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From Antitrust Law Daily, December 11, 2017

Provider of temporary ‘medical traveler’ personnel faces setback in suit against larger rival

By Wendy Biddle, J.D.

Two affiliated temporary personnel agencies that arrange to have medical travelers perform temporary assignments at hospitals and other healthcare facilities failed to adequately allege that they suffered an antitrust injury in a case against the dominant provider of medical travelers in the country for allegedly agreeing with rivals not to poach employees. The court dismissed the case without prejudice based on the plaintiff’s failure to provide anything more than conclusory allegations without pointing to specific facts or anecdotal evidence to support the claims of exclusionary and retaliatory harm (Aya Healthcare Services, Inc. v. AMN Healthcare, Inc., December 6, 2017).

Both the plaintiffs and the defendants offered "medical traveler" personnel, i.e. licensed nurses and medical technicians given temporary assignments in hospitals. Defendant AMN Healthcare employed approximately 8,000 temporary medical professionals and also provide a software platform hospitals use to acquire medical traveler services. The complaint alleged that the defendant utilized trade restraints, trade-secret abuse, sham litigation, and other anticompetitive practices to hinder and exclude its direct competitors, restrict the available supply to medical travelers in various regional submarkets, impose super-competitive prices, deprive its hospital customers of alternative terms of service, and depress the pay and employment opportunities of medical travelers; resulting in retaliatory and exclusionary harm.

Exclusionary harm. The plaintiff claimed that the defendant used anticompetitive practices to restrain and exclude competitors to maintain or enhance their dominance in certain geographic markets. According to the plaintiff, the overall effect of the defendant’s business strategy discouraged rivals from considering, evaluating, and hiring qualified medical travelers. Although the plaintiff claimed numerous times that the defendant’s conduct resulted in higher prices, no facts or anecdotal evidence was offered to support that allegation. The complaint also failed to provide evidence that there were fewer available medical travelers, which the court found conclusory. Therefore, the court found insufficient facts to support the exclusionary claim.

Retaliatory harm. Aya also alleged that it suffered retaliatory harm when AMN Healthcare terminated its subcontractor agreements after Aya refused to join the defendant’s cartel. The court concluded that the plaintiff relied on an inapplicable case for their argument. Also, the plaintiff was never a member of the alleged cartel with the defendant, so it could not seek damages based on retaliation of a cartel member. The court dismissed the allegation of retaliatory harm for failing to provide sufficient facts to support the claim.

Right to amend complaint. Aya was permitted to file a Second Amended Complaint to cure the pleading deficiencies identified in the order by January 5, 2018.

The case is No. 17cv205-MMA (MDD).

Attorneys: William A. Markham (Law Offices of William Markham, PC) for Aya Healthcare Services, Inc. Amanda Catherine Fitzsimmons (DLA Piper LLP) for AMN Healthcare, Inc.

Companies: Aya Healthcare Services, Inc.; AMN Healthcare, Inc.

MainStory: TopStory Antitrust CaliforniaNews

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