On August 31, 2015, an important federal case was decided. The 10th Circuit Court of Appeals affirmed the September 5, 2013 dismissal of an antitrust lawsuit filed by two cosmetic surgeons, Drs. Drake Vincent and Benjamin Dunkley. The defendants were the UPSS, ABPS, ASPS and several of our Utah colleagues. At issue was an educational campaign organized by the Utah Plastic Surgery Society. The most visible feature of the campaign, which included internet statements and a local television interview, was a billboard that depicted a tearful woman saying, “I didn’t know my “Cosmetic Surgeon” wasn’t a Plastic Surgeon.”
The two cosmetic surgeons lost on all three of their federal claims because:
1. They failed to allege any concerted action, price fixing, territory allocation or control over the cosmetic surgery market by the defendants (Sherman Act, section 1).
2. They failed to allege any monopoly power in the cosmetic surgery market by the defendants (Sherman Act, section 2).
3. They failed to allege false advertising, i.e., actual or implied falsity or actual consumer deception (Lanham Act).
The Court of Appeal found the claims by Drs. Drake Vincent and Benjamin Dunkley to be speculative, with no proof of actual damages. The fact that they claimed their practices had “cooled” as a result of the campaign was insufficient under federal law.
“Educating the public about the importance of ABPS board certification remains a priority for The Aesthetic Society,” said James C. Grotting, MD, ASAPS President, upon hearing of Monday’s decision. “The Utah Plastic Surgery Society, along with the ASPS, ABPS and 19 of our colleagues in Utah, are all to be congratulated for boldly encouraging patients to understand the differences between cosmetic surgeons and plastic surgeons.”
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