Bristow Endeavor Healthcare, LLC v. Blue Cross & Blue Shield Ass'n

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 31, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
BRISTOW ENDEAVOR HEALTHCARE,
LLC,

Plaintiff - Appellant,

v. No. 16-5149
(D.C. No. 4:16-CV-00057-CVE-PJC)
BLUE CROSS AND BLUE SHIELD (N.D. Okla.)
ASSOCIATION; HEALTH CARE
SERVICE CORPORATION,

Defendants - Appellees,

and

AHS HILLCREST HEALTHCARE
SYSTEM, LLC; AHS HILLCREST
MEDICAL CENTER, LLC; AHS
MEDICAL HOLDINGS LLC; ARDENT
HEALTH PARTNERS, LLC; ARDENT
MEDICAL SERVICES, INC.,

Defendants.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before LUCERO, McKAY, and HARTZ, Circuit Judges.
_________________________________

Bristow Endeavor Healthcare, LLC, (“Bristow”) appeals a district court order

granting motions to dismiss filed by Blue Cross and Blue Shield Association

*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(“BCBSA”) and Health Care Service Corporation (“HCSC”). Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

I

Bristow is a healthcare company that operates three facilities in northeast

Oklahoma: Bristow Medical Center (“BMC”), Cimarron Healthcare Center

(“Cimarron”), and the Center for Orthopaedic Reconstruction and Excellence

(“CORE”). BCBSA is a federation of independent Blue Cross and Blue Shield

companies, including HCSC, which does business as Blue Cross Blue Shield of

Oklahoma. Bristow alleges that HCSC exercises market dominance in the northeast

Oklahoma market, with at least 64% of the market for health insurers.

BMC is an in-network provider with HCSC. In-network providers receive

contractually set payments for healthcare services offered to individuals with HCSC

plans. In 2013, Bristow requested that Cimarron be added to the existing in-network

provider agreement with BMC. Following negotiations, the parties agreed to add

Cimarron and adopt a blended rate for reimbursement payments to both facilities. In

March 2014, Bristow and HCSC executed a BlueTraditional Network Participating

Hospital Agreement (the “Provider Agreement”), which applied to both BMC and

Cimarron. Bristow states that it had an “implicit understanding” that the Provider

Agreement would also include all future Bristow entities. However, the Provider

Agreement specifically states that additional entities may be added only with the

consent of HCSC.

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 In March 2015, Bristow requested that HCSC add Bristow’s new facility,

CORE, to the Provider Agreement. HCSC sent Bristow a credentialing application

for CORE. After requesting additional information, HCSC informed Bristow that it

would not agree to add CORE to the Provider Agreement, but it offered to enter into

a separate agreement with the facility. The parties continued discussions through

December 2015 but did not reach an agreement.

Bristow alleges that HCSC refused to grant CORE in-network status as a result

of a conspiracy to restrain trade with Hillcrest Healthcare System (“Hillcrest”) and

Ardent Health Services (“Ardent”). Hillcrest operates several healthcare facilities in

northeast Oklahoma and is Bristow’s largest competitor. Ardent owns Hillcrest.

Bristow alleges that Hillcrest and its affiliated companies exercise market dominance

in the northeast Oklahoma market. But Bristow merely characterizes Hillcrest’s

market share as “high” without any particular factual allegations. Bristow also

alleges that HCSC reimburses Hillcrest at higher rates than those offered to BMC and

Cimarron. It claims that the purpose of the conspiracy is to prevent CORE from fully

competing with Hillcrest in the northeast Oklahoma healthcare market, thereby

allowing Hillcrest to maintain and expand its market share in that area.

In support of its conspiracy claim, Bristow alleges that representatives of Tulsa

Spine & Specialty Hospital (“Tulsa Spine”), a Hillcrest facility, met with

representatives of Hillcrest and Ardent on a weekly basis between 2011 and 2015 to

“discuss affairs, including CORE.” In the summer of 2014, Tulsa Spine hired a

private investigator to look into individuals involved in the start-up of CORE.

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Bristow further alleges, on information and belief, that HCSC participated in some of

these meetings and related phone calls, during which it discussed ways to prevent

CORE from becoming an in-network provider.

Bristow provides two particular allegations in support of its claim of

conspiracy. First, it alleges, on information and belief, that a “representative of Blue

Cross Blue Shield”1 told a Bristow representative CORE was being denied a contract

for “CORE’s own protection” and that “if Hillcrest tried to open a facility in Bristow,

we [Blue Cross Blue Shield] would ‘protect you [Bristow].’”2 Second, Bristow

claims that sometime between December 2014 and January 2015, Eddie Gwock, an

Ardent representative, told Tulsa Spine that “he could leverage his relationship with

Blue Cross Blue Shield to keep CORE out of the network.” Gwock “also reported

that he spoke with Blue Cross Blue Shield, and in connection with the ‘strategic

initiative’ between Blue Cross Blue Shield, [Ardent, and Hillcrest], Blue Cross Blue

Shield would be able to keep CORE out of network.”

Bristow filed suit against HCSC, BCBSA, Ardent, Hillcrest, and related

entities advancing four claims: (1) violation of § 1 of the Sherman Act, 15 U.S.C

§ 1; (2) state law conspiracy in violation of Okla. Stat. tit. 79, § 203(A); (3) attempt

to monopolize in violation of Okla. Stat. tit. 79, § 203(B); and (4) tortious

interference with business relations. The district court granted motions to dismiss

1
In the complaint, Bristow uses “Blue Cross Blue Shield” to refer collectively
to HCSC and BCBSA.
2
BMC is located in Bristow, Oklahoma.
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filed by HCSC and BCBSA. Bristow then voluntarily dismissed its claims against

the remaining defendants with prejudice and filed a timely appeal.

II

We review a Fed. R. Civ. P. 12(b)(6) dismissal de novo, accepting as true all

well-pled factual allegations in the complaint and viewing them in the light most

favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.

2009). “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is facially plausible if the plaintiff has pled

“factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. A complaint that “tenders naked

assertions devoid of further factual enhancement” is insufficient. Id. (quotations and

alteration omitted). Further, if a complaint alleges “facts that are merely consistent

with a defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Id. (quotations omitted).

A

Section 1 of the Sherman Act makes it illegal to engage in a “conspiracy[ ] in

restraint of trade or commerce.” 15 U.S.C. § 1. The Act “does not prohibit [all]

unreasonable restraints of trade . . . but only restraints effected by a contract,

combination, or conspiracy.” Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752,

775 (1984). The “crucial question is whether the challenged anticompetitive conduct

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stems from independent decision or from an agreement, tacit or express.” Twombly,

550 U.S. at 553 (quotations and alteration omitted). To prevail on a § 1 claim, a

plaintiff “must include evidence tending to exclude the possibility of independent

action.” Id. at 554. A “naked assertion of conspiracy in a § 1 complaint . . . gets the

complaint close to stating a claim, but without some further factual enhancement it

stops short of the line between possibility and plausibility.” Id. at 557.

When a defendant asserts complex claims against multiple defendants, it is

“particularly important” to “make clear exactly who is alleged to have done what to

whom, to provide each individual with fair notice as to the basis of the claims against

him or her, as distinguished from collective allegations.” Kan. Penn Gaming, LLC v.

Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (emphases omitted). “The Twombly

Court was particularly critical of complaints that mentioned no specific time, place,

or person involved in the alleged conspiracies.” Robbins v. Okla. ex rel. Dep’t of

Human Servs., 519 F.3d 1242, 1248 (10th Cir. 2008) (quotation omitted).

Although it is a reasonably close question, we agree with the district court that

the complaint does not plausibly allege a conspiracy with respect to HCSC and

BCBSA. An inference of conspiracy is impermissible if the defendants “had no

rational economic motive to conspire, and if their conduct is consistent with other,

equally plausible explanations.” Matsushita Elec. Indus., Co. v. Zenith Radio Corp.,

475 U.S. 574, 596 (1986). As the district court explained, Hillcrest and Ardent may

have been motivated to undermine Bristow as a direct competitor, but HCSC—a

purchaser of healthcare services—would be acting directly against its own interest if

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it agreed to reduce competition in the healthcare provider market, particularly in light

of Bristow’s allegation that HCSC pays Hillcrest higher reimbursement rates.

The complaint does not advance any reason HCSC would agree to act against

its self-interest and it does not identify any benefit that HCSC obtained from Hillcrest

or Ardent as part of the alleged conspiracy. A complaint is insufficient if the alleged

“behavior was as likely to have been the result of legal, unilateral action as the

product of illicit collusion.” Kan. Penn Gaming, 656 F.3d at 1214; see also

Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984) (noting that a

company “generally has a right to deal, or refuse to deal, with whomever it likes, as

long as it does so independently”). On appeal, Bristow suggests that HCSC acted at

the behest of Hillcrest because it needed to maintain Hillcrest’s business. But the

complaint does not contain any particularized allegations permitting an inference that

Hillcrest possessed market power such that it could compel HCSC to act against its

own interest. See Buccaneer Energy (USA) Inc. v. Gunnison Energy Corp., 846 F.3d

1297, 1312 (10th Cir. 2017) (a plaintiff can show market power by “pointing to the

defendant’s share of the relevant market and perhaps barriers to entry” (quotation and

alteration omitted)).

Bristow relies heavily on the statements attributed to Gwock. Although those

statements make a conspiracy possible, we agree with the district court that they are

insufficient. Gwock claimed that he could leverage his relationship with HCSC to

keep CORE out of network, and he later reported that CORE would indeed not join

the HCSC network. But there are no allegations detailing who Gwock dealt with at

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HCSC, what was agreed to, or why HCSC agreed to harm itself. In light of HCSC’s

rational economic motives not to engage in this type of agreement, we think such

particularity is necessary. See Matsushita Elec. Indus., 475 U.S. at 596-97.

In addition to Gwock’s statement, Bristow highlights the comments of an

unidentified representative of either HCSC or BCBSA, who stated that CORE was

denied in-network status for its “own protection” and indicated that Bristow would

similarly be protected if Hillcrest attempted to open a facility in areas where Bristow

operates. Assuming that these statements evince a preference by HCSC to limit its

network by geographical sub-regions, it does not suggest coordination between

HCSC and Hillcrest. To the contrary, the unidentified representative apparently

offered to “protect” Bristow unilaterally, without any proposed agreement with

Bristow. If HCSC was willing to take unilateral action to “protect” Bristow, it may

well have done so with respect to Hillcrest. See Twombly, 550 U.S. at 554 (a

plaintiff “must include evidence tending to exclude the possibility of independent

action”). Absent plausible allegations that HCSC or BCBSA conspired to restrain

trade, Bristow’s § 1 Sherman Act and state law conspiracy claims were properly

dismissed.3

3
The district court concluded Bristow’s state law conspiracy claim failed for
the same reasons as its Sherman Act claim. Bristow does not contest that conclusion
on appeal. See Green Country Food Mkt., Inc. v. Bottling Grp., LLC, 371 F.3d 1275,
1281 (10th Cir. 2004) (“The Oklahoma Antitrust Reform Act is construed in
accordance with federal antitrust law.”); see also Okla. Stat. tit. 79, § 212 (“The
provisions of this act shall be interpreted in a manner consistent with Federal
Antitrust Law 15 U.S.C., Section 1 et seq. . . . .”).
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 B

Under Oklahoma law, “[i]t is unlawful for any person to monopolize, attempt

to monopolize, or conspire to monopolize any part of trade or commerce.” Okla.

Stat. tit. 79, § 203(B). Bristow asserts a claim for attempted monopolization, which

requires proof of: “(1) relevant market (including geographic market and relevant

product market); (2) dangerous probability of success in monopolizing the relevant

market; (3) specific intent to monopolize; and (4) conduct in furtherance of such an

attempt.” TV Commc’ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d

1022, 1025 (10th Cir. 1992).

In its complaint, Bristow alleges that Hillcrest and Ardent, with the assistance

of HCSC and BCBSA “are attempting to monopolize or conspiring to monopolize the

market for inpatient and outpatient healthcare services in the Northeast

Oklahoma/Tulsa area.” Bristow cites to the allegation that HCSC has a 64% share of

the health insurance market in northeast Oklahoma, but the complaint does not allege

attempted monopolization of the health insurance market. Instead, it alleges

attempted monopolization of the market to deliver healthcare services to patients.

And although the complaint summarily asserts that Hillcrest “exercises market

dominance,” it does not contain any well-pled allegations to support that assertion.

See Iqbal, 556 U.S. at 678 (holding “naked assertions devoid of further factual

enhancement” are insufficient (quotations and alteration omitted)). Accordingly the

complaint fails to plausibly allege a dangerous probability that the healthcare market

in northeast Oklahoma would be monopolized.

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 Bristow also suggests that HCSC, as a purchaser of healthcare services, may

be exercising monopsony buying power. But we agree with the district court that this

monopsony theory was not fairly pled in the complaint. See Maldonado v. City of

Altus, 433 F.3d 1294, 1314 (10th Cir. 2006) (declining to consider a theory that did

not appear in the complaint), overruled on other grounds as recognized by Metzler v.

Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 2006).

C

Lastly, Bristow appeals the dismissal of its claim for tortious interference with

a business relation. To prevail on such a claim, a plaintiff must show:

“1) interference with a business or contractual right; 2) malicious and wrongful

interference that is neither justified, privileged, nor excusable; and 3) damage

proximately sustained as a result of the interference.” Tuffy’s, Inc. v. City of Okla.

City, 212 P.3d 1158, 1165 (Okla. 2009).

The complaint alleges that Bristow, BMC, Cimarron, and CORE “all had

business and contractual rights,” and that through tortious conduct “described at

length therein, the Defendants have interfered with said business and contractual

rights.” We agree with the district court that this claim presents nothing more than “a

formulaic recitation of the elements of a cause of action,” which the Court rejected in

Iqbal. 556 U.S. at 678. It does not identify what contracts or relationships HCSC or

BCBSA might have harmed, and accordingly does not provide those parties with

sufficient notice to defend against this claim.

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 III

For the foregoing reasons, the judgment of the district court is AFFIRMED.

Entered for the Court

Carlos F. Lucero
Circuit Judge

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