Antitrust Law Daily Wrap Up, ANTITRUST—D. Mass.: Allegations of forged employment agreement fail to nurse failed pleading into a healthy one, (Aug 7, 2025)

By Justin Marcus Smith, J.D.

In apparent response to another lawsuit, former nurse exam training plaintiffs repeated multiple earlier pleading deficiencies in their own discrete complaint, for example, by defining a relevant market such that the defendants monopolized the sales of their own products.

Lingering defects in a first amended complaint asserting antitrust and other claims in connection with a purportedly forged nurse educator employment agreement called for dismissal, once again, held the federal district court in Boston, Massachusetts. The court granted the defendants’ motion to dismiss all claims, this time, with prejudice. The continuing problem with the antitrust claim was that it defined a relevant “Nursing Exam Marketplace” in an inherently circular way by referring only to the products and services of a single company. Employment agreement forgery allegations that failed to satisfy Fed. R. Civ. P. 9(b) pleading requirements could not support the tortious interference claim. The court had already ruled that the plaintiff failed to allege negligence, never mind malice, in connection with the defamation claim, and that likewise eliminated the commercial disparagement claim. Pertinent here, the court had already found no malice on an earlier, separate complaint the defendants had filed against the plaintiffs. The claim under Massachusetts consumer protection law failed for the same pleading deficiencies as the antitrust and state tort law claims. Last, the injunctive relief claim could not be a standalone claim (Bryan v. Ascend Learning, LLC , No. 1:24-cv-10583-ADB (D. Mass. Aug. 6, 2025)).

Background. Bridgette Bryan and her company SPIN-Learning, LLC (collectively, SPIN), sued Bryan’s former employer Ascend Learning, LLC, an Ascend subsidiary known as Assessment Technologies Institute, L.L.C. (ATI, collectively, Ascend), and two ATI employees. The first amended complaint (FAC) alleged federal antitrust violations (Count I), various state tort violations (Counts II–IV), and violations of the state consumer law, Massachusetts General Laws Chapter 93A (93A) (Count V).

According to the complaint, Bryan began working for Ascend as a part-time contractor/nurse educator in mid-2010. She soon transitioned to full-time employment as a LR Educator/National Council Licensure Examination (NCLEX) Specialist in the Research & Development Department. Shortly thereafter, Ascend promoted her to a management position, and then promoted her again in 2018 to Director of NCLEX Services.

Bryan resigned from Ascend in May 2022. She said the company did not conduct an exit interview, did not provide a severance or any other agreement to sign, and did not offer her “garden leave.” During her eleven years of employment, Bryan said she had full access to her personnel file. She alleged Ascend never required her to sign an employment, confidentiality, non-compete, or intellectual property agreement, nor did she see one in her personnel file.

Bryan alleged she was later shocked to receive a cease-and-desist letter from Ascend about violating a confidentiality, invention, and non-solicitation agreement. Bryan later alleged someone forged her signature after Ascend human resources employees were allegedly reprimanded for not being able to find such an agreement.

The prelude to the instant matter was an Ascend lawsuit that accused the SPIN plaintiffs in the instant matter of copyright infringement and other claims that included breach of the duty of loyalty; breach of intellectual property rights; breach of non-solicitation of Ascend employees and customers; and breach of confidentiality. The instant Ascend defendants also previously brought a claim for tortious interference with contractual relationships based on the instant plaintiffs’ alleged inducement of other Ascend employees to breach their employment agreements, among other similar claims.

The court initially dismissed that earlier Ascend lawsuit for lack of personal jurisdiction over instant plaintiff SPIN. All claims against Bryan, individually, survived. Bryan filed counterclaims for fraud, forgery, and civil conspiracy, but the court dismissed those counterclaims claims for failure to state a claim. The parties engaged in extensive discovery. Cross-motions for summary judgment are pending presently.

According to the instant SPIN FAC, Ascend, on multiple occasions during the pendency of the other lawsuit, contacted SPIN customers to advise them of that lawsuit and to warn them that the instant SPIN plaintiffs “stole” ATI products. This or other alleged circumstances purportedly caused SPIN to lose its only institutional customer, which apparently led to the instant SPIN lawsuit against Ascend.

In the instant matter, the court previously denied the Ascend defendants’ special motion to dismiss pursuant to the Massachusetts anti-SLAPP (strategic lawsuit against public participation) statute. However, the court granted the Ascend defendants’ motion to dismiss the initial complaint for failure to state a claim. The SPIN plaintiffs then filed the FAC, and the Ascend defendants moved to dismiss it for failure to state a claim. The court dismissed each claim of the FAC with prejudice.

Antitrust violations. First, the court granted the Ascend defendant’s motion to dismiss the federal antitrust violations claim, Count I, because the SPIN plaintiffs failed to plead that the Ascend defendants exercised monopoly power in a well-defined product market.

More specifically, as was the case with the initial SPIN complaint, the FAC failed to specify which Sherman Act and Clayton Act provisions the Ascend defendants allegedly violated. The SPIN plaintiffs’ opposition to dismissal clarified their claim was for purported violations of Section 2 of the Sherman Act. However, the SPIN plaintiffs still did not specifically indicate whether their Section 2 claim was about monopolization, attempted monopolization, or conspiracy to monopolize. In any event, the court treated the claim as one for monopolization.

The court reviewed how its initial dismissal faulted the SPIN plaintiffs for providing an essentially circular definition of a relevant market for nursing schools using Ascend products. SPIN also failed to allege sufficient facts about the geographic boundaries of the market and other details to show market dominance.

The FAC defined a “Nursing Exam Marketplace,” but the court agreed with the Ascend defendants that the definition was still circular because it attempted to define a market of only Ascend products. The court acknowledged it is rare to dismiss an antitrust complaint for failure to define a relevant market, but here, the SPIN plaintiffs merely lifted the Ascend defendants’ description of their services and products to again define the relevant market in an inherently circular way. The court concluded this defect called for dismissal.

The court reasoned further that even if the SPIN plaintiffs meant to encompass products and services other than Ascend’s, SPIN still failed to plead other parameters in accord with the principles of reasonable interchangeability and cross-elasticity of demand. The court reasoned yet further that the SPIN plaintiffs failed to show Ascend had market power.

The mere allegation that Ascend provided services failed to allege plausible monopoly power. The allegation was completely silent on which services comported with a market definition involving competitors.

Tortious interference. The court granted the Ascend defendants’ motion to dismiss the tortious interference claim, Count II. The court reviewed how it had already dismissed the initial tortious interference claim for failure to allege improper motive or means. The amended complaint merely repeated the same conclusory statements about motive. The court reiterated its prior holding here. It did not find improper conduct in the initial allegations that Ascend informed several schools that continued association with the SPIN plaintiffs might lead to costly legal problems.

The most the court said it could infer previously, on the initial complaint, was that the Ascend defendants were attempting to enforce what they perceived to be a legal agreement with Bryan. They were doing so not to interfere with the SPIN plaintiffs’ business relationships, but instead to maintain existing Ascend business through enforcement of purported legal rights. The court previously did not find any malice in that, and that was the situation again on the FAC.

The court assumed the SPIN plaintiffs intended to rely on alleged forgery as the basis for supposed Ascend improper conduct, but the court previously found the forgery allegations of the initial complaint did not meet Fed. R. Civ. P. 9(b) specificity. The court found the FAC largely recycled the earlier allegations. Additional allegations in the FAC, that Bryan did not see a copy of the purported agreement in her employee file and about scanning of paper files, still did not clear the R. 9(b) hurdle because they did not allege the who, what, where, and when of the alleged forgery. The court said the additional allegations only pleaded around the alleged fraud, in an inferential way, that unknown actors must have forged an unavailable document.

Defamation. The court granted the Ascend defendants’ motion to dismiss the defamation claim, Count III. The SPIN plaintiffs argued they cured the previously-noted R. 8 notice defect, but the court disagreed. The SPIN plaintiffs still did not point to the nature of defamatory statements nor the who, when and how of the alleged communications. The court additionally noted that there was no allegation of communicator negligence as to veracity.

Commercial disparagement. The court granted dismissal of the SPIN plaintiffs’ commercial disparagement claim, Count IV. It fell with the defamation claim because the SPIN plaintiffs predicated it on the same facts. The court cited how the Massachusetts Supreme Court has noted that the knowledge standard for commercial disparagement mirrors that of actual malice in the defamation context. The SPIN plaintiffs failed to allege even a negligent publication of a false statement, never mind actual malice.

Consumer protection. The court granted dismissal of the SPIN plaintiffs’ 93A consumer protection claims, Count V. The court reiterated its previous dismissal of the SPIN plaintiffs’ 93A claims because they rested on the same conduct as the failed and dismissed antitrust and state tort law claims. The FAC did not bring anything new to the table with respect to 93A.

Injunctive relief. The court again dismissed the standalone count for injunctive relief because it cannot be a stand-alone cause of action under Massachusetts or federal law.

The Case is No. 1:24-cv-10583-ADB.

Judge: Burroughs, A.

Attorneys: Amie D. Joseph (First American Law Group) for Bridgette Bryan and Spin-Learning, LLC. Emily S. Unger (Goodwin Procter LLP) for Ascend Learning, LLC and Assessment Technologies Institute, L.L.C.

Companies: Spin-Learning, LLC; Ascend Learning, LLC; Assessment Technologies Institute, L.L.C.

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