# Jung v. Association of American Medical Colleges

> District Court, District of Columbia · February 11, 2004 · 300 F. Supp. 2d 119

URL: https://www.frixlaw.com/law-library/cases/2562998

## Case

- **Full name:** Paul JUNG, M.D., Et Al., Plaintiffs, v. ASSOCIATION OF AMERICAN MEDICAL COLLEGES, Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** February 11, 2004
- **Citations:** 300 F. Supp. 2d 119; 2004 U.S. Dist. LEXIS 1826
- **Precedential status:** Published
- **Opinion:** Opinion by Friedman
- **Judges:** Friedman
- **Cited by:** 104 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2562998

## How later opinions describe it (automated extraction)

- recognizing that “plaintiffs must allege ‘that the challenged restraint is not the result of independent actions by the defendants,’ but rather that ‘the defendants consciously committed to a common agreement of an unreasonable restraint on trade’ ” (citations omitted)
- recognizing a plaintiffs “burden of adequately alleging that a conspiracy to restrain trade existed in the first instance and that each defendant knowingly joined or agreed to participate in the conspiracy”
- concluding that “plaintiffs adequately have alleged a common agreement ... among a number of the named organizational defendants and those institutional defendants that participated in the Match Program ”
- finding non-forum defendants’ contacts with the forum — up to ten times per year — insufficient to establish that defendant “transacted business” in forum under D.C.Code § 13 — 423(a)(1)

## Opinion text

OPINION
PAUL L. FRIEDMAN, District Judge.
Plaintiffs in this putative class action are medical school graduates currently or formerly enrolled in resident physician “residency” programs. The defendants can be categorized into two groups: the organizational defendants (organizations and associations that participate in the administration of graduate medical education in the United States) and the institutional defendants (universities, medical schools, foundations, hospitals, health systems and medical centers that sponsor medical residency programs). The defendants have filed three types of motions to dismiss: (1) motions to dismiss for lack of personal jurisdiction; (2) motions to dismiss for lack of subject matter jurisdiction and to compel arbitration; and (3) motions to dismiss for failure to state a claim upon which relief can be granted.
I. BACKGROUND
Plaintiffs filed suit charging that the defendants have violated Section 1 of the Sherman Act, 15 U.S.C. § 1 . Plaintiffs allege that the defendants have contracted, combined and conspired among themselves to “displace competition in the recruitment, hiring, employment and compensation of resident physicians, and to impose a scheme of restraints which have the purpose and effect of fixing, artificially depressing, standardizing and stabilizing resident physician compensation and other terms of employment.” Complaint (“Compl.”) ¶ 2. Plaintiffs assert that there are three intertwining prongs to the antitrust conspiracy.
The first prong of the alleged conspiracy concerns the annual assignment of fourth-year medical students to the institutional defendants’ residency programs by the National Resident Matching Program (“NRMP”). The NRMP, an Illinois not-for-profit corporation, is managed and operated by defendant American Association of Medical Colleges (“AAMC”) from AAMC’s principal office in Washington, D.C.
See
Compl. ¶ 15. The AAMC also is an Illinois not-for-profit corporation, whose membership includes all 125 accredited medical schools, including those medical schools named in the complaint, and approximately 375 major teaching hospitals and health systems, some of which also are named in the complaint. These hospitals and health systems are member hospitals of a subsection of the AAMC, the Council of Teaching Hospitals and Health Systems (“COTH”) Section.
See id.
¶ 17 .
Plaintiffs allege that in order to effectuate the assignment, or the “Match,” as it is commonly called, prospective medical residents enter into contracts with and submit to the NRMP a ranked list of desired medical resident positions with various institutions (“Student Match Contract”). The institutions themselves also enter into contracts with the NRMP and submit ranked lists of the medical students whom they are interested in hiring (“Institutional Match Contract”). On a date certain, the NRMP through an algorithm “matches” the students’ lists against the institutions’ rankings, resulting in the assignment of each prospective medical resident to one residency program.
See
Compl. ¶¶ 15, 83-86. Plaintiffs allege that this system eliminates a free and competitive market and substitutes a centralized, anticompetitive allocation system that assigns prospective resident physicians to a single, specific and
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mandatory residency program. Plaintiffs further allege that defendants designed and implemented this system and collectively agree to comply with it in violation of the antitrust laws.
See id.
¶ 83 .
Several specific features of this assignment system allegedly serve to impose anticompetitive restraints on medical residency hiring. Plaintiffs allege that a medical student is required to enter into the Match if he or she wishes to gain employment in a residency program accredited by the Accreditation Council for Graduate Medical Education (“ACGME”).
See
Compl. ¶ 71. An individual’s participation in an ACGME-accredited residency program in turn is allegedly a prerequisite for specialty certification upon completion of the residency by a member board of defendant American Board of Medical Specialties (“ABMS”), an Illinois not-for-profit corporation consisting of 24 recognized medical specialty’ certification boards.
See id.
¶¶ 20, 69 . Plaintiffs allege that eventual, specialty certification by an ABMS board is considered critical to prospective residents inasmuch as they desire to- be “certified” to practice within a specialty following the completion of their residencies. The practical effect of this structure, plaintiffs charge, is that the vast majority of medical students are compelled to participate in the Match, which is a substitute for all aspects of competitive individual negotiations and requires applicants to commit contractually to any assigned position as a condition of enrolling in the Match Program.
See id.
¶¶ 69, 86 . Furthermore, certain implementing policing mechanisms of the Match allegedly compel compliance 'with the foregoing restraints. These alleged mechanisms include the requirement that program participants immediately report suspected policy violations to the NRMP and advise the relevant organizational authorities of institution or resident physician violations.
See id.
¶ 86 (c).
In the second prong of the conspiracy, plaintiffs assert that certain aspects of the aforementioned ACGME accreditation standards, with which the institutional defendants allegedly voluntarily comply, function to further restrict residency employment. Specifically, plaintiffs allege that the ACGME (1) has the authority to regulate the number of employment positions in a residency program; (2) imposes substantial obstacles to the ability of a resident to transfer employment from one employer to another during the period of a residency, thereby effectively making NRMP assignments permanent for the duration of a residency; (3) encourages and/or requires participation in the Match by an institution as a condition of accreditation; and (4) directly reviews compensation and other terms of employment with the purposes of fixing and depressing them.
See
Compl. ¶ 88.
The third prong of the conspiracy concerns the exchange by defendants of information on resident compensation and other terms of employment through surveys and databases that plaintiffs allege has the purpose and effect of standardizing and stabilizing compensation and other terms of employment.
See
Compl. ¶¶ 73-82. This exchange allegedly occurs in two ways. First, the AAMC annually surveys members of its COTH Section seeking compensation levels for the employment year, aggregates the results into various categories and distributes its findings in an annual report (the “COTH Survey” or “Survey”).
See id.
¶¶ 74-79 . Second, hospitals and health systems access similar information through an electronic database known as the Fellowship and Residency Electronic Interactive Database (“FREIDA”), which is maintained by defendant American Medical Association (“AMA”).
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See id.
¶ 80 . Plaintiffs allege that this exchange of information allows institutional defendants to fix resident salaries and benefits each year at depressed, anticom-petitive levels.
Plaintiffs charge that the execution of the Match program, the enforcement of the ACGME-accreditation standards, and the coordinated collection and distribution of residency program compensation information together produce a significant depression of residents’ salaries and working conditions by removing residents’ ability to achieve enhanced salaries and working conditions through competition.
See
Compl. ¶¶ 92-96. Plaintiffs allege that defendants have violated Section 1 of the Sherman Act by contracting, combining and conspiring to unreasonably restrain trade and commerce. Plaintiffs filed this antitrust action as a proposed class action and have moved to certify both plaintiff and defendant classes.
See
Motion for Class Certification, filed November 3, 2003.
II. DEFENDANTS’ RULE 12(b)(2) MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION
A.
Rule 12(b)(2) Motions to Dismiss
Sixteen institutional defendants and two organizational defendants, the ABMS and the Council of Medical Specialty Societies (“CMSS”), filed motions to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure.
1
Plaintiffs argue that the Court has jurisdiction over these non-resident defendants on three separate bases: (1) jurisdiction under the District of Columbia long-arm statute; (2) jurisdiction under Section 12 of the Clayton Act, 15 U.S.C. § 22 ; and (3) jurisdiction pursuant to the long-arm statute under the “conspiracy jurisdiction” doctrine.
It is undisputed that plaintiffs bear the burden of establishing personal jurisdiction over each individual defendant and that in order to meet their burden, plaintiffs cannot rely on conclusory allegations.
See GTE New Media Services Inc. v. Ameritech Corp.,
21 F.Supp.2d 27, 36 (D.D.C.1998),
remanded on other grounds sub nom, GTE New Media Services Inc. v. BellSouth Corp.,
199 F.3d 1343 (D.C.Cir.2000). Nor can plaintiffs aggregate factual allegations concerning multiple defendants in order to demonstrate personal jurisdiction over any individual defendant.
See Rush v. Savchuk,
444 U.S. 320, 331-32 , 100 S.Ct. 571 , 62 L.Ed.2d 516 (1980) (rejecting aggregation of co-defendants’ forum contacts in determining personal jurisdiction because “the requirements of
International Shoe
must be met as to each defendant over whom a state court exercises jurisdiction”). In evaluating whether plaintiffs have established personal jurisdiction, the Court need not treat all of plaintiffs’ allegations as true but instead “may receive and weigh affidavits and other relevant matter to assist in determining the jurisdictional facts.”
United States v. Philip Morris Inc.,
116 F.Supp.2d 116 , 120 n. 4 (D.D.C.2000).
In this instance, plaintiffs bear a special, higher burden in order to demonstrate jurisdiction because the parties have en
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gaged in jurisdictional discovery. “[Although ordinarily a plaintiff need only establish a
prima facie
case that personal jurisdiction exists to survive a motion to dismiss; ... in situations where the parties are permitted to conduct discovery on the jurisdictional issue a plaintiff must prove personal jurisdiction by a preponderance of the evidence.”
Shapiro Lifschitz & Schram, P.C. v. Hazard,
24 F.Supp.2d 66, 69 (D.D.C.1998).
See also In re Vitamins Antitrust Litigation,
270 F.Supp.2d 15 , 20 (D.D.C.2003) (citing
In re Vitamins Antitrust Litigation,
Misc. No. 99-0197, 2001 U.S. Dist. LEXIS 25073 , at *22 (D.D.C. Oct. 21, 2001)) (“Because plaintiffs have conducted jurisdictional discovery, they must establish personal jurisdiction over defendants by a preponderance of the evidence.”).
B.
Section lS-I23(a): The District of Columbia Long-Arm Statute
Plaintiffs assert that the Court has personal jurisdiction over the moving defendants under three separate subsections of the District of Columbia long-arm statute, Sections 13-423(a)(l), (3) and (4). While the long-arm statute is interpreted broadly and factual disputes are resolved in favor of plaintiffs, plaintiffs must allege some specific facts evidencing purposeful activity by the defendants in the District of Columbia by which they invoked the benefits and protections of the District’s laws.
See Edmond v. United States Postal Service General Counsel,
949 F.2d 415, 428 (D.C.Cir.1991);
First Chicago Int’l v. United Exchange Co., Ltd.,
836 F.2d 1375, 1378 (D.C.Cir.1988);
United States v. Philip Morris, Inc.,
116 F.Supp.2d at 121 . In addition, because a court in the District of Columbia may exercise jurisdiction over a non-resident defendant “only [for] a claim for relief arising from the specific acts enumerated in [the statute] ...,” D.C. Code § 13 — 423(b), plaintiffs’ jurisdictional allegations must arise from the same conduct of which they complain.
See Willis v. Willis,
655 F.2d 1333, 1336 (D.C.Cir.1981);
Dooley v. United Technologies Corp.,
786 F.Supp. 65, 71 (D.D.C.1992);
LaBrier v. A.H. Robins Co., Inc.,
551 F.Supp. 53, 55 (D.D.C.1982).
1. “Transacting Business” under Section 13^423(a)(l)
Section 13-423(a)(l) of the long-arm statute provides that “a District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s — transacting any business in the District of Columbia.” D.C. Code § 13-423 (a)(l). To establish personal jurisdiction under this subsection, plaintiffs must demonstrate that (1) the defendant transacted business in the District; (2) the claim arose from' the business transacted in the District; (3) the defendant had minimum contacts with the District; and (4) the Court’s exercise of personal jurisdiction would not offend “traditional notions of fair play and substantial justice.”
Dooley v. United Technologies,
786 F.Supp. at 71 ;
see also Novak-Canzeri v. Saud,
864 F.Supp. 203, 206 (D.D.C.1994) (because of the “arising from” requirement of Section 13-423(b), “[t]he claim itself must have arisen from business transacted in the District or there is no jurisdiction”). Section 13-423(a)(1) of the long-arm statute permits the exercise of personal jurisdiction to the full extent permitted by the Due Process Clause of the Constitution.
See First Chicago Int’l v. United Exchange Co. Ltd.,
836 F.2d at 1377 ;
Environmental Research Int’l, Inc. v. Lockwood Greene Eng’rs, Inc.,
355 A.2d 808, 810-11 (D.C.1976) (en banc).
The constitutional touchstone of the due process determination is “whether the defendant purposefully established minimum
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contacts in the forum state.”
Asahi Metal Industry Co. v. Superior Court,
480 U.S. 102, 108-09 , 107 S.Ct. 1026 , 94 L.Ed.2d 92 (1987) (internal citations and emphasis omitted). On the other hand, as the Supreme Court recognized in
Burger King Corp. v. Rudzewicz,
471 U.S. 462, 476 , 105 S.Ct. 2174 , 85 L.Ed.2d 528 (1985) (emphasis in original), in today’s commercial world business is often transacted solely by mail and wire communications across state lines and jurisdiction may sometimes exist even if a defendant “did not
physically
enter the forum state.” The Court explained that in such cases it is necessary to determine whether the commercial actor that is the subject of the lawsuit “purposefully availed itself of the privilege of conducting business in the forum state,” and whether the defendant’s conduct in connection with that state is such that it “should reasonably anticipate being haled into court there.”
Id.
at 474-75 , 105 S.Ct. 2174 (internal citation and quotation omitted). When the “transacting business” analysis concerns a contractual relationship, factors that inform the analysis include the nature of the prior negotiations between the parties, the agreement’s contemplated future consequences, the terms of the contract, the parties’ actual course of dealing and how each party manifested a connection to the forum.
See id.
at 479 , 105 S.Ct. 2174 ;
Schwartz v. CDI Japan, Ltd.,
938 F.Supp. 1, 6 (D.D.C.1996)
a. The Institutional Defendants
Plaintiffs generally allege that “each of the named Defendants and members of the Defendant Class illegally contract, combine and conspire with persons and entities that have committed, and continue to commit, overt acts within the District of Columbia in furtherance of the contract, combination and conspiracy alleged in this Complaint.” Compl. ¶ 9. Plaintiffs then make the same generic claim with respect to each-moving institutional defendant, alleging that the “[institutional defendant] is a [non-District of Columbia] not-for-profit corporation with its principal place of business [outside the District of Columbia]. [The institutional defendant] sponsors medical residency programs, employing members of the Plaintiff Class. [The institutional defendant] has contracted, combined and conspired with the named Defendants to restrain competition as alleged in this Complaint. Certain conspiratorial acts in which this Defendant participated took place in Washington, D.C.”
Id.
¶¶ 25-28, 30-32, 34, 40-43, 45-47, 49. The Court concludes that these generalized eonelu-sory allegations alone are facially insufficient to meet plaintiffs’ jurisdictional burden.
See GTE New Media Services Inc. v. Ameritech Corp.,
21 F.Supp.2d at 36 .
In their opposition to defendants’ motions to dismiss, plaintiffs attempt to re-sculpt and refine these generalized allegations, asserting that the institutional defendants, “through the intensely interactive NRMP web-site, [enter] into contracts in the District of Columbia to secure employment of a significant and important portion of their work force, provide a steady stream of information to the NRMP in order to effectuate the Match, and obtain Match Results,” thereby transacting business in the District of Columbia. Plaintiffs’ Corrected Memorandum of Points and Authorities in Support of Its Omnibus Opposition to Defendants’ Motions to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2) (“Pis.’ (b)(2) Opp.”) at 36. It is undisputed that Barnes Jewish-Hospital, Baylor College of Medicine, Beth Israel Deaconess Medical Center, Inc., Boston Medical Center Corp., Cedars-Sinai Medical Center, The Cleveland Clinic Foundation, Emory University, Rhode Island Hospital, Rush-Presbyterian-St. Luke’s Medical Center, St. Louis University,
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Stanford Hospital & Clinics, Thomas Jefferson University Hospital, Inc., Administrators of the Tulane Educational Fund, University Hospitals of Cleveland, Inc. and Yale-New Haven Hospital, Inc. each annually participates in the Match by contracting to participate in the program, submitting its preference list to the NRMP, which operates from the AAMC’s office in the District of Columbia, and receiving the results of the Match upon its completion.
2
. Six of these institutional defendants admit that they have “sporadic” contacts with the NRMP in connection with the Match in addition to the annual submission of the institution’s Match list.
3
The remaining institutional defendants that participate in the Match assert that they interact with the NRMP only once a year when they transmit their preference lists to the organization. These assertions are contradicted, however, by plaintiffs’ documentation of certain contacts with the NRMP in connection with the Match during 1999-2001. These additional contacts include the submission of quota change forms, updates of institutional information, information and association data forms and/or “reversion” of unfilled position forms. Plaintiffs concede that no one institution submitted more than ten of these communications to the NRMP in any given year.
See
Pis.’ (b)(2) Opp., Ex. 11, Defendant NRMP’s Objections and Answers to Plaintiff Paul Jung’s First Set of Interrogatories on Jurisdiction; Schedule II.B., “Communications from Institutions/Programs to the NRMP — 2001 Residency Match;” Schedule III.B, “Communications from Institutions/Programs to" the NRMP — 2000 Residency Match;” and Schedule IV.B, “Communications from Institutions/Programs to the NRMP — 1999 Residency Match.” It is these additional contacts on which plaintiffs base their assertion that in providing a steady stream of information into the District of Columbia in order to effectuate the Match, the moving institutional defendants “transact
*131
ed business” to an extent sufficient to provide jurisdiction under Section 13^f23(a)(l) of the long-arm statute.
The Court concludes that the fact that the moving institutional defendants entered into the Institutional Match Contract and communicated information concerning their individual programs to the NRMP up to ten times a year in order to effectuate an accurate Match does not by itself form a basis for personal jurisdiction.
See Far West Capital, Inc. v. Towne,
46 F.3d 1071, 1076-77 (10th Cir.1995) (non-forum defendant’s phone calls and ten to twenty faxes to in-forum plaintiff during course of contract negotiation were insufficient to establish minimum contacts under transacting business prong of state long-arm);
see also Wien Air Alaska, Inc. v. Brandt,
195 F.3d 208, 213 (5th Cir.1999) (defendant’s numerous communications into forum cannot serve as basis of jurisdiction if they do not themselves form basis of complaint).
4
The Court must focus on the quality of the contacts rather than their quantity.
See Mouzavires v. Baxter,
434 A.2d 988, 995 (D.C.1981) (en banc) (“notions of fundamental fairness require that the defendant’s contacts with the forum be evaluated qualitatively rather than quantitatively” in assessing “transacting business” prong of long-arm statute).
Upon consideration of the contacts alleged in plaintiffs’ complaint, the Court concludes that the contacts simply are not of the quality that would support a conclusion that the institutional defendants have “purposefully availed [themselves] of the privilege of conducting business in the forum state,” such that they “should reasonably anticipate being haled into court” here under Section 13-423(a)(1).
Burger King Corp. v. Rudzewicz,
471 U.S. at 474-75 , 105 S.Ct. 2174 .
5
First, no prior negotiation of the Institutional Match Contract between any institution and the NRMP took place at all, let alone in the District of Columbia; the contract is a form contract into which the institutional defendants entered by listing their names and the number of residency positions they had available.
See
Omnibus Reply Memorandum in Support of Motions by Various Defendants to Dismiss the Complaint Pursuant to Fed. R.Civ.P. 12(b)(2), Ex. O, NRMP Institutional Agreement. Second, it is not contested that the future consequence of the Institutional Match Contract for the moving institutional defendants was the placement of residents with those defendants
outside
the District of Columbia; the execution of the contract did not result in any continuing connections with the District.
Compare Burger King Corp. v. Rudzewicz,
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471 U.S. at 480 , 105 S.Ct. 2174 (contract executed in forum “envisioned continuing and wide-reaching contacts with [plaintiff] in the forum”).
Third, no terms in the Institutional Match Contract itself indicate any special connection with the District of Columbia. The only indication at all that the Match occurred in the District of Columbia is the listing of the NRMP’s Washington, D.C. address on the face of the contract. Fourth, the contract includes a choice-of-law provision designating Illinois law. While this by no means conclusively demonstrates that defendants are beyond the Court’s jurisdictional reach, it does inform the assessment of whether the defendants could have reasonably foreseen being involved in litigation in the District of Columbia concerning the execution of the Institutional Match Contract.
See Burger King Corp. v. Rudzewicz,
471 U.S. at 482 , 105 S.Ct. 2174 .
Finally, there is nothing in the parties’ actual course of conduct that indicates that the moving institutional defendants should have reasonably foreseen being subject to the jurisdiction of this Court. There is no debate that the Match is very important to the institutional defendants’ business of providing health care; it is the mechanism by which the institutional defendants hire resident doctors. The NRMP is not involved, however, in the hospitals’ substan-tivé process of evaluating potential residents prior to submission of the preference lists. Nor does the NRMP continue to play a role in the hospitals’ business once the Match is completed or in any other fashion exert control over the rest of the hospitals’ affairs. The mere fact that the NRMP, with its principal place of business in the District of Columbia, entered into a contract with others cannot “standing alone” provide jurisdiction over those other contracting parties.
See Health Communications, Inc. v. Mariner Corp.,
860 F.2d at 462 (citing
Burger King Corp. v. Rudzewicz,
471 U.S. at 482 , 105 S.Ct. 2174 ) (no jurisdiction absent demonstrated integration of parties’ businesses or continued influence of forum resident over non-resident defendant, notwithstanding fact that contract was partially performed in forum);
Mouzavires v. Baxter,
484 A.2d at 995 (proper application of minimum contacts formula requires consideration “not only of whether a nonresident defendant has sufficient contacts with the forum, but also of whether those contacts are voluntary and deliberate, rather than fortuitous”).
Plaintiffs rely heavily on
Schwartz v. CDI Japan, Ltd.
in support of their jurisdictional argument. Plaintiffs are correct that the Court in
Schwartz
.stated that “[t]he ‘transacting any business’ provision of the District’s long-arm statute embraces the contractual activities of a non-resident defendant that cause repercussions in the District” and that “[i]t is ‘therefore sufficient’ ... that the suit [be] based on a contract that [has] [a] substantial connection with the District.”
Schwartz v. CDI Japan, Ltd.,
938 F.Supp. at 5 (quoting
Mouzavires v. Baxter,
434 A.2d at 992 ). Plaintiffs fail to recognize, however, that the defendant’s contacts with the District of Columbia in
Schwartz
were much more extensive than those of the moving institutional defendants here. In
Schwartz ,
the foreign defendant not only had assumed a contract with the Smithsonian Institution’s National Museum of American Art (“NMAA”), but also had assumed any additional contracts entered into by the defendant’s former agent with the museum, which indicated the defendant’s continuing “[intention] to reap the financial benefits from transacting business [with the NMAA] in this forum.”
Schwartz v. CDI Japan, Ltd.,
938 F.Supp. at 7 . Furthermore, the assumed contract expressly des
*133
ignated the District of Columbia as the site of the execution of the contract, called for the delivery of products to the Smithsonian in the District of Columbia, and required the defendant to make payments and reimbursements to the NMAA into a District of Columbia bank account.
See id.
at 6 . In addition, an agent of the nonresident defendant had negotiated the assumed contract in the District.
See id.
at 8 . No similar contacts with the forum of this quality exist in the instant circumstances.
The Court therefore concludes that the moving institutional defendants’ entry into the Institutional Match Contract, and the accompanying electronic and/or mail correspondence those defendants sent into the District in support of the contract, do not and cannot provide a basis for personal jurisdiction under Section 13-423(a)(l) of the long-arm statute.
b. The Organizational Defendants
Aside from the conclusory, generalized allegations in the complaint concerning “defendants,” which the Court already has found insufficient to meet the pleading standards for personal jurisdiction over the institutional defendants in Section 11(B)(1)(a),
supra,
plaintiffs provide scant additional support for their jurisdictional claim that the ABMS or the CMSS transacts business in the District of Columbia for the purposes of the long-arm statute. In their complaint, plaintiffs introduce the ABMS as “an Illinois not-for-profit corporation whose membership consists of 24 recognized medical specialty certification boards in the United States” that “develop and apply professional and education standards for the evaluation and certification of physician specialists.” Compl. ¶ 20. Plaintiffs also allege that the ABMS is one of five “governing sponsors” of the NRMP.
Id.
With respect to the CMSS, plaintiffs allege that it is “a not-for-profit corporation whose membership consists of 17 physician societies in specialties having a member board participating in ABMS” and that it also is one of five “governing sponsors” of the NRMP.
Id.
¶ 21.
Plaintiffs do not define “governing sponsor” in their complaint. In their opposition to defendants’ motions to dismiss, plaintiffs cite to statements by the Executive Director of the NRMP, Robert L. Beran, Ph.D., that the ABMS and the CMSS are two of five “sponsors” of the NRMP. Pis.’ (b)(2) Opp. at 30 (citing Defendant National Resident Matching Program’s Motion to Dismiss and Compel Arbitration, Ex. A, Affidavit of Robert L. Beran, Ph.D. (“Ber-an Compel Aff.”) ¶ 1). Plaintiffs assert that the ABMS thus itself “admits” that it is a sponsor of the NRMP, that its representative serves as President of the NRMP and that its representative telephones the NRMP several times a month. Plaintiffs also assert that the CMSS admits to its “involvement” with the NRMP and has “contacts with the District of Columbia.” Pis.’ (b)(2) Opp. at 30. Plaintiffs charge that the relationships between these two organizational defendants and the NRMP are “ongoing and committed [, and] as sponsors, [the ABMS and the CMSS] are entitled to and do elect two members to the twelve member NRMP Board of Directors.”
Id.
at 36. From this predicate, plaintiffs argue that “the two moving Organizational Defendants play an integral role in governing the NRMP, [and in] formulating its policies, including the anti-competitive policies of the Match,” and that they therefore are subject to suit in the District of Columbia under Section 13^23(a)(l).
Id.
The ABMS and the CMSS offer support for their motions to dismiss in the form of sworn declarations from their Executive Vice President and President, respectively. Each states that his organization does not
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elect members to the NRMP board, but instead nominates individuals from the organization to serve; the NRMP board iN self elects its members.
See
Declaration of Stephen H. Miller, M.D., Ph.D., in Support of Motion of the American Board of Medical Specialties to Dismiss the Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) (“Miller Decl.”) ¶ 6; Declaration of Bruce E. Spivey, M.D., in Support of Motion of the Council of Medical Specialty Societies to Dismiss the Complaint (“Spivey Decl.”) ¶ 6. In addition, Dr. Spivey states that the CMSS nominees to the NRMP board are not officers or employees of the CMSS and do not act on the CMSS’s behalf.
See
Spivey Decl. ¶ 6. While it may be that nomination is tantamount to election, both Dr. Miller and Dr. Spivey state that then-respective organizations do not exercise any control over the activities of the NRMP after their organizations’ nominees are elected to the NRMP board.
See
Miller Decl. ¶ 6; Spivey Decl. ¶ 6. In a separate affidavit, the Executive Director of the NRMP confirmed that “the sponsoring organizations only have the right to nominate. Election of new board members is left to the discretion of the current Board. The sponsoring organizations
have no other power
with respect to the NRMP.” Ber-an Compel Aff. ¶ 3 (emphasis added). Furthermore, while Dr. Miller is both Executive Vice President of the ABMS and President of the NRMP, he states that all the business he conducts with NRMP personnel, which includes several telephone conversations a month and travel once or twice a year to the District of Columbia, is in his capacity as NRMP President and not on behalf of the ABMS.
See
Miller Decl. ¶ 7. These statements in declarations and affidavits offered in support of defendants’ motions remain uncontradicted by plaintiffs.
The Court concludes that plaintiffs have not alleged sufficient facts to demonstrate that either the ABMS or the CMSS transacts business in the District of Columbia for purposes of the long-arm statute. Plaintiffs’ only true jurisdictional claim rests on the fact that these organizational defendants are “governing sponsors” of the NRMP and nominate two directors to the NRMP board. Because plaintiffs do not define “governing sponsor,” the Court is left to consider what that term may mean. In light of plaintiffs’ assertion that as governing sponsors the organizational defendants have the power to direct policy and determine procedures of the NRMP, perhaps the most analogous relationship is that of a parent corporation with control over the activities of its subsidiary.
See, e.g., El-Fadl v. Central Bank of Jordan, 75
F.3d 668, 676 (D.C.Cir.1996) (“[I]f parent and subsidiary ‘are not really separate entities,’ ... or one acts as an agent of the other, ... the local subsidiary’s contacts can be imputed to the foreign parent.”). If this is the most analogous relationship, however, it does not serve plaintiffs well. Plaintiffs fail to allege a sufficient level of control by the ABMS and/or the CMSS over the NRMP, and the uncontradicted declarations submitted by Dr. Miller and Dr. Spivey state unequivocally that then-organizations do not exercise any control over the activities of the NRMP. The Court therefore has no basis to attribute the activity of the NRMP in the District of Columbia to either organization.
6
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2. Sections 13-423(a)(3) and (4): Tortious Injury
Section 13-423(a)(3) of the long-arm statute confers jurisdiction over a person who causes “tortious injury in the District of Columbia by an act or omission in the District of Columbia.” D.C. Code § 13-423 (a)(3). To invoke this subsection, plaintiffs must show that the moving defendants either directly or through an agent caused tortious injury to plaintiffs in the District of Columbia by an act or omission in the District of Columbia.
See Richard v. Bell Atlantic Corp.,
946 F.Supp. 54, 73 (D.D.C.1996);
see generally Moncrief v. Lexington Herald-Leader Co.,
807 F.2d 217, 219 (D.C.1986).
Section 13 — 423(a)(4) of the long-arm statute provides:
A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s ... causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the District of Columbia.
D.C. Code § 13-423 (a)(4). In order to establish personal jurisdiction under this subsection after jurisdictional discovery has taken place plaintiffs must demonstrate by a preponderance of the evidence that (1) plaintiffs suffered a tortious injury in the District of Columbia; (2) the injury was caused by a defendant’s act or omission outside of the District; and (3) the defendant had one of the three enumerated contacts- with the District of Columbia.
See Crane v. Carr,
814 F.2d 758, 762-63 (D.C.Cir.1987);
Blumenthal v. Drudge,
992 F.Supp. at 53;
Trager v. Wallace Berrie & Co.,
593 F.Supp. 223, 225 (D.D.C.1984).
7
Under both “tortious injury” subsections of the long-arm statute plaintiffs must allege that they have suffered a tor-tious injury in the District of Columbia. In their complaint, plaintiffs allege no injury to the named plaintiffs within the District of Columbia. In their opposition to defendants’ motion to dismiss, plaintiffs attempt to describe an injury, citing to allegations in the complaint that the defendants’ actions restrained competition in the recruitment, hiring, employment and compensation of resident physicians nationwide. Because the District of Columbia is part of the alleged national relevant market in which competition was restrained, plaintiffs argue that they lost “the right to
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negotiate with employers in the District of Columbia for placement as resident physicians” as a result of the alleged anticom-petitive activity. Pis.’ (b)(2) Opp. at 37-38. Plaintiffs have failed, however, to allege or otherwise demonstrate any facts that any named plaintiff pursued or would have pursued a resident position within the District of Columbia by ranking or interviewing with a District of Columbia hospital, or undertook any other action in connection with residency employment in the District. Absent such allegations, plaintiffs’ argument fails. There has been no tortious injury to any plaintiff in the District of Columbia. If the Court were to find jurisdiction under this flawed premise, any plaintiff alleging an antitrust conspiracy could satisfy the tortious injury requirement under either “tort” prong of the long-arm statute simply by asserting that the District of Columbia is part of the relevant market.
8
At oral argument, plaintiffs argued belatedly that the injury was the Match itself — that is, that the injury is the actual binding of the fourth year medical student to a specific residency program — and thus the tortious injury occurred in the District of Columbia where the Match is executed.
See
Transcript of February 23, 2003 Motions Hearing, Afternoon Session (“Tr.”) at 41 (“As soon as that rank order list is submitted, and the algorithm employed, and that match is made, that is the injury.”). Without reaching the merits of this “injury” claim, the Court rejects this line of reasoning in light of the plaintiffs’ own assertion in their complaint and briefs that plaintiffs are bound and thus, by extension, injured upon entry into the Student Match Contract rather than upon the execution of the contract.
See
Compl. ¶ 86(b); Pis.’ (b)(2) Opp. at 6 n. 4 (“[Mjedical school seniors who sign up for the Match agree that they will accept the position to which they are matched if a match is made, and will enroll in the residency program to which they are matched by the NRMP. ‘The listing of [¶]... ] a program by an applicant on the individual’s Rank Order List establishes a commitment to [¶]... ] accept an appointment when a match results.’ ”) (quoting
NRMP Handbook for Institutions and Program Directors
at 4-5). There are no allegations that plaintiffs were in the District of Columbia when they entered into the Student Match Contract. The Court concludes that plaintiffs’ allegations are insufficient to demonstrate any tortious injury in the District of Columbia, and therefore that jurisdiction cannot be predicated on Section 13-423(a)(3) or (4) of the long-arm statute.
C.
Personal Jurisdiction under Section 12 of the Clayton Act: “Transacting Business”
Plaintiffs assert that the Court has jurisdiction over all the moving defendants under the jurisdictional grant of Section 12 of the Clayton Act.
See
Compl. ¶ 7. Section 12 states that “[a]ny suit, action,, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant,
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but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.” 15 U.S.C. § 22 .
In determining whether jurisdiction over defendants exists under the Clayton Act, the Court must assess “whether the corporation is doing business in the district of any substantial character, even if its business is entirely interstate in character and is transacted by agents who do not reside in the District.”
Caribe Trailer Systems, Inc. v. Puerto Rico Maritime Shipping Authority,
475 F.Supp. 711, 716 (D.D.C.1979).
See also Mylan Laboratories, Inc. v. Akzo, N.V.,
Civil Action No. 89-1671, 1990 WL 58466 , at *6 (D.D.C. Mar. 27, 1990), 1990 U.S. Dist. LEXIS 3521 , at *21
Chrysler Corp. v. General Motors Corp.,
589 F.Supp. 1182, 1195 (D.D.C.1984). The Court must look for “tangible manifestations of doing business” in the District of Columbia, such as the presence of officers, employees, agents, offices, ownership of property, maintenance of corporate records or bank accounts.
Caribe Trailer Systems, Inc. v. Puerto Rico Maritime Shipping Authority,
475 F.Supp. at 716 . Unlike the “transacting business” analysis conducted under the District of Columbia long-arm statute, jurisdiction under Section 12 does not require that the transactions on which jurisdiction is based be related to the cause of action underlying the suit.
See Diamond Chemical Co., Inc. v. Atofina Chemicals, Inc.,
268 F.Supp.2d 1, 10 (D.D.C.2003) (quoting
Chrysler Corp. v. General Motors Corp.,
589 F.Supp. at 1195 ).
1. The Institutional Defendants
Plaintiffs do not allege any tangible manifestations of doing business in the District of Columbia on the part of the moving institutional defendants. Instead, they invite the Court to consider the institutional defendants’ participation in the Institutional Match Contract, the COTH Survey and activities related to the institutions’ membership in the AAMC.
See
Pis.’ (b)(2) Opp. at 44 (“[Ejach of the moving Institutional Defendants enter into multiple agreements with the D.C.-based NRMP and AAMC to perform highly prized services which require regular and ongoing contacts with each of the D.C.based entities, and the Institutional Defendants pay fees into the District of Columbia for those services.”).
It is undisputed that Barnes-Jewish Hospital, Beth Israel Deaconess Medical Center, Inc., Boston Medical Center Corp., Cedars-Sinai Medical Center, The Cleveland Clinic Foundation, Emory University, Rhode Island Hospital, Rush-Presbyterian-St. Luke’s Medical Center, St. Louis University, Stanford Hospital & Clinics, Thomas Jefferson University Hospital, Inc., Administrators of the Tulane Educational Fund, University Hospitals of Cleveland, Inc. and Yale-New Haven Hospital, Inc. participated in the Match and in the annual COTH Survey by submitting the institutions’ resident stipend data to the AAMC, and by receiving the results of the Survey in return.
9
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In addition to participating in the Match and the COTH Survey, a majority of the moving institutional defendants admit that they or their employees had additional contacts with the District of Columbia. First, The Cleveland Clinic Foundation states that it employs one lobbyist who travels to the District of Columbia “solely for the purpose of lobbying the federal agencies and government,” but asserts that such actions are protected by the government contacts exception. Defendant The Cleveland Clinic Foundation’s Supplemental Memorandum of Points and Authorities in Support of Its Motion and the Omnibus Memorandum in Support of Motions by Various Defendants to Dismiss the Complaints Pursuant to Fed.R.Civ.P. 12(b)(2) at 6 n. 3. Second, Beth-Israel Deaconess Medical Center, Inc., Boston Medical Center Corp., Cedars-Sinai Medical Center, Rhode Island Hospital, Thomas Jefferson University Hospital, Inc., University Hospitals of Cleveland, Inc. and Yale-New Haven Hospital, Inc. acknowledge that they employ individuals who are members of organizations such as defendant American Hospital Association (“AHA”), the AAMC and/or the COTH Section and that these employees travel to the District of Columbia to fulfill their obligations to such organizations.
10
Third, Baylor College of Medicine acknowledges that it has had two additional contacts with the District: specifically that it contracted with a firm that provides services concerning relations with the federal government, and that certain Baylor residents each year attend a program conducted in the District of Columbia by the United States Department of Defense. •
See
Supplemental Memorandum in Support of Defendant Baylor College of Medicine’s Motion to Dismiss the Complaints Pursuant to Fed.R.Civ.P. 12(b)(2) at 3 n. 2. Finally, the Administrators of the Tulane Educational Fund admits that it has one assistant professor who “is pro
*139
viding technical advice concerning infectious disease programs in Africa pursuant to a subcontract for the United States Agency for International Development (USAID). This employee works out of a private nonprofit organization that is the prime contractor to USAID.” Supplemental Memorandum of Points and Authorities in Support of Defendant Tulane’s Motion to Dismiss the Complaints Pursuant to Fed.R.Civ.P. 12(b)(2); Declaration of Anthony P. Lorino ¶ 4.
To the extent that the moving institutional defendants admit to their agents’ presence in the District of Columbia in order to lobby certain agencies of the federal government on the defendants’ behalf, such contacts with the District are excluded from the jurisdictional analysis under the “government contacts” exception. Under this exception, a person or company does not subject itself to the jurisdiction of the courts of the District of Columbia merely by filing an application with a government agency or by seeking redress of grievances from the Executive Branch or the Congress.
See Naartex Consulting Corp, v. Watt,
722 F.2d 779, 787 (D.C.Cir.1983);
Environmental Research Int’l, Inc. v. Lockwood Greene Eng’rs, Inc.,
355 A.2d at 813 . “The District of Columbia’s unique character as the home of the federal government requires this exception in order to maintain unobstructed access to the instru-mentalities of the federal government.”
Cellutech, Inc. v. Centennial Cellular Corp.,
871 F.Supp. 46, 50 (D.D.C.1994).
See also Mallinckrodt Medical, Inc. v. Sonus Pharmaceuticals, Inc.
989 F.Supp. 265, 271 (D.D.C.1998).
The Court also concludes that the institutional defendants’ membership in and contacts with the AAMC or the COTH Section in the District of Columbia should not be considered in the evaluation of whether any defendant transacted business of any “substantial character” in the District because- it is established that the “government contacts” exception extends “to non-resident contact with trade associations located with [sic] the District of Columbia.”
World Wide Minerals, Ltd. v. Republic of Kazakhstahn,
116 F.Supp.2d 98, 105-06 (D.D.C.2000). The AAMC is a typical association for these purposes; it is “a non-profit association founded [] to work for reform in medical education” and “[a]s an association of medical schools, teaching hospitals, and academic societies, the AAMC works with its members to set a national agenda for medical education, biomedical research, and health care, and assists its members by providing services at the national level that facilitate the accomplishment of their missions.”
See
Omnibus Reply Memorandum in Support of Motions by Various Defendants to Dismiss the Complaint Pursuant to Fed.R.Civ.P. 12(b)(2), Ex. F, “About the AAMC.” Any travel to the District by an institutional defendant’s agent for the purpose of fulfilling the membership obligations of the institution in the AAMC or the - COTH Section therefore does not subject the defendant to the jurisdiction of the Court.
See World Wide Minerals, Ltd. v. Republic of Kazakhstahn,
116 F.Supp.2d at 105-06;
American Association of Cruise Passengers v. Cunard Line, Ltd.,
691 F.Supp. 379, 380 (D.D.C.1987) (“attendance at a trade association meeting [¶]... ] does not constitute ‘transacting business’ ” under the long-arm statute).
The Court thus is left to consider only plaintiffs’’ allegations with respect to the institutional defendants’ participation in the Match Program and the COTH Survey, and the
de minimis
contacts admitted by Baylor College of Medicine and the Administrators of the Tulane Educational Fund with respect to those institutions. The Court concludes that these contacts
*140
are not sufficient to provide personal jurisdiction over the moving institutional defendants under Section 12 of the Clayton Act. While plaintiffs attempt to construe the COTH Survey as a service contracted for by the institutional defendants with the AAMC in the District of Columbia, plaintiffs allege in their complaint that the Survey is administered and published by the AAMC and not at the behest of any individual hospital.
Compare
Pis.’ (b)(2) Opp. at 18-19
with
Compl. ¶ 74. Although institutional defendants provide their individual information to the AAMC and the results of the Survey are distributed by the AAMC to its members, the institutional defendants are not required to provide information in order to receive the Survey. In fact, the Survey is available to the public at large.
See
http:/ www.aamc.org/hlthcare/coth-hss.start.htm. Upon consideration of plaintiffs’ allegations with respect to the COTH Survey, alone or in conjunction with the allegations regarding the Institutional Match Contract and/or the
de minimis
allegations in the complaint described above, the Court concludes that any amalgamation of these contacts with the District of Columbia fails to demonstrate that any of the moving institutional defendants is doing business in the District “of any substantial character,” thereby justifying jurisdiction under the Clayton Act.
See Caribe Trailer Systems, Inc. v. Puerto Rico Maritime Shipping Authority,
475 F.Supp. at 716 .
11
2. The Organizational Defendants
Plaintiffs do not allege any additional contacts with the District of Columbia that would subject the moving organizational defendants to the Court’s jurisdiction in addition to those evaluated in the Court’s “transacting business” analysis under Section 13-423(a)(l) of the long-arm statute. For the reasons stated in Section 11(B)(1)(b),
supra,
the Court therefore concludes that plaintiffs have failed to demonstrate that the ABMS or. the CMSS has transacted “substantial business” within the District of Columbia.
D.
“Conspiracy Jurisdiction” Under the Long-Arm, Statute
Plaintiffs assert that the Court has jurisdiction over all the moving defendants pursuant to the “conspiracy” theory of long-arm jurisdiction. Under this doctrine, acts undertaken within the forum by one co-conspirator in furtherance of an alleged conspiracy may subject a non-resident co-conspirator to personal jurisdiction under the long-arm statute.
See Second Amendment Foundation v. United States Conference of Mayors,
274 F.3d 521, 524 (D.C.Cir.2001) (citing
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan,
115 F.3d 1020, 1030-31 (D.C.Cir.1997)) (applying conspiracy theory of personal jurisdiction to long-arm statute’s “transacting business” subsection);
First Chicago Int’l v. United Exch. Co., 836
F.2d at 1377-78;
Edmond v. United States Postal Serv. Gen. Counsel,
949 F.2d at 424-425 (discussing application of conspiracy theory under Section 13 — 423(a)(3)).
Plaintiffs claim that personal jurisdiction exists over each moving defendant pursuant to the conspiracy theory of jurisdiction stemming from Section 13-423(a)(1).
See
Pis.’ (b)(2) Opp. at 24-30.
12
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Conspiracy jurisdiction under this subsection presumes that “[pjersons who enter the forum and engage in conspiratorial acts are deemed to ‘transact business’ there ‘directly’; [and] coconspirators who never enter the forum are deemed to ‘transact business’ there ‘by an agent.’”
Second Amendment Foundation v. United States Conference of Mayors,
274 F.3d at 523 (quoting D.C. Code § 13 — 423(a)(1)). So long as any one co-conspirator commits at least one overt act in furtherance of the conspiracy in the forum jurisdiction, there is personal jurisdiction over all members of the conspiracy.
See Dooley v. United Technologies Corp.,
786 F.Supp. at 78 . In this context, plaintiffs must allege (1) the existence of a conspiracy; (2) the nonresident’s participation in or agreement to join the conspiracy; and (3) an overt act taken in furtherance of the conspiracy within the forum’s boundaries.
See Edmond v. United States Postal Serv. Gen. Counsel,
949 F.2d at 425 .
“Mere speculation” that a conspiracy exists or that “the non-resident defendants are co-conspirators [is] insufficient to meet plaintiffs [] burden.”
Dooley v. United Technologies Corp.,
786 F.Supp. at 78 . A plaintiff resting on the conspiracy theory of jurisdiction “must plead with particularity the conspiracy as well as the overt acts within the forum taken in furtherance of the conspiracy.”
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan,
115 F.3d at 1031 (internal quotation omitted).
See also United States v. Philip Morris Inc.,
116 F.Supp.2d at 122. This requirement is strictly-enforced, and courts in this Circuit have applied the conspiracy jurisdiction theory “warily” in light of concerns that plaintiffs will use the doctrine to circumvent the constitutional boundaries of the long-arm statute.
Dooley v. United Technologies Corp.,
786 F.Supp. at 77 . As Judge Silberman said in his concurring opinion in
Edmond ,
“we cannot allow plaintiffs to subvert the important constitutional principles of sovereignty and due process that underlie personal jurisdiction limitations with mere unspecified and unsubstantiated claims that multifarious defendants weré part of a broad conspiracy and that one of them committed some [act] in the plaintiffs’ desired forum.”
Edmond v. United States Postal Serv. Gen. Counsel,
949 F.2d at 428 (Silberman, J, concurring) (internal . quotation omitted).
See also United States v. Philip Morris Inc.,
116 F.Supp.2d at 122;
In re Vitamins Antitrust Litigation,
2001 U.S. Dist. LEXIS 25073 , at *46.
13
In addition, once jurisdictional discovery has taken place it still is necessary under a theory of conspiracy jurisdiction that plaintiffs demonstrate jurisdiction by a preponderance of the evidence.
See Second Amendment Foundation v. United States Conference of Mayors,
274 F.3d at 524 ;
First Chicago Int’l v. United Exch. Co.,
836 F.2d at 1377-78 (“bare allegation of conspiracy or agency is insufficient to establish personal jurisdiction”);
In re
Vita
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mins Antitrust Litigation,
2001 U.S. Dist. LEXIS 25073 , at *46 (in conspiracy jurisdiction context, issue remains “whether [plaintiffs] have satisfied their preponderance of the evidence burden necessary to defeat the pending motion to dismiss for lack of personal jurisdiction”). Since jurisdictional discovery is limited, however, plaintiffs must prove by a preponderance of the evidence only that acts in furtherance of the alleged conspiracy took place in the District of Columbia. Plaintiffs do not have to demonstrate the very existence of the conspiracy by a preponderance of the evidence.
See Second Amendment Foundation v. United States Conference of Mayors,
274 F.3d at 524 (“The general rule ... that a plaintiff must make a
pri-ma facie
showing of the pertinent jurisdictional facts applies to conspiracy-based jurisdiction.”) (internal quotation omitted). To impose this additional requirement would place on plaintiffs the inequitable burden of demonstrating the existence of something by a preponderance of the evidence about which they have not yet had the opportunity to conduct discovery.
The Court concludes that if the activities alleged constitute a conspiracy to restrain trade, plaintiffs have demonstrated by a preponderance of the evidence that acts in furtherance of the conspiracy took place in the District of Columbia. Specifically, it is uncontested that defendant NRMP conducts the Match in the District of Columbia and that defendant AAMC facilitates the COTH Survey from the District. Plaintiffs also have submitted documentation demonstrating that the District-based institutional defendants MedStar-George-town Hospital Medical Center, George Washington University and MedStar Health, Inc. contracted in the District of Columbia with the NRMP to participate in the Match and employed resident physicians in the District of Columbia through the Match Program during the relevant period.
See
Pis.’ (b)(2) Opp., Ex. 2, NRMP Directory 1999 Match, Hospitals and Programs Participating in the Matching Program at 12-13. Thus, if there was a conspiracy plaintiffs have demonstrated that several of the conspirators committed overt acts in furtherance of the conspiracy in the District of Columbia.
See In re Vitamins Antitrust Litigation,
2001 U.S. Dist. LEXIS 25073 , at *46. The question remains whether plaintiffs adequately have alleged that a conspiracy existed.
As the Court explains in Section IV(B),
infra,
plaintiffs adequately have alleged a conspiracy to depress resident compensation between,
inter alia,
those institutional defendants that participated in the Match and the NRMP. The Court therefore concludes that the fifteen moving institutional defendants who themselves acknowledge that they took part in the Match Program are subject to the jurisdiction of this Court under the conspiracy theory of jurisdiction. Those institutional defendants are Barnes Jewish-Hospital, Baylor College of Medicine, Beth Israel Deaconess Medical Center, Inc., Boston Medical Center Corp., Cedars-Sinai Medical Center, The Cleveland Clinic Foundation, Emory University, Rhode Island Hospital, Rush-Presbyterian-St. Luke’s Medical Center, St. Louis University, Stanford Hospital & Clinics, Thomas Jefferson University Hospital, Inc., Administrators of the Tulane Educational Fund, University Hospitals of Cleveland, Inc. and Yale-New Haven Hospital, Inc.
14
Because plaintiffs failed to
*143
demonstrate that defendant' Washington University Medical Center participated in the Match or otherwise participated in the conspiracy, plaintiffs have not demonstrated that the Court has personal jurisdiction over Washington University Medical Center. The Court therefore will deny the motions to dismiss for lack of personal jurisdiction filed by fifteen of the sixteen moving institutional defendants — the exception being the motion of Washington University Medical Center, which the Court will grant.
With respect to the ABMS and the CMSS, the organizational defendants that moved to dismiss for lack of personal jurisdiction, the Court concludes that because plaintiffs have failed to demonstrate that either organization participated in the conspiracy,
see
Section IV(B)(2),
infra,
the Court lacks personal jurisdiction over these organizational defendants under a conspiracy theory of jurisdiction and will grant their motions to dismiss for lack of personal jurisdiction.
III. DEFENDANT NRMP’S RULE 12(b)(1) MOTION TO DISMISS FOR ' LACK OF SUBJECT MATTER JURISDICTION AND MOTION TO COMPEL ARBITRATION
A.
Background
The NRMP moves to dismiss plaintiffs’ claim against it for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that to the extent that plaintiffs’ claim relates to the NRMP and its governing sponsors, the claim is subject to compulsory arbitration. The NRMP therefore seeks an order “compelling plaintiffs to arbitrate the first element of their tripartite claim; namely, that defendants used the Matching Program to eliminate competition in the recruitment and employment of resident physicians.” Memorandum of Law in Support of Defendant National Resident Matching Program’s Motion to Dismiss and to Compel Arbitration (“NRMP Arbit. Mem.”) at 7 (internal quotation omitted). The NRMP relies on the arbitration provision of Student Match Contract. The provision states as follows:
All claims, disputes and other matters in question
arising out of or relating to
this Agreement or the breach thereof, shall be decided by binding arbitration in accordance with the Rules of the American Arbitration Association then in effect, unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable. The' NRMP Polices shall govern the demand for arbitration and other procedural matters. The arbitrators shall conduct all arbitration proceedings in the Offices of the American Arbitration Association in Chicago, Illinois. This Agreement shall be governed by the laws of the State of Illinois, but Illinois conflicts of laws provisions shall not be construed to apply the law of any other jurisdiction. ' The unenforceability of one or more of the terms of this Agreement shall not affect the validity of the remaining terms.
Id.,
citing Beran Compel Aff., Ex. A-l, 1998 Student Agreement of Plaintiff Denise Greene (emphasis added).
15
*144
The NRMP also relies on another provision in the Student Match Contract that states that “[t]he NRMP Policies and Handbook are incorporated by reference in and are an integral part of this agreement.” Beran Compel Aff., Ex. A-l, 1998 Student Agreement of Plaintiff Denise Greene. Among the policies of the NRMP Policies and Handbook is Paragraph 11.0, entitled “Disputes and Claims,” which provides that “[a]ny controversy or claim arising out of or related to the Matching Program, any NRMP Agreement or the breach thereof, and in general all disputes between the NRMP and any applicant or institution participating or seeking participation in the Matching Program shall be settled by arbitration in accordance with the Rules of the American Arbitration Association then in effect .... ” Beran Compel Aff., Ex. A-5, Policies of the NRMP, in effect March 1998 ¶ 11.0.
The NRMP further argues that the claim against the AMA also should be referred to binding arbitration despite the fact that this organization is not a signatory to the Student Match Contract, because plaintiffs’ claim against it is based on the organizations’ alleged status as governing sponsors of the NRMP.
See
NRMP Arbit. Mem. at 14-16.
16
Plaintiffs and certain institutional defendants oppose the motion.
B.
Compulsory Arbitration Under the Federal Arbitration Act
The Federal Arbitration Act (“FAA”) provides that a “written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon any grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 . The FAA applies to any transaction involving interstate commerce and creates a strong presumption in favor of the enforcement of agreements to arbitrate; any doubts regarding the scope of an agreement to arbitrate are to be resolved in favor of arbitration.
See Shearson/American Express, Inc. v. McMahon,
482 U.S. 220, 226-27 , 107 S.Ct. 2332 , 96 L.Ed.2d 185 (1987) (with enactment of the FAA Congress mandated that arbitration agreements be rigorously enforced);
see also Moses H. Cone Memorial Hospital v. Mercury Construction Corporation,
460 U.S. 1, 24-25 , 103 S.Ct. 927 , 74 L.Ed.2d 765 (1983);
Finegold, Alexander & Assocs. v. Setty & Assocs.,
81 F.3d 206, 207-08 (D.C.Cir.1996). The Supreme Court has stressed that “the liberal federal policy favoring arbitration agreements, manifested by this provision and the Act as a whole, is at bottom a policy guaranteeing the enforcement of private contractual arrangements.”
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 625 , 105 S.Ct. 3346 , 87 L.Ed.2d 444 (1985). Under the FAA, “[t]here is a presumption of arbitrability in the sense that ‘an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an inter
*145
pretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’”
AT & T Technologies, Inc. v. Communications Workers of America,
475 U.S. 643, 650 , 106 S.Ct. 1415 , 89 L.Ed.2d 648 (1986) (quoting
United Steelworkers v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 582-83 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960) (Brennan, J., concurring)).
This strong public policy in favor of arbitration must be considered in the context of the equally important principle that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit.”
AT & T Technologies, Inc. v. Communications Workers of America,
475 U.S. at 648 , 106 S.Ct. 1415 (internal quotation and citation omitted).
See also EEOC v. Waffle House, Inc.,
534 U.S. 279, 294 , 122 S.Ct. 754 , 151 L.Ed.2d 755 (2002) (FAA “does not require parties to arbitrate when they have not agreed to do so”) (internal quotation and citation omitted);
Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52, 57 , 115 S.Ct. 1212 , 131 L.Ed.2d 76 (1995) (“[T]he FAA’s proarbitration policy does not operate without regard to the wishes of the contracting parties.”). As the court of appeals has noted, “this principle recognizes that ‘arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration.’”
National Railroad Passenger Corp. v. Boston & Maine Corp.,
850 F.2d 756, 759 (D.C.Cir.1988) (quoting
AT & T Technologies, Inc. v. Communications Workers of America,
475 U.S. at 648 , 106 S.Ct. 1415 ).
In
Mitsubishi
the Supreme Court provided the standard by which motions to compel arbitration should be evaluated. The Court’s first task “is to determine whether the parties agreed to arbitrate [the] dispute,” keeping in the forefront the strong policy favoring arbitration.
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. at 626 , 105 S.Ct. 3346 . If the Court finds that the parties did agree to arbitrate the dispute at issue, the Court then must determine “whether legal constraints external to the parties’ agreement foreclosef] the arbitration of those claims.”
Id.
at 628 , 105 S.Ct. 3346 . In other words, is there a competing statute or policy that outweighs the strong interest in referral to arbitration?
Relying on the plain language of arbitration provision of the Student Match Contract signed by each plaintiff — all claims “arising out of or relating to this Agreement” shall be referred to binding arbitration — the NRMP argues that plaintiffs’ Section 1 conspiracy claim “arises out of’ or “relates to” the Student Match Contract and therefore must be referred to arbitration. The NRMP maintains that the Match itself is “squarely challenged by plaintiffs in this action,” that plaintiffs’ complaint specifically alleges that “defendants eliminated competition ‘by assigning prospective resident physician employees to resident positions through [the Match Program],’ ” and that the Match Program “is a mechanism that eliminates a free and competitive market and substitutes a centralized anticompetitive allocation system.” NRMP Arbit. Mem. at 10-11 (quoting Compl. ¶¶ 3(b), 15, 83-85). The NRMP also focuses on the complaint’s allegations that the Match Program “ ‘imposes anti-competitive restraints through several of its features,’ ” including,
inter alia,
“ ‘forcing applicants to commit contractually to any assigned position as a condition of enrolling in the matching program’ and ‘severely restricting attempts by employers and applicants to withdraw from the matching program.’ ” NRMP Arbit. Mem. at 11 (quoting Compl. ¶ 86(a)-(b)). The NRMP asserts that the former of
*146
these features “derives
from
paragraph 7.0 of the NRMP Policies to which applicants pledge adherence in the [Student Match Contract], while the latter derives from Paragraph 9.0 thereof.”
Id.
at 11. In light of plaintiffs’ specific allegations, the NRMP argues, the conspiracy claim with respect to the NRMP clearly “relates to” or “arises out of’ the Match Contract, and therefore should be referred to arbitration under the arbitration agreement.
Plaintiffs respond that the arbitration agreement does not include antitrust claims expressly, that their Sherman Act claim does not concern the Student Match Contract, and that although this contract “may have evidentiary significance in proving defendants’ illegal conspiracy,” such significance does not mean that the dispute itself “relates to” or “arises from” the contract. Plaintiffs’ Consolidated Brief Opposing Defendants’ Motion to Dismiss and to Compel Arbitration (“Pis.’ Arbit. Opp.”) at 8.
Generally, courts have interpreted broadly agreements providing for the arbitration of disputes “arising out of or relating to” the underlying contract.
See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. at 624 n. 13, 105 S.Ct. 3346 (“arising out of or relating to” is a “broad clause” applicable to antitrust claims);
Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
388 U.S. 395, 398 , 87 S.Ct. 1801 , 18 L.Ed.2d 1270 (1967) (“arising out of or relating to” is a “broad” arbitration clause);
Genesco v. T. Kakiuchi & Co., Ltd.,
815 F.2d 840, 855 (2d Cir.1987) (language “sufficiently broad” to encompass fraudulent inducement claim). In order to determine whether the arbitration agreement in the Student Match Contract encompasses plaintiffs’ claim as it relates to the NRMP, the Court must “focus on the factual allegations in the complaint rather than the legal causes of action asserted.”
Genesco Inc. v. T. Kakiuchi & Co.,
815 F.2d at 846 . “If the allegations underlying the claims ‘touch matters’ covered by the parties’ ... agreement, then those claims must be arbitrated ....”
Id.
(quoting
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. at 624 n. 13, 105 S.Ct. 3346 ).
Upon review of the complaint, the Court concludes that plaintiffs’ conspiracy claim does relate in part to the Student Match Contract. Although plaintiffs assert that the agreement merely serves as evidence of the conspiracy, the allegations of the complaint suggest much more. Plaintiffs expressly allege that forcing plaintiffs to execute the contract was itself an anticom-petitive act.
See
Compl. ¶ 86(b) (Match Program “imposes anticompetitive restraints through several of its features including ... forcing applicants to commit contractually to any assigned position as a condition of enrolling in the matching program”); ¶ 100(b) (“Defendants and members of the Defendant Class illegally restrain competition in a number of related ways, including ... assigning prospective resident physician employees to positions through the NRMP.”).
17
Where the execution of the contract is itself alleged to be an anticompetitive act, plaintiffs cannot argue that the claim does not arise from or relate to the agreement.
See Simula, Inc. v. Autoliv, Inc.,
175 F.3d 716, 722 (9th Cir.1999) (antitrust claim “arose in connection with” the contract where plaintiff al
*147
leged use of the agreement as an anticom-petitive tool and court had to interpret agreement to determine whether competition was suppressed);
PPG Industries, Inc. v. Pilkington plc,
825 F.Supp. 1465, 1478 (D.Ariz.1993) (same).
The cases on which plaintiffs rely in support of their position that the Student Match Contract merely evidences the alleged conspiracy do not lead to a different conclusion. In those actions,- plaintiffs’ claims were separate from and tangential to the contracts containing the arbitration provisions.
See Telecom Italia, SpA v. Wholesale Telecom Corp.,
248 F.3d 1109, 1116 (11th Cir.2001) (no referral of claim of tortious interference with contract between plaintiff and third party on basis of arbitration provision in separate lease agreement between plaintiff and defendant in absence of charge that defendant used execution of lease agreement to interfere with third-party contract);
AlliedSignal, Inc. v. B.F. Goodrich Co.,
183 F.3d 568, 573 (7th Cir.1999) (antitrust claim asserting,
inter alia,
anticompetitive pricing not referable under arbitration agreement because underlying contract did not regulate pricing);
Ford v. NYLCare Health Plans of the Gulf Coast, Inc.,
141 F.3d 243, 251 (5th Cir.1998) (no arbitration of false advertising claim that could be maintained without reference to “legally irrelevant” service contract containing arbitration provision);
Coors Brewing Co. v. Molson Breweries,
51 F.3d 1511, 1516 (10th Cir.1995) (antitrust claims concerning defendant foreign brewer’s alliance with rival domestic brewer unrelated to plaintiffs licensing agreement with foreign brewer and therefore not referable);
Swensen’s Ice Cream Co. v. Corsair Corp.,
942 F.2d 1307, 1310 (8th Cir.1991) (no referral of antitrust claim charging defendant undermined distribution agreement and not the separate franchise agreement containing relevant arbitration clause). Here, the Student Match Contract, its terms and its execution are part of plaintiffs’ conspiracy claim and therefore relate to the agreement.
C.
Countervailing Statutory or Policy Concerns
In light of the Court’s conclusion that plaintiffs’ claim relates to the Student Match Contract, the Court must determine whether a countervailing statute or policy renders the claim nonetheless non-arbitrable. While plaintiffs acknowledge that antitrust claims are arbitrable as a matter of law,
see Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. at 629 , 105 S.Ct. 3346 ;
Kotam Electronics, Inc. v. JBL Consumer Products, Inc.,
93 F.3d 724, 728 (11th Cir.1996);
Armco Steel Co., L.P. v. CSX Corp.,
790 F.Supp. 311, 317 (D.D.C.1991), they assert that five countervailing policies direct the Court to deny the NRMP’s motion to compel: (1) the arbitration provision improperly results from the “overwhelming economic power” of defendants; (2) NRMP policy requires that the parties share the costs of arbitration equally, which improperly restricts plaintiffs from pursuing their statutory claims; (3) the arbitration clause is unconscionable under Illinois law; (4) the arbitration clause is the result of duress under Illinois law; and (5) under Illinois law the Student Match Contract and its arbitration provision are unenforceable because they allegedly result from a violation of the antitrust laws.
See
Pis.’ Arbit. Opp. at 18-28. Certain institutional defendants also filed a brief in opposition to the motion to compel, asserting that as a matter of Illinois law, a court and not an arbitrator must decide whether a contract is void as a violation of the antitrust laws.
See
Memorandum of Points and Authorities in Support of Opposition by Various Defendants to Motion to Compel Arbitration (“Inst. Defs.’ Arbit. Mem.”) at 1-2.
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1. Federal Defense of “Overwhelming Economic Power”
Plaintiffs first assert that they were forced to enter the Student Match Contract and, by extension, the arbitration provision, by the “overwhelming economic power” defendants hold over “[f]ourth year medical students, like plaintiffs here, [who] have no practical choice but to sign the match application—with the ‘boilerplate’ arbitration clause on which NRMP relies which is presented to the medical students on a ‘take it or leave it’ basis.” Pis.’ Arbit. Opp. at 20-21. Plaintiffs argue that this imbalance in power between the NRMP and plaintiffs unlawfully denies them the right to vindicate their statutory rights under the Sherman Act. Plaintiffs rely on the Supreme Court’s cautionary note in
Mitsubishi
that “courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’”
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. at 627 , 105 S.Ct. 3346 (quoting 9 U.S.C. § 2 ). The Supreme Court subsequently has noted, however, that “[m]ere inequality in bargaining power [] is not a sufficient reason to hold that arbitration agreements' are never enforceable ....”
Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 33 , 111 S.Ct. 1647 , 114 L.Ed.2d 26 (1991).
See also Cole v. Burns Int’l Security Service,
Civil No. 95-1785, 1996 U.S. Dist. LEXIS 22541 , at *10-11 (D.D.C. Jan. 31, 1996),
aff'd,
105 F.3d 1465 (D.C.Cir.1997). In any event, the burden is on plaintiffs to demonstrate that this defense is “well-supported,”
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. at 627 , 105 S.Ct. 3346 , and they have failed to do so.
2. The NRMP “Fee-Splitting” Policy
Plaintiffs next argue that NRMP Policy 11.0, which is incorporated by reference in the Student Match Contract, frustrates the objectives of the Sherman Act because it requires plaintiffs to share equally in the costs of arbitration.
See
Pis.’ Arbit. Opp. at 21. The Policy states that “[e]ach party shall share equally in the costs of arbitration.”
See
Beran Compel. Aff., Ex. A-4, NRMP Policies in Effect for 1996 and 1997 Matches at 4.
Plaintiffs’ “fee-splitting” claim does not survive scrutiny. While plaintiffs provide an affidavit detailing the possible costs of arbitration in this matter
(see
Pis.’ Arbit. Opp., Affidavit of Michael L. Shakman), they offer no support for their assertion that the individual plaintiffs are unable to meet the anticipated costs. As the Supreme Court held in
Green Tree Financial Corp.—Alabama v. Randolph,
531 U.S. 79, 92 , 121 S.Ct. 513 , 148 L.Ed.2d 373 (2000), “where a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.”
See also Livingston v. Associates Finance, Inc.,
339 F.3d 553, 557 (7th Cir.2003) (plaintiffs’ failure to provide details of financial resources under
Green Tree
defeats plaintiffs’ claim).
18
Furthermore, the NRMP has stated that if any plaintiff “can show the fees are unreasonable given their respective finan
*149
cial situations, the NRMP has offered to pay the individual claimant’s share of the costs of the arbitrator’s fees.” Defendant National Resident Matching, Program’s Reply Brief on its Motion to Dismiss and to Compel Arbitration (“NRMP’s Arbit. Reply”) at 15.
See also
Tr. at 65 (“[E]ven if there were a burden there, it can be cured, and the NRMP has made the very offer that has been approved in other cases to waive that provision.”). Where a party moving to compel arbitration offers to cover the costs of arbitration to the extent the opposing party demonstrates its inability to pay,- the opposing party is foreclosed from arguing against arbitration on expense grounds.
See Livingston v.
Associates
Finance, Inc.,
339 F.3d at 557 . As Judge Walton concluded in
Nelson v. Insignia/Esg, Inc.,
215 F.Supp.2d 143, 157 (D.D.C.2002), “even if the plaintiff had adequately demonstrated a
prima facie
showing of prohibitive expenses, the Court would conclude that the defendant’s offer to pay all fees and expenses of arbitration effectively obviated any concerns the plaintiff may have raised regarding her ability to vindicate her claims in an arbitral forum because of the fee-splitting provision in the arbitration agreement.”
Accord Nur v. K.F.C., USA, Inc.,
142 F.Supp.2d 48, 52 (D.D.C.2001) (same). The Court thus concludes that the arbitration provision of the Student Match Contract cannot be voided on the basis of NRMP Policy 11.0.
3. Unconseionability
Section 2 of the FAA provides that “a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 . The Supreme Court has concluded that “the text of § 2 declares that staté law may be applied
‘if
that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.’ Thus, generally applicable contract defenses, such as fraud, duress, or unconseionability, may be applied to invalidate arbitration agreements without contravening § 2.”
Doctor’s Associates, Inc. v. Casarotto,
517 U.S. 681, 686-87 , 116 S.Ct. 1652 , 134 L.Ed.2d 902 (1996) (quoting
Perry v. Thomas,
482 U.S. 483 , 493 n. 9, 107 S.Ct. 2520 , 96 L.Ed.2d 426 (1987)) (emphasis in original).
Plaintiffs-assert that the arbitration provision in the Student Match Contract should not be enforced because it is unconscionable under Ulinqis law.
19
Specifically, they argue that a gross disparity in bargaining positions existed between the NRMP and the medical students, that plaintiffs had no meaningful choice when presented with the Student Match Contract, and that the terms of the arbitration provision, “especially the fee-splitting requirement,” are unreasonably favorable to defendants. Pis.’ Arbit. Opp. at 26. The Supreme Court of Illinois has held that “a contract is unconscionable when it is improvident, oppressive, or totally one-sided .... ”
The Streams Sports Club, Ltd. v. Richmond,
99 Ill.2d 182 , 75 Ill.Dec. 667 , 457 N.E.2d 1226, 1232 (1983) (internal citations omitted). Applying this standard, ■Illinois courts have found unconscionable those contracts that encompass “a lack of meaningful' choice by one party,” and that an unconscionable bargain is one “which
*150
no reasonable person would make, and no honest person would accept.”
Saunders v. Michigan Avenue National Bank,
278 Ill.App.3d 307 , 214 Ill.Dec. 1036 , 662 N.E.2d 602, 610 (1996) (internal citation omitted). “Factors relevant to finding a contract unconscionable include gross disparity in the values exchanged or gross inequality in the bargaining positions of the parties together with terms unreasonably favorable to the stronger party.”
Ahern v. Knecht,
202 Ill.App.3d 709 , 150 Ill.Dec. 660 , 563 N.E.2d 787, 792 (1990).
The Court concludes that the arbitration provision of the Student Match Contract is not unconscionable under Illinois law. Plaintiffs make broad assertions that the agreement is “unreasonably favorable” to defendants and that plaintiffs had no meaningful choice when presented with the agreement. Under Illinois law, however, “mere disparity of bargaining power is not sufficient grounds to vitiate contractual obligations.”
The Streams Sports Club, Ltd. v. Richmond,
75 Ill.Dec. 667 , 457 N.E.2d at 1232 . Furthermore, “Illinois law does not void contracts where parties have unequal bargaining power, even if a contract is a so-called ‘take-it-or-leave-it’ deal and ‘consent to [the] agreement is secured because of hard bargaining positions or the pressure of financial circumstances.’”
Koveleskie v. SBC Capital Markets, Inc.,
167 F.3d 361, 367 (7th Cir.1999) (quoting
Kewanee Prod. Credit Ass’n v. G. Larson & Sons Farms,
146 Ill.App.3d 301 , 99 Ill.Dec. 838 , 496 N.E.2d 531, 534 (1986)). “ ‘Rather, the conduct of the party obtaining the advantage must be shown to be tainted with some degree of fraud or wrongdoing in order have an agreement invalidated.... [T]he mere fact that a person enters into a contract as a result of the pressure of business circumstances ... is not sufficient.’”
Koveleskie v. SBC Capital Markets, Inc.,
167 F.3d at 367 (quoting
Kewanee Prod. Credit Ass’n v. G. Larson & Sons Farms,
99 Ill.Dec. 838 , 496 N.E.2d at 534 ). This is the case even if the contract is perceived to be a mandatory gateway to participation in a specific profession.
See Metro East Center for Conditioning and Health v. Qwest Communications International, Inc.,
294 F.3d 924, 926 (7th Cir.2002).
20
4. Duress
Plaintiffs also argue that the arbitration agreement is unenforceable because it is a product of economic duress. Under Illinois law,
[djuress occurs where one is induced by a wrongful act or threat of another to make a contract under circumstances that deprive one of the exercise of one’s own free will. To establish duress, one must demonstrate that the threat has left the individual bereft of the quality of mind essential to the making of a contract. The acts or threats complained of must be wrongful; however, the term “wrongful” is not limited to acts that are criminal, tortious, or in violation of a contractual duty. They must extend to acts that are also wrongful in a moral sense.
Krilich v. American National Bank and Trust Co. of Chicago,
334 Ill.App.3d 563 , 268 Ill.Dec. 531 , 778 N.E.2d 1153, 1162 (2002) (internal citation and quotation omitted).
See also Hurd v. Wildman, Harrold, Allen and Dixon,
303 Ill.App.3d
*151
84, 286 Ill.Dec. 482 , 707 N.E.2d 609, 614 (1999).
Plaintiffs do not argue that they were actually threatened or forced to enter the Student Match Contract but suggest that they lacked “free will” in that they either could sign the contract or “surrender their plan to become physicians and forfeit the time and money that they had invested in medical school.” Pis.’ Arbit. Opp. at 27. Once again, however, under Illinois law “where consent to an agreement is secured merely because of hard bargaining positions or financial pressures, duress does not exist.”
Hurd v. Wildman, Harrold, Allen and Dixon,
286 Ill.Dec. 482 , 707 N.E.2d at 614 . In addition, plaintiffs’ argument that the NRMP’s conduct was “wrongful” in executing the Student Match Contract because the contract allegedly formed part of the antitrust conspiracy is irrelevant to the duress analysis. The “wrongful” act for these purposes must relate to any intentional pressure or threats applied by the contracting party to enter into the agreement, not to the alleged “wrongfulness” of the underlying contract.
See id.
236 Ill.Dec. 482 , 707 N.E.2d at 615 (“Unless wrongful or unlawful pressure is applied, there is no business compulsion or economic duress.”). The Court therefore concludes that the arbitration provision is not voidable as a product of duress.
5. Avoidance of Arbitration Under Illinois Arbitration Law
Finally, plaintiffs assert that in analyzing the motion to compel, the Court should apply Illinois arbitration law pursuant to the general choice of law provision of the Student Match Contract, and that under Illinois law the Student Match Contract is not enforceable because the contract itself allegedly “results from defendants’ violation of the antitrust laws.” Pis.’ Arbit. Opp. at 24. Certain of the institutional defendants make a somewhat similar argument, asserting that under Illinois law, a court — and not an arbitrator— must decide whether the Student Match Contract violates the antitrust laws.
See
Inst. Defs.’ Arbit. Mem. at 1-2. Defendants respond that both arguments are foreclosed by the Supreme Court’s decision in
Mastrobuono v. Shearson Lehman Hutton, Inc.,
in which the Court held that the parties’ intent to incorporate state laws or rules regarding the scope of arbitration must be clear, and that a broad choice of law clause is insufficient to meet that requirement.
See
NRMP’s Arbit. Reply at 20-21. Defendants assert that Illinois arbitration law therefore is not applicable here because the parties’ intent to apply the state’s arbitration law is not clearly demonstrated.
Plaintiffs and the institutional defendants primarily rely on
Armco Steel Co. v. CSX Corp.,
790 F.Supp. at 319 , in which Judge Hogan concluded that “the FAA does not compel parties to arbitrate when the parties have chosen to be governed by state law and the state law relieves the parties of the responsibility to arbitrate when there is an allegation that the contract itself is a product of a violation of the antitrust laws.” Judge Hogan concluded that by including a general choice-of-law provision in the underlying contract, the parties “indicated their intention to arbitrate to the extent allowed by Ohio law.”
Id.
Four years after Judge Hogan decided
Armco,
however, the Supreme Court decided
Mastrobuono .
The dispute in
Mas-trobuono
arose out of a standard form contract that expressly provided in a general choice of law clause that the contract was to be governed by the laws of the State of New York. The matter went to arbitration, and the arbitrators awarded punitive damages. Respondent moved for
*152
vacatur of the arbitration award on the ground that under New York law only-courts may award punitive damages, a law that conflicted with the FAA rule allowing arbitrators to do so.
See Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. at 53 , 115 S.Ct. 1212 . The district court granted respondent’s motion, concluding that the general choice of law provision directed application of New York arbitration law to the arbitration matters. The Seventh Circuit upheld the decision to vacate the award, and appellants sought and obtained certiorari.
. The Supreme . Court first determined that nothing in the contract indicated- that the parties affirmatively expressed their intent to preclude the arbitrator from awarding punitive damages notwithstanding the general choice of law provision.
See Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. at 62 , 115 S.Ct. 1212 . The Court found that at most the general choice of law provision actually introduced an ambiguity into a contract that otherwise would have allowed for punitive damage awards, and in light of the strong federal policy favoring arbitration, any ambiguity had to be read in favor of arbitration and thus against application of New York law.
See id.; see also EEOC v. Waffle House, Inc.,
534 U.S. at 293 n. 9, 122 S.Ct. 754 (noting that
Mastrobuono
held that clear contractual language governs interpretation of arbitration agreements, but where choice of law provision is ambiguous the agreement must be read to favor arbitration under FAA). More specifically, the Court in
Mastrobuono
held that “the choice of law provision covers the rights and duties of the parties, while the arbitration clause, covers arbitration” and its scope.
Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. at 64 , 115 S.Ct. 1212 .
Numerous courts of appeals have concluded that
Mastrobuono
requires that the intent of the .contracting parties to apply state arbitration rules or law to arbitration proceedings must be explicitly stated in the contract and that under
Mastrobuono ,
a general choice of law provision does not evidence such intent.
See Sovak v. Chugai Pharmaceutical Co.,
280 F.3d 1266, 1270 (9th Cir.2002) (“[A] general choice-of-law clause within an arbitration provision does not trump the presumption that the FAA supplies the rules for arbitration.”);
Roadway Package System, Inc. v. Kayser,
257 F.3d 287, 288-89 (3d Cir.2001) (“[A] generic choice-of-law clause, standing alone, is insufficient to support a finding that contracting parties intended to opt out of the FAA’s default standards.”);
UHC Management Co., Inc. v. Computer Sciences Corp.,
148 F.3d 992, 997 (8th Cir.1998) (finding general choice of law provision insufficient; court “will not interpret an arbitration agreement as precluding the application of the FAA unless the parties’ intent that the agreement be so construed is abundantly clear”);
Ferro Corp. v. Garrison Industries, Inc.,
142 F.3d 926, 936 (6th Cir.1998) (rejecting general choice of law provision in absence of “indication that the parties intended to incorporate Ohio law to determine that the issue of fraudulent inducement should be adjudicated in a judicial forum”);
Porter Hayden Co. v. Century Indem. Co.,
136 F.3d 380, 383 (4th Cir.1998) (“[T]he choice-of-law provision in the [agreement] is neither an unequivocal expression of the parties’ intent to commit adjudication of timeliness defenses to the court, rather than to an arbitrator, nor, more generally, an unequivocal expression of the parties’ intent to invoke Maryland, rather than federal, arbitration law.”);
National Union Fire Insurance Co. of Pittsburgh, Pa. v. Belco Petroleum Corp.,
88 F.3d 129, 135 (2d Cir.1996) (“[T]he choice-of-law clause is
*153
not an unequivocal inclusion of a New York rale that requires the preclusive effect of a prior arbitration to be decided by the court.”);
PaineWebber Inc. v. Elahi,
87 F.3d 589, 594 (1st Cir.1996) (general choice of law provision did not indicate parties’ intent to apply state rule requiring a judicial determination of effect of relevant clause).
In light of
Mastrobuono
and its progeny, the Court concludes that plaintiffs and the institutional defendants cannot rely on Judge Hogan’s decision in
Armco
in support of their assertion that the general choice of law provision in the Student Match Contract suffices to demonstrate the parties’ intent to apply Illinois law to define the scope of the arbitrator’s authority.
Mastrobuono
requires more.
See Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. at 62 , 115 S.Ct. 1212 ;
see also Ferro Corp. v. Garrison Industries, Inc.,
142 F.3d at 933 (district court’s reliance on
Armco
in support of application of state arbitration law on basis of general choice of law provision was “misplaced ... because [court] was bound to follow the Supreme Court’s more recent decision [in
Mastrobuono
]”).
21
This Circuit’s decision in
Ekstrom v. Value Health, Inc.,
68 F.3d 1391 (D.C.Cir.1995), is not to the contrary. In
Ekstrom ,
the court of appeals considered the dismissal of the appellants’ petition to vacate an arbitration award as untimely on the ground that Connecticut law restricted the time period within which a party could appeal an arbitration award to 30 days, a shorter period than allowed for under the FAA. The parties agreed that Connecticut substantive law on contracts and on arbitration applied, but appellants asserted that the statute of limitations question was procedural in nature under Connecticut law.
See id.
at 1394 . The court of appeals concluded, however, that the statute of limitations issue was a substantive question under Connecticut law and therefore that Connecticut state arbitration laws applied.
See id.
at 1395 . The court also concluded that the state law was not preempted by the FAA because no direct conflict existed in light of the parties’ agreement to apply Connecticut substantive law.
See id.
at 1395-96 . This Court concludes that
Ekstrom
is not inconsistent with
Mastrobuono. Mastrobuono
does not prevent parties from deciding that a state’s arbitration law applies; it only requires that such a choice is expressed unequivocally, and the parties in
Ekstrom
expressly agreed that Connecticut substantive arbitration law applied. Here, by contrast, no such agreement exists. This Court therefore concludes that in this case federal arbitration law under the FAA defines the scope of the arbitrator’s authority.
22
The Court’s conclusion is significant because federal law differs in substantial ways from Illinois law (as it is described by the non-moving parties) to the detriment of the non-moving parties’ efforts to avoid arbitration. Plaintiffs assert that under Illinois law a party is relieved from an arbitration agreement if the underlying contract is alleged to be void for
*154
violation of the antitrust laws. Under the FAA, however, a party is not relieved from an agreement to arbitrate on the ground that the contract is allegedly void for violation of the antitrust laws unless plaintiffs demonstrate that the Court’s enforcement of the arbitration provision would make the Court a party to the unlawful activity.
See Dickstein v. duPont,
443 F.2d 783, 786 (1st Cir.1971) (antitrust defenses to arbitration “allowed only in cases where the intrinsic illegality of the contract is so clear that enforcement would make a court party to the precise conduct forbidden by the law”);
In re Universal Service Fund Telephone Billing Practices Litigation,
No. 02-MD-1468, 2003 WL 21254765 , *3 (D.Kan. May 27, 2003), 2003 U.S. Dist. LEXIS 9235 , at *9-11 (finding arbitration clause enforceable, concluding that “a contract that is legal on its face and does not call for unlawful conduct in its performance is not voidable or unenforceable simply because it resulted from an antitrust conspiracy”).
See also Kelly v. Kosuga,
358 U.S. 516, 518 , 79 S.Ct. 429 , 3 L.Ed.2d 475 (1959) (“[A] plea of illegality based on violation of the Sherman Act has not met with much favor in this Court.”);
National Souvenir Center, Inc. v. Historic Figures, hie.,
728 F.2d 503, 514-16 (D.C.Cir.1984) (“remote danger” that court would be a party to enforcing illegal restraint “outweighed by the probability that allowing the [antitrust] defense would let the buyer escape from its side of a bargain”). Plaintiffs have made no such showing. Similarly, while the institutional defendants assert that Illinois law requires a court to determine whether a contract violates the antitrust laws, federal law permits the arbitrator to make that determination.
See Simula, Inc. v. Autoliv, Inc.,
175 F.3d at 721-22 (antitrust claim involving contract that allegedly functioned to restrain trade properly referred to arbitration);
Coors Brewing Co. v. Molson Breweries,
51 F.3d at 1516 (same).
23
D.
Compelling Countervailing Interest in the Proper Adjudication of Sherman Act Claims
While the Court has concluded that the arbitration clause in the Student Match Contract encompasses the claim the NRMP seeks to have arbitrated, and that none of the countervailing statutory or policy considerations suggested by plaintiffs and certain institutional defendants relieve them from the responsibility to arbitrate, the Court nonetheless concludes that compelling arbitration of any part of the conspiracy claim would undermine the purposes of the Sherman Act by improperly compartmentalizing plaintiffs’ single conspiracy claim. The Court also concludes that the request for arbitration by the AMA, a non-signatory to the Student Match Contract, would result in further improvident compartmentalizing of the claim.
In its motion, the NRMP describes plaintiffs’ conspiracy claim, designating three main elements: the use of the Match Program to eliminate competition in the recruitment and employment of medical residents, the exchange of competitively sensitive information regarding resident physician compensation and benefits, and the promulgation of and compliance with purportedly anticompetitive accreditation standards.
See
NRMP’s Arbit. Mem. at 3-4. The NRMP asserts that “[together, these three elements of the supposed conspiracy are said to have ‘the purpose and
*155
effect of artificially fixing, depressing, standardizing and stabilizing resident physician compensation and other terms of employment.’ ”
Id.
at 4 (quoting Compl. ¶ 101). Plaintiffs likely would not dispute this characterization of their claim. The NRMP then seeks an order “compelling plaintiffs to arbitrate the first element of their tripartite claim; namely, that defendants used the Matching Program to eliminate competition in the recruitment and employment of resident physicians.’ ” NRMP’s Arbit. Mem. at 7. Characterizing plaintiffs’ single conspiracy claim as “tripartite,” however, cannot disguise the fact that plaintiffs’ claim alleges a single conspiracy with three interacting prongs that — when considered together — are alleged to have the anticompetitive effect charged.
The Supreme Court has held that where certain claims within a multi-count complaint are arbitrable, the liberal federal policy favoring arbitration directs referral of those claims to arbitration “even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.”
Dean Witter Reynolds Inc. v. Byrd,
470 U.S. 213, 217 , 105 S.Ct. 1238 , 84 L.Ed.2d 158 (1985).
See also NPS Communications, Inc. v. The Continental Group, Inc.,
760 F.2d 463, 465 (2d Cir.1985) (retaining non-arbi-trable antitrust claims while referring ar-bitrable contract claims to arbitration). In
Dean Witter,
the Supreme Court rejected the “doctrine of intertwining claims” as a defense to arbitration even when “piecemeal” litigation results, “at least absent a countervailing policy manifested in another federal statute.”
Id.
at 221. Some courts also have concluded that “the Arbitration Act requires the separation of arbitrable ‘issues’ from non-ar-bitrable ones” within individual claims.
Rain v. Donning Co./Publishers, Inc.,
964 F.2d 1455 , 1460 (4th Cir.1992) (in single breach of contract claim alleging multiple bases for breach, referring to arbitration only those bases expressly arbitrable under relevant agreement).
It does not follow, however, that one element of an overarching conspiracy claim, an element in which multiple defendants allegedly are involved, should be referred to arbitration. Conspiracy is a far different creature from breach of contract, and conspiracy allegations in antitrust cases cannot be compartmentalized and considered in isolation “as if they were separate lawsuits, thereby overlooking the conspiracy claim itself.”
In re Fine Paper Antitrust Litigation,
685 F.2d 810, 822 (3d Cir.1982). Indeed, in
Continental Ore Co. v. Union Carbide & Carbon Corp.,
370 U.S. 690 , 82 S.Ct. 1404 , 8 L.Ed.2d 777 (1962), the Supreme Court expressly held that in cases that involve an alleged conspiracy among multiple actors involving multiple acts,
plaintiffs should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each. The character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole .... [I]n a case like the one before us, the duty of the jury was to look at the whole picture and not merely at the individual figures in it.
Id.
at 699 , 82 S.Ct. 1404 (internal quotation and citation omitted).
See also In re Consumer Credit Counseling Services Antitrust Litigation,
Misc. No. 97-0233/Civil Action No. 97-1741, 1997 WL 755019 , at *5 (D.D.C. Dec. 4, 1997), 1997 U.S. Dist. LEXIS 19669 , at *13-14 (refusing to consider allegations of various anticompetitive acts separately when brought under single conspiracy claim, concluding that “the character and effect of the conspiracy are
*156
not to be evaluated by viewing its separate parts.... [T]he ramification and effect of the conspiracy should be looked at as a whole.”);
In re Medical X-Ray Film Antitrust Litigation,
946 F.Supp. 209, 218 (E.D.N.Y.1996) (refusing to consider elements of conspiracy claim separately because “while each of these factors taken in isolation does not necessarily provide a basis alone for inferring an agreement or conspiracy, in combination, these factors, taken together and ‘on the ground,’ may support a reasonable inference that an agreement or conspiracy existed”).
Chief Judge Hogan’s decision in
In re Vitamins Antitrust Litigation,
Misc. No. 99-197 (TFH), 2000 WL 1475705 (D.D.C. May 9, 2000), 2000 U.S. Dist. LEXIS 7397 is instructive on this issue. In that case, certain defendants moved to sever the allegations that related to those defendants in plaintiffs’ single price-fixing conspiracy claim, arguing that not one but three conspiracies existed, each based on different vitamins produced. Relying on
Continental Ore,
Judge Hogan denied the motion to sever portions of the single conspiracy claim, concluding that “it would be improper ... to prejudge the scope of the conspiracy that plaintiffs allege,” and noting that “the trier of fact ‘must look at the whole picture and not merely at the individual figures in it.’”
Id.
at *17 (quoting
Continental Ore Co. v. Union Carbide & Carbon Corp.,
370 U.S. at 699 , 82 S.Ct. 1404 ). The Court finds the
Continental Ore
directive even more compelling in the instant action, in which defendants assert that the alleged anticompetitive ■ acts are facially lawful if considered separately.
See
Section IV(B)(3)-(5)
infra.
The Court concludes that the
Continental Ore
decision and its progeny manifest a clear and compelling countervailing interest in the comprehensive adjudication of conspiracy claims brought under the Sherman Act. Defendant NRMP’s motion to compel arbitration therefore must be denied.
The Court also concludes that the request for arbitration made by the AMA, a non-signatory to the Student Match Contract, must be denied as well. The referral of the claim would further improperly compartmentalize plaintiffs’ single conspiracy elairh. Moreover, inasmuch as this request is predicated on a theory of derivative liability resulting from the AMA’s role as a “governing sponsor” of the NRMP, the Court’s conclusion that the claim as it relates to the NRMP is non-arbitrable also defeats these additional requests.
See
NRMP Arbit. Reply at 30-31. It also seems self-evident that entities that are not parties to a contract containing an arbitration agreement are not entitled to arbitrate their disputes. As the Supreme Court said in
Waffle House,
“[t]he FAA directs courts to place arbitration agreements on equal footing with other contracts, but it ‘does not require parties to arbitrate when they have not agreed to do so.’”
EEOC v. Waffle House, Inc.,
534 U.S. at 293 , 122 S.Ct. 754 (quoting
Volt Information Sciences, Inc. v. Board of Trustees,
489 U.S. at 478, 109 S.Ct. 1248 ). None of the plaintiffs in this case has a contractual obligation to arbitrate any claims with the AMA and the Court will not require them to do so.
See Dayhoff, Inc. v. H.J. Heinz, Co.,
86 F.3d 1287, 1296-97 (3d Cir.1996).
IV. DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
Plaintiffs raise one claim of price-fixing against all defendants under Section 1 of the Sherman Act: “Defendants and others have illegally contracted, combined and conspired among themselves to displace competition in the recruitment, hiring, employment and compensation of resident physicians, and to impose a scheme of
*157
restraints^] which have the purpose and effect of fixing, artificially depressing, standardizing and stabilizing resident physician compensation and other terms of employment.” Compl. ¶ 2. Certain defendants have filed motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
A.
The Legal Framework
1. Failure to State a Claim in the Antitrust Context
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must assume the truth of the facts alleged in the complaint and may grant the motion only if it appears that plaintiffs will be unable to prove any set of facts that would justify relief.
See Summit Health, Ltd. v. Pinhas,
500 U.S. 322, 325 , 111 S.Ct. 1842 , 114 L.Ed.2d 366 (1991);
Browning v. Clinton,
292 F.3d 235, 242 (D.C.Cir.2002);
Haynesworth v. Miller,
820 F.2d 1245, 1254 (D.C.Cir.1987). The complaint must contain “either direct or inferential allegations respecting all material elements necessary to sustain a recovery under some viable legal theory.”
In re Vitamins Antitrust Litigation,
2000 WL 1475705 , at *8, 2000 U.S. Dist. LEXIS 7397 , at *45. The complaint “is construed liberally in the plaintiffs’ favor, and [the Court should] grant plaintiffs the benefit of all inferences that can be derived from the facts alleged.”
Kowal v. MCI Communications Corp.,
16 F.3d 1271, 1276 (D.C.Cir.1994).
Accord Andrx Pharmaceuticals v. Biovail Corp. Int’l,
256 F.3d 799, 805 (D.C.Cir.2001) (same standard in antitrust context). The Court need not accept any inferences drawn by plaintiffs, however, “if such inferences are unsupported by the facts set out in the complaint. Nor must the Court accept legal conclusions cast in the form of factual allegations.”
Andrx Pharmaceuticals v. Biovail Corp. Int’l,
256 F.3d at 805 (quoting
Kowal v. MCI Communications Corp.,
16 F.3d at 1276 ).
To survive a Rule 12(b)(6) motion in the antitrust context, plaintiffs must do more than simply paraphrase the language of the federal antitrust laws or state in con-clusory terms that a defendant has violated those laws.
See Dial A Car. Inc. v. Transportation, Inc.,
884 F.Supp. 584, 588 (D.D.C.1995),
aff'd
82 F.3d 484 (D.C.Cir.1996). “If [a plaintiff] claims an antitrust violation, but the facts he narrates do not at least outline or adumbrate such a violation, he will get nowhere merely by dressing them up in the language of antitrust.”
Sutliff, Inc. v. Donovan Companies, Inc.,
727 F.2d 648, 654 (7th Cir.1984).
See also TV Communications Network, Inc. v. Turner Network Television, Inc.,
964 F.2d 1022, 1024 (10th Cir.1992). “Conclusory allegations, in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing expedition.”
DM Research, Inc. v. College of American Pathologists,
170 F.3d 53, 55 (1st Cir.1999).
See also GTE New Media Services Inc. v. Ameritech Corp.,
21 F.Supp.2d at 40 . The Supreme Court has cautioned, however, that in the antitrust context, “where ‘the proof is largely in the hands of the alleged conspirators,’ dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.”
Hospital Building Co. v. Trustees of Rex Hospital,
425 U.S. 738, 746 , 96 S.Ct. 1848 , 48 L.Ed.2d 338 (1976) (quoting
Poller v. Columbia Broadcasting,
368 U.S. 464, 473 , 82 S.Ct. 486 , 7 L.Ed.2d 458 (1962)).
2. Conspiracy in Restraint of Trade under Section 1
In order to state a claim of conspiracy in restraint of trade in violation of Section 1 of the Sherman Act, plaintiffs must allege (1) that the defendants entered into some agreement, contract, combination, conspiracy or other concerted ac
*158
tivity; (2) that at least one defendant committed an overt act in furtherance of the conspiracy; and (3) that the agreement constituted an unreasonable restraint of trade in the relevant market in a manner that had an impact on interstate commerce.
See Invamed, Inc. v. Barr Laboratories, Inc.,
22 F.Supp.2d 210, 221 (S.D.N.Y.1998);
Dial A Car, Inc. v. Transportation, Inc.,
884 F.Supp. at 591 . Like other conspiracies, at the heart of an antitrust conspiracy is an agreement and a conscious decision by each defendant to join it. While an agreement in “restraint on trade is rarely evidenced by an express oral or written agreement,”
Binder v. District of Columbia,
Civil Action No. 90-0255, 1991 U.S. Dist. LEXIS 7094 , at *9 (D.D.C. May 22, 1991), plaintiffs must allege “that the challenged restraint is not the result of independent actions by the defendants,” but rather that “the defendants consciously committed to a common agreement of an unreasonable restraint on trade.”
GTE New Media Services Inc. v. Ameritech Corp.,
21 F.Supp.2d at 42 (citing
Monsanto v. Spray-Rite Service Corp.,
465 U.S. 752 , 761, 104 S.Ct. 1464 , 79 L.Ed.2d 775 (1984)). In the Section 1 context, “ ‘[p]roof of a tacit, as opposed to explicit, understanding is sufficient to show agreement.’ ”
Federal Trade Commission v. Mylan Laboratories, Inc.,
62 F.Supp.2d 25, 55 (D.D.C.1999) (quoting
Halberstam v. Welch,
705 F.2d 472, 477 (D.C.Cir.1983)). Courts therefore “have ... allowed ‘inferences [to be] fairly drawn from the behavior of the alleged conspirators’ to prove conspiracy.”
See Binder v. District of Columbia,
1991 U.S. Dist. LEXIS 7094 , at *9 (quoting
Michelman v. Clark-Schwebel Fiber Glass Corp.,
534 F.2d 1036, 1043 (2d Cir.1976)).
3. Inapplicability of
Matsushita
to Rule 12(b)(6) Motions
Two defendants, the ACGME and Yeshiva University (‘Yeshiva”), argue that there is another element to the legal standard that plaintiffs must satisfy in order to survive a motion to dismiss in the antitrust context. Specifically, these defendants assert that there is a limitation on the inferences that the Court may make in consideration of their motions to dismiss that derives from the Supreme Court’s decision in
Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986). In
Matsushita,
the Supreme Court considered a Section 1 conspiracy claim in the summary judgment context, and concluded that if a plaintiff relies on circumstantial evidence of an agreement rather than express acts, and if the claim against a defendant appears implausible, a plaintiff has an additional evidentiary burden:
[T]he absence of any plausible motive to engage in the conduct charged is highly relevant to whether a ‘genuine issue for trial’ exists within the meaning of Rule 56(e). Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, the conduct does not give rise to an inference of conspiracy.
Id.
at 596-97 , 106 S.Ct. 1348 . Thus, if it appears that a defendant lacks a plausible motive for engaging in anticompetitive conduct, in order to survive summary judgment a plaintiff must present evidence that “show[s] that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action that could not have harmed respondents.”
Id.
at 587 , 106 S.Ct. 1348 . The ACGME and Yeshiva ask the Court to extend
Matsushita
to plaintiffs’ initial pleading burden, thereby requiring plain
*159
tiffs to have put forth allegations in their complaint demonstrating the reasonableness of their conspiracy claim in comparison with potential competing inferences defendants may raise.
See
Memorandum of Defendant Accreditation Council for Graduate Medical Education in Support of Its Motion to Dismiss (“ACGME (b)(6) Mem.”) at 16; Defendant Yeshiva University’s Memorandum in Support of Its Motion to Dismiss (‘Yesh.(b)(6) Mem.”) at 7-8.
The Court concludes that application of the
Matsushita
rule simply is not appropriate in the context of a motion to dismiss. A motion to dismiss for failure to state a claim generally is made before discovery and should be evaluated on the basis of the four corners of the pleading.
See Summit Health, Ltd. v. Pinhas,
500 U.S. at 325, 111 S.Ct. 1842 ;
Browning v. Clinton,
292 F.3d at 242 . A summary judgment motion commonly is filed after at least some discovery and it turns on whether there is a genuine issue of material fact for trial; it is only in that post-discovery context in which the plausibility of competing motives should be assessed.
See Eastman Kodak Co. v. Image Technical Services, Inc.,
504 U.S. 451, 468 , 112 S.Ct. 2072 , 119 L.Ed.2d 265 (1992)
(“Matsushita
demands only that the nonmoving party’s inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision. If the plaintiffs theory is economically senseless, no reasonable jury could find in its favor, and summary judgment should be granted.”).
By contrast, plaintiffs are not required to set forth allegations of motive in their complaint in anticipation of what defendants may argue on a motion to dismiss are equally plausible explanations for the alleged conspiratorial activities.
See Atlantic Coast Airlines Holdings, Inc. v. Mesa Air Group, Inc.,
295 F.Supp.2d 75, 91-92 (D.D.C.2003) (rejecting applicability of
Matsushita
evidentiary burden on motion for preliminary injunction);
In re Compact Disc Minimum Advertised Price Antitrust Litigation,
138 F.Supp.2d 25, 27 (D.Me.2001) (expressly rejecting application of
Matsushita
summary judgment evi-dentiary burden to conspiracy claim on motion to dismiss);
AD/SAT v. Associated Press,
885 F.Supp. 511, 521 (S.D.N.Y.1995) (plaintiffs conspiracy allegations “while sufficient to survive a motion to dismiss, [were] inadequate to defeat the ... motion for summary judgment [under the
Matsu-shita
standard]”). Antitrust claims, like all other claims, are subject only to the notice pleading requirements of Rule 8 of the Federal Rules of Civil Procedure.
See Todd v. Exxon Corp.,
275 F.3d 191, 198 (2d Cir.2001) (“[A] short plain statement of a claim for relief which gives notice to the opposing party is all that is necessary in antitrust cases, as in other cases under the Federal Rules.”);
MCM Partners, Inc. v. Andrews-Bartlett & Associates, 62
F.3d 967, 976 (7th Cir.1995) (“[A]n antitrust plaintiff need not include the particulars of his claim to survive a motion to dismiss .... It is instead sufficient for the plaintiff to include in its complaint only a short and plain statement of the claim showing an entitlement to relief.”) (internal quotation and citation omitted).
24
*160
4. The Import of
Continental Ore
and
American Tobacco
In
Continental Ore Co. v. Union Carbide & Carbon Corp.,
the Supreme Court held that in cases that involve an alleged conspiracy among multiple actors involving multiple acts,
plaintiffs should be given the full benefit of their' proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each. The character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole ... and in a case like the one before us, the duty of the jury was to look at the whole picture and not merely at the individual figures in it.
Continental Ore Co. v. Union Carbide & Carbon Corp.,
370 U.S. at 699 , 82 S.Ct. 1404 (internal quotation and citation omitted).
See also In re Fine Paper Antitrust Litigation,
685 F.2d at 822 (conspiracy allegations in antitrust cases can not .be compartmentalized and considered seria-tim “as if they were separate lawsuits, thereby overlooking the conspiracy claim itself’);
In re Medical X-Ray Film Antitrust Litigation,
946 F.Supp. at 218 (same). Although
Continental Ore
was decided in the context of a motion for a directed verdict after trial, its maxim has been applied in a variety of contexts, including in consideration of motions to dismiss.
See In re Consumer Credit Counseling Services Antitrust Litigation,
1997 WL 755019 , at *5, 1997 U.S. Dist. LEXIS 19669 , at *13-14 (court cannot consider alleged anticompetitive acts separately on a motion to dismiss when those acts are alleged to be part of a single conspiracy claim);
In re Medical X-Ray Film Antitrust Litigation,
946 F.Supp. at 218 (summary judgment);
ITT World Communications Inc. v. Western Union Telegraph Co.,
524 F.Supp. 702, 704 (S.D.N.Y.1981) (denying motion to dismiss). “[T]he character and effect of the conspiracy are not to be evaluated by viewing its separate parts .... [T]he ramification and effect of the conspiracy should be looked at as a whole.”
In re Consumer Credit Counseling Services Antitrust Litigation,
1997 WL 755019 , at *5, 1997 U.S. Dist. LEXIS 19669 , at *13-14. In analyzing defendants’ Rule 12(b)(6) motions, the Court therefore will consider the allegations with respect to the individual defendants only in the context of the larger conspiracy alleged.
The Supreme Court also stated in
Continental Ore
that “acts which are in and of themselves legal lose that character when they become constituent elements of an unlawful scheme.”
Continental Ore Co. v. Union Carbide & Carbon Corp.,
370 U.S. at 707 , 82 S.Ct. 1404 . As the Court earlier had announced in
American Tobacco Co. v. United States,
328 U.S. 781 , 66 S.Ct. 1125 , 90 L.Ed. 1575 (1946):
It is not the form of the combination or the particular means used but the result
*161
to be achieved that the statute condemns. It is not of importance whether the means used to accomplish the unlawful objective are in themselves lawful or unlawful. Acts done to give effect to the conspiracy may be in themselves wholly innocent acts. Yet, if they are part of the sum of the acts which are relied upon to effectuate the conspiracy which the statute forbids, they come within its prohibition.
Id.
at 809 , 66 S.Ct. 1125 .
See also In re Medical X-Ray Film Antitrust Litigation,
946 F.Supp. at 218;
ITT World Communications Inc. v. Western Union Telegraph Co.,
524 F.Supp. at 704 .
Neither of these rules, however, relieves plaintiffs of the burden of adequately alleging that a conspiracy to restrain trade existed in the first instance and that each defendant knowingly joined or agreed to participate in the conspiracy. If plaintiffs fail to do so, neither
Continental Ore
nor
American Tobacco
shield plaintiffs’ claims from dismissal.
See Southern Pacific Communications Co. v. American Telephone & Telegraph Co.,
556 F.Supp. 825, 888 (D.D.C.1982) (“[Njothing in
Continental Ore
requires a conclusion that a defendant that has not engaged in an unlawful conspiracy, and has committed
no
acts in themselves violative of the Sherman Act, could be found guilty of antitrust violations on some theory that the acts have ‘synergistic effects’ that convert lawful conduct into violations of law.”) (emphasis in original).
B.
Organizational Defendants’ Motions to Dismiss
Plaintiffs have sued seven organizational defendants: (1) the American Hospital Association (“AHA”); (2) the American Board of Medical Specialties (“ABMS”); (3) the Council of Medical Specialty Societies (“CMSS”); (4) the American Association of Medical Colleges (“AAMC”); (5) the American Medical Association (“AMA”); (6) the Accreditation Council for Graduate Medical Education (“ACGME”); and (7) the National Resident Matching Program (“NRMP”). Plaintiffs in their complaint allege that the AAMC “operates and manages” the Match Program, which functions to suppress competition in the hiring of medical residents by adopting policies that “restrict[] attempts by employers and applica

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2562998. Public record. Not legal advice.