Golden v. Sound Inpatient Physicians Medical Group, Inc. et al

Filing 66

ORDER signed by District Judge Troy L. Nunley on 12/10/15 ORDERING that Defendant's 60 Motion to Strike is GRANTED IN PART and DENIED IN PART. Defendant's 59 Motion to Dismiss is GRANTED with respect to Claim I. Claim 1 is DISMISSE D WITH PREJUDICE. Defendant's 59 Motion to Dismiss is DENIED with respect to Claim II. This action is brought solely against Defendant Sound Inpatient Physicians Medical Group, Inc., under Cal. Bus. & Prof. Code § 17200.6. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OTASHE GOLDEN, M.D.,,

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Plaintiff,

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No. 14-cv-00497-TLN-EFB

v.

MEMORANDUM AND ORDER

SOUND INPATIENT PHYSICIANS
MEDICAL GROUP, INC., AND DOES 110, inclusive,

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Defendant.

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This matter is before the Court pursuant to Defendant Sound Inpatient Physicians Medical

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Group, Inc.’s (“Defendant”) Motion to Strike (ECF No. 60) and Motion to Dismiss (ECF No. 59)

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Plaintiff’s Third Amended Complaint (“TAC”). Plaintiff Otashe Golden (“Plaintiff”) filed an

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Opposition to Defendant Sound’s Motion to Dismiss. (ECF No. 62.) Defendant filed a Reply.

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(ECF No. 63.) The Court has carefully considered the arguments raised in these filings. For the

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reasons set forth below, Defendant’s Motion to Strike is GRANTED IN PART and DENIED IN

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PART. Defendant’s Motion to Dismiss is GRANTED IN PART and DENIED IN PART.
Factual Allegations1

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I.

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Plaintiff, a medical doctor, became the Vice President of Medical Affairs and Chief

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The TAC has given a minimal recitation of the facts; the Court includes some background facts from the initial
Complaint in order to make the parties’ arguments and the Court’s analysis coherent.

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Quality Officer of Dameron Hospital (hereinafter “Dameron”), in 2008, a position she held until

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April 1, 2012.2 (ECF No. 1 at ¶ 10.) Previously, Plaintiff was the medical director of the

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Dameron Hospitalist Program. (ECF No. 1 at ¶ 10.) Plaintiff is also the majority shareholder of

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the California Hospitalist Physicians, Inc. (“CHP”), a medical corporation providing primary care

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medical services for patients throughout Northern California. (ECF No. 1 at ¶ 15.) In 2009, CHP

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contracted with Dameron to provide services. (ECF No. 1 at ¶ 16.) At the end of this contract,

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April 4, 2012, the Chief Operating Officer of Dameron, Nicholas Arismendi, selected Defendant

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Sound Inpatient as the new hospitalist group for Dameron. (ECF No. 1 at ¶¶ 17, 19.)

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On April 4, 2012, Plaintiff, in her personal capacity, entered into agreements with several

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doctors to provide services for their patients. (ECF No. 54 at ¶ 9.) Defendant competed with

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Plaintiff to provide hospitalist services. (ECF No. 54 at ¶ 10.) Plaintiff posted a list, in the

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emergency room, of doctors who designated her as the hospitalist for their patients. (ECF No. 54

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at ¶ 11–12.) In an effort for individuals to change their designations from Plaintiff to Defendant,

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Defendant sent letters to providers saying Plaintiff did not practice at Dameron anymore; sent a

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nurse to visit offices of providers stating Plaintiff was not practicing at Dameron anymore; and

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telling employees to inform Dameron emergency room staff not to check anymore whether

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Plaintiff was designated as hospitalist for patients, because all those patients were now assigned

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to Defendant. (ECF No. 54 at ¶ 13.)
Procedural Background3

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II.

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On April 3, 2015, Plaintiff filed her TAC, alleging: (1) Violations of California’s Business

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and Professions Code Section 17500 (“Section 17500”); and (2) Violations of California’s

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Business and Professions Code Sections 17200 and 17203.4 (ECF No. 54.) On May 6, 2015,

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The Court uses the blanket term “Dameron” with the understanding that there may be relevant distinctions between
Dameron Hospital and the Dameron Hospital Association, which was a Defendant in the initial Complaint. That
distinction could be relevant, as discussed below, to allegations that Defendant told various third parties that Plaintiff
was not practicing “at Dameron.” (TAC ¶ 13.)
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Plaintiff previously filed an initial complaint, a first amended complaint, and a second amended complaint, which
were each dismissed by the Court with leave to amend.

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Cal. Bus. & Prof. Code § 17203 provides that a court may provide injunctive relief for a violation of California’s
unfair competition laws, e.g.§§ 17200 and 17500. In light of Plaintiff’s non-opposition to Defendant’s motion to
strike injunctive relief from the TAC, discussed infra, the Court addresses Plaintiff’s second claim only relative to

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Defendant filed a Motion to Dismiss (ECF No. 59) and a Motion to Strike (ECF No. 60).

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Plaintiff has filed a Non-Opposition In Part to the Motion to Strike (ECF No. 61) and an

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Opposition to the Motion to Dismiss (ECF No. 62). Defendant has filed Replies. (ECF Nos. 63

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& 64.)

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III.

Standard of Law

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A. Motion to Strike

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Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a pleading an

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insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A court

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will only consider striking a defense or allegation if it fits within one of these five categories.

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Yursik v. Inland Crop Dusters Inc., No. CV–F–11–01602–LJO–JLT, 2011 WL 5592888, at *3

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(E.D. Cal. Nov. 16, 2011) (citing Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973–74

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(9th Cir. 2010)). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time

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and money that must arise from litigating spurious issues by dispensing with those issues prior to

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trial.” Sidney–Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, Rule

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12(f) motions are “generally regarded with disfavor because of the limited importance of pleading

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in federal practice, and because they are often used as a delaying tactic.” Neilson v. Union Bank

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of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). “Ultimately, whether to grant

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a motion to strike lies within the sound discretion of the district court.” Id. Unless it would

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prejudice the opposing party, courts freely grant leave to amend stricken pleadings. Wyshak v.

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City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979); see also Fed. R. Civ. P. 15(a)(2). If the court

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is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to

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strike should be denied, leaving the assessment of the sufficiency of the allegations for

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adjudication on the merits after proper development of the factual nature of the claims through

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discovery. See generally Whittlestone, 618 F.3d at 974–75.

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B. Motion to Dismiss

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FRCP 8(a) requires that a pleading contain “a short and plain statement of the claim

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§17200, and not §17203.

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showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79

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(2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice

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of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S.

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544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on

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liberal discovery rules and summary judgment motions to define disputed facts and issues and to

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dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

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On a motion to dismiss, the factual allegations of the complaint must be accepted as true.

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Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every

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reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail

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Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). A plaintiff need not allege

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“‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to

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relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)).

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Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of

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factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.

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1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an

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unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A

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pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

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(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove

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facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not

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been alleged[.]” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,

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459 U.S. 519, 526 (1983).

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Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough

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facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting

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Twombly, 550 U.S. at 570). Only where a plaintiff fails to “nudge[] [his or her] claims . . . across
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the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680. While

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the plausibility requirement is not akin to a probability requirement, it demands more than “a

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sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is “a

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context-specific task that requires the reviewing court to draw on its judicial experience and

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common sense.” Id. at 679.

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In ruling upon a motion to dismiss, the court may consider only the complaint, any

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exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of

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Evidence 201. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu

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Motors Ltd. v. Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal.

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1998).
If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to

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amend even if no request to amend the pleading was made, unless it determines that the pleading

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could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122,

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1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995));

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see also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in

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denying leave to amend when amendment would be futile). Although a district court should

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freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to

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deny such leave is ‘particularly broad’ where the plaintiff has previously amended its

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complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir.

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2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).

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IV.

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A. Motion to Strike

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Defendant moves to strike Claim I, violations of Section 17500, because the introduction

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of a new claim in Plaintiff’s TAC exceeded the scope of the amendment the Court authorized in

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its order granting the previous motion to dismiss. (ECF No. 60 at 2.) The Court also views

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Defendant’s motion as seeking to strike Plaintiff’s claims for injunctive relief and disgorgement

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of profits from this action as a whole. (ECF No. 60 at 2.)

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Analysis

Plaintiff has filed a Non-Opposition to Defendant’s Motion to Strike, to the extent it seeks
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to strike injunctive relief and disgorgement of profits. (ECF No. 61.) Consistent with how the

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Court views Defendant’s motion as stated herein, the Court construes Plaintiff’s Non-opposition

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to this portion of the Motion to Strike as a concession that claims for injunctive relief and

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disgorgement of profits be stricken from this action as a whole. The Court grants Defendant’s

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Motion to Strike to the extent conceded by Plaintiff. Otherwise, the Court does not strike

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Plaintiff’s claim for a violation of Section 17500, since inclusion of this claim is not outside the

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scope authorized by the Court’s previous Order. In fact, said Order dismissed Plaintiff’s UCL

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claim (Claim II in the TAC), in part, based on Plaintiffs failure to plead a predicate law violation

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for a UCL claim. Presumably, the instant Section 17500 claim is meant to address that

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deficiency.

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B. Motion to Dismiss

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i. Defendant’s preliminary argument

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Defendant argues: “Plaintiff’s TAC represents at least the sixth attempt Plaintiff has made

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to assert a claim against [Defendant] … Plaintiff previously brought claims against [Dameron]

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and Nicholas Arismendi, among others, in case number 2:12-CV-00751-LKK-EFB … [That

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action] is stayed pending completion of arbitration … Plaintff brings this, her second federal court

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action, based upon the same general set of facts and allegations as first her action … The FAC,

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SAC, and now TAC name only [this Defendant] … to accomplish Plaintiff’s unstated goal of

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avoiding arbitration.” (ECF No. 59 at 4–5.) The Court notes that Plaintiff’s Opposition (ECF

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No. 62) does not respond to this preliminary statement by Defendant.

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ii. Standing

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Defendant argues that Plaintiff’s TAC fails to state a claim pursuant to FRCP 12(b)(6)

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because she does not allege sufficient facts to show she has standing to pursue a claim under

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Section 17200 or Section 17500. (ECF No. 59 at 9.) Standing “is limited to those who have lost

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money or property by reason of the challenged practice.” Animal Legal Defense Fund v. HVFG

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LLC, No. C 12-05809 (WHA), 2013 WL 3242244, at * 3 (N.D. Cal. June 25, 2013). See Kwikset

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Corp. v. Superior Court, 51 Cal.4th 310, 322 (2011). The Court interprets the TAC as alleging

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that Plaintiff has lost money as a result of patients not seeking her services anymore. See Pl.’s
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Opp., ECF No. 62 at 3 (“Due to the false statements of Defendant those physicians terminated

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those agreements resulting in loss of monies which were paid to Defendant”). Therefore, Plaintiff

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has standing to sue under Sections 17200 and 17500.

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iii. Claim 1: Cal. Bus & Prof. Code § 17500

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Section 17500 states: “It is unlawful for any person [or] corporation … with intent directly

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or indirectly to dispose of real or personal property or to perform services … or to induce the

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public to enter into any obligation relating thereto, to make or disseminate … any statement,

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concerning that real or personal property or those services, professional or otherwise, or

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concerning any circumstance or matter of fact connected with the proposed performance or

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disposition thereof … which is untrue or misleading, and which is known, or which by the

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exercise of reasonable care should be known, to be untrue or misleading.” Cal. Bus. & Prof.

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Code § 17500.

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The relevant allegations in the TAC are: on April 4, 2012, Plaintiff, in her personal

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capacity, entered into agreements with several doctors to provide services for their patients. (ECF

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No. 54 at ¶ 9.) Defendant then competed with Plaintiff to provide hospitalist services. (ECF No.

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54 at ¶ 10.) Plaintiff posted a list in the emergency room of doctors who designated her as the

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hospitalist for their patients. (ECF No. 54 at ¶ 11–12.) In an effort to have individuals change

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their designations from Plaintiff to Defendant, Defendant sent letters to several doctors saying

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Plaintiff did not practice at Dameron anymore; sent a nurse to visit offices of providers stating

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Plaintiff was not practicing at Dameron anymore; and told employees to inform Dameron

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emergency room and admissions staff not to check anymore whether Plaintiff was designated as

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hospitalist for patients, because all those patients were now assigned to Defendant. (ECF No. 54

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at ¶ 13.)

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Defendant argues: 1) the facts pled do not demonstrate Defendant was engaged in

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“advertising” per se with respect to Plaintiff’s position as a hospitalist; 2) the public was not

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harmed or deceived by the communications allegedly sent by Defendant, only providers; 3)

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Plaintiff has not demonstrated reliance on Defendant’s communications. (ECF No. 59 at 10–11.)

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Among the authorities cited by Defendant in support are: Haskell v. Time, Inc., 857 F. Supp.
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1392, 1398 (E.D. Cal. 1994); Lavie v. Procter & Gamble Co. 105 Cal. App. 4th 496, 508 (2003);

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and Laster v. T-Mobile USA, Inc. 407 F. Supp. 2d 1181, 1194 (S.D. Cal. 2005).

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With respect to the first argument, a close reading of the statutory language leads this

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Court to agree with Defendant that Plaintiff has simply not identified advertising undertaken by

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Defendant as is intended by the language of Section 17500. The relevant language from Section

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17500 refers to false statements disseminated: “in any newspaper or other publication, or any

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advertising device, or by public outcry or proclamation, or in any other manner or means

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whatever, including over the Internet.” Cal. Bus. & Prof. Code § 17500. On the one hand, the

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all-inclusive language of “any other manner or means whatever” could include the

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communications at issue here (letters, a nurse’s statements to providers, telling employees not to

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check whether Plaintiff had been designated as the hospitalist). However, section 17500 as a

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whole clearly refers to advertising, and there is a common sense difference between the

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communications at issue here and advertising. Finding for Plaintiff on this point would mean that

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nearly any false statement connected with the sale of a product/service constitutes false

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advertising.

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With respect to the second argument, the language of Section 17500 clearly refers to the

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harm an advertisement may cause to the public: “It is unlawful to … induce the public to enter

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into any obligation relating to [the advertised services] … [or] to make or disseminate or cause to

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be made or disseminated before the public in this state [the false advertisement]” (emphasis

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added). Plaintiff has not provided any proof that the public was induced or that a false

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advertisement was disseminated to the public. Instead, Plaintiff alleges that Defendant sent letters

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targeting individual providers, made statements to providers, and told employees not to check on

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Plaintiff’s status. The Court finds that these sporadic, infrequent means were not directed at the

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public for purposes of section 17500. Further, the prevailing standard used by California courts

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in considering a section 17500 claim is the advertisement’s effect on the consumer. See Lavie,

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105 Cal. App. 4th at 506–7, 508, 512 (collecting cases) (“unless the advertisement targets a

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particular disadvantaged or vulnerable group, it is judged by the effect it would have on a

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reasonable consumer”) (“the standard applied in UCL and false advertising cases is that of the
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ordinary consumer acting reasonably under the circumstances”); Churchill Village, L.L.C. v.

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General Elec. Co. 169 F. Supp. 2d 1119, 1131 (“A reasonable consumer standard applies to a

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false advertising claim under the UCL”). The TAC does not specifically allege a manner in

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which consumers (for instance, patients) were deceived or harmed, just that medical providers

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and staff were the recipients of false statements.

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Because the Court finds the two arguments above establish grounds for dismissal, the
Court GRANTS Defendant’s Motion to Dismiss with respect to Section 17500 (Claim I).5

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Factors to consider when deciding whether to deny leave to amend include whether there

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is: “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure

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deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue

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of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182

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(1962).

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Defendant argues that Plaintiff has brought the instant claims to avoid arbitration.

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Defendant highlights the fact that similar claims were brought in Case No. 2:12-CV-00751-LKK-

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EFB, which is stayed pending completion of arbitration. This is the third amended complaint.

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The Court does not view the instant allegations to suggest that a Section 17500 claim will be

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found viable if further amendment is granted, because no facts related to advertising are present

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in the TAC. In light of these considerations, the Section 17500 claim is DISMISSED WITHOUT

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LEAVE TO AMEND.

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iv. Claim II: Cal. Bus & Prof. Code § 17200

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Section 17200 prohibits “any unlawful, unfair or fraudulent business act.” Cal. Bus. &

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Prof. Code § 17200.
With respect to the “unlawful” prong of Section 17200, “[b]y proscribing any unlawful

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business practice, section 17200 borrows violations of other laws and treats them as unlawful

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practices that the unfair competition law makes independently actionable.” Belton v. Comcast

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Cable Holdings, LLC, 151 Cal. App. 4th 1224, 1233 (2007) (internal quotation marks omitted).

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The Court does not address the third argument for dismissal of the Section 17500 claim, stated above.

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“[A] violation of another law is a predicate for stating a cause of action under the UCL’s unlawful

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prong.” Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. App. 4th 1544, 1554 (2007). Section

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17500 would be the predicate law in this case, and since that claim has been dismissed, Plaintiff

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does not state a claim under the “unlawful” prong of Section 17200.

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With respect to the “fraudulent” prong, Plaintiff does not plead that she “actually and

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justifiably relied upon” a misrepresentation or omission made by Defendant. See Khan v.

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CitiMortgage, Inc., 975 F. Supp. 2d 1127, 1139 (E.D. Cal. 2013) (internal quotations marks

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omitted) (“There must be a showing that the defendant thereby intended to induce the plaintiff to

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act to his detriment in reliance upon the false representation and that the plaintiff actually and

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justifiably relied upon the defendant’s misrepresentation in acting to his detriment.”). Plaintiff

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does not allege that she agreed with Defendant that she was designated the hospitalist for certain

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patients, only that she agreed with several doctors, who are not defendants, that she be the

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hospitalist.

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With respect to the “unfairness” prong of a Section 17200 claim, “the word ‘unfair’ means

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conduct that threatens an incipient violation of an antitrust law, or that violates the policy or spirit

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of one of those laws because its effects are comparable to a violation of the law, or that otherwise

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significantly threatens or harms competition.” Cel-Tech Commc.’ns, Inc. v. Los Angeles Cellular

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Tel. Co., 20 Cal. 4th 163, 187 (1999). This Court previously ruled that Plaintiff’s stated facts (in

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the SAC) did not amount to unfair conduct. (ECF No. 53 at 11.) For example, the Court noted

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that Plaintiff did not provide specific details about the agreements she entered into with various

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doctors regarding future hospitalist services, including whether those agreements were exclusive.

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Plaintiff did not clarify why the competition alleged in the SAC between her and Defendant was

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not in fact lawful competition. (ECF No. 53 at 7, 9.) The SAC alleged only that Defendant told

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staff to ignore a list provided to Defendant and posted in the emergency room, designating

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Plaintiff as the hospitalist for certain patients. (SAC, ECF No. 33 ¶¶ 7–10.)

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The new allegations in the TAC are that Defendant, via letter and via statements of

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employees, made “written or oral false statements,” including sending letters to providers “saying

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[Plaintiff] was not practicing at Dameron anymore,” and causing a nurse employed by Defendant
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to tell providers that Plaintiff was not practicing at Dameron anymore. (TAC ¶ 13.) If Plaintiff is

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alleging that Defendant falsely told providers she was not practicing at Dameron anymore, the

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Court will infer that Plaintiff is alleging she was in fact practicing in some capacity at Dameron

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hospital or with the Dameron Hospital Association. The Court finds these allegations, accepted

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as true, to nudge the TAC’s Section 17200 claim past the threshold to state a plausible claim for

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relief. Defendant made various false statements to providers that Plaintiff, in addition to not

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being designated as the hospitalist for certain patients, was not even practicing at Dameron. The

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Court finds that repeatedly making such false statements with the aim of drawing patients away

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from Plaintiff states a claim for unfair competition under Cal. Bus. & Prof. Code § 17200.

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Defendant points out that “alleging unfair business practices under [the UCL] must state with

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reasonable particularity the facts supporting the statutory elements of the violation.” Khoury v.

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Maly’s of California, Inc., 14 Cal. App. 4th 612, 619 (1993); ECF No. 59 at 12. However,

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Plaintiff has identified the providers who were allegedly given false information, and the

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employees of Defendant who were allegedly instructed to give false information. (TAC ¶ 9, 13.)

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The relevant time period is some point after April 4, 2012. The TAC contains “sufficient

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allegations of underlying facts to give fair notice and to enable the opposing party to defend itself

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effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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V.

Conclusion

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For the foregoing reasons:

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

Defendant’s Motion to Strike (ECF No. 60) is GRANTED IN PART and DENIED IN

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PART. Plaintiff is therefore precluded from seeking injunctive relief and

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disgorgement in this action.

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

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Cal. Bus. & Prof. Code § 17500. Claim 1 is DISMISSED WITH PREJUDICE.


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Defendant’s Motion to Dismiss (ECF No. 59) is GRANTED with respect to Claim I,

Defendant’s Motion to Dismiss (ECF No. 59) is DENIED with respect to Claim II,
Cal. Bus. & Prof. Code § 17200.



This action is brought solely against Defendant Sound Inpatient Physicians Medical

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Group, Inc. under Cal. Bus. & Prof. Code § 17200.6

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Dated: December 10, 2015

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Troy L. Nunley
United States District Judge

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Troy L. Nunley
United States District Judge

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The previous SAC brought claims for interference with a prospective economic advantage and interference with the
right to practice a profession, which were dismissed by the Court’s previous Order (ECF No. 53). Those claims were
omitted from the instant TAC.

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