Lawsuit update – October 23, 2002

Hearing Scheduled for November 20

On October 23, the plaintiffs (Academy of Medicine of Cincinnati, et al.) filed their opposition to the defendantsÕ motion to dismiss the suit, stating that the motion is without merit and should be denied.

The plaintiffs cited case law to counter the defendantsÕ contentions that:

1. The Academy of Medicine and the Butler County Medical Society lack standing to bring the suit;
2. The Valentine Act is inapplicable in this case and does not afford injunctive relief to private litigants; and
3. The Court is being asked to become some sort of super-regulatory agency.

The plaintiffs requested that the Court deny the defendantsÕ motion and allow for discovery to proceed.

In addition, the plaintiffs also filed their opposition to defendantsÕ motion to compel arbitration, in which defendants claim that some of the plaintiffs are governed by written contracts that contain alternative dispute resolution clauses. The AcademyÕs attorneys responded that the claims arose from the defendantsÕ anti-competitive violations, rather than the contracts between the parties to which the arbitration provisions relate. The plaintiffs argued that only a court of competent jurisdiction is in a position to adjudicate an anti-trust claim and to render the appropriate equitable and statutory relief. Therefore, the plaintiffs asked the Court to deny the motion to compel arbitration and instead allow the case to proceed in the court forum.

The defendants have until November 12 to reply to the plaintiffsÕ arguments against the motions. The Hamilton County Court of Common Pleas will hear oral arguments in the Ohio case on November 20. Arguments in the Kentucky case have not been scheduled.