October 19, 2021

Volume XI, Number 292

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October 19, 2021

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October 18, 2021

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DOJ Anti-Steering Suit Against Carolinas Healthcare Survives Preliminary Motion

On March 30, 2017, in a closely watched case, a Fourth Circuit court denied the Motion for Judgment on the Pleadings filed by Carolinas Healthcare against the DOJ Antitrust Division and State of North Carolina’s Complaint alleging that Carolinas Healthcare insisted on contract provisions with payors that limited or prohibited steering to lower-cost providers. US v. The Charlotte-Mecklenburg Hospital Authority, No. 3:16-cv-00311 (W.D. N.C., Mar. 30, 2017). In its motion, Carolinas Healthcare relied heavily on the Second Circuit decision in United States v. American Express Co., 838 F.3d 179 (2d Cir. 2016), where the Second Circuit had reversed a trial verdict condemning steering restrictions in Amex’s contracts with merchants.

According to the Antitrust Division’s Complaint, Carolinas Healthcare is the largest hospital system in the Charlotte area, with ten hospitals and a fifty percent share of the inpatient hospital market. The Complaint alleged that Carolinas Healthcare contracts with insurance companies that collectively insure more than eighty-five percent of the commercially insured residents in the Charlotte area. The Complaint further alleged that Carolinas Healthcare successfully inserted contract provisions that ranged from an outright prohibition on insurers steering patients away from Carolinas Healthcare, to granting Carolinas Healthcare the right to terminate the contract for such steering. To the government, regardless of the contract provisions’ precise wording, these restrictions consistently created disincentives and deterred insurers from creating tiered networks, the purpose of which is to give consumers lower premiums and out-of-pocket expenses in exchange for choosing from a smaller list of health care providers.

The crux of Carolinas Healthcare’s Motion for Judgment on the Pleadings was that the Complaint failed to demonstrate that the contract provisions actually lessened competition, adversely reduced the prices paid, or lacked procompetitive effects. While its Motion was pending with the district court, the American Express appellate opinion came down. Carolinas Healthcare unsurprisingly proffered the opinion as supporting the conclusion that Plaintiffs had not alleged facts sufficient to present a plausible claim of harm to competition.

The district court declined to cut off the government’s case at this early stage. The court emphasized that at this stage a complaint would survive if it contains enough facts to state a claim to relief that is plausible on its face. Facial plausibility is present if a complaint contains allegations that allow the court to draw the reasonable inference that the defendant is liable for the conduct alleged.

The district court primarily focused on whether the Complaint alleged anticompetitive effects in the relevant markets. Anticompetitive effects include increased prices, reduced output, or reduced quality. The government could show anticompetitive effects in one of two ways—either an actual effect on competition (direct harm), or sufficient market power to cause an adverse effect on competition (indirect harm).

The district court found that the Complaint contained sufficient allegations of both direct and indirect harm. With respect to direct harm, the district court concluded that the Complaint went beyond “threadbare recitals and conclusory statements” by alleging:

“[I]ndividuals and employers in the Charlotte area pay higher prices for health insurance coverage, have fewer insurance plans from which to choose, and are denied access to consumer comparison shopping and other cost-saving innovative and more efficient health plans that would be possible if insurers could steer freely. …Charlotte area patients incur higher out-of-pocket costs for their healthcare.”

Fundamentally, the court felt that resolution of the direct harm issue is a fact-intensive inquiry. While the result might be different at summary judgement or at trial, the fact-finder would need a full factual record to resolve the issue and must “consider, among other things, the facts peculiar to the health care industry, the effect of the activities on health providers, and the impact of the activities on costs to the ultimate consumer.”

Similarly, the district court found that Plaintiffs had alleged sufficient facts to support a conclusion of an unreasonable restraint of trade based upon indirect evidence. The court pointed to allegations of Carolinas Healthcare’s fifty percent market share, with more than twice the revenue of its next closest competitor. The Complaint also alleged that Carolinas Healthcare was a must-have participant for insurers’ in at least some of their provider networks in order to have a viable health insurance business in the Charlotte area. To the court, the Complaint “is full of reasons to believe” that Carolinas Healthcare’s market power has the “potential for genuine adverse effects on competition”—including allegations regarding Carolinas Healthcare’s charging prices that are higher than competitive levels and that steering would threaten its position as a high-priced health care provider. Absent the steering restrictions, the Complaint alleged the prospect of lower prices and consumers obtaining care from lower-cost providers.

The district court did not feel bound or influenced by the American Express decision. The court believed that the Second Circuit confronted a different product and a different market, and that its review of the fact-intensive issue involved an opinion issued after trial. To the district court, the Second Circuit’s decision turned on an analysis focused on the loyalty of credit card holders to specific cards, which in that context did not support a finding of market power, and which had potentially little applicability to health care markets.

This is an important case for the health care industry. While deciding how vigorously to continue to pursue the case, the new leadership of the Antitrust Division also will need to decide whether to seek Supreme Court review of American Express. Carolinas Healthcare will have to decide whether to endure the expense and uncertainty of preserving its position. Its immediate statement after the decision indicated its intention to see the case through. 

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume VII, Number 95
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About this Author

Bruce Sokler, Mintz Levin Law Firm, Washington DC, Health Care, Antitrust and Litigation Attorney
Member

Bruce is Chair of the Antitrust Section and in his over 30 years in private practice, he has developed extensive experience in both antitrust and communications regulation, including associated First Amendment and copyright law matters

In the antitrust area, Bruce’s practice includes antitrust counseling and representation in connection with federal and state governmental matters, as well as private antitrust litigation. He counsels and has represented Fortune 100 companies, not-for-profits, start-up entities, and domestic and international joint ventures. Bruce has been involved in...

202-434-7303
Robert G. Kidwell Member Mintz DC Antitrust Health Care Enforcement & Investigations Communications Complex Commercial Litigation
Member

Rob’s Washington, DC-based competition and trade regulation practice involves counseling on the regulatory implications of business strategies, regulatory matters, policymaking, and litigation. He defends clients in complex litigation and in merger and regulatory reviews by the US Department of Justice, the Federal Trade Commission, the Committee on Foreign Investment in the US, and the Federal Communications Commission. Rob’s clients include media and telecommunications companies, health systems and providers, national retailers, trade associations, and life sciences and technology...

202-661-8752
Farrah Short, Mintz Levin Law Firm, Washington DC, Health Care, Corporate Law Attorney
Special Counsel

Farrah advises on all aspects of antitrust and competition law, including merger review, competitor collaborations, government investigations, private class action litigation, and general antitrust compliance.

Farrah specializes in counseling clients through the Hart-Scott-Rodino (HSR) merger review process at the U.S. Federal Trade Commission and the U.S. Department of Justice, including responding to Second Requests and providing substantive antitrust risk analysis for strategic acquisitions. She has obtained antitrust clearance for major,...

202-585-3518
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