B R F H H Shreveport L L C v. Willis-Knighton Medical Center

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

BRFHH SHREVEPORT, LLC CIVIL ACTION NO. 20-142

VERSUS JUDGE ELIZABETH E. FOOTE

WILLIS-KNIGHTON MEDICAL CENTER MAG. JUDGE KAYLA D. MCCLUSKY

MEMORANDUM RULING

Before the Court is a motion to dismiss filed by the Defendant, Willis-Knighton

Medical Center (“Willis-Knighton”). Record Document 20. Willis-Knighton seeks to

dismiss the complaint filed by the Plaintiff, BRFHH Shreveport, LLC, which alleges, in

broad terms, that Willis-Knighton committed antitrust violations by coercing LSU Health

Shreveport to refuse to cooperate with BRFHH in the operations of its Shreveport hospital.

As the Court concludes that the Plaintiff has failed to sufficiently allege antitrust violations

in more than a nonspeculative manner, Willis-Knighton’s motion to dismiss [Record

Document 20] is GRANTED.

Background

The Court begins by noting that this is the second antitrust civil action filed by the

Plaintiff against this Defendant, the alleged violations stemming from the same

acrimonious relationship that has heretofore existed between these two parties. See

BRFHH Shreveport, LLC v. Willis-Knighton Med. Ctr., 05:15-cv-2057 (W.D. La.) (the “2015

case”). The allegations in the instant case concern a more recent time period than those

in the 2015 case and set forth contentions regarding different antitrust activity;

nonetheless, the cases generally involve the same players competing in the same relevant

market.

I. The Relevant Entities

LSU is a State university with a medical school component which employs physician

faculty members throughout the State. Record Document 1 at 5. The faculty physicians

treat patients, teach students, and train residents and fellows in their respective fields.

Id. LSU Health Shreveport is the medical school in Shreveport, Louisiana. Id.

Plaintiff BRFHH, doing business as University Health Shreveport (“UHS”), operated

University Health Hospital in Shreveport. Once a state-owned and -operated charity

facility, the hospital was operated by BRFHH starting in September of 2013, when LSU,

whose neighboring medical school traditionally supplied physicians for UHS, and the

parent entities of BRFHH signed a Cooperative Endeavor Agreement transferring hospital

management authority from the State of Louisiana to BRFHH’s parent entity. See

generally BRFHH Shreveport v. Willis-Knighton, 15-cv-2057, Record Document 121. To

be discussed in more detail below, the hospital run by UHS is now run by Ochsner (named

Ochsner LSU), the result of UHS’s sale of its hospital business to Ochsner. Thus, the

Plaintiff in this suit is no longer involved in the operations of the current hospital. But,

the alleged antitrust conduct in this case preceded that sale and ceased when Ochsner

acquired the hospital.

As a result of the 2013 privatization of the hospital, UHS treated a substantial

portion of the Shreveport area’s indigent population and was dependent upon hospital

admissions from LSU physicians. See id. One of the underlying issues in the 2015 case

stems from the notion that in order for UHS to remain financially viable, a critical, if

minority, mass of the patients treated at UHS needed to have private, commercial

insurance; the higher reimbursement rates associated with commercial insurance would

help offset the relatively low profitability of treating the indigent. See id.

Defendant Willis-Knighton is a competing healthcare provider that operates four

hospitals and several free-standing clinics in Shreveport and Bossier City. See id. Besides

Willis-Knighton and UHS, a third entity, CHRISTUS Health Northern Louisiana (“Christus”)

also operates hospitals in the Shreveport and Bossier City area. See id. The allegations

in the prior suit regard Willis-Knighton’s predominate share of the commercially-insured

healthcare market, as opposed to the much smaller shares held by UHS and Christus.

See id. Suffice it to say that UHS and Willis-Knighton were competing healthcare

providers, each trying to reduce costs while increasing efficiency and profitability.

II. Post-Privatization

From the commencement of the privatization agreement in 2013 until October of

2018, UHS was LSU Health Shreveport’s clinical partner and its teaching hospital. Record

Document 1 at 6. The UHS medical staff was limited to LSU Health Shreveport-approved

physicians. Id. UHS depended upon admissions from those faculty physicians. Id.

When UHS took over the hospital from LSU, it took on the lease of the hospital

facilities from the State, which owned the buildings on campus and the assets of the

hospital. Id. at 8. UHS alleges that when it assumed those operations, the hospital was

inefficient, experiencing “extraordinarily high overtime use, an absence of productivity

standards and management dashboards, and lengthy wait times at clinics.” Id. UHS

submits that once it took over the hospital, it created a much more “effective, efficient

and patient-friendly hospital.” Id. UHS articulates several successful measures it

experienced, which can be summarized as an increase in admissions, an increase in clinic

and emergency room visits, improved earnings, and decreased expenses to the State of

Louisiana. Id. at 9. According to UHS, these improvements attracted more patients to

the hospital, which resulted in UHS becoming a significant competitor to Willis-Knighton.

Id. at 9-10. During this period, UHS and LSU Health Shreveport worked closely together,

engaging in weekly meetings, cooperating to improve operations, and enjoying open

communications between the department chairs and UHS executives. Id. at 15. Taking

UHS’s allegations as true, in response to UHS’s success,

Willis-Knighton attempted to prevent UHS’ competition by implementing a

plan to divert LSU Health Shreveport’s commercial patients from UHS to

Willis-Knighton. Accordingly, UHS filed the 2015 Case. Because of the 2015

Case, Willis-Knighton put its efforts to fully implement this plan on hold.

However, . . . in spring of 2016, it commenced a new scheme intended to

cause harm to UHS and to keep it from improving its operations and

competitiveness, by coercing LSU Health Shreveport into refusing to

cooperate with UHS’ new initiatives to further improve the hospital and its

competitiveness. Willis-Knighton also coerced LSU into an effort to

terminate the contract whereby UHS owned and operated the hospital.

Id. at 10. That contention—that Willis-Knighton unlawfully and in violation of antitrust

law, coerced LSU Health Shreveport into refusing to cooperate with UHS in the improved

operations of the hospital—is the crux of the instant suit.

A. The Financial Crisis

Historically, Willis-Knighton was a major donor to LSU Health Shreveport; these

donations predated the alleged antitrust conduct at the heart of this suit. The parties

agree that during the relevant timeframe, LSU Health Shreveport perceived it was facing

a significant financial crisis, with a “heightened need for additional funds.” Id. at 14.

Quite simply, LSU Health Shreveport needed an influx of a large amount of money, and

it required support from outside sources, lest its school accreditation, amongst other

things, be placed at risk. Id. at 22 & 26. Willis-Knighton was aware of LSU Health

Shreveport’s ongoing need for money, shortfalls historically caused by State budget

deficits and then more recently related to the privatization of the hospital. The budget

crisis allegedly made LSU Health Shreveport susceptible to the whims and demands of

Willis-Knighton, the deep-pocket power player in the local healthcare market.

By 2015 and 2016, LSU Health Shreveport desperately needed millions of dollars.

It was LSU Health Shreveport’s need for continued funding that fueled the alleged

antitrust conduct here. The medical school’s Vice-Chancellor Victor Yick (“Yick”) authored

a document conceding that LSU Health Shreveport was in a financial crisis, that it

experienced an “operating loss of $40-$50M per year since privatization of the hospital,”

and that the “cash reserve can run out in [fiscal year] 2016-17.” Id. at 27. Consequently,

LSU Health Shreveport first approached UHS and requested $100 million in “mission

support.” Id. UHS declined. Id. LSU Health Shreveport then turned to Willis-Knighton,

asking for a $50 million “mission support” grant. Id. Yick later reported that Willis-

Knighton “conceptually agreed to provide working capital” to the medical school. Id.

UHS asserts this statement is evidence that “LSU Health Shreveport believed that it was

acting in Willis-Knighton’s interest by refusing to cooperate with . . . UHS.” Id. The

alleged lack of cooperation, as well as the inferences UHS draws from LSU Health

Shreveport’s actions, are discussed in greater detail below.

B. Dr. Ghali

In early 2016, Dr. Ghali Ghali (“Dr. Ghali”) was named as interim Chancellor of

LSU Health Shreveport and subsequently named the permanent Chancellor. Id. at 14 &

21. UHS insists that Willis-Knighton was instrumental in Dr. Ghali’s promotion, as Dr. Ghali

was otherwise unqualified for such a prominent administrative position. Id. at 21. Dr.

Ghali was a senior partner in the Willis-Knighton Oral and Maxillofacial Surgery Institute,

a member of the Willis-Knighton Physician Network, his primary clinic practice for many

years was at Willis-Knighton and his income was determined in significant part by his

collections, and Willis-Knighton provided Dr. Ghali’s department at LSU Health

Shreveport—presumably the Department of Oral and Maxillofacial Surgery—with $1

million or more annually. Id. at 20. Dr. Ghali also allegedly used Willis-Knighton’s private

plane on occasion. Id. Thus, UHS asserts that Dr. Ghali “received substantial benefit

from working for Willis-Knighton, and at its direction.” Id. “Dr. Ghali’s appointment as

permanent Chancellor cemented Willis-Knighton’s control over LSU Health’s direction.”

Id. at 22.

According to UHS, after Dr. Ghali assumed his new role, he acted essentially as

Willis-Knighton’s agent. With Dr. Ghali at the helm, LSU Health Shreveport’s

administration ceased its cooperation with UHS. Id. at 15. Bruce Solomon of LSU Health

Shreveport required all UHS communications to go through him and also restricted LSU

Health Shreveport department chairs from directly communicating with UHS. Id. The

weekly meetings were cancelled. Id. And, when UHS proposed cooperative initiatives,

LSU Health Shreveport refused to participate. Id. Its refusal, it is alleged, was entirely

against its own self-interest and must, therefore, have resulted from Willis-Knighton’s

coercion. Id.

C. Means of Coercion

1. Allegedly Contingent Funding

UHS contends that Willis-Knighton linked its funding to LSU Health Shreveport’s

agreement not to cooperate with UHS. That is, Willis-Knighton “would continue to fund

LSU Health Shreveport only if LSU Health Shreveport did not support its competitors.”

Id. at 23. According to UHS, Willis-Knighton wanted to eliminate UHS as the hospital

operator, or at the very least, ensure UHS could not be competitive. Id.

As evidence, UHS cites to a time in 2012 when James Elrod (“Elrod”), the President

and CEO of Willis-Knighton, told the Willis-Knighton Board that it would only continue its

current level of funding to LSU Health Shreveport if the two entities “remain[ed] partners,

not competitors.” Id. at 23. Also in 2012, there was some indication that Willis-Knighton

was aware that if another hospital corporation managed LSU Health Shreveport, Willis-

Knighton may encounter an adversarial relationship with LSU Health Shreveport with

respect to its market share. Id. In 2013, at a Willis-Knighton Board meeting, Elrod said

that Willis-Knighton’s continued support of the medical school would continue only so

long as LSU Health Shreveport did not directly compete with Willis-Knighton and if Willis-

Knighton could have some level of oversight. Id. In 2014, Willis-Knighton drafted a letter

to its employees that said that UHS would begin “seeking to draw private patients from

Willis-Knighton and Christus Highland. So the LSU hospital that once was an ally is now

a competitor.” Id. at 24. All of the comments above were made prior to the antitrust

activity alleged in this case.

Aside from Elrod’s and Willis-Knighton’s direct statements about UHS and/or the

medical school, UHS also contends that Willis-Knighton had a pattern of stymying LSU

Health Shreveport’s efforts to work with Willis-Knighton’s competitors. Id. at 25. In 2015,

LSU Health Shreveport’s department chairs were invited to meet with UHS and Ochsner

on a possible joint venture. Id. In testimony in the 2015 case, the LSU Health Shreveport

Dean, Dr. Marymont, stated that Willis-Knighton told him that if he went forward with the

meeting, Willis-Knighton would cease funding the medical school. Id. Dr. Marymont

testified that “on other occasions,” Willis-Knighton threatened to pull its funding from LSU

Health Shreveport “if it was unhappy with LSU actions.” Id. The 2015 meeting predates

the antitrust activity in this case, as well; and, UHS provides no temporal context for the

“other occasions” mentioned by Dr. Marymont.

In 2016, Willis-Knighton gave a PowerPoint presentation to Yick that represented

it was aware of the critical funding issues faced by LSU Health Shreveport and that it was

willing to increase its funding of programs and services to LSU Health Shreveport if there

was “increased cooperation from leadership and the faculty.” Id. at 26. Willis-Knighton

also proposed a consolidation of programs and services with LSU Health Shreveport,

though this never occurred. Id.

In July of 2016, Yick authored an email to the LSU President and CFO stating that

LSU Health Shreveport still needed to raise $50 million in mission support. Id. at 29. He

stated that Willis-Knighton “is our mother lode” and that the medical school “still [has]

work to do with WK.” Id. Yick’s email further opined that LSU Health Shreveport’s energy

needed to be spent on rebuilding rather than collaborating with UHS and that the medical

school needed to “form a sustainable long term partnership” with Willis-Knighton. Id.

Yick also stated that letters of intent LSU had entered into with other hospitals, aside

from Willis-Knighton, were “initially just for cover.” Id. That Yick felt the need for cover

is, according to UHS, proof of LSU Health Shreveport’s complicity in an unlawful scheme.

Id. Nonetheless, because of the 2015 case, Willis-Knighton never provided the

anticipated funding to LSU Health Shreveport. Id. at 28.

Lastly, in a 2017 deposition, Elrod agreed that without Willis-Knighton, LSU Health

Shreveport would have a difficult time surviving. Id. at 22.

2. Noncompliant Physicians

UHS contends that Willis-Knighton engaged in a pattern of threatening non-

cooperative physicians. Id. at 24. In essence, the allegation seems to be that Willis-

Knighton would punish physicians who made referrals to non-Willis-Knighton facilities by

hiring new Willis-Knighton physicians to compete with those physicians. The new

physicians would receive all of the Willis-Knighton referrals, thus creating a “starvation of

referrals” to the non-compliant physicians. Id. UHS claims that Elrod communicated this

threat through the publication of his book, and as such, the entire Shreveport-Bossier

healthcare community was made aware of the consequences of competing against Willis-

Knighton. Id. at 25.

UHS also asserts that Dr. Ghali fired Dr. Anil Nanda (“Dr. Nanda”), the “most

renowned physician at LSU Health Shreveport” because Dr. Nanda “did not admit

sufficient numbers of patients at Willis-Knighton to satisfy James Elrod, and because he

had always cooperated with UHS.” Id. at 43-44. Elrod allegedly told Dr. Ghali that “the

best thing Dr. Ghali ever did was to fire Dr. Nanda as head of the Neurosurgery

Department.” Id. at 45. The firing of Dr. Nanda is allegedly evidence of one form of

retaliation Willis-Knighton had in its arsenal to use against non-compliant physicians.

D. Lack of Cooperation

There are myriad ways in which LSU Health Shreveport allegedly refused to

cooperate with or acted to undermine UHS, including: (1) its refusal to combine fixed

overhead activities to reduce costs; (2) its refusal to participate in a narrow network

product with Blue Cross; (3) its refusal to improve productivity, efficiency, and quality of

care in various departments; (4) its refusal to cooperate in recruitment of new physicians;

(5) Dr. Ghali’s dismissal of Dr. Jay Marion as Chair of the Department of Medicine and Dr.

Nanda as the Chair of the Neurosurgery Department of LSU Health Shreveport; (6) Dr.

Ghali’s miscellaneous defamatory statements; and (7) LSU Health Shreveport’s attempts

in 2016 and 2017 to terminate UHS as the owner and operator of the hospital, which

caused damage to UHS’s reputation. Id. at 16-19.1 UHS contends that LSU Health

Shreveport’s “conduct was inconsistent with unilateral, self-interested behavior, and can

only be explained by [its] acquiescence in and agreement to Willis-Knighton’s demands”

because “no rational medical school would have undertaken” the actions LSU Health

Shreveport did absent “coercion by Willis-Knighton.” Id. at 19.

1 Not all of these issues are given equal attention in UHS’s complaint. Some are

mentioned in passing and never discussed again. As such, the Court’s analysis will

follow suit and focus on the issues to which UHS has given its attention.

In 2018, Ochsner bought an interest in both the Shreveport and Monroe2 hospitals

and created Ochsner LSU. Id. at 48. As a result, LSU Health Shreveport received an

additional $40 million annually, plus a fifty percent stake in the hospital. Id. Allegedly,

LSU Health Shreveport now cooperates in initiatives with Ochsner in ways it refused to

cooperate with UHS. Id. at 49. This is so, UHS asserts, because LSU Health Shreveport

is no longer susceptible to Willis-Knighton’s coercion. Id.

III. The Instant Suit

In 2020, UHS brought this suit, alleging that between 2016 and 2018, Willis-

Knighton violated both Section 1 of the Sherman Act, which prohibits concerted activity

relating to unreasonable restraints of trade, 15 U.S.C. § 1; and Section 2 of the Sherman

Act, which prohibits monopolization and attempted monopolization, 15 U.S.C. § 2. UHS

did not name LSU Health Shreveport as a defendant in this matter.

Willis-Knighton has filed the instant motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). It argues that there are five principal reasons to dismiss UHS’s

claims. First, UHS has not established antitrust injury, a threshold requirement for a

plaintiff in any antitrust claim. Record Document 20-1 at 11. Second, UHS has not

sufficiently alleged an agreement or conspiracy between LSU Health Shreveport and

Willis-Knighton, for purposes of Section 1 of the Sherman Act. Id. at 14. Third, UHS has

not alleged the requisite anticompetitive conduct, that is exclusionary conduct, to sustain

its claim under Section 2 of the Sherman Act. Id. at 17. Fourth, the First Amendment

shields Willis-Knighton’s actions from antitrust liability under the Noerr-Pennington

2 University Hospital Conway was located in Monroe, Louisiana.

Doctrine.3 Id. at 21. And fifth, Willis-Knighton is shielded from liability by the State

Action Doctrine. Id. at 28. Following extensive briefing by the parties, the matter is now

ripe for review.

Law and Analysis

I. Federal Rule of Civil Procedure 12(b)(6) Standard

Federal Rule of Civil Procedure 8 requires a short and plain statement of the claim

showing the pleader is entitled to relief. A complaint is not required to contain detailed

factual allegations, however, “a plaintiff's obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (internal marks and citations omitted). “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 (2008) (internal

marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. Plausibility does not equate to possibility or probability; it lies

somewhere in between. See id. This plausibility requirement “asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. However, the complaint cannot

be simply “unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Id.

Plausibility simply calls for enough factual allegations to raise a reasonable expectation

3 E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961); United Mine

Workers of Am. v. Pennington, 381 U.S. 657 (1965).

that discovery will reveal evidence to support the elements of the claim. See Twombly,

550 U.S. at 555-56.

As the Fifth Circuit has explained, in order to survive a 12(b)(6) motion, “the

complaint must contain either direct allegations on every material point necessary to

sustain a recovery or contain allegations from which an inference fairly may be drawn

that evidence on these material points will be introduced at trial.” Rios v. City of Del Rio,

Tex., 444 F.3d 417, 420–21 (5th Cir. 2006) (internal marks and citation omitted).

Moreover,

a statement of facts that merely creates a suspicion that the pleader might

have a right of action is insufficient. Dismissal is proper if the complaint

lacks an allegation regarding a required element necessary to obtain relief.

The court is not required to conjure up unpled allegations or construe

elaborately arcane scripts to save a complaint. Further, conclusory

allegations or legal conclusions masquerading as factual conclusions will not

suffice to prevent a motion to dismiss.

Id. at 421 (internal marks and citations omitted).

Although courts generally are not permitted to review materials outside of the

pleadings when determining whether a plaintiff has stated a claim for which relief may

be granted, there are limited exceptions to this rule. Specifically, a court may consider

documents attached to a Rule 12(b)(6) motion to be part of the pleadings if the plaintiff

refers to those documents and they are central to the claim. See Collins v. Morgan Stanley

Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000); Causey v. Sewell Cadillac-Chevrolet,

Inc., 394 F.3d 285, 288 (5th Cir. 2004). Additionally, pleadings filed in state or other

federal district courts are matters of public record and the Court may take judicial notice

of those documents in connection with a Rule 12(b)(6) motion to dismiss. See Cinel v.

Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).

II. Antitrust Injury

Willis-Knighton argues that UHS has not sufficiently alleged antitrust injury.

Antitrust injury is necessary for a plaintiff to pursue either a Section 1 or Section 2 claim

under the Sherman Act. Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314, 319 (5th

Cir. 2009). Antitrust injury is a component of antitrust standing. Antitrust standing, in

turn, is a judicially-created set of threshold requirements that a private plaintiff must

show before a court can entertain its antitrust claims. See Assoc. Gen. Contractors of

Cal., Inc. v. Cal. State Council of Carpenters (“AGC”), 459 U.S. 519, 535 & n.31 (1983).

The three antitrust standing requirements are “1) injury-in-fact, [i.e.,] an injury to the

plaintiff proximately caused by the defendants’ conduct; 2) antitrust injury; and 3) proper

plaintiff status, which assures that other parties are not better situated to bring suit.”

Sanger Ins. Agency v. HUB Int’l, Ltd., 802 F.3d 732, 737 (5th Cir. 2015) (citing Jebaco,

587 F.3d at 318). These requirements, which supplement Article III standing

requirements, ensure that successful antitrust claims only redress the types of harm that

antitrust law was designed to prevent, rather than create a fortuitous windfall for all

parties proximate to the defendant, regardless of whether they were injured by

anticompetitive conduct. See AGC, 459 U.S. at 535.

The second component of antitrust standing, antitrust injury, requires that a

plaintiff’s injury is “of the type the antitrust laws were intended to prevent and . . . flows

from that which makes defendants’ acts unlawful.” Brunswick Corp. v. Pueblo Bowl-O-

Mat, Inc., 429 U.S. 477, 489 (1977). This means that in an antitrust suit, but-for

causation is insufficient. Instead, a plaintiff must be able to trace its injury to the

anticompetitive effects of the defendant’s antitrust violation. See id. Thus, an inquiry

into antitrust injury always asks whether there is a causal connection between the alleged

injury of the plaintiff and the anticipated anticompetitive effect of the specific practice

that allegedly violates antitrust law. See Port Dock & Stone Corp. v. Oldcastle Ne., Inc.,

507 F.3d 117, 122 (2d Cir. 2007) (“We can ascertain antitrust injury only by identifying

the anticipated anticompetitive effect of the specific practice at issue and comparing it to

the actual injury the plaintiff alleges.”).

UHS contends that Willis-Knighton’s unlawful conspiracy targeted UHS’s business

in order to stymie competition and increase its monopoly power in the relevant market.

Taking UHS’s allegations as true, as a result of Willis-Knighton’s anticompetitive scheme,

UHS was not prevented from working with LSU Health Shreveport on pre-established

initiatives and programs, but rather it was restrained from improving and becoming more

competitive in other areas and on other healthcare measures. Stated another way, Willis-

Knighton’s anticompetitive intention was to restrict UHS’s ability to compete with it, which

could have resulted in diminishing Willis-Knighton’s predominance in the local healthcare

market. Consequently, UHS alleges, Willis-Knighton restrained competition by hindering

UHS’s ability to work with its physicians on measures which ultimately would have

decreased costs, improved quality of care, or ensured and/or increased access to care.4

4 Many of the areas in which UHS claims LSU Health Shreveport refused to cooperate

are insufficient for purposes of establishing antitrust injury. For example, the litany of

ways in which the two entities could have shared costs, coordinated on a drug

So viewed, UHS’s competitive disadvantage “fall[s] within the conceptual bounds of

antitrust injury, whatever the ultimate merits of its case.” Doctor’s Hosp. of Jefferson,

Inc. v. Se. Med. All., Inc., 123 F.3d 301, 305 (5th Cir. 1997) (finding antitrust injury, for

purposes of standing, was aptly demonstrated by plaintiff, a direct competitor of the

alleged monopolist who colluded with a third party to remove plaintiff from the relevant

market and weaken its competitive state). Therefore, the Court finds that UHS has

sufficiently alleged antitrust injury for standing purposes.

III. Section 1 of the Sherman Act

Title 15, United States Code, Section 1 prohibits any contract, combination, or

conspiracy that unreasonably restrains trade. Over a century of Supreme Court

interpretation of Section 1 has distilled its expansive definition into a number of well-

recognized causes of action, such as vertical and horizontal price fixing, tying agreements,

and exclusive dealing agreements. Holmes and Mangiaracina, Antitrust Law Handbook §

2.2. Here, UHS’s complaint does not coherently describe one of the more familiar

formulary, or established an outpatient imaging center, allegedly would have decreased

costs or increased profitability. For these, there is no suggestion that they would have

harmed, or in the converse, helped patients or the consumer market. The Court will

not consider those allegations for purposes of assessing whether UHS has alleged an

antitrust injury, as the antitrust laws protect competition, not the competitor. Brooke

Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 225 (1993). The Court is

concerned with harm to UHS only insofar as that harm resulted in a concomitant effect

upon consumer costs, the quality of care, access to care, and patient choice. With that

in mind, the Court deems sufficient the allegations regarding the narrow insurance

network, co-management of certain departments, improvements upon physician

productivity, recruitment of or privileges to new physicians, staffing of clinics, Dr.

Nanda’s termination, and improved clinical documentation.

antitrust allegations, however, its opposition to the motion to dismiss clarifies that it has

alleged an unlawful vertical integration.

There are three elements of a Section 1 claim: (1) a conspiracy; (2) that restrained

trade; (3) in the relevant market. Golden Bridge Tech., Inc. v. Motorola, Inc., 547 F.3d

266, 271 (5th Cir. 2008). “Antitrust claims do not necessitate a higher pleading standard

and a plaintiff need only plead enough facts to state a claim to relief that is plausible on

its face.” Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 373 (5th

Cir. 2014) (internal marks omitted). Only the sufficiency of the first element—

conspiracy—was challenged by Willis-Knighton’s motion to dismiss.5

5 Although they are not at issue in this opinion, the Fifth Circuit has set forth the analysis

for the other elements:

Once a plaintiff establishes that a conspiracy occurred, whether it violates

§ 1 is determined by the application of either the rule or the rule of

reason. The rule is appropriate only after courts have had

considerable experience with the type of restraint at issue and only if courts

can predict with confidence that it would be invalidated in all or almost all

instances under the rule of reason. Moreover, the rule should only

be applied when conduct is so pernicious and devoid of redeeming virtue

that it is condemned without inquiry into the effect on the market in the

particular case at hand.

Under a rule of reason analysis, the factfinder considers all of the

circumstances to determine whether a restrictive practice imposes an

unreasonable restraint on competition. The court’s considerations should

include the restrictive practice’s history, nature, and effect and whether the

businesses involved have market power. Market power has been defined as

the ability to raise prices above those that would be charged in a

competitive market. The rule of reason analysis also requires that the

plaintiff show that the defendants’ activities injured competition. The rule

of reason is designed to help courts differentiate between restraints with

anticompetitive effect that are harmful to the consumer and restraints

stimulating competition that are in the consumer’s best interest. Regardless

of which rule applies, the court’s inquiry should ultimately focus upon

forming a judgment about the competitive significance of the restraint.

A. Conspiracy

Willis-Knighton submits that UHS has failed to sufficiently plead a conspiracy

between it and LSU Health Shreveport under Section 1 of the Sherman Act. In response,

UHS argues that it has adequately alleged that Willis-Knighton threatened LSU Health

Shreveport into unlawfully restraining UHS’s ability to compete by making Willis-

Knighton’s monetary contributions contingent upon LSU Health Shreveport’s accession to

its demands. The Court disagrees.

“Section 1 of the Sherman Act does not proscribe independent conduct.” Viazis v.

Am. Ass’n of Orthodontists, 314 F.3d 758, 761 (5th Cir. 2002) (citing Monsanto Co. v.

Spray–Rite Serv. Corp., 465 U.S. 752, 761 (1984)). Thus, a Section 1 violation requires

concerted action. To be sure, “[t]he crucial question is whether the challenged

anticompetitive conduct stems from independent decision or from an agreement, tacit or

express.” Twombly, 550 U.S. at 553 (internal marks omitted).

To satisfy this inquiry in the present case, UHS must show that Willis-Knighton

“engaged in concerted action, defined as having a ‘conscious commitment to a common

scheme designed to achieve an unlawful objective.’ ” Golden Bridge Tech., 547 F.3d at

271 (quoting Monsanto, 465 U.S. at 764). Under Twombly, to successfully plead a Section

1 claim, the complaint must assert sufficient facts to suggest an agreement was made;

that is, enough factual matter “to raise a reasonable expectation that discovery will reveal

evidence of illegal agreement.” Twombly, 550 U.S. at 556. Parallel business behavior,

i.e., parallelism, does not constitute a conspiracy, nor does a “conclusory allegation of

Marucci Sports, 751 F.3d at 374 (cleaned up).

agreement at some unidentified point . . . supply facts adequate to show illegality.” Id.

at 556-57. A plaintiff’s allegations must plausibly suggest the unlawful agreement, not

simply be consistent with an agreement. Id. at 557. Without context showing “a meeting

of the minds,” the defendant’s conduct remains “in neutral territory.” Id.

As a preliminary matter, per the instructions of Iqbal and Twombly, this Court must

disregard the complaint’s conclusory and formulaic assertions, as those are not entitled

to a presumption of truth. The remaining allegations must then be examined to

determine whether they plausibly suggest entitlement to relief. As the district court

explained in Dowdy & Dowdy Partnership v. Arbitron, Inc.,:

A “bare allegation of conspiracy” and “a conclusory allegation of agreement

at some unidentified point” are insufficient to plead illegal antitrust activity.

Not only does the naked allegation of a conspiracy, without additional facts,

not state a plausible antitrust claim, such conclusory allegations are not

entitled to be accepted as true for the purposes of this motion.

Dowdy & Dowdy P’ship v. Arbitron Inc., No. 2:09CV253 KS-MTP, 2010 WL 3942755, at

*3 (S.D. Miss. Oct. 6, 2010) (internal citations omitted).

Here, although the complaint repeatedly uses the term “threat,” what actually

constitutes a threat seems to be a more complicated question than UHS has recognized.

Within the context of the case and in light of the way in which the complaint was drafted,

the Court finds the use of the term “threat” is a legal conclusion masquerading as a fact.

Other problematic areas within the complaint include UHS’s allegation that Willis-Knighton

threatened to pull its existing financial support if LSU Health Shreveport refused to

participate in Willis-Knighton’s “scheme” to harm UHS. Record Document 1 at 14.

Disregarding the use of the term threat, the allegation is still in peril, as it relies broadly

on the existence of a scheme, when one is never sufficiently alleged. UHS also generally

alleges that Willis-Knighton made “promises to provide [and] threats to withhold funds

based on LSU’s acquiescence in its demands . . . .” Id. at 22. Again, however, the so-

called “demands” are never described in terms that are nonconclusory or nonspeculative.

These allegations will not be given the presumption of truth.

The Court has examined UHS’s actual factual allegations to determine whether

they plausibly state a claim under Section 1 of the Sherman Act. Despite spanning

seventy-six pages, the complaint is lacking in detail. “A complaint can be long-winded,

even prolix, without pleading with particularity. Indeed, such a garrulous style is not an

uncommon mask for an absence of detail.” Southland Sec. Corp. v. INSpire Ins. Sols.,

Inc., 365 F.3d 353, 362 (5th Cir. 2004) (quoting Williams v. WMX Techs., Inc., 112 F.3d

175, 178 (5th Cir. 1997)). UHS’s claims of antitrust conspiracy rest on four bases:

(1) Elrod’s involvement: (a) his 2012 statement to the Willis-Knighton Board

that it would continue to fund LSU Health Shreveport so long as the two

entities remained partners, not competitors; (b) his 2013 comment at a

Willis-Knighton Board meeting that Willis-Knighton would continue to

support the medical school so long as LSU Health Shreveport’s business

model was not in direct competition with Willis-Knighton and Willis-Knighton

could have some oversight; and (c) his 2017 deposition testimony in which

he agreed that the medical school would have a difficult time surviving

without Willis-Knighton;

(2) Yick’s involvement: (a) Willis-Knighton’s 2016 PowerPoint presentation

to Yick that represented it was willing to increase its funding of programs

and services to LSU Health Shreveport if there was “increased cooperation

from leadership and the faculty”; (b) Yick’s 2016 email stating that LSU

Health Shreveport still needed to raise $50 million in mission support, that

Willis-Knighton “is our mother lode,” and his opinion that LSU Health

Shreveport’s energy needed to be spent on rebuilding rather than

collaborating with UHS; (c) his report that Willis-Knighton had “conceptually

agreed to provide working capital” to the medical school; and (d) his

statement that letters of intent into which LSU had entered with other

hospitals, aside from Willis-Knighton, were “initially just for cover”;

(3) Willis-Knighton’s referral shortage; and

(4) LSU Health Shreveport’s refusals to cooperate with UHS, including Dr.

Ghali’s statement that he did not enter into a narrow insurance network

with Blue Cross because it would have angered Elrod.

As these bases are interdependent, the Court’s analysis must view them jointly to

determine whether UHS has alleged a plausible Section 1 claim.6 The Court finds that all

of UHS’s factual allegations suffer from the same deficit: UHS has not pleaded sufficient

facts to suggest a prior agreement existed between Willis-Knighton and LSU Health

Shreveport to unreasonably restrain trade of medical services. “[R]esisting competition

is routine market conduct.” Twombly, 550 U.S. at 566. As the Supreme Court has

explained, when examining a Section 1 claim, “[c]ircumstances must reveal ‘a unity of

purpose or a common design and understanding, or a meeting of minds in an unlawful

arrangement.’ ” Monsanto, 465 U.S. at 764 (quoting Am. Tobacco Co. v. United States

328 U.S. 781, 810 (1946)). Thus, the Court must determine whether there is concerted

6 While the Court has not tightly compartmentalized each set of allegations, analyzed

them independently, and wiped the slate clean after each examination, it does note that

the Fifth Circuit has expressed doubt as to whether instances of alleged conduct, which

individually are not anticompetitive, can be aggregated to be considered cumulatively

anticompetitive. Retractable Techs., Inc. v. Becton Dickinson & Co., 842 F.3d 883, 892

(5th Cir. 2016) (citing with approval City of Groton v. Conn. Light & Power, 662 F.2d

921, 928 (2d Cir. 1981) (holding alleged instances of misconduct, none of which is

anticompetitive, cannot be cumulatively anticompetitive.)). The Retractable

Technologies opinion explained that there has been no case since its 1980 decision in

Associated Radio Services Co. v. Page Airways, Inc., 624 F.2d 1342, 1356 (5th Cir.

1980), in which “a congeries of business torts was found so egregious as to constitute

actionable predatory or exclusionary conduct.” Id. Nonetheless, in the instant case,

the Court’s antitrust analysis has been as coterminous as UHS’s complaint and the law

allow.

action, and if so, whether that concerted action was the result of a meeting of the minds

to agree to restrain competition. See Marucci Sports, 751 F.3d at 375 (instructing that

the “pivotal question is whether the concerted action was a result of an agreement . . .

to unreasonably restrain trade.”).

Here, the complaint does not allege facts demonstrating an intention on the part

of LSU Health Shreveport to engage in a conspiracy. See id. at 378-79 (complaint

dismissed because plaintiff failed to set forth facts showing a meeting of the minds or

any actual agreement among the conspirators). As to the statements made by Elrod to

the Willis-Knighton Board in 2012 and 2013, these two statements were made three and

four years prior to the alleged antitrust activity in this case. Further, Elrod’s comments

were made to his own Board, not to LSU Health Shreveport. UHS has not alleged that

the statements were ever communicated to LSU Health Shreveport or that LSU Health

Shreveport ever learned of them. There is no suggestion that these statements were

repeated at a time more contemporaneous with the alleged conspiracy. These

statements do not plausibly suggest a conspiracy.

Nonetheless, using the 2016 PowerPoint presentation to Yick, UHS makes

inferential leaps to connect Elrod’s historical statements to Yick’s more contemporaneous

comments, thereby deducing a conspiratorial link exists. However, Yick’s statements,

even when viewed against the backdrop colorfully painted by UHS, still do not plausibly

suggest a conspiracy to restrain competition.

UHS argues LSU Health Shreveport was desperate for money and that, in exchange

for the money it so badly needed, Willis-Knighton required LSU Health Shreveport to

accede to its unlawful, anticompetitive whims by halting UHS’s competitive momentum.

UHS, however, cannot survive Rule 12(b)(6) scrutiny simply by supplanting its subjective

beliefs for facts. There is a paucity of facts to entitle UHS to the inferences upon which

its claims are premised. The complaint is silent as to (1) when, where, or how the

conspiracy was formed; (2) whether Willis-Knighton communicated with LSU Health

Shreveport about the conspiracy; (3) whether LSU Health Shreveport communicated with

Willis-Knighton about the conspiracy; and (4) whether they shared a common intent or

meeting of the minds to restrain trade.

UHS points out that it is not required to set forth a “specific time, place, or person”

for its conspiracy allegations. See In re Pool Prod. Distrib. Mkt. Antitrust Litig., 988 F.

Supp. 2d 696, 715 (E.D. La. 2013). It is, however, required to “allege the general

contours of when an agreement was made, supporting those allegations with a context

that tends to make said agreement plausible.” Id. Like the district court in Pool Products,

the Court here is unable to infer the “general contours of when the alleged agreement

was made or even what, precisely, the agreement was.” Id. at 719. That is, the Court

cannot discern what the agreement was or when it was confected; there is no description

of how or under what terms the agreement was reached, nor is there a mention of the

extent of the agreement. See id. at 721 (noting that “[s]uch vague conspiracy claims

rarely pass muster under Rule 8 and Twombly”) (collecting cases). UHS also argues that

it does not need to establish that LSU Health Shreveport communicated with Willis-

Knighton on each of its decisions, as LSU Health Shreveport was aware of the overall

threat. While it is true that an express agreement on every detail is not required, it is

equally true that the law demands more than what is alleged here. There still must be

an agreement to a scheme and an agreement to work together to further a common goal.

UHS’s complaint has failed to satisfy that standard.

As to the alleged starvation of referrals used by Willis-Knighton to threaten non-

compliant physicians, UHS claims this “threat” was contained within Elrod’s book, which

was generally available to those in the relevant healthcare market who wanted to read

it.7 The allegation itself lacks context and contour. Even if the book was generally

available in the marketplace, UHS alleges no fact from which to infer that LSU Health

Shreveport, as an entity, knew of Elrod’s statements, knew of the practice generally, felt

threatened by it, and felt threatened enough to engage in a conspiracy. Without

additional factual context, this allegation is too specious to withstand scrutiny.

As to Elrod’s 2017 deposition testimony, his statement does not demonstrate any

conspiracy or agreement between Willis-Knighton and LSU Health Shreveport. It is a

factual statement, not wholly untrue, provided in a vacuum without any surrounding

context. Even when viewed in light of UHS’s other allegations, it fails to demonstrate any

meeting of the minds or agreement to coerce LSU Health Shreveport into refusing

cooperation with UHS.

7 The Court notes that in the 2015 case, it concluded that Willis-Knighton’s control of

physician referrals was not anticompetitive under Section 2 of the Sherman Act because

it did not lack competition on the merits. BRFHH Shreveport, LLC v. Willis Knighton

Med. Ctr., 176 F. Supp. 3d 606, 625–26 (W.D. La. 2016). That is, the practice had a

rational business purpose (treatment of more patients) and Willis-Knighton could not

have accomplished the acts without the consent and participation of consumers. Id. at

625.

Finally, UHS argues that LSU Health Shreveport’s refusals to cooperate are each

discrete overt acts taken in furtherance of the conspiracy. UHS contends that Dr. Ghali’s

statement—that entering into a narrow insurance network with Blue Cross would have

angered Elrod—is evidence of an overt act taken in furtherance of the conspiracy. An

overt act is an act taken in furtherance of a conspiracy only so long as there is, in fact, a

conspiracy in existence; otherwise, the act is just an act. Again, UHS has used a broad

brush to paint all unfavorable decisions as ones caused by a conspiracy against it. To

the contrary, broad brushes and generalized theories of long-standing coercion cannot

withstand Rule 12(b)(6) scrutiny.

UHS insists the only reason LSU Health Shreveport would decline its opportunities

is if it was coerced by Willis-Knighton because, according to UHS, the decisions were

against LSU Health Shreveport’s best interests. UHS’s case can be summed up thusly—

there must have been an unlawful agreement to conspire against and harm UHS because

UHS cannot otherwise understand why LSU Health Shreveport would not have jumped at

the chance to implement all of UHS’s good ideas. Yet, LSU Health Shreveport was entitled

to decline business endeavors that would jeopardize its relationship with a donor without

running afoul of antitrust laws. Indeed, “one might refrain from taking an otherwise

profitable step because someone else has the power to make it unacceptably costly . . .

such inaction serves the decisionmaker’s long-run interest, taking the third party’s power

into account.” In re Pool Prod. Distrib. Mkt. Antitrust Litig., 988 F. Supp. 2d at 718

(quoting 6 Phillip Areeda & Herbert Hovencamp, Antitrust Law ⁋ 1415c (3d ed. 2010)).

These allegations, without more, fall short of establishing a conspiracy between Willis-

Knighton and LSU Health Shreveport, in which both entities agreed to work together to

restrain UHS’s ability to compete in the marketplace.

The gravamen of UHS’s case is that Willis-Knighton threatened LSU Health

Shreveport, LSU Health Shreveport felt threatened and thus agreed to Willis-Knighton’s

demands, and LSU Health Shreveport refused to cooperate with UHS. Unfortunately,

UHS has committed a logical fallacy by (1) observing past behavior by Willis-Knighton,

(2) observing a current unfavorable situation with LSU Health Shreveport, and (3)

deducing that LSU Health Shreveport’s behavior must have been caused by Willis-

Knighton. Put in the familiar A + B = C equation, with “A” being Willis-Knighton’s

“ruthless” competition and “C” being LSU Health Shreveport’s rejection of additional joint

endeavors, UHS’s complaint is missing “B”—that is, the other element that plausibly

supports the inference that Willis-Knighton LSU Health Shreveport’s behavior.

Under Monsanto, there must be a meeting of the minds. The Supreme Court has defined

that as something more than mere acquiescence. “A manufacturer of course generally

has a right to deal, or refuse to deal, with whomever it likes, as long as it does so

independently.” Monsanto, 465 U.S. at 761. The manufacturer can announce its decision

in advance and “refuse to deal with those who fail to comply.” Id. The downstream

entity “is free to acquiesce” in the demand “in order to avoid termination.” Id. A

conspiracy requires “more than a showing that the distributor conformed . . . . It means

as well that evidence must be presented both that the distributor communicated its

acquiescence or agreement, and that this was sought by the manufacturer.” Monsanto,

465 U.S. at 764 n.9.

UHS is required to sufficiently plead an agreement, a meeting of the minds.

“Absent any agreement, there is no Section 1 claim, because an anticompetitive

agreement is the of a Section 1 violation.” In re Pool Prod. Distrib. Mkt.

Antitrust Litig., 988 F. Supp. 2d at 708. Here, what led to LSU Health Shreveport’s

decision not to engage in additional joint endeavors is sheer speculation. There are

insufficient allegations to plausibly suggest that Willis-Knighton actually threatened LSU

Health Shreveport and, there is even less to suggest that LSU Health Shreveport entered

into an unlawful conspiracy with Willis-Knighton to comply with its demands.

In sum, notably absent from UHS’s complaint is the critical linkage between Willis-

Knighton and LSU Health Shreveport, in terms of communications, timing, intent, and

conduct. Like Twombly, UHS’s complaint is rife with “legal conclusions resting on the

prior allegations.” Twombly, 550 U.S. at 564. UHS argues that it is entitled to reasonable

inferences, which ostensibly should result in a plausible showing of a conspiracy to

restrain competition. However, a plaintiff must first allege a fact from which the

inferential leap can be made. An inference cannot exist without the underlying premise.

In the law, these premises must take the form of nonspeculative allegations of fact.

Without those, no reasonable inferences may be drawn at all. See Marucci Sports, 751

F.3d at 375 (explaining that when the complaint “presents various conclusory allegations

that support one of many inferential possibilities,” it falls short of Twombly’s pleading

standards.). The Court finds that UHS has failed to sufficiently plead a claim under

Section 1 of the Sherman Act, and therefore this claim shall be dismissed with prejudice.

IV. Section 2 of the Sherman Act

Section 2 of the Sherman Act prohibits the monopolization or attempted

monopolization of any trade or commerce.8 15 U.S.C. § 2. In contrast to Section 1,

Section 2 of the Sherman Act “covers both concerted and independent action, but only if

that action monopolizes or threatens actual monopolization, a category that is narrower

than restraint of trade.” Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 190

(2010) (internal citations and quotations omitted). A defendant is liable for

monopolization under Section 2 when it (1) possesses monopoly power9 and (2) achieves

or maintains its monopoly power through anticompetitive conduct. See 15 U.S.C. § 2;

Verizon Commc’ns, Inc. v. Law Offs. of Curtis V. Trinko, 540 U.S. 398, 407-08 (2004);

Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 522 (5th Cir. 1999) (the monopolist

must have “acquired or maintained that power wilfully, as distinguished from the power

having arisen and continued by growth produced by the development of a superior

product, business acumen, or historic accident.”) (citing United States v. Grinnell Corp.,

384 U.S. 563, 570-71 (1966)).

8 UHS has alleged both monopolization and attempted monopolization in violation of

Section 2. These claims are indistinguishable for the purposes of evaluating Willis-

Knighton’s dismissal arguments. Because anticompetitive conduct is an element of both,

Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993), the viability of either

claim is dependent upon UHS’s ability to sufficiently plead anticompetitive conduct.

9 To establish Section 2 violations asserting monopolization, a plaintiff must define the

relevant market. Doctor’s Hosp., 123 F.3d at 311. The Court assumes for present

purposes that the healthcare market in the Shreveport-Bossier City area is a relevant

antitrust market.

A. Anticompetitive Conduct

As to the first element, Willis-Knighton’s pleadings do not address, and thus do not

challenge, whether it possesses monopoly power. As such, this Court will assume

arguendo that UHS has successfully alleged facts demonstrating that Willis-Knighton

possesses monopoly power.

Willis-Knighton instead focuses on the second element, arguing that UHS’s

complaint has failed to sufficiently plead anticompetitive conduct. The necessity of

proving anticompetitive conduct, in addition to monopoly power, reflects federal courts’

judgment that in the short term, the monopolist’s ability to charge above-market prices

invites more, rather than less, competition. Trinko, 540 U.S. at 407 (“The opportunity to

charge monopoly prices . . . induces risk taking that produces innovation and economic

growth.”). Thus, while the definition of anticompetitive conduct10 has many accepted

permutations, the essence of the conduct that it makes actionable is the achievement or

maintenance of monopoly power by means other than competition on the merits. See

Stearns Airport Equip., 170 F.3d at 522 (citing Aspen Skiing Co. v. Aspen Highlands Skiing

Corp., 472 U.S. 585, 605 (1985) (“If a firm has been attempting to exclude rivals on some

basis other than efficiency, it is fair to characterize its behavior as [anticompetitive].”));

see also United States v. Microsoft Corp., 253 F.3d 34, 58–59 (D.C. Cir. 2001) (to be

condemned as anticompetitive under Section 2, the conduct “must harm the competitive

process and thereby harm consumers.”). In the Fifth Circuit, proving anticompetitive

10 Courts also label anticompetitive conduct exclusionary conduct, predatory conduct,

and improper conduct. See Taylor Pub. Co. v. Jostens, Inc., 216 F.3d 465, 475 n.2 (5th

Cir. 2000) (“We use the terms ‘predatory’ and ‘exclusionary’ interchangeably . . . .”).

conduct also “[g]enerally” requires “some sign that the monopolist engaged in behavior

that—examined without reference to its effects on competitors—is economically

irrational.” Stearns Airport Equip. Co., 170 F.3d at 523. Hence, UHS must allege

exclusionary conduct to survive the instant motion. Under Twombly, UHS’s complaint

must plead facts that, when viewed together, make anticompetitive conduct plausible.

See Twombly, 550 U.S. at 555; Assoc. Radio Serv. Co., 624 F.2d at 1356.

The key factor in the inquiry is “the proffered business justification for the act. If

the conduct has no rational business purpose other than its adverse effects on

competitors, an inference that it is exclusionary is supported.” Clean Water Opportunities,

Inc. v. Willamette Valley Co., 759 F. App’x 244, 248 (5th Cir. 2019) (quoting Stearns

Airport Equip. Co., 170 F.3d at 522). Nonetheless, as the Fifth Circuit has cautioned,

“not all unfair conduct—even by a monopolist and a fortiori by one who is not—fits within

the prohibition of § 2. Conduct must not only be inconsistent with competition on the

merits, it must also have the potential for making a significant contribution to monopoly

power.” Taylor Pub. Co., 216 F.3d at 475–76 (quoting 3A Areeda & Hovencamp ⁋806d,

at 331). The rationality of the defendant’s business decision is a significant, yet not

dispositive, factor in ascertaining whether conduct is exclusionary. Clean Water

Opportunities, 759 F. App’x 248. Under Stearns, courts are also to consider whether the

exclusionary conduct required the active approval of the consumer or whether there was

the potential existence of bribery or threats that tainted an otherwise independent

business decision. See Stearns Airport Equip., 170 F.3d at 524–27.

In the instant case, UHS’s efforts to allege anticompetitive conduct under Section

2 fall short for the same reason its Section 1 claim failed. In short, its claim hinges on

speculation and subjective beliefs, not facts and the reasonable inferences to be drawn

therefrom. Setting aside UHS’s bare allegations, legal conclusions, and speculation, the

lack of actual facts in the complaint makes it nearly impossible to define what Willis-

Knighton even did that is deemed exclusionary. Several years before the antitrust

violations allegedly occurred, Willis-Knighton told its Board members that it would not

fund a competitor. Three to four years later, Yick stated that Willis-Knighton conceptually

agreed to provide the hospital with funding. Prior to and during this time was the

pervasive, long-term threat of a referral starvation. Despite these allegations, the

complaint fails to enunciate or describe any acts taken by Willis-Knighton that this Court

could use to dissect whether Willis-Knighton acted anticompetitively, or rather, whether

this was just business—unfair, tortious, or otherwise. There is, in fact, a great distinction

between antitrust activity and victorious, if unrelenting, business practices.11 Indeed,

“[c]ompetition, even the maintenance of monopoly, through superior business acumen is

allowed under section 2.” Stearns Airport Equip., 170 F.3d at 527.

11 As the Fifth Circuit instructed, the “distinction between unfair conduct and

anticompetitive conduct is critical to maintain because the antitrust laws ‘do not create

a federal law of unfair competition or purport to afford remedies for all torts committed

by or against persons engaged in interstate commerce.’ ” Retractable Techs., 842 F.3d

at 892–93 (quoting Brooke Grp. Ltd., 509 U.S. at 225) (internal marks omitted). The

Supreme Court has stressed that “[e]ven an act of pure malice by one business

competitor against another does not, without more, state a claim under the federal

antitrust laws.” Brooke Grp., 509 U.S. at 225.

UHS argues that Willis-Knighton’s insistence or demand that LSU Health

Shreveport’s “medical staff not cooperate with the hospital with which it primarily works”

cannot be deemed competition on the merits for antitrust purposes. In doing so, it

repeats its familiar refrain that Willis-Knighton’s actions were designed to limit UHS’s

competitive abilities. Nonetheless, reurging a conclusory allegation, without more, does

not make the allegation plausible. The pleading woes that plagued UHS’s Section 1 claim

similarly doom its Section 2 claim. UHS’s theories are dependent upon a sufficient

showing of a threat, or coercion, or even an insistence, all of which lack a plausible

showing in the complaint.

Even assuming UHS had sufficiently pleaded a threat or demand regarding Willis-

Knighton’s donations, Willis-Knighton contends that its business decisions are not

anticompetitive. That is, any business would refrain from donating to another if the

donee intended to help a competitor harm the donor. UHS counters that “when that

‘harm’ is simple competition, an action taken to preclude it is classic exclusionary

conduct.” Record Document 27 at 26. The distinction UHS fails to account for is that an

action to competition is different than an action because it would

or subsidize the competition. Despite many statements implying the contrary, UHS

eventually concedes that the antitrust laws do not require Willis-Knighton to subsidize its

own competition. Id. at 29. Nonetheless, UHS avers that an “antitrust violation arose

when Willis-Knighton indicated that it would only provide funds on

actions.” Id. (emphasis in original). But here again, the complaint lacks

sufficient allegations to plausibly suggest both the contingent nature of the funding, as

well as the anticompetitive actions Willis-Knighton allegedly took. The complaint fails to

contain the requisite material to nudge UHS’s claim over the line from conceivable to

plausible as demanded by Twombly. For these reasons, the Court concludes that UHS’s

complaint has failed to sufficiently allege anticompetitive conduct, and thus its claim

under Section 2 of the Sherman Act must fail. This claim shall be dismissed with

prejudice.

V. Immunity Arguments

Willis-Knighton has also challenged UHS’s complaint on immunity grounds, arguing

the shield of both the Noerr-Pennington Doctrine as well as the State Action Doctrine.

Because the Court finds both Section 1 and Section 2 claims were insufficiently pleaded

and cannot survive the motion to dismiss, it need not address Willis-Knighton’s remaining

contentions.

Conclusion

The Court does not render its decision today based on a disbelief or skepticism of

UHS’s allegations. Indeed, Rule 12(b)(6) does not countenance such a dismissal on those

grounds. Rather, taking the factual allegations as true and making all reasonable

inferences in favor of UHS, the Court is nonetheless constrained to find that the complaint

has failed to plausibly state a claim for relief. For these reasons, Willis-Knighton’s motion

to dismiss [Record Document 20] is hereby GRANTED. UHS’s antitrust violations against

Willis-Knighton are dismissed with prejudice.

A judgment consistent with the terms of this Memorandum Ruling shall issue

herewith.

THUS DONE AND SIGNED this 22th-day of September, 2021.

add

ELIZABRAH ERNY ROOTE<” Ss

U BSA DISTRICT JUDGE

34