Am. Bd. of Internal Med. v. Von Muller (Full Text)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AMERICAN BOARD OF INTERNAL
: CIVIL ACTION
MEDICINE
:
:
vs.
: NO. 10-CV-2680
:
SARAH VON MULLER, M.D.
:
:
vs.
:
:
:
AMERICAN BOARD OF INTERNAL
MEDICINE, CHRISTINE K. CASSEL,:
M.D., LYNN O. LANGDON, M.S.,
:
:
and ERIC S. HOLMBOE, M.D.

MEMORANDUM AND ORDER

JOYNER, J.

March 10, 2011

This civil action has been brought before the Court on
Partial Motion of the Plaintiff/Counterclaim Defendant, American
Board of Internal Medicine, to Dismiss a number of the
counterclaims asserted against it by the Defendant/Counterclaim
Plaintiff, Sarah Von Muller, M.D. As explained below, the
partial motion shall be granted in part and denied in part.
Factual Background
This case is the last in a series of lawsuits initiated by
the American Board of Internal Medicine (“ABIM”) against a
physician seeking injunctive and monetary relief for allegedly
unlawfully obtaining, copying and disseminating ABIM’s copyright
and/or trade secret-protected Board Certification Examination

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questions. In its Amended Complaint in this matter, Plaintiff
1
contends that approximately one month before taking the November
2008 examination for board certification in gastroenterology,
Defendant Sarah Von Muller purchased infringing ABIM
gastroenterology exam questions from Arora Board Review for $480
plus her promise to provide actual test questions to Arora after
she took the examination. As was the case with the five prior
ABIM examinations that she had taken, at both the beginning and
the end of the November 2008 exam, Dr. Von Muller agreed to abide
by ABIM’s Policies and Procedures and its “Pledge of Honesty,”
thereby promising that she would not disclose, copy or reproduce
any part of the material contained in the examination. (Amended
Complaint, ¶s 31-35). Despite this pledge, some ten months after
taking the examination, Dr. Von Muller purportedly sent some 77
questions that were “substantially similar” to the questions
contained on the November, 2008 gastroenterology certification
examination to Dr. Arora. (Amended Complaint, ¶s 36-40).
In her Answer to the Plaintiff’s Amended Complaint,
Defendant substantively denied most of the allegations of
wrongdoing against her and in further response, asserted some
eleven counterclaims against Plaintiff. By the motion now at
issue, the Plaintiff/Counterclaim Defendant moves to dismiss

T h e o t h e r a c t i o n s a r e A m e r i c a n B o a r d o f I n t e r n a l M e d i c i n e v .
1
M u k h e r j e e , N o . 1 0 – C V – 2 6 7 6 , A m e r i c a n B o a r d o f I n t e r n a l M e d i c i n e v . S a l e h i , N o .
1 0 – C V – 2 6 7 7 , A m e r i c a n B o a r d o f I n t e r n a l M e d i c i n e v . T o d o r , N o . 1 0 – C V – 2 6 7 8 , a n d
A m e r i c a n B o a r d o f I n t e r n a l M e d i c i n e v . O n i , N o . 1 0 – C V – 2 6 7 9 .

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Counts IV through XI for failure to state a claim upon which
relief may be granted.
Applicable Standards to Rule 12(b)(6) Motions to Dismiss
To survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), a pleading must set forth “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d
929, 949 (2007); Holmes v. Gates, 2010 U.S. App. LEXIS 25489 at
*3 (3d Cir. Dec. 10, 2010). A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged. Ashcroft v. Iqbal, U.S. , 129 S.
Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Santiago v. Warminster
Township, 629 F.3d 121, 126 (3d Cir. 2010). The law is clear
that in considering and ruling upon motions to dismiss, the
district courts must “accept as true the factual allegations in
the complaint and all reasonable inferences that can be drawn
therefrom.” Sheridan v. NGK Metals Corp., 609 F.3d 239, 262, n.
27 (3d Cir. 2010); Krantz v. Prudential Investments Fund
Management, 305 F.3d 140, 142 (3d Cir. 2002).
Finally, in addition to the complaint itself, the court can
review documents attached to the complaint and matters of public
record; a court may also take judicial notice of a prior judicial
opinion. McTernan v. City of York, PA, 577 F.3d 521, 526 (3d

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Cir. 2009); Buck v. Hampton Township School District, 452 F.3d
256, 260 (3d Cir. 2006). In Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009), the Third Circuit examined Iqbal, and
made the following observation:
When presented with a motion to dismiss, district courts
should conduct a two part analysis. First, the factual and
legal elements of a claim should be separated. The District
Court must accept all of the complaint’s well-pleaded facts
as true, but may disregard any legal conclusions. (citing
Iqbal, 129 S. Ct. at 1949). Second, a District Court must
then determine whether the facts alleged in the complaint
are sufficient to show that the plaintiff has a “plausible
claim for relief.” (citing Iqbal 129 S. Ct. at 1950). In
other words, a complaint must do more than allege the
plaintiff’s entitlement to relief. A complaint has to
“show” such an entitlement with its facts…

Discussion
A. Count IV – Failure to Afford Due Process
Dr. Von Muller alleges in Count IV of her Counterclaim that
“ABIM Board Certification in Gastroenterology is a valuable
property right that she properly and painstakingly earned,” that
“on or about June 8, 2010, ABIM suspended” her Board
Certification “without any prior notice,” and that “Counterclaim
Defendants made no attempt prior to the suspension to provide
[her] with an opportunity to be heard or provide evidence.”
(Counterclaim, ¶s 61-62). “By reason of this suspension, Dr. Von
Muller was denied the privileges of Board Certification.”
(Counterclaim, ¶ 63).
Although her counterclaim does not specifically reference

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it, we surmise from the foregoing allegations that Counterclaim
Plaintiff is invoking the Due Process Clause of the Fourteenth
Amendment to support a claim that Defendant unlawfully deprived
her of a property right without due process of law . Because the
2
Fourteenth Amendment, by its very terms, prohibits only state
action, it historically has been applied to deliberate decisions
of government officials to deprive a person of life, liberty or
property. U.S. v. Morrison, 529 U.S. 598, 621, 120 S. Ct. 1740,
1756, 146 L. Ed. 2d 658 (2000); Daniels v. Williams, 474 U.S.
327, 331, 106 S. Ct. 662, 665, 88. Ed. 2d 662 (1986). Stated
otherwise, “[t]hat Amendment erects no shield against merely
private conduct, however discriminatory or wrongful.” Shelley v.
Kraemer, 334 U.S. 1, 13, and n.12, 68 S. Ct. 836, 92 L. Ed. 1161
(1948). Thus, to be actionable, “the conduct allegedly causing
the deprivation of a federal right must be fairly attributable to
the state.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.
Ct. 2744, 2755, 73 L. Ed. 2d 482 (1982).
The state action determination is a “necessarily fact-bound
inquiry.” McKeesport Hospital v. Accreditation Council for
Graduate Medical Education, 24 F.3d 519, 523 (3d Cir. 1994),
quoting Lugar, supra. State action may be shown where (1) “the
deprivation was caused by the exercise of some right or privilege

S p e c i f i c a l l y , t h e F o u r t e e n t h A m e n d m e n t D u e P r o c e s s c l a u s e p r o v i d e s :
2
“ n o r s h a l l a n y S t a t e d e p r i v e a n y p e r s o n o f l i f e , l i b e r t y , o r p r o p e r t y w i t h o u t
d u e p r o c e s s o f l a w . ”

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created by the State or by rule of conduct imposed by the State
or by a person for whom the State is responsible,” and (2) “the
party charged with the deprivation was a person who may fairly be
said to be a state actor.” Metzger v. National Commission on
Certification of Physician Assistants, 2001 U.S. Dist. LEXIS 658
at *6 (E.D. Pa. Jan. 26, 2001), quoting Lugar, 457 U.S. at 937,
102 S. Ct. at 2754. To facilitate this assessment, the Supreme
Court has articulated several different tests, to wit, the
“public function” test, the “close nexus” test and the “symbiotic
relationship” test. Brown v. Philip Morris, Inc., 250 F.3d 789,
801 (3d Cir. 2001). The most rigorous of the inquiries, the
gravamen of the “public function” test is whether the government
is effectively using the private entity in question to avoid a
constitutional obligation or to engage in activities reserved to
the government.” Id., at 801, 802. The “close nexus” test, in
turn, examines whether there is “such a close nexus between the
State and the challenged action that seemingly private behavior
may be fairly treated as that of the State itself.” Leshko v.
Servis, 423 F.3d 337, 339 (3d Cir. 2005). Finally, the
“symbiotic relationship” test examines the overall relationship
between the parties to determine whether the state has
“insinuated itself into a position of interdependence with the
acting party” such that the state may be recognized as a joint
participant in the challenged activity. Metzger, at *7, citing,

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inter alia, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95
S. Ct. 449, 42 L. Ed. 2d 477 (1977) and Burton v. Wilmington
Parking Authority, 365 U.S. 715, 725, 81 S. Ct. 856, 862, 6 L.
Ed. 2d 45 (1961).
Upon review of Count IV of Defendant’s Counterclaim, we find
no factual allegations that may support the conclusion that ABIM
is a state actor, was fulfilling a state function, was in a
symbiotic relationship or in such close nexus with a state actor
that it may fairly be said to have been operating as the state
itself in revoking Dr. Von Muller’s gastroenterology
certification. For one, as is averred in the opening paragraphs
of Defendant’s Counterclaim, “Plaintiff ABIM is an Iowa non-
profit corporation having corporate headquarters at 510 Walnut
Street, Suite 1700, Philadelphia, Pennsylvania, 19106;” that
“… counterclaim defendant Christine K. Cassel, M.D. is
President and Chief Executive Officer for ABIM;” “…counterclaim
defendant Lynn O. Langdon, M.S. is Senior Vice President and
Chief Executive Officer for ABIM;” and “… counterclaim
defendant Eric S. Holmboe, M.D. is Senior Vice President and
Chief Medical Officer for ABIM, and has an office at 143 Church
Street, Phoenixville, PA 19460.” (Counterclaim, ¶s 4, 6-8).
Thus the counterclaim does not allege any facts that would
suggest that ABIM is a state actor.
There are likewise no facts averred that would indicate that

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ABIM was fulfilling a state function, standing in the state’s
shoes or in symbiotic relationship with a state when it revoked
Dr. Von Muller’s board certification. Rather, the counterclaim
asserts only that “ABIM’s designation of ‘Board Certified’
confers many benefits on the doctors that earn this distinction,”
“[m]any hospitals require physicians of internal medicine to be
Board Certified in order to have admitting privileges,” “[m]any
health plans also require ABIM’s Board Certification,” and “Board
Certified physicians often receive higher levels of compensation
than non-certified physicians practicing in the same
specialties.” (Counterclaim, ¶s 20-21). Further, “[n]o other
organization provides a comparable board certification to
physicians in Internal Medicine and its subspecialties and
therefore ABIM has a virtual monopoly on board certification of
physicians in Internal Medicine and its subspecialties …”
(Counterclaim, ¶ 22). However, the counterclaim also recognizes
that: “… ABIM accreditation is not technically required for a
doctor to be able to practice medicine…” (Counterclaim, ¶24).
The Third Circuit and a number of our fellow district court
judges in this circuit have observed that “the evaluation and
accreditation of medical education in this country is neither a
traditional nor an exclusive state function.” Mckeesport, 24
F.3d at 525; Boggi v. Medical Review and Accrediting Council,
2009 U.S. Dist. LEXIS 84032 at *22 (E.D. Pa. Sept. 15, 2009);

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Metzger, 2001 U.S. Dist. at *8, *10; Gilliam v. National
Commission for Certification of Physician Assistants, Inc., 727
F. Supp. 1512, 1514 (E.D. Pa. 1989). And, in Goussis v. Kimball,
813 F. Supp. 352 (E.D. Pa. 1993), our colleague Judge Robreno had
occasion to evaluate the very same issue now before this Court:
whether ABIM was a “state actor” or could be said to have been
engaging in “state action” when it determined that the plaintiff
in that case had failed to pass its sub-specialty certification
examination in the fields of endocrinology and metabolism.
Noting that certification in any specialty or sub-specialty was
not a prerequisite to the practice of medicine in either of the
states at issue and that the plaintiff had not demonstrated that
the challenged conduct impinged upon any powers that were
traditionally the exclusive prerogative of the State, Judge
Robreno reasoned:
Because ABIM is a private, non-profit unregulated entity
which receives no state funds and which has not been
delegated by the state any role in the licensing or
regulation of professional conduct, and whose role only
involves the preparation, administration, and grading of a
test which, inter alia, is used by peers to determine
recognition of high professional achievement (board
certification), it is not a state actor and its conduct does
not constitute state action for purposes of imposing
liability under section 1983.
Goussis, at 358. Inasmuch as we cannot substantively distinguish
the pleading in this matter from the complaint in Goussis, we
find Judge Robreno’s analysis highly persuasive. We likewise
cannot find that ABIM is a state actor or that the conduct with

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which it is here charged equates to state action for purposes of
pleading a viable cause of action under the Fourteenth Amendment.
Counterclaim IV is therefore dismissed with prejudice.

B. Count V – Claims for Tortious Interference with Actual
and Prospective Business Relationships
ABIM also moves to dismiss Count V of Defendant’s
counterclaim, which asserts a cause of action for tortious
interference with actual and prospective business relationships.
In order to state a claim for tortious interference with a
business relationship, a plaintiff must allege: (1) the existence
of a contractual or prospective contractual relation between the
complainant and a third party; (2) purposeful action on the part
of the defendant, specifically intended to harm the existing
relation, or to prevent a prospective relation from occurring;
(3) the absence of privilege or justification on the part of the
defendant; and (4) the occasioning of actual legal damage as a
result of the defendant’s conduct. Assembly Tech. Inc. v.
Samsung Techwin Co., 695 F. Supp. 2d 168, 171 (E.D. Pa. 2010),
citing CGB Occupational Therapy, Inc. v. RHA Health Services,
Inc., 357 F.3d 375, 384 (3d Cir. 2004). Thus, a tortious
interference claim does not accrue until, at least, the plaintiff
suffers injury (i.e., actual legal damage) as a result of the
defendant’s conduct. CGB, supra.
Moreover, the Pennsylvania courts have recognized the
difficulty in defining a “prospective contractual relationship.”

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As the Pennsylvania Supreme Court has commented, “to a certain
extent, the term has an evasive quality, eluding precise
definition. It is something less than a contractual right,
something more than a mere hope.” Foster v. UPMC Southside
Hospital, 2 A.3d 655, 665 (Pa. Super. 2010), quoting Phillips v.
Selig, 959 A.2d 420, 428 (Pa. Super. 2008) and Thomson Coal Co.
v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 471 (1979). As to
the third element, the requirement that the plaintiff allege the
absence of privilege or justification, the Pennsylvania courts
have found that this requirement mandates that the plaintiff
provide proof that the defendant’s actions were improper.
Foster, 2 A.3d at 666, citing Walnut Street Associates, Inc. v.
Brokerage Concepts, Inc., 982 A.2d 94, 97-98 (Pa. Super. 2009).
Finally, tortious interference has also been held to be a
“business-centered tort” that cannot be established by alleging
interference with the relationship between a business and its
government regulator and which covers only relations of pecuniary
value: interference with employment relationships, buying or
selling goods or services, or other potentially profitable
relationships. Interference with personal, social and political
relations is not covered. Pierre & Carlo, Inc. v. Premier
Salons, Inc., 713 F. Supp. 2d 471, 486-487 (E.D.Pa. 2010),
citing, inter alia, Restatement (Second) of Torts §766B cmt. c.
In this case, we find that the Defendant/Counterclaim

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Plaintiff has alleged sufficient facts to plausibly state a cause
of action for tortious interference with both existing and
prospective business relationships. Indeed, Count V avers that
many hospitals in Tulsa, Oklahoma, where Counterclaimant lives
and practices, require board certification as a pre-requisite to
having admitting privileges, that admitting privileges are
required for a physician to be able to use hospital facilities
for their patients and to receive patient referrals from the
hospital and that she is affiliated with and has admitting
privileges at two Tulsa-area hospitals – St. Francis Hospital
South and SouthCrest Hospital. Counterclaimant further asserts
that after having seen the initial “suspension” posting on the
ABIM website, St. Francis Hospital South advised her that it was
revoking her admitting privileges, and that since notice of the
suspension was posted, her business has dramatically declined to
the extent that her gross revenue was down some $229,000 for the
June-September quarter of 2010 in comparison to the same period
of 2009 . Finally, Dr. Von Muller charges that in interfering
with her business relationships with SouthCrest and St. Francis
Hospitals, other physicians, patients and/or prospective
patients, ABIM, Drs. Cassel and Holmboe and Ms. Langdon acted
maliciously and wantonly. Bearing in mind that Counterclaim
Defendants are free to renew their challenge to Count V following
the close of discovery, we reiterate our conclusion that Dr. Von

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Muller has plausibly pled a tortious interference claim against
the movants here. The motion to dismiss shall therefore be
denied as to Count V.
C. Count VI – Commercial Disparagement
A commercial disparagement action is meant to compensate a
vendor for pecuniary loss suffered because statements attacking
the quality of its goods have reduced their marketability. Knit
With v. Knitting Fever, Inc., 2010 U.S. Dist. LEXIS 102709, *20-
*21 (E.D. Pa. Sept. 28, 2010); Synygy v. Scott-Levin, Inc., 51 F.
Supp. 2d 570, 579 (E.D. Pa. 1999). The Third Circuit has
distinguished between defamation and commercial disparagement
claims, noting that a claim for defamation lies where the
defamatory statement “imputes to the corporation fraud, deceit,
dishonesty, or reprehensible conduct” while a claim for
commercial disparagement lies where “the publication on its face
is directed against the goods or products of a corporate vendor.”
Knit With, supra, (quoting U.S. Healthcare, Inc. v. Blue Cross of
Greater Philadelphia, 898 F.2d 914, 924 (3d Cir. 1988)). In
Pennsylvania, a claim for commercial disparagement requires proof
that: (1) the statement is false; (2) the publisher either
intends the publication to cause pecuniary loss or reasonably
should recognize that publication will result in pecuniary loss;
(3) pecuniary loss does in fact result; (4) the publisher either
knows the published statement is false or acts in reckless

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disregard of its truth or falsity. McNulty v. Citadel
Broadcasting Company, 58 Fed. Appx. 556, 566, 2003 U.S. App.
LEXIS 3625, *25 (3d Cir. Feb. 26, 2003); Neurotron, Inc. v.
Medical Service Ass’n. Of Pennsylvania, 254 F.3d 444, 448-449 (3d
Cir. 2001); Pro Golf Manufacturing, Inc. v. Tribune Review
Newspaper Co., 570 Pa. 242, 246, 809 A.2d 243, 246 (Pa. 2002).
As to the third element, “Pennsylvania law requires that a
plaintiff claiming commercial disparagement plead damages with
considerable specificity” by setting out in its complaint the
names of the customers lost and financial loss resulting from the
tort. This requirement is relaxed where the disparagement
claimed rises to the level of defamation per se, through
publication which “imputes to another conduct, characteristics,
or a condition that would adversely affect her in her lawful
business or trade.” Bro-Tech Corp. v. Thermax, Inc., 651 F.
Supp. 2d 378, 416 (E.D. Pa. 2009), quoting Swift Bros. v. Swift &
Sons, Inc., 921 F. Supp. 267, 276 (E.D.Pa. 1995) and Walker v.
Grand Central Sanitation, 430 Pa. Super. 236, 245, 634 A. 2d
237, 241 (1993). Instead, a defamation per se plaintiff need
only prove “general damages,” i.e., “proof that one’s reputation
was actually affected by the slander, or that she suffered
personal humiliation or both.” Franklin Prescriptions, Inc. v.
New York Times Co., 424 F.3d 336, 343 (3d Cir. 2005), quoting
Walker, 634 A.2d at 242.

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In this case, Counterclaimant charges in Count VI that the
counterclaim defendants made false statements of fact or
incorrect statements of opinion about her knowing that those
statements or opinion would cause pecuniary harm, that the
counterclaim defendants did so maliciously and wantonly and that
as a result, she has suffered financial harm to her medical
practice including at least $229,000 in lost revenue. It
appears from the general factual allegations contained in
paragraphs 27 – 37 of the counterclaim that the false statements
of fact or incorrect statements of opinion to which Dr. Von
Muller is referring are those that were made to the Wall Street
Journal that Dr. Von Muller and a number of other doctors had
cheated on their certification examinations and that their
certifications had been suspended.
It is further averred that ABIM and the individual
counterclaim defendants suspended Dr. Von Muller’s certification
without first affording her any opportunity to present evidence
in defense or to appeal the suspension and that the counterclaim
defendants then proceeded to publicize the suspension by notating
it on the ABIM website, contacting the Wall Street Journal and
then emailing copies of the Wall Street Journal article to “many,
if not all, of the residency programs in the U.S.”
(Counterclaim, ¶32). In apparent recognition of the fact that
ABIM’s bylaws, policies and procedures preclude ABIM from

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suspending physicians until they have been afforded due process,
which includes a three-level appeal process, the counterclaim
also alleges that the defendants have since “back-pedaled and
changed Dr. Von Muller and other doctors’ status from ‘suspended’
to ‘suspension recommended/appeal pending.’” (Counterclaim, ¶s
33, 38). “The Counterclaim Defendants knew their actions to
suspend Dr. Von Muller and then publicize the suspension through
the Internet and the Wall Street Journal would have a devastating
effect on Dr. Von Muller’s career and medical practice and on the
careers and medical practices of other doctors.” (Counterclaim,
¶ 36). In now viewing all of these alleged facts together and
accepting them as true for purposes of ascertaining whether they
lead to the reasonable inference that the counterclaim defendants
may be liable for the alleged misconduct, we find that Dr. Von
Muller’s commercial disparagement claim is sufficiently plausible
to withstand this motion to dismiss. Certainly, the statement
that a doctor has cheated on a certification examination and has
therefore had her board certification revoked “imputes to” that
doctor “conduct, characteristics, or a condition that would
adversely affect her in her lawful business or trade,” and
arguably equates to defamation per se. Accordingly, the need to
plead the specifics regarding pecuniary loss is obviated and the
Counterclaim Defendants’ motion shall likewise be denied as to
Count VI of the counterclaim.

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D. Defamation – Count VII
The ABIM defendants also seek the dismissal of Count VII of
the counterclaim alleging defamation. Given the similarity which
defamation bears to commercial disparagement, it should not be
surprising that we find that this count, too, has been adequately
pled.
Courts have long recognized that the purpose underlying
defamation law is to compensate an individual for pecuniary harm
to one’s reputation inflicted by a defamatory statement. Mzmane
v. Winfrey, 693 F. Supp. 2d 442, 471 (E.D. Pa. 2010)(citing
Wilson v. Slatalla, 970 F. Supp. 405, 414 (E.D. Pa. 1997).
Pennsylvania has codified the elements required for a plaintiff
to plead and prove a defamation claim at 42 Pa. C. S. §8343(a).
Those elements are:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory
meaning.
(5) The understanding by the recipient of it as intended to
be applied to the plaintiff.
(6) Special harm to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.

A statement is defamatory if it “tends so to harm the
reputation of another as to lower him or her in the estimation of

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the community or to deter third persons from associating or
dealing with him or her,” or if it “ascribes to another conduct,
character or condition that would adversely affect his fitness
for the proper conduct of his proper business, trade or
profession.” Giordano v. Claudio, 714 F. Supp. 2d 508, 526 (E.D.
Pa. 2010)(citing Maier v. Maretti, 448 Pa. Super. 276, 671 A.2d
701, 704 (1995)); Cornell Companies, Inc. v. Borough of New
Morgan, 512 F. Supp. 2d 238, 271 (E.D. Pa. 2007) (quoting U.S.
Healthcare, 898 F.2d at 923). It is for the court to determine
whether the statement at issue is defamatory by examining, inter
alia, the effect that the statement is calculated to produce and
the “impression it would naturally engender in the minds of the
average persons among whom it is intended to circulate.” See,
Giordano and Cornell, both supra; Rockwell v. Allegheny County
Health, Education & Research Foundation, 19 F. Supp. 2d 401, 405
(E.D. Pa. 1998)(quoting Gutman v. Tico Insurance Co., Civ. A. No.
97-5694, 1998 U.S. Dist. LEXIS 8438 (E.D. Pa. June 9, 1998).
Again, the gravamen of Counterclaim Plaintiff’s defamation
claim is the Counterclaim Defendants’ alleged malicious and
wanton publication of statements to the general public and most,
if not all, of the residency programs in the U.S., that
Counterclaimant had cheated on her gastroenterology certification
examination and that her Board Certification as an internist and
gastroenterologist had been revoked. Publication was made via

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the ABIM website, the press release to and subsequent article in,
the Wall Street Journal, and through the filing of the complaint
in this matter, all of which identified the counterclaimant by
name. (See, e.g., Exhibits A, B and C to Defendant’s
Counterclaim). Counterclaim plaintiff contends that these
statements are false and that as a result of their dissemination,
one of the hospitals with which she is affiliated has advised her
that it is revoking her admitting privileges. It is further
alleged that Counterclaimant has suffered lost revenue of at
least $229,000.
We believe that accusing anyone of cheating on an
examination is indeed a very serious charge which would
unquestionably harm the reputation of and lower the accused
individual in the eyes of his community and would likely deter
third persons from associating or dealing with him or her.
Furthermore, given that the accused here is a physician to whom
her patients entrust their health and well-being, the cheating
accusation and the subsequent announcement that her board
certification had been revoked clearly ascribes to Dr. Von Muller
conduct, character and/or condition that would likely have an
adverse effect on her fitness to perform her chosen profession.
Insofar as we must, for purposes of this motion to dismiss,
accept the counterclaim’s allegations as true, we find that they
are more than sufficient to state a defamation claim upon which

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relief may plausibly be granted. Accordingly, the ABIM
defendants’ motion for dismissal of Count VII is also denied.

E. Count VIII – False Light
In Count VIII of her counterclaim, Dr. Von Muller ostensibly
raises a cause of action against all of the ABIM defendants for
false light.
The tort of false light/invasion of privacy involves
“publicity that unreasonably places the other in a false light
before the public.” Ciolli v. Iravani, 651 F. Supp. 2d 356, 376
(E.D. Pa. 2009)(quoting Rush v. Philadelphia Newspapers, Inc.,
732 A.2d 648, 652 (Pa. Super. 1999). A cause of action for false
light invasion of privacy will be found where a “major
misrepresentation of a person’s character, history, activities or
beliefs is made that could reasonably be expected to cause a
reasonable man to take serious offense.” Keim v. County of
Bucks, 275 F. Supp. 2d 628, 637 (E.D. Pa. 2003)(quoting Rush, 732
A.2d at 654). In order to establish a cause of action for false
light, it must be shown that: (1) the false light in which the
plaintiff was placed would be highly offensive to a reasonable
person; and (2) the defendant had knowledge or acted in reckless
disregard as to the falsity of the publicized matter and the
false light in which the plaintiff would be placed. Mzmane, 693
F. Supp. 2d at 510; Lin v. Rohm and Haas Co., 293 F. Supp. 2d
505, 521-22 (E.D. Pa. 2003). Hence, negligence may not support a

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claim of false light. Ciolli, supra.
In application of the foregoing and again accepting as true
the counterclaims’s allegations that the statements maliciously
or wantonly made and published by the ABIM parties are false and
misleading, we believe that a reasonable person would find
allegations that she cheated on a board certification examination
and was therefore not appropriately board certified to be highly
offensive. As a consequence, we also deny the motion for
dismissal as to Count VIII of Defendant’s counterclaim.

F. Unfair Competition Claims – Counts IX and X
Count IX of the counterclaim is entitled “Unfair Competition
and False Advertising under the Lanham Act,” while Count X is
said to fall under “Common Law Unfair Competition.” In both
counts, Dr. Von Muller claims that the counterclaim defendants’
actions (in charging her and various other physicians with
cheating, in suspending their board certifications and in
publicizing those suspensions) were intentional and for the
purpose of procuring an unfair competitive advantage for both
itself and for those physicians whose board certifications were
not suspended.
The common law cause of action for unfair competition
mirrors the Lanham Act’s section 43(a) cause of action for
3

S p e c i f i c a l l y , t h i s s e c t i o n o f t h e L a n h a m A c t p r o v i d e s , i n r e l e v a n t

p a r t :

Case 2:10-cv-02680-JCJ Document 31 Filed 03/11/11 Page 22 of 29

unfair competition except that under state law there is no
requirement that goods traveled through interstate commerce.
Louis Vuitton Malletier and Oakley, Inc. v. Veit, 211 F. Supp. 2d
567, 582 (E.D. Pa. 2002)(citing Haymond v. Lundy, Civ. A. No. 99-
5048, 2001 U.S. Dist. LEXIS 54, 2001 WL 15956 at *2 (E.D. Pa.
Jan. 5, 2001) and Gideons International, Inc. v. Gideon 300
Ministries, Inc., 94 F. Supp. 2d 580 (E.D. Pa. 1999). The
elements of a Lanham Act claim for false advertising are: (1)
that the defendant has made false or misleading statements as to
his own product or another’s; (2) that there is actual deception
or at least a tendency to deceive a substantial portion of the
intended audience; (3) that the deception is material in that it
is likely to influence purchasing decisions; (4) that the

( a ) C i v i l a c t i o n
( 1 ) A n y p e r s o n w h o , o n o r i n c o n n e c t i o n w i t h a n y g o o d s o r s e r v i c e s ,
o r a n y c o n t a i n e r f o r g o o d s , u s e s i n c o m m e r c e a n y w o r d , t e r m , n a m e ,
s y m b o l , o r d e v i c e , o r a n y c o m b i n a t i o n t h e r e o f , o f a n y f a l s e d e s i g n a t i o n
o f o r i g i n , f a l s e o r m i s l e a d i n g d e s c r i p t i o n o f f a c t , o r f a l s e o r
m i s l e a d i n g r e p r e s e n t a t i o n o f f a c t , w h i c h –
( A ) i s l i k e l y t o c a u s e c o n f u s i o n , o r t o c a u s e m i s t a k e , o r t o
d e c e i v e a s t o a f f i l i a t i o n , c o n n e c t i o n , o r a s s o c i a t i o n o f s u c h
p e r s o n w i t h a n o t h e r p e r s o n , o r a s t o t h e o r i g i n , s p o n s o r s h i p , o r
a p p r o v a l o f h i s o r h e r g o o d s , s e r v i c e s , o r c o m m e r c i a l a c t i v i t i e s
b y a n o t h e r p e r s o n , o r
( B ) i n c o m m e r c i a l a d v e r t i s i n g o r p r o m o t i o n , m i s r e p r e s e n t s t h e
n a t u r e , c h a r a c t e r i s t i c s , q u a l i t i e s , o r g e o g r a p h i c o r i g i n o f h i s o r
h e r o r a n o t h e r p e r s o n ’ s g o o d s , s e r v i c e s , o r c o m m e r c i a l a c t i v i t i e s ,
s h a l l b e l i a b l e i n a c i v i l a c t i o n b y a n y p e r s o n w h o b e l i e v e s t h a t h e o r
s h e i s o r i s l i k e l y t o b e d a m a g e d b y s u c h a c t .
1 5 U . S . C . § 1 1 2 5 ( a ) . H e n c e , m o s t c l a i m s u n d e r t h e L a n h a m A c t f a l l i n t o t w o
b r o a d c a t e g o r i e s , c l a i m s o f f a l s e d e s i g n a t i o n o f o r i g i n a n d f a l s e a d v e r t i s i n g .
S w i f t B r o t h e r s v . S w i f t & S o n s , 9 2 1 F . S u p p . 2 6 7 , 2 7 5 ( E . D . P a . 1 9 9 5 ) .

Case 2:10-cv-02680-JCJ Document 31 Filed 03/11/11 Page 23 of 29

advertised goods traveled in interstate commerce; and (5) that
there is a likelihood of injury to the plaintiff in terms of
declining sales, loss of goodwill, etc. GlaxoSmithKline Consumer
Healthcare, L.P. v. Merix Pharmaceutical Corp., 197 Fed. Appx.
120, 123, 2006 U.S. App. LEXIS 16377, *7 (E.D.Pa. June 29,
2006),(citing Ditri v. Coldwell Banker Residential Affiliates,
Inc., 954 F.2d 869, 874 (3d Cir. 1992)).
While Pennsylvania common law has traditionally defined
unfair competition as the “passing off” of a rival’s goods as
one’s own, creating confusion between one’s own goods and the
goods of one’s rival, the doctrine of unfair competition in
Pennsylvania is not restricted to passing off. Giordano v.
Claudio, 714 F. Supp. 2d 508, 521 (E.D. Pa. 2010) (citing Scanvec
Amiavle Ltd. v. Chang, 80 Fed. Appx. 171, 180 (3d Cir. 2003),
Granite State Ins. Co. v. Aamco Transmissions, Inc., 57 F.3d 316,
319 (3d Cir. 1995) and Carl Colteryahn Dairy, Inc. v. Schneider
Dairy, 415 Pa. 276, 203 A.2d 469, 473 (1964). Recently, more and
more District Courts have recognized that the Pennsylvania common
law tort definition of unfair competition is coextensive with
that set out in the Restatement (Third) of Unfair Competition §1
(1995). Id.; Bro-Tech Corp. v. Thermax, Inc., 651 F. Supp. 2d
378, 417 (E.D. Pa. 2009); Building Materials Cor. Of America v.
Rotter, 535 F. Supp. 2d 518, 526, n.4 (E.D. Pa. 2008). Under the
Restatement,

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One who causes harm to the commercial relations of another
by engaging in a business or trade is not subject to
liability to the other for such harm unless:
(a) the harm results from acts or practices of the actor
actionable by the other under the rules of this Restatement
relating to:
(1) deceptive marketing, as specified in Chapter Two;
(2) infringement of trademarks and other indicia of
identification, as specified in Chapter Three;
(3) appropriation of intangible trade values including
trade secrets and the right of publicity, as specified
in Chapter Four;
or from other acts or practices of the actor determined
to be actionable as an unfair method of competition,
taking into account the nature of the conduct and its
likely effect on both the person seeking relief and the
public; or
(b) the acts or practices of the actor are actionable by the
other under federal or state statutes, international
agreements, or general principles of common law apart from
those considered in this Restatement.

As noted in Comment G, “[a]s a general matter, if the means of
competition are otherwise tortious with respect to the injured
party, they will also ordinarily constitute an unfair method of
competition.” Thus, “Pennsylvania courts have recognized a cause
of action for the common law tort of unfair competition where
there is evidence of, among other things, trademark, trade name
and patent rights infringement, misrepresentation, tortious
interference with contract, improper inducement of another’s
employees, and unlawful use of confidential information.”
Claudio, supra;(quoting Synthes (U.S.A.) v. Globus Med., Inc.,,

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Civ. A. No. 04-1235, 2005 U.S. Dist. LEXIS 19962 at *8 (E.D. Pa.
Sept. 14, 2005). See also, Delaware Valley Financial Group v.
Principal Life Ins. Co., 640 F. Supp. 2d 603, 621 (E.D. Pa.
2009)(“claim of unfair competition encompasses trademark
infringement but also includes a broader range of unfair
practices, which may generally be described as misappropriation
of skill, expenditures and labor of another.”)
Turning to Counts IX and X , we simply cannot square the
4
facts alleged with an unfair competition claim under either
Pennsylvania common law or the Lanham Act. Again, the gravamen
of the counterclaimant’s complaint is the accusation that she
cheated on her gastroenterology boards and the dissemination of
ABIM’s decision to suspend her board certification. For one, the
truth or falsity of the cheating accusation remains to be seen as
does the question of whether the decision to suspend will be
upheld on appeal. And, even if the accusation were to be shown
to ring true, it does not implicate Dr. Von Muller’s product or
service – at worst, the accusation is only against her personal
character and status (i.e. whether or not she is in fact “Board
Certified” in gastroenterology).

However, even more fatal, is the fact that Counterclaim

A d d i t i o n a l l y , C o u n t X , w h i c h p u r p o r t s t o p l e a d a c l a i m u n d e r c o m m o n
4
l a w , a l s o s e e m s t o b e i m p r o p e r l y t i t l e d . R a t h e r t h a n a l l e g i n g t h e e l e m e n t s o f
u n f a i r c o m p e t i t i o n , i t a p p e a r s t o b e a v e r r i n g t h e e l e m e n t s n e c e s s a r y t o s t a t e
a c l a i m f o r i n j u n c t i v e r e l i e f .

Case 2:10-cv-02680-JCJ Document 31 Filed 03/11/11 Page 26 of 29

Defendants are not themselves in competition with Counterclaim
Plaintiff. Indeed, both the Third Circuit and the District
Courts have concluded that in order to state a claim for unfair
competition, a plaintiff must allege that it is in competition
with the defendant – that is, that the plaintiff and the
defendant “supply similar goods or services.” Claudio, 714 F.
Supp. 2d at 523 (quoting Granite State v. Aamco, 57 F. 3d at
319-320; Nevyas v. Morgan, 309 F. Supp. 2d 673, 679-680 (E. D.
Pa. 2004). Here there are no facts alleged that would suggest
that this is the case. For these reasons, we shall grant the
motion to dismiss Counts IX and X of the Defendant’s
Counterclaim.

G. Civil Conspiracy – Count XI

Finally, Count XI of Defendant’s Counterclaim, asserts a
state law cause of action for civil conspiracy which, not
surprisingly, Counterclaim Defendants here move to dismiss.
In order to state a civil action for civil conspiracy, a
complaint must allege: (1) a combination of two or more persons
acting with a common purpose to do an unlawful act or to do a
lawful act by unlawful means or for an unlawful purpose; (2) an
overt act done in pursuance of the common purpose; and (3) actual
legal damage. Claudio, 714 F. Supp. 2d at 534; Goldstein v.
Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. 2004). A
claim for civil conspiracy cannot be pled without also alleging

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an underlying tort. McGreevy v. Stroup, 413 F.3d 359, 371 (3d
Cir. 2005). “Once an underlying tort has been alleged, only a
finding that the underling tort has occurred will support a claim
for civil conspiracy.” Alpart v. General Land Partners, Inc.,
574 F. Supp. 2d 491, 506 (E.D. Pa. 2008)(quoting Boyanowski v.
Capital Area Intermediate Unit, 215 F.3d 396, 405 (3d Cir.
2000)); Wolk v. Teledyne Industries, Inc., 475 F. Supp. 2d 491,
506 (E.D. Pa. 2007). Proof of malice is also an essential part
of a cause of action for conspiracy. Goldstein, supra, (citing
Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 505 A.2d
973, 980 (1985). “The mere fact that two or more persons, each
with the right to do a thing, happen to do that thing at the same
time is not by itself an actionable conspiracy.” Id., quoting
Id. What’s more, a showing that an alleged conspirator acted for
professional or business benefit will preclude a finding of
malice. Claudio, 714 F. Supp. 2d at 534.
Instantly, Counterclaimant avers only in Count XI that “[a]s
described herein, Counterclaim Defendants engaged in a conspiracy
to intentionally bring harm to Dr. Von Muller and took steps in
furtherance of this conspiracy,” and that “Dr. Von Muller has
been damaged as a direct and proximate result of this
conspiracy.” (Counterclaim, ¶s 99-100). To this, Counterclaim
Defendants rejoin that “ABIM cannot conspire with its employees
and that Count XI fails to allege malice. Under the “intra-

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corporate conspiracy doctrine,” a corporation’s employees, acting
as agents of the corporation, are deemed incapable of conspiring
among themselves or with the corporation. Whaumbush v. City of
Philadelphia, Civ. A. No. 09-6066, 2010 U.S. Dist. LEXIS 109873,
*35 (E.D. Pa. Oct. 14, 2010). The doctrine does not apply “if
the officer is acting in a personal, as opposed to official,
capacity.” General Refractories v. Fireman’s Fund Insurance Co.,
337 F.3d 297, 313 (3d Cir. 2003), quoting Heffernan v. Hunter,
189 F.3d 405, 413 (3d Cir. 1999). That is, an exception exists
“when the employees have acted for their sole personal benefit
and thus outside the course and scope of their employment.”
Heffernan, at 412.
It appears from our reading of Count XI in conjunction with
the preceding paragraphs of the Counterclaim that the civil
conspiracy with which the defendants are charged is indeed an
intra-corporate one. As the opening paragraphs aver,
Counterclaim Defendant Cassel is the President and Chief
Executive Officer for ABIM, Defendant Langdon is a Senior Vice
President and the Chief Information Officer, while Defendant
Holmboe is a Senior Vice President and ABIM’s Chief Medical
Officer. Although paragraph 34 alleges that “on information and
belief,” the individual defendants “have acted outside the scope
of their employment” and “based on personal motives,” there are
no facts pled as to what the scope of their authority was, how

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their actions exceeded that authority or what their personal
motives were. Given that it is conceivable, however, that
Counterclaimant could state a viable cause of action for civil
conspiracy if given the opportunity to file an amended pleading,
we shall dismiss Count XI with leave to re-plead.
For all of the foregoing reasons, the motion to dismiss
Defendant’s Counterclaims is granted in part and denied in part
in accordance with the attached order.