Antitrust Law Daily Wrap Up, ANTITRUST NEWS: State veterinary licensing board charged with suppressing competition for vaccination services, (Jun 12, 2015)

By Linda O’Brien, J.D., LL.M.

The state board of veterinary medicine and several individual board members conspired to restrain competition and monopolize the practice of veterinary medicine, specifically for animal vaccination services, by excluding a practicing veterinarian from the market through disciplinary proceedings, according to a complaint filed in the federal district court in the District of Connecticut (Robb v. Connecticut Board of Veterinary Medicine, June 12, 2015).

The Connecticut Board of Veterinary Medicine (“Board”) is the sole state licensing authority for veterinarians in the State of Connecticut. Theresa Cianciolo, Timothy Plunkett, and Alfredo Sanchez-Londono are practitioners in veterinary medicine and members of the Board. Mary Anne O’Neill and B. Kenneth Bernhard are attorneys and members of the Board. John M. Robb is a doctor of veterinary medicine who is licensed to practice in the State of Connecticut.

The complaint states that the plaintiff owned a Banfield Pet Hospital franchise beginning in 2008. After the publication of a peer-reviewed study by Purdue University, which found a direct correlation between the size of the animal and the rate of vaccine associated adverse event reactions, Dr. Robb changed his vaccine protocols and procedures to reduce the volume of certain basic vaccines given to small breeds. Since Dr. Robb put this protocol in place, no animal contracted a disease that it had been vaccinated against and severe vaccine reactions were virtually eliminated.

Banfield Pet Hospital was purchased by the Mars Candy Company, and Mars attempted to repurchase Dr. Robb’s franchise at a below market offer. After Dr. Robb rejected the offer, Banfield then terminated his franchise, claiming that the plaintiff did not follow the manufacturer’s recommendation regarding rabies vaccine dosages. To support the franchise termination, Banfield also filed a complaint with the Veterinary Board, the complaint states.

According to the complaint, a state statute requires that all veterinary malpractice investigations be concluded within one year of their start. The Department of Public Health brought charges against the plaintiff before the Board regarding his rabies vaccination procedures in August 2014, more than one year after the investigation began in December 2012. Additionally, the Board regulations on vaccination procedures require that the vaccinations be administered in accordance with licensed rabies vaccine label directions; however, the rules are silent as to what the dosage of a vaccine should be.

The complaint also alleges that the majority of the board members are practicing veterinarians, active members of the profession that the board is charged with regulating. There is no supervisory state official that can change, modify, or reject a decision of the Board. The U.S. Supreme Court has held recently in North Carolina State Board of Dental Commissioners v. FTC, 135 S.Ct. 1101 (2015) that there is a structural risk in having state regulatory agencies controlled by active market participants, who possess singularly strong private interests.

The plaintiff’s vaccine procedures are a direct financial threat to the individual defendant’s vaccine procedures because they are safer and just as effective. Each year, 70 percent of all canine visits to veterinarians are for vaccinations. Although the cost of each rabies shot is approximately 60 cents per shot, the cost to the animal owner is approximately $15 to $35. The three veterinarian board members have a financial interest in providing as many vaccinations as possible and are using the Board to protect that financial interest of veterinarians in general by displacing the plaintiff from the market for animal vaccination services, the complaint charges.

The complaint also states that the Board and the individual defendants have attempted to monopolize the market and restrain trade, with the specific intent to eliminate competition from the plaintiff, by excluding anyone they wish from the market through disciplinary proceedings. The defendants allegedly have attempted to monopolize the market and restrain trade by defaming Dr. Robb’s skill and qualifications as a physician and ignored the state statute requirement that investigations by the Board “be concluded not later than twelve months from the allegation is submitted to the department.”

The actions of the defendants have restrained competition and injured consumers by deterring safer vaccination procedures in the state, depriving consumers of the benefits of price competition and reducing consumer choice for the provision of veterinary medical services by excluding Dr. Robb from the market, the complaint charged. Furthermore, any adverse action against Dr. Robb by the defendants allows Banfield to use that adverse action in the franchise termination dispute that is currently pending. In that case, Banfield disclosed that its hospitals have had six deaths and over 300 cases of anaphylaxis, a severe vaccine reaction, since 2010 and that Dr. Robb has had zero in the same time period due to his reduced volume vaccination procedures.

The plaintiff asserts claims for violations of Sections 1 and 2 of the Sherman Act. The action seeks injunctive relief, compensatory and treble damages, costs of suit, attorney fees, and any other just and proper relief.

The case is No. 2:15-cv-00906.

Attorneys: Joseph P. Secola (Secola Law Offices, LLC) for John M. Robb.

Companies: Connecticut Board of Veterinary Medicine

News: Antitrust ConnecticutNews