AN UPDATE

Here's the latest on FRONTRUNNERS^® case against the ABIM, information that we hope, if even in some small way, will help those of you who are also struggling with ABIM's "ethics".

Despite a recent misleading post from an unnamed spokesperson at ABIM and despite ABIM's prayer that this would all just go away, litigation is indeed ongoing. Nor has the ACTUAL judge on the case (who is NOT the magistrate) made any decision whatsoever regarding the merits of ABIM’s sham case and an overwrought discovery sanction.

According to FRONTRUNNERS^®, after having had 2 entire years to state their case, ABIM has now FAILED to prove any & all aspects of their case before the Court. In addition to ABIM's utter waste of everyone's resources (ours, the Court's, and especially yours), ABIM came up short, providing an amazing zero evidence  of any actual cheating whatsoever at FRONTRUNNERS^®.

Like some ravenous pig, greedy for more than the $30 million ABIM already makes per year on exam registrations alone, which profits are ultimately split among its "non-profit" ABIM foundation trustees ("hmmm..."), found here:

http://www.abimfoundation.org/en/About%20Us/Trustees.aspx ,

ABIM continues its shameless heist for more, thru the case itself and thru the recent demonstration of nothing less than hitler-esque fear-mongering tactics, documented in the Wall Street Journal and other blogs, designed to frighten physicians to lining up for their daily rationing of ACP products in their obvious-to-anyone attempts to REDIRECT market share from FRONTRUNNERS^®  to ABIM's "silent partner" or "educational division", as Dr Mittman refers to the ACP. Don't be fooled. This REALLY isn't about ethics. That's just a diversion (you guys all know this by now for sure). It's the old razzle dazzle "Look over here shaking my finger at you....while we rob you in broad daylight with our other hand". Those kind of diversion tactics are the same IDIOTIC play that ABIM's attorneys have been forced to use in the FRONTRUNNERS^® case since they were unable to "strong-arm" any misconduct or any physician names from us. I think the expression is, "Homey don't play that way."  However, every time ABIM's "homies" have played that way (namely righteous and dishonest in every aspect of their litigation), they've ended up with their face in the mud. A great example is ABIM's timing their suit against FRONTRUNNERS^®  with the release of their little buddy's (ACP's) MKSAP 15, FRONTRUNNERS^® direct competitor, because (much to ABIM's dismay) FRONTRUNNERS^® had already released its latest edition of its own Q&A, thwarting their evil little plans.

That $30 million per year doesn't even include the monies ABIM is obviously making off their "special arrangements" (non-disclosed) with ACP when ABIM builds ACP's products like MKSAP or MKSAP modules into ABIM's 100 point Recertification system, nor thru the highly-unusual and obviously-illegal, almost exclusive endorsement they seem to give to ACP's products. PS: It's not because it's better for patients. An outstanding antitrust firm, if not the Antitrust Division of the US Dept of Justice, if anyone contacted them, would have a field day with these "tying" arrangements, other various restraints of trade, overt antitrust misconduct and more.

Realizing early on that they had no case from a very early point in the case, ABIM entered settlement talks with FRONTRUNNERS^® soon after receiving FRONTRUNNERS^® Answer & Cross-Complaint. FRONTRUNNERS "settlement" offer to ABIM may be found here:

www.gofrontrunners.com/images/PDFs/FRONTRUNNERS-BOARD-REVIEW-vs-ABIM---FRONTRUNNERS-SETTLEMENT-'OFFER'.pdf

Following what seemed like the ultimate call-out regarding ABIM's antitrust violations, as reflected in Dr Mittman's proposed settlement terms, and after learning that all of FRONTRUNNERS^® questions were legitimate and crafted thru Dr Mittman's own blood, sweat and tears, ABIM next got busy, almost 1.5 years ago, or soon after FRONTRUNNERS^® original Reply and Cross-Complaint against ABIM for Antitrust Violations, creating a fictionalized case for “discovery sanction”. In that request, ABIM feigned that the "reason' they couldn’t prove their case was that FRONTRUNNERS just wouldn’t help them find the proof that they did not themselves have, requesting of the magistrate that FRONTRUNNERS^® receive a sanction for discovery "abuse".  The actual Judge on the case has yet to reach any decision and, we hope, will see through ABIM's shell game, even as ABIM continues to cross their fingers and put on their best poker face, hoping they can also fool this Judge to "fold", with nothing in hand except their flaccid ego.

FRONTRUNNERS^® states that ABIM, seeing early on in the case that they would not be able to win any infringement case based on the merits of the case, deliberately attempted to burden FRONTRUNNERS^® with 27 completely-unrelated production subpoenas (that means documents-only), ALL of which document subpoenas, it turns out, were served well after the deadline for service on production, and where therefore illegally served, and NONE of which had anything to do whatsoever with infringement per se. As such, any feigned "insufficient" responses relating to those improperly-issued subpoenas would therefore not have jeopardized ABIM's arguments that had already failed on their own.  Essentially ABIM tried to convince the magistrate judge “SEE! That’s why we can’t find anything”; again, all based on a ridiculous number of unrelated document subpoenas that literally had nothing to do with content infringement, and according to Frontrunners, were obviously only requested to: a) spy on FRONTRUNNERS^® infrastructure and trade secrets in order to take that information BACK to ABIM's "educational division", ie the ACP, in order to improve their market share (don't be fooled, neither our case, nor any of yours, has anything to do with their so-called "copyright" or "ethics" complaints); that's the hidden agenda; and what underlies everything. Just remember the statutory fines for antitrust are WAY higher (for a reason) than the statutory fines for copyright; and b) create a basis for and the ILLUSION of “noncompliance” with discovery.

All this while continuing to lament that FRONTRUNNERS^® content is too similar to their exams. 

As for the magistrate’s recommendation re “discovery sanction”, etc, it’s your basic legal “ethics”. Here’s how it works: the opposing party attempts to convince the magistrate that certain of your answers need to be “compelled” (expanded or redone). Then it’s the old “damned if you do and damned if you don’t” routine, where if you don't produce the evidence, in your supplemental answers, that THEY were supposed to produce themselves, then "you had to have been hiding it”, which is how less scrupulous lawyers try and win when they can't win on merits (truth or facts).

"HEY!  DID YOU HEAR...?"

FRONTRUNNERS^® is pleased to share with its customers (past, present, and future) that, following 2 years of seemingly-"grueling" or "hot lamp" tactics, NO PHYSICIAN NAMES (other than ABIM's own exam-writing committee member(s) who, it turns out, purchased our entire line of products for themselves *lol*) were ever provided to ABIM.

FRONTRUNNERS^® also does not share even the most "mundane" customer information with any third parties, nor ever has.

In sum, despite ABIM's best attempts at "fear-mongering" (in order to "scare" physicians away from FRONTRUNNERS^® and over to their  ACP's products),  FRONTRUNNERS' customers (that's past, present, and future) will never need to worry.  Naturally, this thwarts ABIM's best efforts at channeling, or redirecting, the market, one competitor at at a time, or en masse, thru lame attempts at fear tactics under the guise of "ethics". Don't be fooled.

Now back to our regularly-scheduled "de"-programming :) That mass of non-evidence (the unrelated stuff that we didn't or couldn't provide), in addition to the case itself, has yet to be reviewed by the ACTUAL Judge on the case, ie the District Judge. And, of course, FRONTRUNNERS^® will be serving ABIM its Summary Judgment so that, in addition to the other over 200 documents on the docket,  the Judge can make an informed decision based on the merits of the case.

FRONTRUNNERS^® describes that ABIM seems extremely FEARFUL that the District Judge will DISMISS their copyright case for LACK of merit (inability to show infringement) IF presented with FRONTRUNNERS^® SUMMARY JUDGMENT, which clearly documents ABIM’s LACK of evidence whatsoever and highlights ABIM’s repeated contradictions to their own arguments. Specifically, FRONTRUNNERS^® will argue that ABIM, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact (a jury in this case) to find for their copyright allegation; and that the Defendant be entitled to judgment as a matter of law.

Because of ABIM’s fear and anxiety that the District Judge will see through their case, which case FRONTRUNNERS^® contends is ITSELF an extension of ABIM’s antitrust violations and activities (thereby constituting that "new and independent act" required to reintroduce FRONTRUNNERS^® antitrust claim (on Appeal, here, or any other form), ABIM has literally spent months upon months petitioning the District Judge to, essentially, quickly make a decision on the magistrate's "recommendation” in order that, JUST like FRONTRUNNERS^® antitrust case, their case NOT be evaluated based on its (lack of) merits. ABIM’s hope is that they can convince the Judge that Frontrunners’ near-ready-to-file Summary Judgment is “MOOT” until he approves or denies the order….which essentially defeats the whole purpose of Summary Judgment, which motion, among other things, is there to protect parties from harassing, costly, or unnecessary litigation, as in ABIM’s bogus case against Frontrunners, and where parties have the opportunity to argue that the opposing party has NOT been able to prove their case; and gives each party its due justice in order that every case be decided on its merits). Discovery sanctions leading to default judgment are EXTREMELY rare and are usually based on the MOST egregious, intentional and flagrant discovery abuses.

So, as no decision has been reached, litigation is INDEED ongoing.

MOREOVER, if, for whatever iniquitous circumstance, ABIM's case is not dismissed, FRONTRUNNERS^® will naturally APPEAL the case based on a LONG LIST of reasons it’s accumulated, just as it will be appealing its antitrust cross-complaint. That litigation will also continue.

Thus far in the case, ABIM has requested a ridiculous number of 7 to 8 extensions (EACH of which sham "desperate pleas" have extended this case by 2-3 months long), representing potentially a million dollar cost to ABIM or more, figuring, no doubt, “Who cares, since physicians will end up footing the bill since we can always just keep increasing our prices for registration for the exams, etc”. Frontrunners, on the other hand, has not once requested a SINGLE ex-parte extension for itself, and had, in fact, requested a “more aggressive” scheduling. That request was denied. That would have been too easy. Many people wonder whether Dr Mittman, had he not proceeded pro se (self-represented), would ever have survived this long in Federal Court. When asked about this, Dr Mittman recently stated that,

“There are numerous invaluable lessons here, one of which is to stand up for yourself and face the butt-ugly monster. Another is that all of us individually and/or collectively, can make a HUGE difference in bringing down the beast. Another is that a little inspiration never hurts, especially in light of recent inappropriate actions against thousands of physicians. Lastly, you can hire a bevy of lawyers, and “win”, but you’ll end up losing everything to the lawyers who billed you. Never be afraid to stand on your own, if you have truth on your side. And, oh yeah, don’t forget to always claim your 7th Amendment Right to Jury Trial, which makes it next-to-impossible for a ruling against you without an opportunity to argue the merits of the case.”

FRONTRUNNERS^® properly submitted, early on, it’s "jury trial demand". That's where you remember to “claim” your 7th Amendment Right to a Jury...that's right, t’s NOT assumed, meaning you don't get it if you don't ask for it, because the system doesn’t have enough money to allow juries by default. The value of a jury trial demand is that your case is a lot less likely to pass thru the cracks of a system that has some good people, but is simply overwhelmed. Claiming your 7th Amendment right to a jury isn't just "nice", but it improves your negotiating leverage, and ultimately empowers you, which is always good if truth’s on your side.

Summary Judgments, of course, play a significant role in any case. Summary Judgments allow the District Judges to fairly decide judgements as a matter of law without the inordinate expense of trial. The hope is that you'll have a good man or woman adjudicating, who will quickly see thru all the willful nonsense, shellgames, and obstacles ABIM's attorneys have placed in front of him in order to obscure his vision.

Keep in mind that, for every extension a Judge allows, the “system” (the courts) BENEFITS because (it’s common sense) it supposedly makes the parties more likely to settle (saving the system “unnecessary” trial time). Now, if you’re the one being accused of something you definitely haven’t done, then you probably won’t see that fundamental right as “unnecessary”; nor will you be "more likely" to settle. You'll probably just continue on to trial and let your average Joe and Jane make up their own minds in a court that must be swayed by a "preponderance of evidence" in civil matters. But, if you're ABIM, you'll probably want to settle as soon as possible, because, well, it's bad enough not having any evidence, and you're just going to look like a fool; and you're wasting monies you could otherwise be saving up to buy your Valentine (ACP) a gift; and, and with each extension, more and more blogs are surfacing that are opening up Pandora's box, where, with each passing day, physicians eyes are finally seeing what's really going on behind the ACP-ABIM curtain, which, in turn, is driving more and more lawsuits upon ABIM, who will, no doubt, be weakened with each one.
 

And, while all eyes are currently on ABIM, and will be for the next many years, it won't be long until physicians start asking about ACP.

 Really weird things like:

1.  ABIM and ACP's Recertification modules and how the two are related;
2.  ABIM's "100 point system" (formed in conjunction, with the ACP via their "Liaison Recertification Committee";
3.  How both parties conveniently crafted that self-serving point system;
4.  How ABIM exclusively endorses ACP's products & courses (ABIM doesn't deny it in FRONTRUNNERS^® antitrust lawsuit, instead claiming that it was "procompetitive", a term that implies fosters competition and improves the economy. *haha*);
5.   ACP registration fees as relates to the modules; and, of course (!), let's not forget...
6.  ACP's modules courses and who benefits (it's certainly not the patients you're missing, nor the partner's who are covering for you when you fly out to each of those courses in order to satisfy ABIM's requirements).

7.  And, lucky #7, or "last but not least", Christine Cassel's transition from "President & CEO" of ACP (a non-profit organization) to "President & CEO" of ABIM (umm, another non-profit organization, where they're "setting standards", more like standards for corruption *wink*), and how it is that she oversaw MKSAP and ACP's courses & other products before coming over to ABIM, assuming the same position as President & CEO, and then how ABIM, conveniently, built ACP's MKSAP and modules into the VERY requirements of ABIM's brand-new (well soon after her transition) "100-point system". And, yeah, then magically CONVERTED what HAD been previously optional (recertifying) into MANDATORY for physicians who'd certified on or after 1990 (just as good a year as any other, you're right).

No. it won't be long until physicians start taking a closer look at these peculiarities, OBVIOUS conflicts of interest, and highly unusual business relationship between the ABIM and ACP, nor will it be long until ACP falls under the gun.

A friend of mine recently shared with me a little bit 'a history I hadn't heard of. I'll share it with you, because it's brief and it's strangely similar to ABIM's incessantly-touted "setting standards" and "standards of care" nonsense.

The concept of "standard of care" which is entirely founded on the pharmaceutical industry when Randolph Hearst and his buddies, who owned Standard Oil, decided there were big bucks to be made in pharmaceuticals because, at the time, they were petroleum-based so they created the famed "Flexner Report" which basically shut down any educational institution that could not afford to upgrade to their self-serving "standard". Many therefore argue that our entire health system's "standards of care" are founded not only on the oil industry, but on seed money these guys made from factories in Nazi Germany. Things haven't changed much. Today "standard of care" is increasingly used as "weapon of terror" to gain increasing "control" on physicians who, along with their patients, were previously doing JUST fine without them.  Just take a look at ABIM's propaganda campaign for "ethics" and "standards of care".... then look at the ridiculous salaries ABIM, the ABIM Foundation, and its trustees make. I guess the more they can masquerade as an "ethical" company (I think they can put that mask down now; Halloween's over), the more they can SELL (literally) their newfangled "standard of care" to insurance companies....our other mortal enemy.

Take a look at what one contributor "In Abim We Don't Trust" wrote about "standards of care" in the above Wall Street Journal blog regarding ABIM's recent "clear" message they sent to physicians (a link to full comments may be found atop this page), between the // marks:

//“Standard of care” BLAH BLAH! What a crock. How many times in your ENTIRE CAREER have you EVER been asked by a patient “Are you board-certified?” Yuhriiiiiight! Hey, a bright, caring doctor will be a bright, caring doctor no matter whether they’re board-certified or not. Come’on, patients don’t instantly think of this stuff. The only ones who care (and they really don’t care either) are the insurance companies. Why? Because they don’t want to have too many asterixes at the bottom of their provider directories (as in “* This doctor is not yet board certified”). Why again? Because board-certification creates an ARBITRARY distinction (by the way I’m board-certified) between physicians and between insurance companies so that insurance company’s can say “98% of our physicians are board-certified” (like they even know what that means if you asked them what board). All this fictionalized/mythologized nonsense just creates an ARTIFICIAL sense of “self-importance” (umm can’t you feel it after reading Dr Christine Cassel’s articleS?)…which insurance companies, in turn, use to “pawn” their goods (YOUR goods) to insurance companies (so they can look better…which in turn builds up their power …which they ultimately leverage to lower your reimbursements from year-to-year. “Wow, I’m so happy I took months to study for that exam. My life is so much better now.”