American Osteopathic Association v. American Board of Internal Medicine

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AMERICAN OSTEOPATHIC : CIVIL ACTION

ASSOCIATION, et al. :

: No. 20-6540

v. :

:

AMERICAN BOARD OF INTERNAL :

MEDICINE :

MEMORANDUM

Chief Judge Juan R. Sánchez August 19, 2021

This case arises from the long-standing rivalry between allopathic and osteopathic

medicine in the United States. Although the education structure for both disciplines is the same,

the pathways are separate. Training in each discipline includes medical school, residency

programs, and board certification in specialty areas. Each of these steps was separate and

accredited or approved by the respective medical discipline. But in 2014, the Accreditation Council

for Graduate Medical Education (ACGME), the organization that accredits allopathic graduate

medical education programs, and the American Osteopathic Association, the organization that

accredits osteopathic graduate medical education programs, agreed to combine their residency

accreditation programs into a single system. Under this single accreditation system, osteopathic

board certified physicians were permitted to serve as program directors in the new ACGME-

accredited residency programs and train both allopathic and osteopathic residents. After

completing the ACGME residency program, residents in internal medicine were qualified to obtain

board certification from either the American Osteopathic Board of Internal Medicine (AOBIM) or

the American Board of Internal Medicine (ABIM). To obtain ABIM certification, a resident must

submit an attestation from the residency program director. And in 2017, ABIM announced it would

only accept attestations from program directors who are also ABIM certified. Attestations from

AOBIM-certified program directors would not be accepted unless the program directors sat for

and passed the ABIM board certification exam. Plaintiffs, the AOA and seven AOBIM-certified

program directors, now bring tortious interference, unjust enrichment, and defamation claims

against Defendant ABIM. ABIM moves to dismiss these claims for failure to state a claim pursuant

to Federal Rule of Civil Procedure 12(b)(6). Because each of these claims fail, the Court will grant

ABIM’s motion and dismiss the Complaint.

BACKGROUND1

Plaintiff American Osteopathic Association (AOA) is a nonprofit organization

representing the practice of osteopathic medicine and osteopathic physicians and medical students.

The AOA offers a board certification in internal medicine from the American Osteopathic Board

of Internal Medicine (AOBIM) The Plaintiff Physicians are all program directors of residency

programs who train medical students and prepare them to take board certification exams in internal

medicine. Defendant American Board of Internal Medicine (ABIM) is a nonprofit, physician-led

organization certifying physicians in internal medicine.

Historically, the AOA accredited osteopathic residency programs. While the Accreditation

Council for Graduate Medical Education (ACGME) accredited corresponding allopathic residency

programs. After completing an AOA- or ACGME- residency program, residents often seek board

certification in their specialty area. Relevant to this case, residents seek board certification in

internal medicine from either the AOBIM or ABIM. The only difference in these parallel training

paths is ABIM’s requirement that residents complete their residency in an ACGME-accredited

program, whereas the AOA would certify residents with training from AOA- or ACGME-

accredited programs.

1 In evaluating a motion to dismiss, the Court must “accept as true all factual allegations in the

complaint and view those facts in the light most favorable to the non-moving party.” Doe v. Univ.

of the Scis., 961 F.3d 203, 208 (3d Cir. 2020) (citation omitted).

In 2014, the AOA and ACGME created a single residency accreditation system for both

allopathic and osteopathic residency programs. The single accreditation system allowed program

directors to teach all residents, regardless of whether they were certified in allopathic medicine (by

ABIM) or osteopathic medicine (by AOBIM). After residents completed the joint residency

program, they could seek certification from either the AOBIM or the ABIM. This required

residents to take either the osteopathic certification exam, given by the AOBIM, or the allopathic

certification exam, given by ABIM.

Before certifying each resident, ABIM requires a residency program director to attest to

each resident’s qualification. In response to the single accreditation system, ABIM accepted

attestations of qualification from both ABIM- and AOBIM-certified program directors. That

changed in 2017, when ABIM announced it would only accept attestations of qualification from

ABIM-certified Program Directors beginning in 2022. The announcement stated:

Beginning in July 2015, for residents and fellows who begin training in an AOA

accredited program which receives ACGME accreditation before graduation, all

satisfactorily completed years of training will be accepted towards ABIM’s initial

certification eligibility requirements. To be granted admission to an ABIM

certification examination, candidates must meet all applicable training, licensure,

professional standing and procedural requirements.

Through its tracking process, FasTrack®, ABIM requires verification of trainees’

clinical competence from an ABIM certified program director (other ABMS Board

and Canadian certification is acceptable, if applicable). In support of the Single

GME Accreditation System, ABIM recognized the need for a change in eligibility

policies to allow program directors of newly accredited programs to become

certified by ABIM and for a transition period (2016-2021) to allow them to do so.

If the program director of a program achieving accreditation through the Single

GME Accreditation System is not currently certified by ABIM in the discipline for

which he or she is program director, there is now a Special Consideration Pathway

which will allow the program director to become certified by ABIM.

During the 2016-2021 transition period, ABIM will accept attestations for ABIM

initial certification eligibility criteria from those who are program directors through

the Single GME Accreditation System, but who have not yet become ABIM

certified. Beginning in 2022, all attestations to ABIM initial certification eligibility

criteria will need to come from program directors who are ABIM certified. For

additional information, please see the “Clinical Competence Requirements” section

under each certification area.

Compl. ¶ 64.

Pursuant to this requirement, residents seeking ABIM certification must attend a residency

program with a program director who is ABIM-certified. Residents who attend a residency

program with a program director who is AOBIM-certified are not eligible for ABIM certification.

In response, the AOA and seven AOBIM-certified program directors filed the instant

Complaint on December 30, 2020. The Complaint alleges the ABIM attestation requirement (1)

tortiously interferes with Plaintiffs’ business relationships (Counts I and II) and (2) unjustly

enriches ABIM (Counts III and IV). Plaintiffs also accuse ABIM of defamation by innuendo

(Counts V and VI). Plaintiffs make all three claims pursuant to Pennsylvania law.

On its tortious interference claims, the AOA alleges the attestation requirement places

pressure on AOBIM-certified program directors to abandon that certification and seek ABIM

certification. The AOA asserts “[t]he ABIM Requirement represents ABIM’s purposeful

interference in AOA’s reasonable expectation to retain and offer continuous certification to the

physicians it certifies.” Compl. ¶ 117. The Plaintiff Physicians also bring a tortious interference

claim premised on the ABIM allegedly interfering with their business relationships with residency

programs. As AOBIM-certified program directors, the Plaintiff Physicians allege they will be

prevented from continuing their employment with residency programs unless they obtain and

maintain ABIM certification.

Only one Plaintiff Physician, Dr. Baker, has achieved ABIM certification. See Compl. ¶ 91.

She did so at great cost: $3000 to study for and take the ABIM exam; up to forty hours a week of

studying while taking vacation time; and “grappl[ing] with the time and cost investment needed to

maintain both [AOBIM and ABIM] certifications, including keeping up with dual recertification

courses and examination processes.” Id.

Plaintiffs also allege a claim for unjust enrichment. The AOA claims its members have

“confer[ed] a benefit on ABIM by registering for and taking ABIM’s board examination.” Compl.

¶ 133. The AOA also alleges ABIM has knowingly and unjustly retained the exam fees. See id.

This, according to the Complaint, unjustly enriched ABIM relative to AOA and the Plaintiff

Physicians, “who receive no benefit from taking the ABIM examination because there is no

qualitative difference in [p]rogram [d]irector’s qualifications if they pass the ABIM examination

instead of remaining AOBIM-certified.” Compl. ¶ 137. In fact, AOA has experienced a decrease

in the number of residents seeking AOBIM certification. See Compl. ¶ 139. Count IV mirrors

Count III, but is on behalf of the Plaintiff Physicians. See Compl. ¶¶ 141–45. The Plaintiff

Physicians conferred a benefit to ABIM by paying for ABIM certification. They allege the ABIM

certification is an “unnecessary” certification from which they get nothing.

Plaintiffs’ final claims are for defamation by innuendo. Plaintiffs allege the ABIM

attestation requirement on its own and the published announcement of that requirement are

defamatory. Plaintiffs allege the statement “inescapably implies [] the AOBIM is an inferior board

examination and that the AOA certifying boards are inferior generally.” Compl. ¶ 151. For AOA,

this resulted in “pecuniary loss” because fewer residents seek AOBIM certification. See Compl.

¶¶ 154–55. As for the Plaintiff Physicians, ABIM, “communicated to the public that . . . the

[p]rogram d]irectors . . . [are] inferior due to their AOBIM certification” and “deemed [the program

directors] unqualified.” Compl. ¶¶ 158–160. As a result, the Plaintiff Physicians allege they must

either (1) lose their jobs or (2) “seek entry-level board certification.” Compl. ¶ 163.

On February 24, 2021, ABIM moved to dismiss all counts of the Complaint for failure to

state a claim. See Mot. to Dismiss, ECF No. 17. First, the ABIM argues for dismissal of the tortious

interference claims because the Complaint fails to plead facts of: (1) intent to harm; (2) causation;

and (3) the absence of privilege or justification. Second, ABIM argues for dismissal of the unjust

enrichment claims because (1) ABIM has contractual relationships with those who pay its fees,

and (2) the Complaint fails to plead facts showing ABIM was unjustly enriched. Lastly, ABIM

seeks dismissal of the defamation claims because: (1) they are time barred; (2) ABIM’s statement

is not reasonably susceptible to defamatory meaning; (3) the announcement was not about

Plaintiffs; and (4) the statement is protected opinion. On May 11, 2021, the Court held a telephonic

oral argument on the motion.

DISCUSSION

To withstand a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A complaint “does not need detailed factual allegations” if it

contains something “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). But the plausibility standard “require[s] a pleading to show more than a sheer

possibility that a defendant has acted unlawfully.” Connelly v. Lane Constr. Corp., 809 F.3d 780,

786 (3d Cir. 2016) (internal quotation marks and citation omitted). “A facially plausible claim is

one that permits a reasonable inference that the defendant is liable for the misconduct alleged.”

Doe v. Univ. of the Scis., 961 F.3d 203, 208 (3d Cir. 2020) (citing Iqbal, 556 U.S. at 678).

All of Plaintiffs’ claims fail to meet this standard. The Court will thus grant ABIM’s motion

and dismiss the Complaint. The unjust enrichment and defamation claims will be dismissed with

prejudice and without leave to amend. The tortious interference claims will be dismissed without

prejudice and Plaintiffs will be granted leave to amend to address the deficiencies identified herein.

The Court will dismiss the tortious interference claims (Counts I and II) because the

Complaint fails to plead intent to harm. In Pennsylvania, the Restatement (Second) of Torts § 766

governs the law of intentional interference with contractual relationships. See Walnut St. Assocs.,

Inc. v. Brokerage Concepts, Inc., 982 A.2d 94, 97 (Pa. Super. Ct. 2009). The Restatement provides

an expansive framework for adjudicating tortious interference claims.2 But the Pennsylvania

Supreme Court has only adopted parts of this framework.3

2 The Restatement allows causes of action for: intentional interference with a third party’s

performance of a contract (§ 766); intentional interference with another’s performance of his own

contract (§ 766A); interference with prospective contractual relations (§ 766B); and negligent

interference with contractual relations (§ 766C). See Restatement (Second) of Torts §§ 766A–C.

3 In Adler, Barish, Daniels, Levin & Creskoff v. Epstein, the Pennsylvania Supreme Court adopted

§ 766 of the Restatement (Second) of Torts. See 393 A.2d 1175, 1184–85 (1978); accord Windsor

Secur., Inc. v. Hartford Life Ins. Co., 986 F.2d 655, 660 (3d Cir. 1993). The Pennsylvania Supreme

Court has not, however, adopted § 766A. See Windsor Secur., Inc., 986 F.2d at 660–61. And the

Third Circuit predicts the Pennsylvania Supreme Court would decline to do so. See, e.g., id.;

Gemini Physical Therapy & Rehab. v. State Farm Mut. Auto. Ins. Co., 40 F.3d 63, 66 (3d Cir.

1994). The Third Circuit pointed out two key differences between § 766 and § 766A. First, § 766A

creates a cause of action for a defendant’s interference with the plaintiff, while § 766 creates a

cause of action for the defendant’s interference with a third party. See Gemini, 40 F.3d at 66.

Second, § 766A calls for a speculative element of proof not required by § 766: causing

performance of a contract to be more costly. See id.

Governing tortious interference with contractual relationships, § 766B contains two

subsections. Section 766B(a) deals with interference directed at third parties. Section 766B(b)

deals with interference directed toward the plaintiff. See Karpf v. Mass. Mut. Life. Ins. Co., No.

10-1401, 2018 WL 1142189, at *14 (E.D. Pa. Mar. 1, 2018). According to the Third Circuit, the

Pennsylvania Supreme Court has not adopted § 766B in toto. See Windsor Secur., Inc., 986 F.2d

at 661. And there is some disagreement over what § 766B claims are actionable in Pennsylvania.

Multiple district courts have concluded —based on the Third Circuit’s treatment of § 766A—that

Pennsylvania law only allows causes of action based on intent to interfere with a third party under

§ 766B(a), not on intent to interfere with the plaintiff under § 766B(b). See Karpf, 2018 WL

1142189, at *16 (collecting cases). On one hand, these courts correctly identify that both § 766A

and § 766B(b), unlike § 766, are directed at interference with the plaintiff. On the other hand, these

courts ignore that, unlike § 766A, § 766B(b) does not require a speculative element of proof. The

weight of district court authority, however, has found that claims under § 766B(b) are not

To adequately state a claim, a plaintiff must allege facts showing:

(1) the existence of a contractual or prospective contractual or economic

relationship between the plaintiff and a third party; (2) purposeful action by the

defendant, specifically intended to harm an existing relationship or intended to

prevent a prospective relation from occurring; (3) the absence of privilege or

justification on the part of the defendant; (4) legal damage to the plaintiff as a result

of the defendant's conduct; and (5) for prospective contracts, a reasonable

likelihood that the relationship would have occurred but for the defendant's

interference.

Acumed LLC v. Advanced Surgical Servs., 561 F.3d 199, 212 (3d Cir. 2009).

Here, Plaintiffs fail to allege a specific intent to harm. The Complaint alleges two

prospective contractual relationships: (1) the employment relationships between the residency

programs and the program directors and (2) the AOA’s future certification of program directors.

To state a claim, Plaintiffs must plead facts showing ABIM intentionally “induce[d] or otherwise

caus[ed] a third party not to perform the contract.” Charbonneau v. Chartis Prop. Cas. Co., 680

F. App’x 94, 99 (3d Cir. 2017) (citation omitted). Intent can be inferred from a defendant’s

“purposeful action” when he or she “knows that the interference is certain or substantially certain

to occur.” Odyssey Waste Servs., LLC v. BFI Waste Sys. of N. Am., Inc., No. 05-1929, 2005 WL

3110826, at *5 (E.D. Pa. Nov. 18, 2005) (quoting Restatement (Second) of Torts § 766, cmt. j.)

(internal quotation marks omitted).

Many of the Plaintiff’s allegations are conclusory because they reiterate the requirements

for recovery. See Bull Int’l Inc. v. MTD Consumer Grp., Inc., 654 F. App’x 80, 102–03 (3d Cir.

2016) (classifying the phrases “tortiously interfere” and “wrongfully terminating” as legal

actionable pursuant to Pennsylvania law. As a result, AOA’s tortious interference claim (Count I)

will be limited to ABIM’s intent to interfere with the program directors continuing to contract with

the AOA. And Plaintiff Physicians’ tortious interference claim (Count II) will be limited to the

intent to interfere with the alleged contract between the residency programs and the program

directors.

conclusions). At best, Plaintiffs allege “ABIM is pressuring AOBIM-certified [p]rogram

[d]irectors to become ABIM certified and abandon their AOBIM certification, knowing that few

physicians will see value in maintaining multiple board certifications.” Even this allegation,

however, is threadbare, considering Plaintiffs do not allege who or how ABIM is pressuring

program directors. Nevertheless, based on this allegation, the claim is based on ABIM’s alleged

intention for residency programs to require program directors become ABIM certified.4

To adequately plead intent to harm, Plaintiffs must allege ABIM knew residency programs

would terminate contracts with program directors who lack ABIM certification. The Complaint

only details actions which make it harder for the residency programs to maintain their contractual

obligations with AOBIM-certified program directors. Even if the residency programs require

ABIM-certification, the program directors can keep their employment if they become ABIM

certified. All ABIM has allegedly done is made it more difficult for the residency programs and

Plaintiff Physicians to maintain their contractual relationships. This is not sufficient to plead

specific intent to cause someone to not perform a contract. The Complaint does not accuse ABIM

of telling residency programs to not contract with AOBIM-certified Program Directors. Cf. Med.

Diagnostics Lab’ys, LLC v. Indep. Blue Cross, No. 16-5855, 2017 WL 3776619, at * 7–8 (E.D.

Pa. Aug. 30, 2017) (dismissing a tortious interference with existing relations claim because the

4 The allegation supports two other intentions: (1) for program directors to enter contracts with

ABIM; and (2) to make AOA certification so expensive or onerous that program directors would

stop contracting with AOA. The first intention is not cognizable under Pennsylvania law; the

Restatement (Second) of Torts § 766 does not recognize a cause of action for entering a contract.

See Charbonneau, 680 F. App’x at 99 (holding that a plaintiff must show the defendant

intentionally “induced or otherwise caused a third party not to perform a contract” to recover for

a claim of tortious interference with contractual relations). The second intention is not actionable

because Pennsylvania law does not recognize claims making performance of a contract more

expensive or difficult. See Windsor Secs., Inc., 986 F.2d at 660–61 (stating § 766A provides for

an interference that makes performance more expensive or burdensome and stating Pennsylvania

Supreme Court has not explicitly adopted § 766A).

defendant’s action only made it more difficult for a third-party to perform a contract and permitting

a claim because the complaint alleged the defendant told businesses to either stop contracting with

the plaintiff or face monetary penalties).

Plaintiffs make no allegations regarding specific acts taken by ABIM to support the alleged

pressuring of program directors. For instance, tortious interference claims have proceeded when a

plaintiff alleges the defendant called customers and told them to stop using the plaintiff’s services.

See Med. Diagnostics Lab’ys, LLC, 2017 WL 3776619, at *7–8. Here, Plaintiff do not allege

ABIM is contacting program directors or residency programs. The allegation regarding ABIM

pressuring physician thus does not give a rise to an inference of specific intent to harm.5 The

residency programs remain free to choose whether they want to contract with the program directors

regardless of their certification status. See Phillips v. Robertson, No. 91-2587, 1992 WL 73003, at

*4–5 (E.D. Pa. Apr. 1, 1992) (dismissing a tortious interference claim where the defendant

published an editorial critical of plaintiff’s services but advised readers to “make his or her own

decisions about contracting with others” and never expressly told the reader not to contract with

plaintiff). The Court will therefore dismiss Plaintiffs’ tortious interference claims in Counts I and

II of the Complaint.

5 Plaintiffs argue intent to harm can be inferred from their allegations considering the

discriminatory history of osteopathic medicine. See Pl.’s Resp. to Mot. to Dismiss 10–11, ECF

No. 20. The Complaint alleges allopathic medicine was historically favored at the expense of

osteopathic medicine. Plaintiffs rely on case law stating a defendant’s desire for another

company’s clientele or employees is sufficient to plead intent to harm. See, e.g., Am. Trade

Partners, LP v. A-1 Int’l Importing Enters., Ltd., 757 F. Supp. 545, 555 (E.D. Pa. 1991) (inferring

intent from actions to obtain employees from a competitor despite knowledge of non-compete

agreements). But that is not what is alleged here. AOBIM-certified physicians are all osteopathic

physicians. As a result, the inference is not that ABIM wants osteopathic physicians or AOBIM-

certified physicians, but that they want program directors who attest to residents’ qualification for

the exam to be ABIM certified, regardless of whether they are osteopathic or allopathic physicians.

On the unjust enrichment claims, Plaintiffs have failed to allege they conferred a unilateral

benefit onto ABIM. A plaintiff may plead unjust enrichment using either a quasi-contract theory,

or a tort theory.6 See, e.g., Steamfitters Loc. Union No. 420 Welfare Fund v. Philip Morris, 171

F.3d 912, 936 (3d Cir. 1999). The quasi-contract theory requires “both (1) an enrichment, and

(2) an injustice resulting if recovery for enrichment is denied.” Id. A plaintiff seeking relief for

unjust enrichment resulting from a quasi-contract must plead the following elements:

(1) benefits conferred on defendant by plaintiff; (2) appreciation of such

benefits by defendant; and (3) acceptance and retention of such benefits under

such circumstances that it would be inequitable for defendant to retain the

benefit without payment of value . . . The application of the doctrine depends

on the particular factual circumstances of the case at issue. In determining if the

doctrine applies, [the] focus is not on the intention of the parties, but rather on

whether the defendant has been unjustly enriched.

Hollenshead v. New Penn Fin., LLC, 447 F. Supp. 3d 283, 292 (E.D. Pa. 2020). Enrichment, as

required in the first and second elements of a claim, occurs when a plaintiff “receives anything

less than what they paid for.” In re Avandia Mktg. Sales Pracs. & Prods. Liab. Litig., No. 07-4963,

2013 WL 5761202, at *11 (E.D. Pa. Oct. 22, 2013). A defendant has not been enriched when a

plaintiff “purchase[s], receive[s] and use[s]” the product defendant sold. Mazur v. Milo’s Kitchen,

LLC, No. 12-1011, 2013 WL 3245203, at *10 (W.D. Pa. June 25, 2013).

The AOA’s unjust enrichment claim is premised on program directors who will pay to take

the ABIM’s board examination and maintain the certification. See Compl. ¶ 134. These allegations,

however, do not show AOA conferred a benefit onto ABIM. They state only that physicians and

program directors are the ones who pay the fees for ABIM certification. As a result, the AOA’s

unjust enrichment claim fails. The Court will thus dismiss this claim with prejudice.

6 The Court need not consider tort-based unjust enrichment because the Complaint does not

adequately plead a tort claim. The analysis thus addresses only quasi-contract unjust enrichment.

Plaintiff Physicians’ claim is premised on their payment to ABIM to take the board

certification exam and maintain ABIM certification. See Compl. ¶ 91. As for Plaintiff Dr. Baker,

she paid for the registration fee, sat for the exam, and received ABIM-certification. These

allegations show Dr. Baker has bargained to take the ABIM examination and obtain ABIM

certification. The only reasonable inference from these facts is her receipt of exactly what she paid

for. Cf. Mazur, 2013 WL 3245203, at *10 (dismissing an unjust enrichment claim because the

plaintiff was dissatisfied with, but nevertheless “purchased, received, and used” dog treats). The

other Plaintiff Physicians, however, have not payed to take the exam, and some even indicate they

do not intend to. The other Plaintiff Physicians have not alleged they conferred a unilateral benefit

on ABIM.

Plaintiff Physicians argue the payment to ABIM is unilateral because they gain nothing

from the additional certification. They argue the ABIM certification is superfluous and does not

provide them with an enhanced qualification or program curricula. See Pls.’ Resp. to Mot. to

Dismiss 16. Even so, there are no allegations stating ABIM is attempting to provide an enhanced

qualification or program curricula by giving its exam and board certification. ABIM is simply

providing its exam and certification, not a superior certification. To the extent Plaintiff Physicians

believe ABIM certification provides them with nothing, the Complaint alleges they would receive

the benefit of taking the ABIM exam and eventually, ABIM certification. Plaintiff Physicians may

believe it is valueless, but they would still get what they paid for. Moreover, the Complaint alleges

multiple times that there are no differences between AOBIM and ABIM certification. As a result,

the Court can only infer the Plaintiff Physicians would not be seeking improved qualifications or

curricula, but only ABIM certification as provided.

Without an allegation of a unilateral benefit conferred upon ABIM, the Court will dismiss

Plaintiff Physicians’ claims for unjust enrichment in Count IV.

Finally, on Plaintiff’s defamation by innuendo claims, the Court will dismiss them because

the announcement is not reasonably susceptible to defamatory meaning. “To establish defamation

by innuendo, the innuendo must be warranted, justified and supported by the publication.”

ToDay’s Hous. v. Times Shamrock Commc’ns, Inc., 21 A.3d 1209, 1215 (Pa. Super. Ct. 2011)

(citation omitted). Whether innuendo is actionable as defamatory is a question of law. See Sarkees

v. Warner–West Corp., 37 A.2d 544, 546 (Pa. 1944); Remick v. Manfredy, 238 F.3d 248, 261 (3d

Cir. 2001). A court must “fairly and reasonably” construe an alleged defamatory statement using

“the natural meaning of the words.” Sarkees v. Warner-W. Corp., 37 A.2d 544. 546 (Pa. 1944).

Courts may only dismiss claims for lack of defamatory meaning when “the only reasonable

interpretation of the statement” is nondefamatory. Hill v. Cosby, 665 F. App’x 169, 175 (3d Cir.

2016) (emphasis in original) (citation and internal question marks omitted). A defamatory

statement “tends so to harm the reputation of another as to lower him in the estimation of the

community or to deter third persons from associating or dealing with him” Remick, 238 F.3d at

261 (citation omitted). An announcement contains an actionable implied defamatory meaning

when a reasonable recipient could read the statement to imply “the existence of undisclosed

defamatory facts.” Hill, 665 F. App’x at 176.

The Complaint alleges two defamatory meanings.7 First, the announcement

“communicated that . . . AOBIM-certified [p]rogram [d]irectors now will be deemed unqualified

7 This analysis is limited to the ABIM’s announcement of the attestation requirement provided in

the Complaint. Plaintiffs also allege the ABIM attestation requirement itself is defamatory. See

Compl. ¶ 162. But the Complaint only includes the ABIM announcement in ¶ 64. Courts cannot

determine whether the requirement is capable of a defamatory meaning because the language is

not included in the Complaint. The Court therefore considers only whether the announcement

to serve as [p]rogram [d]irectors.” Compl. ¶ 150. Second, it “inescapably implies” AOA certifying

boards and AOBIM-certified [p]rogram [d]irectors are “inferior.” Compl. ¶¶ 151–52, 159. The

announcement’s audience is “individuals in the medical field” familiar with the historical

interactions between osteopathic and allopathic medicine as set forth in the Complaint.8 Pl.’s Resp.

to Mot. to Dismiss 18, ECF No. 20.

The statement can only be reasonably and fairly construed as nondefamatory. The

announcement communicates an internal decision; after a transition period, ABIM would

implement a new attestation requirement. Although the decision is averse to Plaintiffs, the Court

cannot speculate as to ABIM’s reasons for adopting the policy. And the announcement does not

state Plaintiff Physicians are unfit for their jobs, trades, or professions. It simply states ABIM will

not accept statements of student qualification from program directors lacking ABIM certification.

Even given the history between osteopathic and allopathic medicine, this statement cannot be read

to imply undisclosed defamatory facts. See Puchalski v. Sch. Dist. of Springfield, 161 F. Supp. 2d

395, 407 (E.D. Pa. 2001) (holding a school district banning the plaintiff from speaking to his

former players after his termination “did not clearly communicate any defamatory message”); cf.

Dempsey v. Bucknell Univ., No. 11-1679, 2012 WL 1569826, at *14 (M.D. Pa. May 3, 2012)

supports a defamation by innuendo claim. Plaintiffs may renew this claim in an amended

complaint.

8 Plaintiffs state that the “intended or expected audience” of the ABIM announcement is those “in

the medical field who construe the requirement as an attack on [Plaintiff Physicians’] fitness in

their roles and the AOA’s ability to certify medical professionals.” Pl.’s Resp. to Mot. to Dismiss

18, ECF No. 20. The proper audience may be those in the medical profession who understand the

history detailed in the Complaint. But to be actionable as defamatory, the statement must be

reasonably viewed by the appropriate audience as attacking the Plaintiff Physicians’ fitness.

Plaintiff Physicians’ cannot limit the intended audience of the announcement to those who already

ascribe it a defamatory meaning.

(concluding a university announcing the plaintiff’s temporary suspension did not, itself, support a

defamation claim).

Further, if a defamatory meaning could be afforded to communications of internal

decisions averse to other organizations or individuals, then any party who imposes a new

requirement on an accreditation or certification would be subject to liability. In Bull International

Inc. v. MTD Consumer Grp., Inc., the Third Circuit applied this reasoning in the context of contract

termination. See 654 F. App’x 80, 106 (3d Cir. 2016). There, the plaintiff brought defamation

claims after a company announced it would terminate its contract with him. See id. Because

allowing the defamation claim would impermissibly extend defamation liability to every situation

in which the plaintiff terminated a contract, the Third Circuit affirmed dismissal of the claims for

lack of defamatory meaning. See id. at 106–07. This case is similar. Drawing defamatory meaning

from the announcement would impermissibly extend defamation liability. Accordingly, the Court

will dismiss Count V and Count VI of the Complaint.

The Court will grant Plaintiffs leave to amend the Complaint on all claims except the unjust

enrichment claims and the defamation by innuendo claims. A court may grant leave to amend a

pleading pursuant to Rule 15(a)(2). Rule 15(a)(2) instructs a court to “freely give leave [to amend]

when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court can deny leave to amend, however,

when the amendment would be futile. See City of Cambridge Ret. Sys. v. Altisource Asset Mgmt.

Corp., 908 F.3d 872, 878 (3d Cir. 2018). An amendment is futile when it “could not withstand a

renewed motion to dismiss.” Id. (internal quotations omitted).

Any amendment to the AOA’s unjust enrichment claim would be futile because there is no

plausible basis for the AOA, an organization, to pay ABIM to take a board certification exam.

Amendment to Plaintiff Physicians unjust enrichment claims would also be futile because the

entire premise of the claim is based on fees paid to take the ABIM board certification exam and

obtain certification. Because they are receiving the benefit offered by ABIM, their unjust

enrichment claims fail regardless of any additional facts. And for some of the Plaintiff Physicians,

they have not even alleged they intend to take the ABIM exam. There is thus no basis for finding

a unilateral benefit conferred upon ABIM.

As for the defamation by innuendo claims, amendment would be futile because the Court

determined as a matter of law that the announcement is not defamatory. Because Plaintiffs have

provided the full announcement, there is no reason to allow defamation claims to proceed on the

basis of the announcement alone. Regarding Plaintiffs’ defamation claim based on the attestation

requirement itself Plaintiffs may amend that claim to include whatever language they allege is

defamatory. The remaining claims will be dismissed without prejudice and Plaintiffs will be

granted leave to amend the Complaint to address the deficiencies identified in this Memorandum.

CONCLUSION

In sum, the Court will grant ABIM’s motion to dismiss. Plaintiffs’ tortious interference

claims will be dismissed because they have failed to allege an intent to harm. Those claims will be

dismissed without prejudice. Plaintiffs’ unjust enrichment claims will be dismissed with prejudice

because the Plaintiffs fail to plead any unilaterally conferred benefit to ABIM. The defamation by

innuendo claims will be dismissed with prejudice because the ABIM’s statement is not reasonably

susceptible to a defamatory meaning as a matter of law. Plaintiffs will be granted leave to amend

the claims dismissed without prejudice.

An appropriate order follows.

BY THE COURT:

/s/ Juan R. Sánchez

Juan R. Sánchez, C.J