’s market definition was inadequate. The ASA advanced a product market definition of “providing, approving, processing and recording continuing education credits for CST and CSFA holders” nationwide, cabining the relevant market to the provision of continuing education services for NBSTSA’s certifications. The Tenth Circuit reasoned this definition failed because certifications exist which compete against the NBSTSA’s certification and certificate holders have an alternative renewal option for their NBSTSA certification: retaking the certification exam. In other words, the ASA’s failure to address the reasonable interchangeability of these market alternatives rendered its product market definition legally insufficient.
While failing to establish the threshold market alone doomed the ASA’s antitrust claims, the court also found that the ASA failed to plead a plausible conspiracy. The court noted that valid business justifications explain why NBSTSA might not want a relationship with the ASA and that “ASA’s circumstantial and conclusory allegations are insufficient to establish a plausible conspiracy.” Id. at 18. Finally, emphasizing the antitrust laws “protect competition, not a competitor,” the court found the ASA had not plausibly alleged it had suffered any loss and held “declining to enter a business relationship with a nascent startup is not a cognizable antitrust injury.” Id. at 20.
The judgment has implications for antitrust cases concerning professional certifications and licensing and reinforces the requirements of accurate and precise market definition in complaints advancing antitrust claims.
