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Darlery Franco, Individually and On Behalf of All Others Similarly Situated v. Connecticut General Life Insurance Co.

September 23, 2011

DARLERY FRANCO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
CONNECTICUT GENERAL LIFE INSURANCE CO., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chesler, District Judge

OPINION

This matter comes before the Court on four separately filed motions to dismiss: (1) Defendant CIGNA's motion to dismiss the Consolidated Amended Class Action Complaint ("CAC") [docket entry 250]; (2) CIGNA's supplemental motion to dismiss the Amended Complaint filed by North Peninsula Surgical Center, L.P. (hereinafter, the "North Peninsula Complaint") [docket entry 384]; (3) CIGNA's supplemental motion to dismiss the Complaint filed by Camilo Nelson, Sr., Shahidah Nelson and Camilo Nelson, Jr. (hereinafter, the "Nelson Complaint") [docket entry 423]; and (4) the motion filed by Defendants UnitedHealth Group, Inc. ("UnitedHealth") and Ingenix, Inc. ("Ingenix") to dismiss the Nelson Complaint [docket entry 424]. All of the motions have been opposed. The Court has considered the papers filed by the parties and has opted to rule on the papers and without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons expressed below, CIGNA's motion to dismiss the CAC will be granted in part and denied in part; CIGNA's supplemental motion to dismiss the North Peninsula Complaint will be granted in its entirety; CIGNA's supplemental motion to dismiss the Nelson Complaint will be granted in part and denied in part; and UnitedHealth's and Ingenix's motion to dismiss the Nelson Complaint will be granted in part and denied in part.

BACKGROUND

This consolidated action revolves around the manner in which Defendant CIGNA determined the benefit amount it owed to members of its employer-sponsored health benefit plans when those members sought treatment from providers who were out-of-network ("ONET"), that is, who did not participate in CIGNA's preferred provider network. The crux of the various claims is that CIGNA violated its contractual obligation to pay for the ONET services at the "usual, customary and reasonable" ("UCR") amount by obtaining UCR information from a flawed database maintained by a company known as Ingenix. The Ingenix data allegedly generated artificially low UCRs. Thus, the basic theory of this litigation is that CIGNA's use of Ingenix data resulted in the underpayment of ONET benefits to which CIGNA plan members were entitled. Apart from the straightforward charges of failure to fulfill plan obligations, the complaints allege that CIGNA knowingly participated in the depression and manipulation of UCR data and thus engaged in a fraudulent scheme to underpay for ONET services and in an anticompetitive conspiracy to fix prices for ONET service reimbursements. The scheme and conspiracy allegedly involved various other insurers as well as Defendants UnitedHealth and Ingenix.

As identified above, three separate but similar complaints are at issue in the instant motions to dismiss.*fn1 Each has been pled as a putative class action. Each seeks relief pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), the Racketeer and Corrupt Organizations Act ("RICO") and the Sherman Antitrust Act ("Sherman Act"). The Nelson Complaint and the North Peninsula Complaint also assert various state law causes of action, and these will be reviewed in the discussion below after the Court addresses the sufficiency of the federal claims. All three complaints are predicated on similar if not identical allegations of wrongdoing. Following its brief identification of the various plaintiffs involved in this litigation, the Court will provide an overview of the factual background of the case.

I. THE PARTIES

The CAC asserts claims brought by two CIGNA plan subscribers, Darlery Franco and David Chazen (the "Subscriber Plaintiffs"); by several ONET providers (collectively, the "Provider Plaintiffs"); and by several associations whose members consist of physicians and non-physicians who provided ONET services to patients insured by CIGNA (collectively, the "Association Plaintiffs").

Subscriber Plaintiff Darlery Franco ("Franco"), a resident of New Jersey, was at all relevant times a member of a health plan fully-insured by CIGNA and sponsored by a New Jersey employer. On June 18, 2003, Franco underwent facial reanimation surgery to restore proper functioning to her facial muscles and to repair nerve damage she sustained at birth. The surgery was performed by Drs. Elliott Rose and Fred Valauri, both non-participating providers ("Nonpars") in CIGNA's physician network. CIGNA paid $35,000 of the surgeons' total charges of $64,000. Franco remained financially responsible to the providers for the $34,000 difference. On September 13, 2005, Franco underwent another stage of facial reanimation surgery with Dr. Rose. CIGNA covered less than 50% of the billed charges, leaving Franco responsible for the unpaid amount.

Subscriber Plaintiff David Chazen ("Chazen"), a resident of New Jersey, was at all relevant times a member of a health plan fully-insured by CIGNA and sponsored by a New Jersey small employer.*fn2 On August 2, 2006, he suffered a shoulder injury which required surgery. Dr. Roger G. Pollack, a Nonpar orthopedist, performed the surgery on August 14, 2006. Dr. Pollack billed $6,500 for the surgery. CIGNA paid only $2,061.50 of this amount, leaving Chazen liable for the remainder. As of the filing of the CAC, Chazen had paid his provider approximately $3,730.

The Provider Plaintiffs consist of both physician and non-physician health professionals.*fn3

They do not participate in CIGNA's provider networks and are thus all referred to in this Opinion as ONET providers or Nonpars. The Provider Plaintiffs named in the CAC are James M. Gardner, M.D.; Darrick E. Antell, M.D.; Brian Mullins, M.S., P.T.; Carmen Kavali, M.D. and Maldonado Medical, LLC. Provider Plaintiff North Peninsula is a non-physician provider of outpatient surgery services in California.*fn4

The Association Plaintiffs, who assert claims in the CAC, are organizations whose members consist of physicians, podiatrists or psychologists who actively practice or once practiced in the United States and/or a particular state or locality. The Association Plaintiffs include the American Medical Association ("AMA"), Medical Society of New Jersey and 12 other organizations.

The Nelson Plaintiffs*fn5 are residents of California who were insured by an employer-sponsored CIGNA health plan. Camilo Nelson, Sr. was the plan subscriber and the other two named plaintiffs were insured family members. (Unless otherwise noted, the Court will include the Nelson Plaintiffs in its collective reference to the "Subscriber Plaintiffs" throughout this Opinion.) All three sought and obtained treatment from Stephanie Higashi, a chiropractor, doing business as Mar Vista Institute of Health. Higashi was a Nonpar with CIGNA.

Defendant CIGNA*fn6 provides healthcare and related benefits in the United States and internationally. It offers a variety of products and services, such as consumer-directed healthplans, health maintenance organizations, and preferred provider plans, among others. It is one of the largest health insurers in the United States.

Defendant UnitedHealth also offers health insurance products and services.

Defendant Ingenix is a wholly-owned subsidiary of UnitedHealth. Ingenix offers, among other things, software and data services to health care payors. It owns and maintains a database of provider charges (the "Ingenix Database") which it licenses to insurers. Insurers use the Ingenix Database to make reimbursement determinations for ONET services.

II. THE FACTS

A summary of the dispute requires an overview of the relationship between the healthcare industry and the health insurance industry as it concerns the payment of services rendered to insured patients. The following information is derived from the various complaints:

CIGNA enters into contracts with employers to enable them to provide health plans to employees, their spouses and dependents. CIGNA offers health insurance plans that differentiate between coverage for medical treatment provided by in-network providers and ONET providers. In-network providers, also referred to a "participating providers" or "Pars", have negotiated discounted rates with CIGNA. As part of their agreement with the health insurance plan, the in-network providers are precluded from billing the insured patient for any amount above the negotiated rate for covered services. ONET Providers, in contrast, charge insureds their usual, non-discounted rates. They are neither required to accept reduced rates nor precluded from balance billing*fn7 insured patients for any amount not covered by the health plan. In fact, "Nonpars may collect their full charges directly from patients at the time of service." (CAC, ¶ 5.) Alternatively, the Nonpar may collect only the patient's co-payment or co-insurance obligation at the time of service and submit a claim to the insurance company to receive the covered amount for the service. In the latter scenario, the provider typically obtains an assignment from the patient in lieu of collecting the entire charge when service is rendered. This means that the patient "authorizes his or her health benefits plan to remit payment directly to the provider for covered services." (Id.) "Whether or nor the health plan honors the assignment and pays the amount owed for ONET services directly to the Nonpar, the Nonpar is entitled to bill the Member for the amount of the charge that exceeds the amount that the Member's health plan covers." (Id.) In other words, the provider may balance bill the patient for any amount disallowed by the insurance company.

The CIGNA plans at issue provided coverage for ONET services in return for an increased premium, that is, for a greater premium than would apply to a plan providing in-network coverage only. The plans state that, for an ONET service, CIGNA will cover a percentage of the provider's billed charge or of the "usual, customary and reasonable" rate for the service, whichever is lower. (The amount of coverage is the "allowed amount.") The UCR is generally defined as the "prevailing fee" charged by providers for comparable services in the geographic area in which the plan member received the service. The plans also state that the member is financially responsible for the difference between the allowed amount and the Nonpar's billed charge.

CIGNA generally determined UCR by reference to the prevailing fee information supplied by the Ingenix Database.*fn8 CIGNA contracted with Ingenix to use its database of fees charged by providers for various services in a locality. According to the complaints, Ingenix accumulates data from various health insurers about out-of-network claims they receive and the amount providers bill for various services. By using the "CPT" billing codes corresponding to healthcare services and procedures and grouping the data according to geographic areas, Ingenix generates uniform pricing schedules which give a range of prices showing the charges at various percentage intervals. The Complaints, however, allege that the schedules are inaccurately and deliberately low and in fact generate "False UCRs."*fn9 This occurs, Plaintiffs aver, both as a result of the supplying insurers' manipulation of information so that ONET charges are deflated and of the further manipulation of that information by Ingenix to additionally depress the charges. In particular, plaintiffs aver that Ingenix collects limited information from insurers, covering only four data points, which skews the UCR schedules below what an accurate and comprehensive analysis would generate. Then, according to Plaintiffs, Ingenix "scrubs" the collected data by removing high-end values (but no low-end figures) so as to lower the average price of a service and therefore drive down "prevailing fees."

According to the complaints, what became known as the Ingenix Database as it existed at all times relevant to this lawsuit originated in 1973. In that year, the Health Insurance Association of America ("HIAA"), a trade group for the health insurance industry, created a database known as the Prevailing Health Charges System ("PHCS"). In October 1998, PHCS was sold to Ingenix. Membership in the HIAA has included all major health insurers in the United States, including CIGNA and UnitedHealth, spanning the time from creation of PHCS to the present. The complaints aver that the member insurers participated in the creation, design and maintenance of PHCS and then, after its sale to Ingenix, continued to be involved with the database through a cooperation agreement between HIAA and Ingenix. Under this agreement, HIAA members would, among other things, supply provider charge data and receive a discounted rate for using the Ingenix Database.

Plaintiffs allege that by using False UCRs to determine what it would pay for Nonpars' services, CIGNA systematically underpaid ONET claims and thus shifted the cost of healthcare to subscribers, who were not only responsible for the increased difference between a provider's billed amount and CIGNA's allowed amount but also had paid more in premiums for the option of seeking treatment from a Nonpar. Plaintiffs in this consolidated action contend that their rights under ERISA, RICO and federal antitrust laws, among others, have been violated as a result of CIGNA's payment of claims based on False UCRs and as a result of CIGNA's scheming with Ingenix and with other insurers to depress UCR values. The motions before the Court attack the viability of many legal theories for failure to state a claim based on the facts alleged but also, significantly, challenge the legal right of various plaintiffs to seek relief under these theories at all. In the discussion that follows, the Court will address and resolve the standing challenges raised by Defendants before proceeding to review the sufficiency of the causes of action pled.

ANALYSIS

I. STANDARD OF REVIEW APPLICABLE TO MOTIONS BROUGHT UNDER RULE 12(B)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims have facial plausibility. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). This means that the complaint must contain sufficient factual allegations to raise a right to relief above the speculative level, assuming the factual allegations are true. Id. at 1965; Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). The Supreme Court has made clear that "a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the claims are based upon those documents. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The issue before the Court "is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,1420 (3d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

As the Court will discuss below, a significant portion of the instant motions to dismiss relies on the grounds that certain plaintiffs lack standing to assert some or all of the claims pled. Because these challenges concern plaintiffs' statutory standing to bring this suit, the Court also reviews those aspects of the motions to dismiss according to the standards applicable to Federal Rule of Civil Procedure 12(b)(6). Maio v. Aetna, Inc., 221 F.3d 472, 482 n. 7 (3d Cir. 2000) (distinguishing challenge to a plaintiff's standing for lack of injury in fact, which implicates subject matter jurisdiction under Article III of the Constitution and thus falls under Rule 12(b)(1), from a challenge concerning whether a plaintiff meets statutory prerequisites to bring suit).

II. STANDING ISSUES

A. Standing of the Provider Plaintiffs

CIGNA challenges the statutory standing of Provider Plaintiffs to assert any of the federal claims they have pled in this action. The Court will examine the parties' arguments first on ERISA and then on the RICO and Sherman Act claims.

1. ERISA Claims

It is well-established that standing to sue under ERISA § 502(a), the statute's civil enforcement mechanism, is limited to participants or beneficiaries of ERISA plans. 29 U.S.C. § 1132(a); Pascack Valley Hosp., Inc. v. Local 464A UFCW Welfare Reimbursement Plan, 388 F.3d 393, 399-400 (3d Cir. 2004). Those terms, generally, refer to individuals entitled to receive benefits under an employee benefit plan.*fn10 Provider Plaintiffs are, of course, neither participants nor beneficiaries in employer-sponsored CIGNA health plans. They nevertheless assert that they have standing based on an assignment of rights by the CIGNA-insured patients they treated.

Provider Plaintiffs rely on various District of New Jersey cases in which the theory of standing by assignment has been applied to an ERISA claim. See N. Jersey Ctr. for Surgery, P.A., v. Horizon Blue Cross Blue Shield of New Jersey, Inc., No. 07-4812 (HAA), 2008 WL 4371754, at * 3 (D.N.J. Sept. 18, 2008); Wayne Surgical Ctr. v. Concentra Preferred Sys., Inc., No. 06-928 (HAA), 2007 WL 2416428, at *3-4 (D.N.J. Aug. 20, 2007). In one of those district court cases, Wayne Surgical, the court gave the issue careful consideration. It held that a provider of ambulatory surgical services had standing to bring an ERISA § 502 claim for benefits against a patient's health insurance carrier based on an assignment of benefits, "through which the patient assigns to [the provider] (among other rights) the patient's right to receive payment directly from the patient's insurer for the services that the patient receives at [the provider]." Wayne Surgical, 2007 WL 2416428, at *3. The court relied on the Fifth Circuit's decision in Tango Transport v. Healthcare Financial Services, which reasoned that by remaining silent on the assignability of a § 502 claim for benefits, the statute implied that assignment was not prohibited. Id. at *4 (citing Tango Transport v. Healthcare Fin. Svcs., 322 F.3d 888 (5th Cir. 2003)). The Wayne Surgical court found Tango Transport's statutory interpretation persuasive, summarizing it as follows: "although Congress included an anti-assignment provision pertaining to pension plans under ERISA, Congress has not included an anti-assignment for health care benefits." Id. (citing Tango Transport, 322 F.2d at 891).

Provider Plaintiffs do no cite any binding authority for the proposition that one other than a participant or beneficiary in an ERISA plan may sue under a theory of assignment. The Court's own investigation confirms that the Third Circuit has not settled the question of standing to sue under ERISA § 502 by assignment. Pascack Valley Hosp., 388 F.3d at 401 n.7 (declining to express opinion on derivative standing to sue under ERISA § 502(a)); Cmty. Med. Ctr. v. Local 464A UFCW Welfare Reimbursement Plan, 143 F.App'x 433, 435 (3d Cir. 2005) (noting that it would not resolve parties' dispute over whether Third Circuit law would permit a party to obtain standing to sue under ERISA § 502(a) by assignment). Nevertheless, the Third Circuit has noted that many other circuit courts that have considered the issue have held that providers may assert such a claim "where a beneficiary or participant has assigned to the provider that individual's right to benefits under the plan." Pascack Valley Hosp., 388 F.3d at 401 n.7.

Assuming for the purposes of this motion that the Third Circuit would adopt a standing-by-assignment theory with respect to ERISA § 502 claims, the Court nevertheless concludes that Provider Plaintiffs have failed to establish that they may stand in the shoes of CIGNA plan participants or beneficiaries as assignees of their patients' rights. To determine whether the Provider Plaintiffs may stand in the place of their patients, the Court must be satisfied that the alleged assignments encompass the patients' rights to receive the benefits of their health plan's ONET coverage. Cmty. Med. Ctr., 134 F.App'x at 435 (observing in dicta that a court could not be satisfied that a provider has standing to pursue a claim under ERISA § 502(a) as an assignee without knowing the term or parameters of the purported assignments). In other words, as the Court will discuss in further detail below, the assignment must encompass the patient's legal claim to benefits under the plan.

This concern was echoed in the decision issued by the district court for the District of New Jersey in North Jersey Center for Surgery v. Horizon BCBS of New Jersey, in which it granted a plaintiff's motion to remand. N. Jersey Ctr. for Surgery, 2008 WL 4371754, at *4-5. Though the issue of ERISA standing by assignment arose in a different procedural context in that case, the facts underlying the litigation in North Jersey Center for Surgery are quite similar to the case at bar. There, a Nonpar with the Horizon BCBS provider network filed suit in state court against Horizon seeking to recover, under various state law theories of relief, for Horizon's alleged failure to fully reimburse the provider for the ONET services provided to Horizon subscribers. Id. at *5. As is the case here, the Horizon insureds had executed an assignment of rights, pursuant to which the provider would be entitled to receive reimbursement directly from Horizon for the amount covered by the health plan's ONET benefit. Id. Horizon removed the action to federal court, arguing that the provider plaintiff's claims could have been brought under ERISA § 502 and thus were completely preempted by ERISA. Id. at *7. Adopting the magistrate judge's report and recommendation, the district court held that the defendant had failed to meet its burden of showing that the provider's claims against Horizon could have been brought under ERISA, pursuant to the assignment, and thus failed to establish the existence of federal subject matter jurisdiction based on ERISA preemption of the state law claims. Id. at *4-5. The court noted that the scope of the assignment, as described in the complaint, was too vague for the court to conclude that the provider had obtained a complete assignment of its patients' health insurance benefits. Id. at *4. Significantly, the court drew a distinction between such a complete assignment of benefits and the more limited assignment of a right to receive reimbursement from an insurer, reasoning that the contours of the purported assignments mattered because the former kind of assignment would bring the action within ERISA while the latter would not. Id. The court provided the following explanation of why Horizon failed to establish that the assignment encompassed a claim for benefits under ERISA § 502:

All the Court has is Plaintiff's generalized assertion that it is an "assignee and/or third-party beneficiary of the contracts of health insurance between [its] patients who are Horizon subscribers and Horizon." . . . The Court thus has no way to determine whether the purported assignment conferred only rights to reimbursement of medical services (beyond the scope of ERISA) or the full benefits of the insurance plan (within the scope of ERISA) . . . Horizon's reliance on the language in the Complaint is to no avail. Vague references to a common practice of non-network providers . . . and a purported assignment of benefits to NJCS . . . fail to conclusively establish that NJCS has a complete assignment of its patients' health insurance benefits. Consequently, the absence of evidence leaves this Court with grave doubt that Plaintiff would have standing to sue under ERISA. Such doubt augers in favor of remand.

Id. (internal citations omitted). Another district court opinion reached a similar conclusion, based on the applicable assignment document's language, which allowed the provider hospital to receive payments directly from the patient's health benefits insurer but did not support an "unequivocal assignment of all of [the patient's] rights under Seafarer's [ERISA] plan. Cooper Hosp. Univ. Med. Ctr. v. Seafarers Health and Benefits Plan, No. 05-5941, 2007 WL 2793372, at *3 (D.N.J. Sept. 25, 2007) (finding removing defendant had failed to demonstrate ERISA preemption and therefore failed to support existence of federal jurisdiction).

Provider Plaintiffs attempt to cast as inapposite the decisions in North Jersey Medical Center and Cooper simply because, there, concern regarding the scope of the assignment by an ERISA plan beneficiary to his or her provider arose in the context of a motion to remand. The procedural distinction of those cases from this one may go to the issue of which party bears the burden of demonstrating that the a claim may be brought pursuant to ERISA. It does not, however, dilute the sound reasoning of those decisions that the scope of the "assignment of benefits" is critical to determining whether a provider has standing to sue under ERISA.

Here, the burden falls on the Provider Plaintiffs to establish that they have standing to sue under ERISA § 502(a). When standing is challenged on a motion to dismiss, as CIGNA has done here, the burden falls on the proponent of the claim to establish it has standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Warth v. Seldin, 422 U.S. 490, 508 (1975). Standing may be demonstrated at the pleading stage based upon the complaint's factual allegations, according to the burden a complaint must meet to pass muster under Rule 8(a). Lujan, 504 U.S. at 561. As discussed in Section I of this Opinion, Rule 8(a) demands that a complaint contain sufficient factual allegations to render a claim plausible. Iqbal, 129 S.Ct. at 1950.

The allegations of the CAC and North Peninsula Complaint, however, provide only the most conclusory assertions that the various Provider Plaintiffs obtained an assignment of "benefits" from their patients. Moreover, as the Court will explain below, the Provider Plaintiffs' assignment theory of ERISA standing is belied by the fact that, according to Plaintiffs' own allegations, ONET providers reserve the right to collect their entire actual charges from patients, regardless of the insurer's claim determination.

As pled in the complaints, the assignment allegations amount to no more than recitations of the legal standard. Iqbal and Twombly make clear, however, that though a court must take all of the factual allegations in the complaint as true on a motion to dismiss, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555). The Court believes it is fair to assume that the Provider Plaintiffs know what their own assignment forms provide, yet the complaints nowhere recite the language of the relevant assignment provisions. Though the assignment-related allegations vary somewhat from provider to provider, the following examples illustrate the extent of information pled regarding the contents of the assignments:

The high cost of medical care makes it difficult for many patients to pay out of pocket for treatment at the time of service. Instead, patients rely on their health plans to reimburse physicians for their services, leaving the Provider Plaintiffs and the other Provider Class members to advance the cost of their procedures. As collateral for payment, patients sign a form assigning their health benefits to Dr. Gardner in advance of treatment. This form includes an express authorization by the patient for CIGNA to remit payment directly to Dr. Gardner for covered services.

Dr. Antell receives assignments from some CIGNA beneficiaries. These assignments indicate that CIGNA should pay Dr. Antell directly. These assignments also enable Dr. Antell to stand in the shoes of the CIGNA beneficiaries, including to demand reimbursement in compliance with the UCR definition in their health plans.

After June 19, 2005, Dr. Kavali has treated patients with coverage under plans covered or administered by CIGNA on an out of network basis. In each case, Dr. Kavali has obtained from the patient an assignment of benefits.

As collateral for payment, patients sign a form fully assigning their health benefits within the meaning of ERISA to NPSC [North Peninsula Surgical Center] in advance of treatment. This form includes an express authorization by the patient for Defendant [CIGNA] to remit payment directly to NPSC for covered services. (CAC, ¶¶ 119, 137, 163; North Peninsula Compl., ¶ 40.)

Simply asserting that CIGNA subscribers have assigned their CIGNA plan benefits fails to plausibly establish that each Provider Plaintiff has obtained at least one actual assignment of a patient's right to assert a claim for benefits and pursue litigation under ERISA. Provider Plaintiffs allege that they may "stand in the shoes" of their patients to assert the patients' rights under the applicable ERISA health plans, but fail to plead facts (for example, actual assignment language) to support their legal conclusion that a valid assignment of the proper breadth was given by patients. This deficiency is particularly glaring in light of the fact that in this action, and in the same consolidated class action pleading containing Provider Plaintiffs' allegations, plan subscribers also assert ERISA § 502 claims themselves seeking to recover for the very same type of injuries -- underpayment of ONET benefits and other ERISA violations. The inherent tension in the pursuit of ERISA claims by both plan subscribers and providers who claim standing as assignees of the subscribers renders the need for the exact language of the applicable assignment provisions that much more crucial to sorting out the standing issue.

Indeed, to the detriment of Provider Plaintiffs' position that they have standing by assignment to sue under ERISA, a common-sense reading of the CAC and the North Peninsula Complaint indicates that the assignments consisted of nothing more than the patient-insured's transfer of his or her right to reimbursement by the insurer for an ONET service, such that the provider would submit a claim for reimbursement and the insurer would be authorized to send this payment directly to the provider. In this scenario, the subscriber or plan beneficiary patient would not pay for the service in full, but rather be balance-billed by the provider for any amount of the service charge not covered by the health benefits plan. According to the Plaintiffs' own allegations, however, regardless of how the payment transaction is structured -- whether the provider bills on the front end the full amount to the patient, who then obtains ONET reimbursement from his carrier, or the patient initially makes only a co-payment and agrees that the provider may stand in his shoes with regard to collection of the ONET coverage money from the insurer -- the patient is always ultimately responsible for the entire charge. If the assignment given by the patient is limited to direct receipt of the ONET reimbursement and/or is qualified by the provider's reservation of his or her right to collect the entire charge for the service from the patient, the claim for ONET benefits under the patient's CIGNA plan continues to run to the patient-insured. Plaintiffs have attempted to conflate a Nonpar's method of billing and collecting payment with the Nonpar's assumption of the patient's rights to benefits under the health plan. The allegations in the Complaints do not support the latter.

At best, the allegations provide only the most ambiguous and conclusory information about what the purported assignments entail. At worst for Provider Plaintiffs, they indicate that the assignments were limited to a patient's assigning his or her right to receive reimbursement from CIGNA for the covered portion of the service bill, which in no way can be construed as tantamount to assigning the right enforce his or her rights under the plan. The Court cannot conclude, based on the information supplied in the Complaints, that the assignments encompass a CIGNA-insured's claim to benefits, such that any of the Provider Plaintiffs can legally be deemed a "participant or beneficiary" of his or her patient's ERISA health plan. Simply put, Provider Plaintiffs have not met their burden of demonstrating that they have derivative standing to sue under ERISA.

All ERISA claims asserted by Provider Plaintiffs in the CAC and North Peninsula Complaint will accordingly be dismissed.

2. RICO and Sherman Act Claims

CIGNA challenges Provider Plaintiffs' standing to pursue both RICO claims and Sherman Act antitrust claims on grounds that the complaints do not allege that Provider Plaintiffs obtained an express assignment from CIGNA insureds. Third Circuit law directs that assignment of RICO claims, as well as assignment of antitrust claims, must be express. Lerman v. Joyce Int'l, Inc., 10 F.3d 106, 112 (3d Cir. 1993) (citing Gulfstream III Assocs. v. Gulfstream Aerospace Corp., 995 F.2d 425, 438-40 (3d Cir. 1993)). To the extent Provider Plaintiffs attempt to rely on the same general and conclusory allegations that they have been assigned their patients' benefits, the allegations fall far short of the standard articulated in Lerman. While the Lerman court held that a valid assignment does not require that terms of art be employed, id., the facts on which it concluded that certain assignment language was broad enough to effect a transfer of the RICO cause of action are quite distinct from those presented here. In Lerman, the assignee had made a direct purchase of the entire assignor corporation that allegedly sustained the RICO violations, including all its assets and liabilities and "specifically all its causes of action." Id. at 111. In this case, no alleged fact regarding assignment even comes close to supporting a reasonable inference that any RICO or antitrust claims belonging to the CIGNAinsureds had been expressly assigned to the Provider Plaintiffs.

In addition to the assignment theory, the Complaints also assert that the Provider Plaintiffs have standing to litigate RICO and antitrust claims "as third-party beneficiaries of their patients's out-of-network benefits." (CAC, ¶¶ 479, 532, 550, 560.) CIGNA's motion to dismiss challenges the viability of the third-party beneficiary theory, based on both the non-applicability of a contract theory to non-contract claims as well as on the lack of allegations supporting the proposition that CIGNA intended its plans to benefit providers. Provider Plaintiffs, in opposition, cite no authority to the Court that supports pursuit of RICO or antitrust claims based on a party's status as a third-party beneficiary. Instead, they argue in a conclusory manner, that they have standing because the alleged artificial depression of UCRs by CIGNA, Ingenix and others targeted providers as well as subscribers. Provider Plaintiffs make an attempt to salvage their RICO and antitrust claims by maintaining that they have personally and directly sustained antitrust and racketeering injuries. This attempt is, frankly, superficial and underdeveloped. The argument, unsupported by any reference to factual allegations made in the Complaints, requires no further discussion

Accordingly, all RICO and antitrust claims asserted by Provider Plaintiffs in the CAC and North Peninsula Complaint must be dismissed for lack of standing.

B. Standing of Association Plaintiffs

Association Plaintiffs also seek to pursue ERISA, RICO and Sherman Act claims. They assert that they have standing on two grounds: in a representative capacity, bringing claims on behalf of their healthcare provider members, and in a direct capacity, seeking remedy for injuries they claim to have sustained personally as a result of CIGNA's alleged violation of these statutes. The Court finds neither of these grounds satisfied and accordingly dismisses all claims pled by the Association Plaintiffs against CIGNA in the CAC.

The Association Plaintiffs cannot establish, based on the facts alleged, that "their members would otherwise have standing to sue in their own right." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). This is an essential prong of representative standing, and the CAC's failure to allege facts that could plausibly support the standing of providers to sue under ERISA, RICO or the Sherman Act is fatal to the Association Plaintiffs' claim that representative standing exists. It is well-settled that while an "association may have standing solely as the representative of its members" -- that is, without having sustained any unique injury to itself -- the association "must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit." Id. at 343 (quoting Warth v. Seldin, 422 U.S. at 511). Moreover, associational standing cannot be recognized where either the claim asserted or the relief requested requires the participation of individual members of the association in the lawsuit. Id. As discussed above, resolving the claims at issue requires careful examination, on a provider-by-provider basis, of the assignments signed by patients and whether they contain the language required for a valid assignment of ERISA, RICO or antitrust claims to exist. The allegations of the CAC fail to establish that any provider member of the Association Plaintiffs would have standing in the provider's own right to assert these claims. Thus, insofar as the Association Plaintiffs seek to pursue any claims in this action against CIGNA on grounds that they have associational standing to sue, their claims must be dismissed.

Insofar as the Association Plaintiffs assert that they may pursue RICO and antitrust claims for relief on their own behalf, CIGNA's motion to dismiss is premised on the argument that the Association Plaintiffs have not sustained their own financial injury apart from harm allegedly sustained by provider members. Although CIGNA collapses these arguments related to standing, it actually raises two distinct types of challenges: one as to the Association Plaintiffs' constitutional standing under Article III and one as to their statutory standing to sue under RICO and/or the Sherman Act. The challenge to Article III standing questions whether the Association Plaintiffs seek redress for their own injury thus they present a justiciable case or controversy, whereas the arguments that the Association Plaintiffs have not asserted "an injury to business or property" questions whether they have pled a cognizable loss according to the statutes under which they seek relief. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 97 (1998) (distinguishing between Article III standing and statutory standing); Bennet v. Spear, 520 U.S. 154, 162 (1997) (same).

The Supreme Court has held that an association can have independent standing to sue if it can establish the minimal requirements to satisfy Article III. Warth, 422 U.S. at 511. Article III's "irreducible constitutional minimum" of standing requires, among other things, that a plaintiff establish it has sustained "injury in fact." Bennet, 520 U.S. at 162; Lujan, 504 U.S. at 560-61. Such injury cannot consist solely of a "setback to the organization's abstract social interests" but rather must amount to "concrete and demonstrable injury to the organization's activities -- with the consequent drain on the organization's resources." Havens Realty Corp v. Coleman, 455 U.S. 363, 379 (1982). The Association Plaintiffs claim in the CAC that they have been forced to spend time and resources counseling provider members on how to deal with CIGNA's allegedly improper payment practices and UCR reimbursements. The Court can accept, for purposes of this motion, that this impact suffices to state that the Associational Plaintiffs' resources have been depleted allegedly as a result of CIGNA's conduct and that they therefore have a personal stake in the outcome of the litigation. See id. (finding that organization had standing to sue in its own right where it alleged that discriminatory racial steering practices had caused it to devote resources to counteracting those practices).

Establishing Article III standing does not, by itself, entitle the Association Plaintiffs to proceed with their claims, for both RICO and Sherman Act claims impose a statutory standing requirement. Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 535 n.31 (1983) ("Harm to the antitrust plaintiff is sufficient to satisfy the constitutional standing requirement of injury in fact, but the court must make a further determination whether the plaintiff is a proper party to bring a private antitrust action"); Maio, 221 F.3d at 482 ("Apart from the Article III constitutional and prudential standing requirements . . . plaintiffs seeking recovery under RICO must satisfy additional standing criterion set forth in section 1964(c) of the statute.") (citations omitted). To sue under RICO, a litigant must allege that it has experienced a loss to "business or property" as a result of racketeering activity, as defined by the statute in section 1962. 18 U.S.C. § 1964(c); Maio, 221 F.3d at 482-83. This limitation "helps to assure that RICO is not expanded to provide a federal cause of action and treble damages to every tort plaintiff." Id. at 483 (quoting Steele v. Hospital Corp. of Am., 36 F.3d 69, 70 (9th Cir.1994)). Pleading a loss within the meaning of RICO requires that a plaintiff allege a concrete financial loss, not merely a loss of an intangible, albeit valuable, interest. Id. Moreover, RICO standing also requires more than a factual link between the injury to business or property and the alleged RICO violation; standing cannot be established without demonstrating proximate cause. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 266-69 (1992). Similarly, to establish antitrust standing, a plaintiff must demonstrate both the type of harm targeted by antitrust laws, for example decreased competition, and injury resulting from that harm, such as when the plaintiff is a consumer in the relevant market. Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 425, 429 (3d Cir. 1993). "Antitrust injury must be caused by the antitrust violation -- not a mere causal link, but a direct effect." City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, ...


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