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Sixth Circuit Says No Shortcuts to Standing in Tennessee Antitrust Case

The Sixth Circuit declined last Thursday to relax standing requirements for cases involving healthcare providers. The decision in Bearden v. Ballad Health, authored by Judge Amul Thapar for a panel that included Judges Gibbons and Griffin, affirmed the dismissal by district court Judge Curtis Collier (E.D. Tenn.) for lack of standing.

The case centered on the merger of two healthcare companies in Tennessee. Plaintiffs alleged that leaders of the combined entity, Ballad Health, also had ties to another nearby healthcare organization, MEAC. This constellation of healthcare companies, plaintiffs argued, constituted an “interlocking directorate” in violation of the federal Clayton Antitrust Act.

Plaintiffs acknowledged that their theory of “injury in fact” could represent an “aberration” from the usual standing doctrine. Nonetheless, they contended, the case merited particular laxity for three reasons: first, that the Clayton Act is fundamentally prophylactic; second, that healthcare is especially vital; and third, that Ballad Health itself had admitted in an agreement with the State of Tennessee that “irreparable harm” would result from a breach of that agreement.

The district judge was not persuaded, and neither was the Sixth Circuit. The court found no textual support in the Clayton Act for a diminished standard of standing (which would have just prompted constitutional questions anyway, in light of the Case or Controversy Clause). Proceeding to the “healthcare is different” argument, the court noted that even for death penalty cases—the source of the metaphor—the Supreme Court had enforced standing requirements. Finally, the court rejected the premise of the contractual argument, noting that “parties can no more stipulate to elements of standing than they can to standing itself.” Moreover, the court pointed out, plaintiffs had not alleged a breach of Ballad Health’s agreement.

Ultimately, the court held that the plaintiffs had not demonstrated the kind of imminent or actual harm that could establish an “injury in fact.” Such harm must be “concrete and particularized” rather than “conjectural or hypothetical.”

Judge Thapar also issued a call for civility. Plaintiffs’ counsel had brandished a colorful series of historical metaphors, from World War II to Sodom and Gomorrah, in their district court filings. “[T]he additional pages added only insults, not an injury,” Judge Thapar concluded, reminding counsel that, as the Sixth Circuit explained in Bennett v. State Farm (2013), there are many good reasons not to disparage your opponent in filings.

Note — This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 209

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