# BOUFFARD v. LABORATORY CORPORATION OF AMERICA HOLDINGS

> District Court, M.D. North Carolina · February 13, 2023

URL: https://www.frixlaw.com/law-library/cases/10254229

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** February 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254229

## How later opinions describe it (automated extraction)

- noting that if the jury or factfinder’s “finding on any fact differs from a finding made in connection with class action certification, the ultimate factfinder’s finding on the merits will govern the judgment”
- stating that a district court must definitively determine that the requirements of Rule 23 have been satisfied and that “[c]ertifying a class in the face of . . . uncertainty runs afoul of the rule that ‘actual, not presumed, conformance with Rule 23(a) [is] . . . indispensable’”
- discussing, in class action antitrust claim context, the requirement that the plaintiffs establish proof of damages

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SHERYL ANDERSON, MARY CARTER, )
ROBERT HUFFSTUTLER, RAMZI )
KHAZEN, CHAIM MARCUS, LILY )
MARTYN, JONAH MCCAY, HOLDEN )
SHERIFF, MICHELLE SULLIVAN, )
SHONTELLE THOMAS, and JOSEPH )
WATSON, individually and on )
behalf of all, )
)
Plaintiff, )
) 1:17cv193
v. )
)
LABORATORY CORPORATION OF )
AMERICA HOLDINGS, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.
This putative class action challenging the billing practices
of Defendant Laboratory Corporation of America Holdings
(“LabCorp,” although sometimes intermittently referred to by the
parties as “Labcorp”) returns to the court on Plaintiffs’ motion
for class certification pursuant to Federal Rule of Civil Procedure
23(b)(2) and 23(b)(3). (Doc. 99.) The motion is fully briefed,
and the record is voluminous. (Docs. 111, 126, 190, 191, 192,
194, 213, 214.) Plaintiffs and LabCorp also filed a joint motion
to seal materials relating to class certification. (Docs. 196,
197.) Plaintiffs filed an objection to the joint motion (Doc.
198), and LabCorp filed a reply (Doc. 199). On November 8, 2022,
the court heard oral argument on the pending motions. (Doc. 210.)
For the reasons set forth below, the joint motion to seal will be
granted and the motion for class certification will be denied.
I. BACKGROUND
A. Facts
The 138-page amended complaint, complete with a table of

contents, contains extensive factual allegations about LabCorp,
its “business model,” and Plaintiffs’ various claims. The key
allegations are as follows, while more detailed allegations
relevant to the analysis are set out later in this opinion.
LabCorp provides laboratory testing services to healthcare
recipients internationally. (Doc. 42 ¶ 1.) It has more than 115
million patient encounters annually and has “generated more
revenue from clinical lab testing services than any other company
in the world.” (Id.) Its “LabCorp Diagnostics” segment is an
independent clinical laboratory business that provides the
services that are the subject of Plaintiffs’ amended complaint.

(Id. ¶¶ 44–45.) LabCorp’s customers are managed care
organizations, biopharmaceutical companies, governmental
agencies, physicians and other healthcare providers, hospitals,
employers, patients, and consumers. (Id. ¶ 47.)
LabCorp routinely charges different customers different rates
for the same services. These rates include an undiscounted retail
rate, which Plaintiffs variously term the “fee schedule rate,”
“list price” (or “PLP”), and “chargemaster rate” (hereinafter,
“list price”); the discounted rates LabCorp has negotiated with
certain third-party payors, such as insurers; a standardized rate
for Medicare clients; and rates that LabCorp negotiates with
certain uninsured or underinsured individuals. (Id. ¶¶ 41, 48–
49, 70–71, 87, 211.) These rates vary greatly, but the list prices

tend to be much higher than the other rates. (Id. ¶¶ 5, 469.)
There are eleven Plaintiffs seeking class certification.1
(Id. ¶¶ 23–36.) Their common complaint is that they were provided
services by LabCorp for which they were charged LabCorp’s list
price, which they allege is grossly too high and without any prior
agreement. Some Plaintiffs — Michelle Sullivan, Mary Carter, and
Chaim Marcus — arranged for their diagnostic testing at a LabCorp
facility, presumably in their states of residence, California,
Maryland, and New Jersey, respectively.2 (Id. ¶¶ 24, 28, 33, 149,
227, 323.) Others, including Shontelle Thomas (resides in
Tennessee), and Lily Martyn (resides in New York but had services

performed in North Carolina), authorized their physicians to order
laboratory testing without knowing what lab would do the work.

1 There were initially fourteen Plaintiffs. (Doc. 111.) At the hearing
on the class certification motion held on November 8, 2022, however,
Plaintiffs’ counsel confirmed that former Plaintiff Victoria Smith is
no longer in the case, and Plaintiffs Tena Davidson and Michael Wilson
are only pursuing individual claims. (Doc. 210 at 21-22.)

2 Unlike the other Plaintiffs, Marcus procured testing services for his
two sons, not himself. (Doc. 42 ¶¶ 225–31.)
(Id. ¶¶ 29, 34, 240–42, 345–47.) Still others, including
Sheryl Anderson (resides in Alabama) and Ramzi Khazen (resides in
Texas), had blood drawn by their health care providers who sent
the specimens to LabCorp without advising either Plaintiff that
the sample was being sent to any laboratory testing company. (Id.
¶¶ 23, 27, 121–25, 203-05.) At the time the services were

rendered, none of these Plaintiffs had an express agreement with
LabCorp to pay the list prices LabCorp subsequently charged.
(E.g., id. ¶ 111, 156-58, 229, 325.) Most Plaintiffs had health
insurance, but the relevant testing performed by LabCorp was not
covered by their policies; Martyn and Thomas were uninsured. (Id.
¶¶ 122, 148, 167, 176, 203, 225–26, 239, 253, 278, 297, 322, 344,
360, 379.) As a result, Plaintiffs were charged LabCorp’s list
prices. Some Plaintiffs paid the charges under protest, while
others have refused to pay.
B. Procedural History
Plaintiffs filed an eight-count complaint on March 8, 2017.

(Doc. 1.) On March 28, 2018, the court granted LabCorp’s motion
to dismiss the original complaint in a memorandum opinion and order
finding that the allegations failed to state a claim upon which
relief could be granted. See Sullivan v. Laboratory Corp. of
America Holdings, No. 1:17cv193, 2018 WL 1586471 (M.D.N.C.
Mar. 28, 2018). On August 10, 2018, after the court granted leave,
Plaintiffs filed an amended complaint. (Doc. 42.) The amended
complaint contains eleven claims, each on behalf of a putative
class. In Count I, Plaintiffs seek a declaratory judgment that
they never contractually assented to LabCorp’s list prices, and
therefore that LabCorp’s right of recovery against them for the
relevant laboratory testing services is limited to an implied-
contract recovery of the “reasonable value” of the services

rendered. (Id. ¶¶ 466–68.) Further, Plaintiffs seek a declaration
that LabCorp’s list prices exceed the “reasonable value” of its
services. (Id. ¶ 470.) In Count II, as to all Plaintiffs who
paid LabCorp’s list prices, Plaintiffs seek to recoup the amounts
they paid above the “reasonable value” of the services rendered.
(Id. ¶¶ 480–82.) In Counts III–XI, Plaintiffs allege that
LabCorp’s billing practices violate various consumer protection
statutes prohibiting unfair or deceptive trade practices in North
Carolina, Alabama, California, Florida, Maryland, New Jersey,
Tennessee, and Texas. (Id. ¶¶ 483–555.)
On August 16, 2019, this court granted LabCorp’s subsequent

motion to dismiss the amended complaint in part, dismissing Count
II and any claim in Counts III-XI based on nondisclosure of CPT
codes, and denied in part as to all other claims. (Doc. 55.)
Following discovery, Plaintiffs filed the present class
certification motion (Doc. 99), which is fully briefed (Docs. 111,
126, 190, 191, 192, 194, 213, 214, 218, 219, 220, 223) and ready
for decision.3 The court also held extensive oral argument on the
claims on November 8, 2022.
II. ANALYSIS
A. Motion for Class Certification
1. Legal Standard
Plaintiffs move to certify one class and three subclasses

under Federal Rule of Civil Procedure 23: the nationwide “Common
Law Class” under Count I, composed of “Labcorp patients in the
United States who, without any express contract with Labcorp that
establishes the amount of fees to be paid to Labcorp, were charged
based on [the list price] in excess of the reasonable market rate
for the clinical lab testing services Labcorp performed” (Doc. 111
at 25);4 the “Misleading Estimate Subclass” under Counts III, IV,
VII, VIII, IX, X, and XI, composed of “Labcorp patients who were
provided a written statement describing potential charges not
based on [the list price], but were charged based on [the list
price] in excess of the reasonable market rate for the clinical

lab testing services Labcorp performed” (id. at 25-26); the “Urine
Testing Subclass,” composed of LabCorp patients in the United

3 The parties filed evidence and briefs under seal which “contain
sensitive personal health information, Labcorp’s nonpublic business
information, and analysis describing confidential information of a non-
party competitor to LabCorp.” (See Doc. 197 at 2.)

4 All citations to the record are to the paragraph number or ECF docket
page except for testimony.
States “who were overbilled for urine testing” done “in violation
of industry practice” (id. at 26, 36); and the “Select Silver
Subclass,” composed of LabCorp patients “who were out-of-network
with certain [BlueCross Blue Shield of Alabama] insurance plans”
and charged the list price (id.).5 Plaintiffs also move for
appointment of class counsel under Rule 23(g). (Id. at 37; Doc.

99-1 at 2.) LabCorp opposes certification, challenging whether
several of the prerequisites to certification have been met. (Doc.
190.)
“The class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual named
parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)
(citation and internal quotation marks omitted). To be certified,
a party seeking class certification must “establish by a
preponderance of the evidence that the action complies with each
part of Rule 23.” Brown v. Nucor Corp., 785 F.3d 895, 931 (4th
Cir. 2015) (Agee, J., dissenting) (citing cases). First, a

plaintiff must satisfy the four requirements set out in Rule 23(a):
“(1) numerosity of parties; (2) commonality of factual and legal
issues; (3) typicality of claims and defenses of class
representatives; and (4) adequacy of representation.” Gunnells v.

5 The court assumes for the purposes of class certification that the
potential Urine Testing and Select Silver subclass members were also
allegedly charged the list price “in excess of the reasonable market
rate.” See infra note 10.
Healthplan Services, Inc., 348 F.3d 417, 423 (4th Cir. 2003); see
Thorn v. Jefferson-Pilot Life Insurance Co., 445 F.3d 311, 317
(4th Cir. 2006) (citation and alterations omitted) (“Plaintiffs
bear the burden of demonstrating satisfaction of the Rule 23
requirements and the district court is required to make findings
on whether the plaintiffs carried their burden.”)

Next, the proposed class must show that it is one of the three
types of classes described in Rule 23(b). See Thorn, 445 F.3d at
318. Here, Plaintiffs seek to certify their Common Law Class
pursuant to Rule 23(b)(2), which provides that a class action is
appropriate if “the party opposing the class has acted or refused
to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Fed. R. Civ. P.
23(b)(2). (See Doc. 99-1 at 1.) Plaintiffs seek to certify the
proposed subclasses pursuant to Rule 23(b)(3), which provides that
a class action may be maintained if the court finds that “questions

of law or fact common to class members predominate over any
questions affecting only individual members.” Fed. R. Civ. P.
23(b)(3). (See Doc. 99-1 at 2.) Although it is Plaintiffs’ burden
to demonstrate compliance with Rule 23, the court “has an
independent obligation to perform a ‘rigorous analysis’ to ensure
that all of the prerequisites have been satisfied.” EQT Prod. Co.
v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (quoting Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011)).
At the class certification stage, “[m]erits questions may be
considered to the extent – but only to the extent – that they are
relevant to determining whether the Rule 23 prerequisites for class
certification are satisfied.” Amgen Inc. v. Connecticut
Retirement Plans & Trust Funds, 568 U.S. 455, 466 (2013).

Otherwise, “[a]n evaluation of the probable outcome on the merits
is not properly part of the certification decision.” Id. (quoting
Fed. R. Civ. P. 23 advisory committee’s note to 2003 amendment);
Brown, 785 F.3d at 903 (“Rule 23 grants courts no license to engage
in free-ranging merits inquiries at the certification stage.”
(quoting Amgen, 568 U.S. at 466)).6 Persuasiveness of the class-
wide evidence is, in general, a matter for a jury. See Tyson
Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 459 (2016); Olean
Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th
651, 678 (9th Cir. 2022).7 “[A]t the certification stage, the
Plaintiff or the Court can refine the classes as necessary to bring

6 The findings in this order apply only to the motion for class
certification. See Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366
(4th Cir. 2004) (noting that if the jury or factfinder’s “finding on any
fact differs from a finding made in connection with class action
certification, the ultimate factfinder’s finding on the merits will
govern the judgment”).

7 Of course, if no reasonable juror could believe the class-wide evidence,
Plaintiffs would lack common proof. Tyson Foods, 577 U.S. at 459
(comparing class certification standards to standards for summary
judgment and directed verdict).
them within the requirements of Rule 23, if appropriate.” See
Abdur-Rahman v. Wells Fargo Bank N.A., No. 3:21-CV-00207-RJC, 2022
WL 481788, at *6 (W.D.N.C. Feb. 16, 2022) (citing Manuel v. Wells
Fargo Bank, National Ass’n, No. 3:14CV238, 2015 WL 4994549 (E.D.
Va. Aug. 19, 2015)).
2. Subclass Certification

As noted, Plaintiffs seek certification of one nationwide
class (the “Common Law Class”) and three subclasses: (1) the
“Misleading Estimate Subclass,” that includes “Labcorp patients
who were provided a written statement describing potential charges
not based on [the list price], but were charged based on [the list
price] in excess of the reasonable market rate for the clinical
lab testing services Labcorp performed” (Doc. 111 at 25); (2) the
“Urine Testing Subclass,” composed of LabCorp patients in the
United States “who were overbilled for urine testing” conducted
“in violation of industry practice” (id. at 26, 36); and (3) the
“Select Silver Subclass,” composed of LabCorp patients “who were

out-of-network with certain BlueCross Blue Shield of Alabama
insurance plans” and charged the list price. (Id.)
“When appropriate, a class may be divided into subclasses
that are each treated as a class under this rule,” Fed. R. Civ. P.
23(c)(5), so long as each subclass “independently meet[s]” the
requirements for certifying a class under Rule 23. See Gunnells,
348 F.3d at 441 (citing In re A.H. Robins, 880 F.2d 709, 728 (4th
Cir. 1989)); Johnson v. Meriter Health Servs. Emp. Ret. Plan, 702
F.3d 364, 368 (7th Cir. 2012). In addition, under the Federal
Rules of Civil Procedure's requirement of notice pleading,
defendants in all lawsuits must be given notice of the specific
claims against them. See Fed. R. Civ. P. 8(a)(2) (“A pleading that
states a claim for relief must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to
relief”). Although the notice pleading requirement does not
require detailed factual allegations in each instance, the
complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Here,
LabCorp argues that certification of the Plaintiffs’ three
proposed subclasses is inappropriate because the “three proposed
subclasses are untethered from the Amended Complaint” and were
therefore not properly pleaded. (Doc. 190 at 35-36.) Plaintiffs,
in turn, argue that LabCorp “had notice of the subclass claims,”

ostensibly because the factual allegations animating the
underlying theories of liability were apparent on the face of
complaint, even if the precise theories of liability themselves
were not. (Doc. 192 at 18-21.)
LabCorp is correct. As a general matter, it is improper for
a plaintiff to seek certification of a class or subclass based on
new claims and facts not asserted in the complaint. See Anderson
v. U.S. Dep't of Hous. & Urban Dev., 554 F.3d 525, 528–29 (5th
Cir. 2008) (trial court abused discretion certifying class where
plaintiffs’ claims were “based on a totally different course of
conduct” than those pleaded in the complaint); In re Canon Cameras,
237 F.R.D. 357, 358 n.1 (S.D.N.Y. 2006)(“[T]he plaintiffs' instant
motion [for class certification] attempts to rely, in part, on

factual allegations that were not pled in the Second Amended
Complaint. . . . [and therefore] in considering the plaintiffs’
instant motion, the Court has considered only those factual
allegations pled in the Second Amended Complaint”); Brown v. Am.
Airlines, Inc., 285 F.R.D. 546, 560 (C.D. Cal. 2011)(“Class
certification is not a time for asserting new legal theories that
were not pleaded in the complaint”); Trinidad v. Victaulic Co. of
Am., No. 85–1962, 1986 WL 276 *3 (E.D. Penn. Aug. 15, 1986)
(denying certification of subclass based on claims not alleged in
complaint). Yet here, Plaintiffs do just this. For the reasons
set out below, the court declines to find that the subclasses are

properly before the court.
a. “Misleading Estimate Subclass”
Plaintiffs first offer the “Misleading Estimate Subclass.”
As LabCorp rightly points out, the “Patient Acknowledgment of
Estimated Financial Responsibility” (“Patient Estimate”) and
“credit card authorization form” are separate documents “at the
heart” of this subclass. (Doc. 190 at 36.) Plaintiffs acknowledge
in their motion for class certification that the Misleading
Estimate Subclass seeks relief, pursuant to Counts III through XI
(except Counts V and VI), for “any person who signed a Patient
Estimate or credit card authorization and was subsequently billed
a price that was not disclosed on that form.” (Doc. 111 at 24
(emphasis added); see also id. at 35 (asserting that “the members

of the Misleading Estimate Subclass are ascertainable” because
“Labcorp knows when it issues a credit card authorization form or
Patient Estimate.”).)
The amended complaint, however, does not once mention a
“Patient Estimate” or otherwise plead that any named plaintiff
ever received one. Nor could it have. As Plaintiffs candidly
acknowledge, “the Patient Estimate only came into regular use after
this lawsuit was filed.” (Doc. 111 at 26, n.15). This much is
confirmed by a separate, but related, putative class action filed
against LabCorp in this district. See Nolan v. Laboratory Corp.
of Am. Holdings, No. 1:21-cv-979 (M.D.N.C.). In that case, the

complaint (also filed by Plaintiffs’ counsel in this case) notes
that “the Patient [Estimate] came into use by Labcorp on or about
the date of filing of the Amended Complaint in Anderson . . . and
accordingly is not referenced in that Amended Complaint.”8 (Case

8 The court may take judicial notice of pleadings filed in other actions.
See Anderson v. FDIC, 918 F.2d 1139, 1141 n.1 (4th Cir. 1990) (explaining
that “a district court should properly take judicial notice of its own
records”); In re Deepwater Horizon, 934 F.3d 434, 440 (5th Cir. 2019)
No. 1:21-cv-979, Doc. 1 ¶ 1.) The point of the parallel Nolan
litigation, the complaint continues, was to properly “bring” the
Patient Estimate “before the Court.” (Id.) The first mention of
the Patient Estimate in this case appears in Plaintiffs’ briefing
on the present motion for class certification. (Doc. 111 at 10.)
It indicates that the Patient Estimate is a two-page form that

provides LabCorp’s estimate of the “Health Plan Allowed Rate” for
each test a patient orders based on the insurance information the
patient disclosed to LabCorp, along with information about the
deductible and co-insurance, as well as certain disclaimers. (See
id. at 10-12; Doc. 114-2.) Because the amended complaint contained
no allegation that the Patient Estimate was in any way misleading,
it did not put LabCorp on notice that its use of the Patient
Estimate ostensibly violated the law. Therefore, the Patient
Estimate cannot form the basis of LabCorp’s liability in this
action.
In like fashion, no claim in the amended complaint is based

on LabCorp’s allegedly misleading credit card authorization form.
To be sure, the amended complaint refers to the credit card
authorization only as to Plaintiff Mary Carter. (Doc. 42 ¶¶ 156-
58.) But as LabCorp points out, Plaintiffs only mention Carter’s

(taking judicial notice of the “docket and complaint” in a related but
separate action because courts “may take judicial notice of prior court
proceedings as matters of public record”).
credit-card authorization form to establish that she signed no
express contract with LabCorp. (See Doc. 42. ¶¶ 156-58 (alleging
that Carter signed a credit card authorization that authorized
LabCorp to charge her credit card up to $484, which turned out to
be less than the list price, the balance of which she was later
billed); Doc. 190 at 36, n.11.) This assertion, while necessary

to show that Carter is a member of the putative “Common Law Class”
- one who “without any express contract with LabCorp . . . [was]
charged fees for clinical lab testing services performed by LabCorp
that were in excess of the reasonable market rates for the same
services” (Doc. 42, ¶ 449; see also Doc. 111 at 25) – is not
relevant to establishing that the document itself was “misleading”
or “deceptive” under state consumer protection laws.9 While
Plaintiffs now also argue that Plaintiff Marcus signed a credit

9 On January 25, 2023, Plaintiffs moved to supplement the record with an
affidavit from Jeffrey Frist, a non-party, which the court allowed.
(Docs. 218, 219, 224.) In the affidavit, Frist states that on November
28, 2022, he went to a LabCorp patient service center and was presented
with a credit card authorization form to sign before LabCorp would
perform his lab tests. (Id. ¶¶ 4-5.) Plaintiffs contend that this
evidence establishes that LabCorp still uses the credit card
authorization form and, therefore, that Plaintiffs “Marcus and Carter’s
claims are not moot.” (Doc. 219 at 3.) LabCorp contends that it only
uses the credit card authorization form infrequently when a patient’s
insurance information cannot be accessed electronically and that
Plaintiffs’ filing is tardy because they knew this during the discovery
period for class certification. (Doc. 220.) LabCorp also points out
that Frist’s form accurately disclosed LabCorp’s list prices and that
all of his charges were paid by his insurer. (Id.) Plaintiffs respond
that is only because LabCorp’s policy is to disclose the list prices up
to an aggregate of $150, as evidenced by Plaintiffs Marcus’s and Carter’s
forms. Even accepting Plaintiffs’ contentions as true, they are
insufficient to revive the Misleading Estimate Subclass claim, which
fails for not having been pleaded.
card authorization form, the amended complaint similarly makes no
reference to such a document, alleging rather that Marcus did not
execute any agreement with LabCorp as to the scope of his services
or the “potential costs or charges.” (Doc. 42 ¶ 229.) Nowhere
does the amended complaint allege that the credit card
authorization was misleading.

These deficiencies are fatal to Plaintiffs’ proposed
Misleading Estimate Subclass. See Anderson, 554 F.3d at 529 (“[B]y
defining the class based on” factual allegations not mentioned in
the complaint, “the district court changed the nature of the
lawsuit and rendered the complaint inadequate”); Guadiana v. State
Farm Fire & Cas. Co., 2009 WL 6325542, at *8 (D. Ariz. Dec. 18,
2009) (holding that a “theory of the case ... not raised in [the
plaintiff’s] amended complaint . . . cannot form the basis for
class certification”). It is a fundamental proposition that “a
complaint must do more than name laws that may have been violated
by the defendant; it must also allege facts regarding what conduct

violated those laws.” Anderson, 554 F.3d at 528. Because the
Plaintiffs have failed to do that here, the Misleading Estimate
Subclass is not considered at this time for certification.
b. “Urine Testing” Subclass
For similar reasons, the “Urine Testing Subclass” also fails.
According to Plaintiffs’ motion for class certification, the Urine
Testing Subclass consists of those who were “overbilled for urine
testing” conducted “in violation of industry practice” - an
amorphously-phrased standard. (Doc. 111 at 26, 36.) The amended
complaint, however, is silent about what allegedly constitutes the
relevant “industry practice” much less how such individuals would
be identified or even identifiable. More to the point, it omits
any discussion about how LabCorp’s conduct with respect to its

urine testing services violates the law.10 Put another way,
Plaintiffs entirely fail to explain how the putative claims of the
Urine Testing Subclass relate to any pleaded claim in the amended
complaint.11 In their reply brief, Plaintiffs attempt to remedy
this pleading deficiency by arguing that “the Court could find”
that LabCorp’s “billing practice violates industry standards” and
therefore “constitutes an unfair and deceptive trade practice.”
(Doc. 194 at 20.) However, it is axiomatic under the Federal Rules

10 Plaintiffs’ motion for class certification, moreover, does not define
what “industry practice” LabCorp unlawfully violates merely by billing
the list price for urine tests. (See Doc. 111 at 36 (vaguely asserting
that “[n]o patient would knowingly consent to a methodology for billing
for urine tests that was inconsistent with industry standards” (emphasis
added).) Plaintiffs do argue that “industry practice is to pay one price
for generating multiple test results from a single urine sample . . . ,
[but] Labcorp charges [list prices] separately for each compound tested.”
(Id. at 20-21.) Plaintiffs do not explain, however, why charging
underinsured patients the list price is inherently unlawful.
Nevertheless, for the reasons discussed herein, these fatal defects
cannot be cured in Plaintiffs’ reply brief.

11 To be sure, Plaintiffs claim in their motion for class certification
that “[t]his subclass applies to Counts III through XI (except Counts V
and VI).” (Doc. 99-1 at 2.) Plaintiffs’ proposed subclass is not
cognizable, however, because there are no allegations in the complaint
that LabCorp’s practices with respect to urine testing are somehow
unlawful.
of Civil Procedure that the complaint itself contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8 (a)(2). The court cannot, as
Plaintiffs wish, “infer a claim for relief and, in addition,
certify a class on the basis of that inference without violating
. . . the rules of civil procedure.” Trinidad v. Victaulic Co. of

Am., No. CIV. A. 85-1962, 1986 WL 276, at *3 n.3 (E.D. Pa. Aug.
15, 1986).12
c. “Select Silver Subclass”
Plaintiffs’ “Select Silver” subclass suffers from the same
defects. That subclass seeks damages for all patients “who were
Select Silver patients, or had other [Blue Cross Blue Shield]
insurance that was out-of-network with Labcorp and were charged
[the patient list price].” (Doc. 111 at 25-26.) In their reply
brief, Plaintiffs argue that “the Court could . . . find” that
LabCorp’s “fail[ure] to take reasonable measures to inform BCBS
subscribers that Labcorp was out of network” violates “the Alabama

12 It is true, of course, that the Federal Rules of Civil Procedure do
not require a plaintiff to plead legal theories in the complaint. See
Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014) (per curiam).
The problem here, however, is that Plaintiffs’ invocation of “industry
practice” as the relevant comparator to LabCorp’s list price comes - at
the class certification stage - too late in the day. Allowing such a
constructive amendment at the class certification stage “would unfairly
prejudice the defendant, by depriving it of the notice it needs to
conduct effective discovery.” Faulconer v. Centra Health, Inc., 808 F.
App'x 148, 154 (4th Cir. 2020)(unpublished)(explaining that constructive
amendment of the complaint at the summary judgment undermines the
complaint’s purpose and thus can unfairly prejudice the defendant).
consumer protection statute.” (Doc. 192 at 20.) Plaintiffs,
however, fail to connect this subclass with allegations pleaded in
the amended complaint. Although the amended complaint contains
vague allegations that LabCorp “knew or was reckless in failing to
know” that patients in this putative subclass might not get
insurance coverage for LabCorp’s testing services, see Doc. 42

¶ 126, 185, it does not contain any allegations that LabCorp acted
deceptively by failing to disclose to patients or providers that
those with a BlueCross BlueShield “Select Silver” plan were out-
of-network with LabCorp. As such, the court cannot certify the
“Select Silver” subclass. See Guadiana, 2009 WL 6325542, at *8.
The Urine Testing Subclass and the Select Silver Subclass,
moreover, fail for a second reason. Local Rule 7.3(h) provides
that “[a] reply brief is limited to discussion of matters newly
raised in the response.” LR 7.3(h); see Henry v. N.C. Acupuncture
Licensing Board, No. 1:15CV831, 2017 WL 401234, at *4 (M.D.N.C.
Jan. 30, 2017). Courts in this district “have consistently held

that ‘[r]eply briefs . . . may not inject new grounds . . . [and
that an] argument [that] was not contained in the main brief . . .
is not before the Court.’” Tyndall v. Maynor, 288 F.R.D. 103, 108
(M.D.N.C. 2013) (quoting Triad International Maintenance Corp. v.
Aim Aviation, Inc., 473 F. Supp. 2d 666, 670 n.1 (M.D.N.C. 2006)).
It is improper, under Local Rule 7.3(h), to wait until a reply
brief to provide support for an unsupported argument made in a
party’s first motion. See Jarvis v. Stewart, No. 1:04CV00642,
2005 WL 3088589, at *1 (M.D.N.C. Nov. 17, 2005). In sum, Rule
7.3(h) “exists to give the replying party a chance to rebut newly
raised arguments, not to give the replying party an unfair
advantage in having a chance to make new arguments that should
have been raised initially.” Pouncey v. Guilford County, No.

1:18CV1022, 2020 WL 1274264, at *5 (M.D.N.C. Mar. 17, 2020).
Here, Plaintiffs submitted the Urine Testing and Select
Silver Subclasses in their original motion for class certification
but failed to provide support that these subclasses satisfied Rule
23(a).13 (See Doc. 111 at 27-33.) As LabCorp points out, as to
the Urine Testing and Select Silver Subclasses, Plaintiffs “say[]
nothing about numerosity or ascertainability,” and “no common
question is identified.” (Doc. 190 at 37.) In their reply,
Plaintiffs put forward new arguments to support their contention
that the Urine Testing and Select Silver Subclasses meet the
requirements of Rule 23(a). (Doc. 192 at 20-21.) However, “[t]his

is precisely the kind of briefing tactic that Local Rule 7.3(h)
seeks to prevent.” Pouncey, 2020 WL 1274264, at *5–6.
Accordingly, LabCorp is correct that Plaintiffs have failed to
meet their burden to satisfy the Rule 23(a) requirements for the

13 Other Rule 23 factors were addressed by Plaintiffs in their brief
(Doc. 111 at 36-37), and LabCorp addressed these arguments in its
response (Doc. 190 at 39-40).
Urine Testing and Select Silver Subclasses.
For all these reasons, Plaintiffs’ motion to certify the
proposed subclasses is denied.14
3. Rule 23(a) Requirements
The decision whether to certify a class is governed by Federal
Rule of Civil Procedure 23, under which certification requires two

showings: first, that the four “prerequisites” of Rule 23(a) are
met; and second, that the case fits within at least one of the
three “types of actions” described in Rule 23(b). A failure on
either front dooms the class. See EQT Prod. Co., 764 F.3d at 357.
The court begins with Rule 23(a), under which LabCorp argues that
the plaintiffs cannot satisfy two prerequisites: commonality and
typicality. LabCorp also contends that each proposed class fails
to meet Rule 23’s “implicit threshold requirement that the members
of a proposed class be ‘readily identifiable.’” Id. at 358
(quoting Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972)).

14 As discussed below, however, the court also finds that, even assuming
these subclasses were properly pleaded, they nevertheless fail to meet
the requirements of Rule 23 and therefore cannot be certified. See
United States v. Ford, 703 F.3d 708, 711 n.2 (4th Cir. 2013) (“Where a
court makes alternative holdings to support its decision, each holding
is binding precedent.”); Jean Alexander Cosms., Inc. v. L'Oreal USA,
Inc., 458 F.3d 244, 253 (3d Cir. 2006) (“Courts routinely decide cases
on multiple grounds, each of which has been fully litigated and given
careful consideration due to their potentially dispositive role in the
case.”)
Each requirement will be addressed in turn.15
a. Commonality
Commonality means that “there are questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). This “requires
the plaintiff[s] to demonstrate that the class members have
suffered the same injury” in the sense that “[t]heir claims . . .

depend upon a common contention,” the determination of which “will
resolve an issue that is central to the validity of each one of
the claims in one stroke.” Dukes, 564 U.S. at 350 (internal
quotation marks omitted); Brown, 785 F.3d at 909 (“Wal–Mart
instructs that plaintiffs must present a common contention capable
of being proven or disproven in ‘one stroke’ to satisfy Rule
23(a)(2)’s commonality requirement.”). “‘This provision does not
require that all the questions of law and fact raised by the
dispute be common,’ just that any ‘dissimilarities between the
claims do not impede a common resolution.’” Johnson v. Jessup,
381 F. Supp. 3d 619, 634 (M.D.N.C. 2019) (quoting 7A Charles Alan

Wright et al., Federal Practice and Procedure § 1762 (3d ed.
2018)). “A question is not common . . . if its resolution turns
on a consideration of the individual circumstances of each class
member.” Thorn, 445 F.3d at 319 (citation omitted).

15 LabCorp does not contest the adequacy of representation or the
numerosity of the Common Law Class. (See Doc. 190 at 27-33).) Because
the Common Law Class fails on other grounds, the court assumes, without
deciding, that those requirements of Rule 23(a) are met.
Plaintiffs proffer the following common questions of law for
the Common Law Class: (1) “[W]hen a patient and Labcorp do not
agree in writing on a specific price for a test before the test is
performed, as a matter of law is Labcorp entitled to be paid only
the reasonable value of its services in performing the test?”;
and (2) “Did patients, solely by virtue of having lab tests

performed by Labcorp, consent to [the list price]?” (Doc. 111 at
29-30.) Plaintiffs also argue the common questions of fact are
(1) whether LabCorp can justify its list prices, and (2)
determining the common method of determining the reasonable value
of tests. (Id. at 30-31.)
In response, LabCorp argues that Plaintiffs’ motion has an
“overarching flaw” because Plaintiffs’ theory of liability is
premised on “LabCorp charg[ing] [the list price] in excess of the
reasonable value for each test and panel” yet Plaintiffs fail to
provide a “common methodology for determining the ‘reasonable
value’ of LabCorp’s tests.” (Doc. 190 at 23.) LabCorp contends

that “to establish class-wide liability, Plaintiffs’ theory
requires a uniform method to calculate reasonable value for each
test and panel” and that “Plaintiffs cannot meet their burden under
Rule 23 with promises of future proof.” (Id. at 23-24.) LabCorp
also argues that, rather than Plaintiffs’ proposed questions, “the
real question is: what is the nature of the relationship between
each class member and Labcorp?” (Id. at 30.) It contends “a court
must first rule out the existence of an express contract and an
implied-in-fact contract” by “examin[ing] the parties’ conduct”
before the court may “determine whether an implied-in-law contract
exists.” (Id.) Accordingly, LabCorp concludes, Plaintiffs’
Common Law Class does not satisfy Rule 23(a)’s commonality
requirement. (Id.)

In reply, Plaintiffs argue that determining the “reasonable
value” does not “require[] an individualized inquiry into the
various factors considered in pricing each test.” (Doc. 192 at
6.) Rather, they argue, regardless of whether an implied-in-fact
or implied-in-law contract exists,16 “the party seeking
compensation [LabCorp] has the burden of showing its price is
reasonable.” (Id. at 7 (emphasis added).) They further contend
that “[t]o justify certification, Plaintiffs need not develop a
methodology for determining a ‘reasonable’ price,” and that the
court should select from “one of the Plaintiffs’ suggested
benchmarks” to determine the extent of LabCorp’s liability. (Id.

at 9.) Finally, Plaintiffs argue LabCorp’s individualized factual
questions are “irrelevant” as “the central fact is that class
members did not agree to [the list price].” (Id. at 12.)
Each of Plaintiffs’ proposed questions will be addressed in

16 This court has previously discussed the doctrinal distinction in North
Carolina law between implied-in-fact and implied-in-law contracts.
Anderson v. Lab'y Corp. of Am. Holdings, No. 1:17CV193, 2019 WL 3858320,
at *3 (M.D.N.C. Aug. 16, 2019).
turn.
i. Burden
As a preliminary matter, each party argues that the other has
failed to meet the burden regarding the “reasonableness” of the
list price.17 (See Doc. 190 at 23-24; Doc. 192 at 7-8.) Plaintiffs
are correct that, under a contract implied-in-law theory, at the

merits stage “[t]he burden is always upon the complaining party to
establish by evidence such facts as will furnish a basis for [the]
assessment [of reasonable value], according to some definite and
legal rule.” Cline v. Cline, 128 S.E.2d 401, 404 (N.C. 1962)
(citation omitted). However, the Fourth Circuit has “stressed in
case after case that it is not the defendant who bears the burden
of showing that the proposed class does not comply with Rule 23,
but that it is the plaintiff who bears the burden of showing that
the class does comply with Rule 23.”18 Thorn, 445 F.3d at 321
(rejecting plaintiff’s argument that the defendant had the “burden
of proving that its statute of limitations defense presents issues

that must be decided on an individual basis”); see In re Hydrogen

17 Plaintiffs also appear to attempt shift the burden to the court. (See
Doc. 192 at 9 (“To justify [class] certification, Plaintiffs need not
develop a methodology for determining a ‘reasonable’ price.
Rather, . . . the Court could establish reasonable amounts Labcorp is
entitled to collect without prior patient agreement by using one of the
Plaintiffs’ suggested benchmarks.”).)

18 Plaintiffs erroneously rely on cases outside of the class certification
context. (See Doc. 192 at 7-8.)
Peroxide Antitrust Litigation, 552 F.3d 305, 318 (3d Cir. 2008),
as amended (Jan. 16, 2009) (“A party’s assurance to the court that
it intends or plans to meet the [Rule 23] requirements is
insufficient.”).
Further, the court’s prior order denying LabCorp’s motion to
strike Plaintiffs’ class allegations made clear that it was the

Plaintiffs who would bear the burden of establishing a method to
determine “reasonable value” at class certification. See Anderson
v. Laboratory Corp. of America Holdings, No. 1:17CV193,
2019 WL 3858320, at *9-*10 (M.D.N.C. Aug. 16, 2019) (stating that
“Plaintiffs have not yet moved to certify a class and therefore
need not yet meet these standards,” and “although LabCorp
identifies serious hurdles Plaintiffs will have to overcome to
achieve class certification — Plaintiffs’ chances of attaining
certification are not so wholly nonexistent as to justify the
drastic remedy of striking their class allegations” (emphasis
added)).19 Thus, the court rejects Plaintiffs’ contention that

LabCorp bears the burden of proving Plaintiffs’ contract implied-
in-law claim class does not satisfy Rule 23 by failing to
“demonstrate that it has a rational basis for charging [the list

19 Contrary to this court’s previous order, Plaintiffs assert, without
providing support, that “[t]o justify certification, Plaintiffs need not
develop a methodology for determining a ‘reasonable’ price.” (Doc. 192
at 4; see Doc. 120-2 ¶ 8 (plaintiffs’ expert was asked whether “there
[is] a methodology for determining a fair and reasonable price that could
be applied to all of Labcorp’s tests”).)
price].” (Doc. 192 at 9.) Instead, the court will determine
whether Plaintiffs have satisfied their burden, as promised, to
“develop a formula to calculate the [reasonable] market rate for
any given clinical lab test.” Anderson, 2019 WL 3858320, at *10
(quoting Doc. 42 ¶ 110).
ii. Application

Here, Plaintiffs have failed to make the necessary showing
for commonality. For example, Plaintiffs’ first proposed common
question of law is overbroad. Even if all class members “d[id]
not agree in writing on a specific price for a test before the
test is performed,” it is still possible that LabCorp could be
entitled to recover the list price “as a matter of law,” under an
implied-in-fact contract theory, rather than “reasonable value”
under an implied-in-law contract. See Ellis Jones, Inc. v. Western
Waterproofing Co., 312 S.E.2d 215, 218 (N.C. Ct. App. 1984)
(“Because plaintiff’s pleadings and evidence were broad enough to
support the alternative theories of an implied in fact contract

and an implied in law contract, the trial judge should have
instructed on both theories.”); Whitfield v. Gilchrist, 497 S.E.2d
412, 415 (N.C. 1998) (“[Q]uantum meruit is not an appropriate
remedy when there is an actual agreement between the parties.”).
In North Carolina, “[a]n implied contract refers to an actual
contract inferred from the circumstances, conduct, acts or
relations of the parties, showing a tacit understanding.” Archer
v. Rockingham County, 548 S.E.2d 788, 793 (N.C. Ct. App. 2001);
Southeast Caissons, LLC v. Choate Construction Co., 784 S.E.2d
650, 656–57 (N.C. Ct. App. 2016)(citation omitted) (“A valid
contract may be implied in light of the conduct of the parties and
under circumstances that make it reasonable to presume the parties
intended to contract with each other.”); but see Forsyth County

Hospital Authority, Inc. v. Sales, 346 S.E.2d 212, 214 (N.C. Ct.
App. 1986) (“Failure to agree on the amount of compensation
entitles the physician to the reasonable value of his services.”).
Whether an implied-in-fact contract may be inferred depends
on “the circumstances, conduct, acts or relations” between LabCorp
and each individual class member. Archer, 548 S.E.2d 793. For
instance, this question could turn on whether and, if so, how much
information was known about LabCorp’s pricing by a class member or
his agent before receiving a test. See Anderson, 2019 WL 3858320,
at *10 n.21 (citing Manecke v. Kurtz, 731 S.E.2d 217 (N.C. Ct.
App. 2012) (discussing liability of principals for contracts

entered into by their agents)); see also Convergent Acquisitions
& Development, Inc. v. Credent Real Estate, Inc., No. 3:06CV324,
2007 WL 2137829, at *3 (W.D.N.C. July 23, 2007) (“A principal may
be liable for the actions of his agent if it is determined that
the agent acted within either his actual or apparent authority to
take said actions.”) (citing McGarity v. Craighill, Rendleman,
Ingle & Blythe, P.A., 349 S.E.2d 311, 313 (N.C. Ct. App. 1986))).
An individual class member may be liable for the list price if an
agency relationship was created with his physician and the
physician ordered a test from LabCorp on that patient’s behalf.20
Some individual class members may be liable for the list price if
their physician informed them about it beforehand. Others may
have learned about the list price from resources such as the

Laboratory Contact Center, which provides patients with
information about LabCorp’s list prices upon request.21 (Doc. 190-
3 at 72, 83-85.) And still others may have learned the list price
from LabCorp’s Patient Portal, a digital application through which
patients can, among other things, “review billing statements, pay
bills, and contact LabCorp with billing and pricing questions,
among other things.” (Doc. 190-2 at 74, Doc. 190-3 at 103-104.)
Thus, as LabCorp contends, a common “question is: what is the
nature of the relationship between each class member and Labcorp?”
(Doc. 190 at 30.) Rather than presenting a question which would
“resolve an issue that is central to the validity of each one of

20 LabCorp representatives “continually have conversations with providers
surrounding new tests, new pricing, existing pricing[,]” insurance
coverage, and “customizable patient fee schedules.” (Doc. 190-3 at 130,
143-44, 160-61.) Plaintiffs also submit the common question of “Did
patients, solely by virtue of having lab tests performed by Labcorp,
consent to PLPs?” Answering this question in any meaningful way for the
parties would require the court to explore a possible agency relationship
for each individual class member, along with circumstances that might
otherwise create a valid contract with LabCorp.

21 LabCorp may instead seek to recover the list price pursuant to a
possible financial agreement between an individual class member’s
physician and LabCorp. (See Doc. 63 at 42-45.)
the claims,” Dukes, 564 U.S. at 350, the question of whether
LabCorp would be limited to recover the “reasonable” value of its
services “turns on a consideration of the individual circumstances
of each class member.” Thorn, 445 F.3d at 319 (citation omitted);
see also Scarlett v. Air Methods Corp., No. 16-CV-02723-RBJ, 2020
WL 2306853, at *11 (D. Colo. May 8, 2020) (finding that class

action certification was not appropriate because whether an
implied-in-fact contract had been formed would require findings of
fact applicable to each patient's individual case); Agostino v.
Quest Diagnostics Inc., 256 F.R.D. 437, 467 (D.N.J. 2009) (“With
the contracts at issue potentially numbering in the thousands and
containing materially different provisions, proof of a right to
recovery under one contract does not necessarily establish a
classwide right to recovery.”).22
Setting aside the particularized nature of Plaintiffs’
claims, Plaintiffs have also failed to satisfy their burden of
establishing a method to determine “reasonable value” to achieve

class certification. Plaintiffs, citing the report of Zirui Song,
M.D., Ph.D. (Docs. 120-2), “intend to present expert testimony

22 To the extent Plaintiffs seek to avoid these particularized questions
through their class definition, they attempt to create an improper fail-
safe class. See EQT Prod. Co., 764 F.3d at 360 n.9 (citing Messner v.
Northshore Univ. HealthSys., 669 F.3d 802, 825 (7th Cir. 2012)
(explaining that a fail-safe class “is defined so that whether a person
qualifies as a member depends on whether the person has a valid claim”)).
“Such a class definition is improper because a class member either wins
or, by virtue of losing, is defined out of the class and is therefore
not bound by the judgment.” Messner, 669 F.3d at 825.
showing that a common methodology can be used to determine the
reasonable value of tests on a Class-wide basis.” (Doc. 111 at
31.) In his report, Dr. Song determines “the [LabAccess Program
(‘LAP’)] price is an ideal option for a fair, reasonable, and
conservative benchmark.” (Doc. 120-2 ¶ 40.) In response, LabCorp
argues that LAP pricing is only available for 565 tests, or 0.53

percent of the total test codes, and “allows self-pay patients to
prepay . . . a discounted price prior to testing.” (Doc. 190 at
12.) The discount varies depending on the particular test and
“take[s] into account, among other factors, that up-front payment
eliminates the risk of non-payment and the expense of post-test
billing and collections.” (Id.)
Dr. Song also lists various other benchmark prices,
previously identified to the court, that in his opinion “would be
fairer and more reasonable compared to the [list] prices.” (Doc.
120-2 ¶ 46.) Dr. Song proposes that these benchmarks, “[r]elative
to the [list] price, . . . would be a step towards fair and

reasonable.” (Id. ¶ 47 (emphasis added); see id. ¶ 50 (opining
that each existing price option is “reasonable” besides the list
price).) As such, Plaintiffs argue, the court would only need to
determine which benchmark establishes the “reasonable” price and
then apply that finding across the possible tests. (Doc. 111 at
21-22.) These benchmarks include the “client price” paid by
healthcare provider clients following negotiation, the “pixel
price,” paid for 10 advertised tests capable of “home-based sample
collection,” and the LAP price. (Doc. 120-2 ¶¶ 12, 14, 48.) Dr.
Song’s report contends that “Labcorp’s process for setting its
[list prices] is [a] completely arbitrary” 20% markup from the
Client Price. (Id. ¶ 45.) Dr. Song’s report concludes that, while
“each of the [pricing] options described above is reasonable” in

his opinion, “the LAP price is the best available benchmark because
it is the price LabCorp charges when it cannot take advantage of
patients’ lack of information.” (Id. ¶ 50.) Ultimately, Dr. Song
believes that LabCorp patients should only be responsible for an
indefinite “fair and reasonable price.” (Id. ¶ 51.)
However, as LabCorp properly contends, Dr. Song’s report
falls far short of Plaintiffs’ promise to “develop a formula to
calculate the market rate for any given clinical lab test” subject
to common proof. (See Doc. 42 ¶ 110.) First, LAP pricing – Dr.
Song’s preferred benchmark - is only available for 565 tests, or
0.53 percent of the total test codes, so it fails to provide a

uniform formula “for any given clinical lab test.” (Id.; see Doc.
190 at 26.) Put another way, because LAP pricing is not available
for over 99 percent of all LabCorp tests, it is by definition an
inappropriate “benchmark” for all but one percent of LabCorp’s
tests. Tellingly, Dr. Song could only produce the LAP for 26 of
the 74 unique LabCorp tests administered to the class
representatives in this case – meaning that, even for his preferred
benchmark, he could only determine the “reasonable” price for 35
percent of the tests administered to the class representatives.
(Doc. 120-2 ¶ 23.)
The LAP pricing benchmark that Dr. Song proposes is also
flawed because, under his theory, the reasonable value of any
particular lab-testing service is determined by the average amount

of all 565 tests for which is a LAP price. (Id. ¶ 23.) It is
well-established, however, that averages can mask significant
variation across individual cases. See David H. Kaye & David A.
Freedman, Reference Guide on Statistics, in Reference Manual on
Scientific Evidence 213, 266 & n.130 (Fed. Jud. Ctr., 3d ed. 2011);
Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 Harv.
L. Rev. 961, 1193 (2001). Accordingly, Dr. Song’s LAP model – by
using averages – fails to accurately measure the “reasonable value”
of any single lab test and therefore “flouts the requirement that
an expert’s model reliably prove that each putative class member
suffered individual injury.” In re Aluminum Warehousing Antitrust

Litig., 336 F.R.D. 5, 57 (S.D.N.Y. 2020) (emphasis added). Put
differently, Dr. Song’s model necessarily fails because it does
not capture the “reasonable value” of any particular test and
therefore “do[es] not reflect the individual characteristics of
class members.” Gates v. Rohm & Haas Co., 655 F.3d 255, 266 (3d
Cir. 2011) (stating that averages evidence “is not ‘common’ because
it is not shared by all (possibly even most) individuals in the
class”) (internal quotations marks omitted); Sheet Metal Workers
Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, Civ. A.
No. 04-5898, 2010 WL 3855552, at *30 (E.D. Pa. Sept. 30, 2010)
(internal quotation marks omitted)(noting that methodology using
average prices was insufficient as a common method capable of
showing class-wide injury because “averaging by definition glides

over what may be important differences”); Reed v. Advocate Health
Care, 268 F.R.D. 573, 591 (N.D. Ill. 2009) (“Measuring average
base wage suppression does not indicate whether each putative class
member suffered harm from the alleged conspiracy. In other words,
it is not a methodology common to the class that can determine
impact with respect to each class member.”); Freeland v. AT & T
Corp., 238 F.R.D. 130, 151 (S.D.N.Y. 2006) (internal quotation
marks omitted) (rejecting a methodology that used an average
overcharge for cellular phones to show class-wide impact and noting
that “averages that include prices for different products can lead
to serious analytical problems”).

For similar reasons, Plaintiffs’ suggestion that the client
list price23 could serve as an appropriate benchmark also fails.
Even if the court determined that any class member was
“unreasonably” overcharged with a list price approximately 20

23 The client list price, in contrast to the LAP Price discussed above,
“is the retail price charged to healthcare providers (rather than to a
patient or insurer).” (Doc. 190 at 10.)
percent above the “reasonable” client price, this would not justify
a finding that any other class plaintiff was likewise injured.
See, e.g., Harrison v. Blount EMS, Inc., No. 7:08-CV-1039-LSC,
2010 WL 11615000, at *4-5 (N.D. Ala. Jan. 12, 2010) (“The
accumulation of this [individualized] evidence may determine the
reasonableness of the charges made to a particular class member,

but it will establish nothing regarding any other class member.”);
Colomar v. Mercy Hospital, Inc., 242 F.R.D. 671, 677 (S.D. Fla.
April 11, 2007) (“Put differently, the legality — or ultimate
reasonableness — of [defendants’] charges can only be determined
by looking at the specific bills in question and analyzing them”
individually); Day v. Sarasota Drs. Hosp., Inc., No. 8:19-CV-1522-
T-33TGW, 2020 WL 4539145, at *6 (M.D. Fla. July 23, 2020)(“As
numerous courts have recognized, determining the reasonableness of
charges for medical services entails an individualized, fact-
dependent analysis.”) As discussed above, the evidence the court
would be required to examine would require an individualized

inquiry and vary from test to test.24 Analyzing this evidence for
a particular class member may determine the reasonableness of the
charges made in that plaintiff’s instance, but it is insufficient
to establish the reasonableness of charges for any other potential

24 For instance, the client list price can sometimes be identical to, or
higher than, the patient list price. (See Doc. 190 at 3; Doc. 190-8 at
92 n.147.)
class member.
Additionally, Plaintiffs have not demonstrated why LabCorp
should accept government-imposed rates (essentially nationalizing
LabCorp’s business) or negotiated rates with commercial payors
(essentially eliminating LabCorp’s ability to decide what price to
charge in a free-market economy), for every test and every patient.

(Cf. Doc. 32 at 19-20 (“Plaintiffs’ theory is fundamentally flawed
because it . . . presumes that a negotiated rate is as a matter of
law the only reasonable rate.”); see Doc. 120-2 ¶ 50 (opining that
“it would be overly conservative to use the Client List price as
a benchmark because it is rarely (if ever) paid in practice.”).)
Thus, as Plaintiffs’ expert “admittedly has no [common] answer to
that question,” the court “can safely disregard what he has to
say.” See Dukes, 564 U.S. at 354–55. Without a common methodology
to determine the reasonable value of LabCorp’s 100,000 or more
tests, there is “nothing to unite all of Plaintiffs’ claims” that
“touch and concern all members of the class.” See id. at 359 n.10.

At bottom, Plaintiffs’ mere “inten[t]” to provide “expert
testimony showing that a common methodology can be used to
determine the reasonable value of tests on a Class-wide basis”
(see Doc. 111 at 31) fails to satisfy their burden at class
certification. “Rule 23 does not set forth a mere pleading
standard.” Dukes, 564 U.S. at 350. Rather, “[a] party seeking
class certification must affirmatively demonstrate his compliance
with the Rule — that is, he must be prepared to prove that there
are in fact sufficiently numerous parties, common questions of law
or fact, etc.” Id. (emphasis in original); see EQT Prod. Co., 764
F.3d at 361-62 (stating that a district court must definitively
determine that the requirements of Rule 23 have been satisfied and
that “[c]ertifying a class in the face of . . . uncertainty runs

afoul of the rule that ‘actual, not presumed, conformance with
Rule 23(a) [is] . . . indispensable’”) (citing General Telephone
Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982)).
Simply put, how to calculate the “reasonable value” of a
particular test is “the essential question on which [Plaintiffs’]
theory of commonality depends” for each proposed class. Dukes,
564 U.S. at 354. For the reasons stated above, Defendants
correctly state that an evaluation of the “reasonableness” of the
list price for each test “requires an individualized inquiry into
the various factors considered in pricing each test.” (Doc. 190
at 18 (citing Doc. 190-3 at 45-48).) Proposing to proceed on an

average value across several different tests simply does not
suffice. Thus, Plaintiffs have failed to carry their burden to
establish commonality for any of their proposed classes. Class
certification is therefore inappropriate.
b. Typicality
Rule 23(a)(3) requires that “the claims or defenses of the
representative parties are typical of the claims or defenses of
the class.” Fed. R. Civ. P. 23(a)(3). “The essence of the
typicality requirement is captured by the notion that ‘as goes the
claim of the named plaintiff, so go the claims of the class.’”
Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006)
(quoting Broussard v. Meineke Discount Muffler Shops, Inc., 155
F.3d 331, 340 (4th Cir. 1998)). Typicality is satisfied so long

as plaintiffs’ claims are not “so different from the claims of
absent class members that their claims will not be advanced by
plaintiff’s proof of his own individual claim.” Id. at 466-67;
see Lienhart v. Dryvit Systems Inc., 255 F.3d 138, 146 (4th Cir.
2001) (explaining that “‘a class representative must be part of
the class and possess the same interest and suffer the same injury
as the class members’”) (quoting Falcon, 457 U.S. at 156)). To
determine whether a named plaintiff’s “claims or defenses” are
typical of those of the proposed class, the court will frequently
have to undertake some investigation of “the merits of the
plaintiff’s underlying claim.” Dukes, 564 U.S. at 351; see id. at

349 n.5 (noting that “the commonality and typicality
requirements . . . tend to merge”).
Plaintiffs argue that the named Plaintiffs “have suffered the
same injuries as Common Law Class members: they were billed PLP
instead of a price set at the reasonable value of the testing
service.” (Doc. 111 at 32.) They also contend that “Plaintiffs’
claims all boil down to the same legal issue: what is Labcorp
entitled to bill to perform a test when it has not agreed with the
plaintiff on a price.” (Id.)
The court finds that Plaintiffs have also failed to
demonstrate that their claims and defenses are typical of the
claims or defenses of the class. As discussed above, the question
of whether LabCorp would be limited to recover the “reasonable

value” of its services “turns on a consideration of the individual
circumstances of each class member.” Thorn, 445 F.3d at 319
(citation omitted); see also Agostino, 256 F.R.D. at 467. Even if
Plaintiffs can show that the list price charged to a Plaintiff by
LabCorp for a particular test is unreasonable as to that
Plaintiff’s unique and fact-specific circumstances, Plaintiffs can
show nothing about the other tests. Further, the record reflects
that none of the Plaintiffs agreed to arbitration or class-waiver
clauses that might bar other potential class members’ claims.25
See Jensen v. Cablevision Sys. Corp., 372 F. Supp. 3d 95, 122-24
(E.D.N.Y. 2019)(finding that named plaintiffs, who were not

subject to arbitration agreement, failed to satisfy typicality
requirement where putative class members had arbitration
provisions); Tan v. Grubhub, Inc., No. 15-CV-05128-JSC, 2016 WL
4721439, at *3 (N.D. Cal. Jul. 19, 2016), aff'd sub nom. Lawson v.

25 All patients who use LabCorp’s Patient Portal “agree to arbitrate
their disputes with LabCorp and to a class-action waiver.” (Doc. 190
at 14; see Doc. 190-3 at 12.) Those who use the Patient Portal number
in the millions. (Doc. 190-2 at 74.)
Grubhub, Inc., 13 F.4th 908 (9th Cir. 2021) (“[T]ypicality . . .
[is] lacking where the lead plaintiff was not subject to the same
arbitration provisions as unnamed plaintiffs.”); King v. Capital
One Bank (USA), N.A., No. 3:11-CV-00068, 2012 WL 5570624, at *14
(W.D. Va. Nov. 15, 2012) (finding that the plaintiff not subject
to the arbitration provision “could not fairly and adequately

represent in this Court the interests of individuals who are bound
to pursue their claims in arbitration”). Thus, the question of
what LabCorp is entitled to recover requires a transaction-by-
transaction inquiry into each class members’ individual
circumstances, and therefore Plaintiffs’ claims are not typical of
proposed class members.
Furthermore, Plaintiffs’ claims of injury are dependent on
the price charged for only a small fraction of LabCorp’s more than
100,000 clinical lab tests and panels. (Doc. 190 at 8.) To be
sure, Plaintiffs need not allege an injury for every test LabCorp
offers to satisfy typicality. Here, however, the record

demonstrates that LabCorp maintains that it sets its list price
for each test based on numerous factors analyzed by its pricing
department, and Plaintiffs merely claim that sometimes that price
for a particular test is unreasonable.26 It is difficult to imagine

26 At least one named Plaintiff has conceded that, in his particular
circumstances, the list prices charged for several tests were
“reasonable.” (Doc. 191 at 32.)
how Plaintiffs, even if they could show that the list price for a
particular test was unreasonable, can demonstrate that LabCorp’s
list prices for thousands of other tests are unreasonable without
having to address myriad factual issues for each test.
In sum, Plaintiffs have failed to provide this court with a
common nexus sufficient to tie these varying claims together.

Therefore, the court finds that, even if commonality were met, the
proposed classes do not satisfy the typicality requirement.
c. Ascertainability
In addition to Rule 23(a)’s enumerated requirements of
numerosity, commonality, typicality, and adequacy, Plaintiffs must
also satisfy “an implicit threshold requirement that the members
of a proposed class be readily identifiable,” a requirement
“sometimes called ‘ascertainability.’” Krakauer v. Dish Network,
L.L.C., 925 F.3d 643, 654-55 (4th Cir. 2019) (citation omitted).
“[A] class cannot be certified unless a court can readily identify
the class members in reference to objective criteria.” Id. at 655

(quoting EQT Prod. Co., 764 F.3d at 358). “The goal is not to
identify every class member at the time of certification, but to
define a class in such a way as to ensure that there will be some
administratively feasible way for the court to determine whether
a particular individual is a member at some point.” Id. at 658.
In other words, the ascertainability requirement dictates that
“class litigation should not move forward when a court cannot
identify class members without extensive and individualized fact-
finding or ‘mini-trials.’” Id.
Plaintiffs do not argue that the Common Law Class is
ascertainable but instead contend that “[t]he Fourth Circuit has
not applied an ‘ascertainability’ requirement to a Rule 23(b)(2)
class.” (Doc. 111 at 33 n.19.) In response, LabCorp contends

that the Fourth Circuit does apply an ascertainability requirement
to Rule 23(b)(2) classes. (Doc. 190 at 29.) Furthermore, it
argues that the Common Law Class is not ascertainable because
Plaintiffs have failed to demonstrate a method of identifying
patients (1) “to whom [the list price] were disclosed before
testing;” (2) “to whom [the list price] were disclosed by an
intermediary” such as their physician; or (3) “who were charged
(or paid) a [list price] that was ‘in excess’ of the reasonable
value for the specific test performed.” (Id. at 27.) LabCorp
also argues that Plaintiffs’ proposed classes “are . . .
impermissible fail-safe classes” which “violate the

ascertainability requirement and raise due process concerns.”
(Id. at 28-29.) In reply, Plaintiffs “urge this court to follow
the cases holding an ascertainability requirement does not apply
to Rule 23(b)(2).” (Doc. 192 at 15.) Alternatively, they argue
the 23(b)(2) classes are ascertainable as “Labcorp keeps track of
the collectability rate of non-covered services . . . , which
means that it is able to identify patients whose insurance did not
pay for a test” and were charged the list price. (Id.)
i. Fourth Circuit Standard for Rule 23(b)(2)
Classes

As a threshold matter, the Fourth Circuit has not explicitly
held that the implied requirement of ascertainability - that
plaintiffs identify an administratively feasible way to identify
class members - should apply to Rule 23(b)(2) cases. However, the
court finds the reasoning in J.O.P. v. U.S. Department of Homeland
Security persuasive. 338 F.R.D. 33 (D. Md. 2020). There, the
court found that the Fourth Circuit’s opinion in EQT Production
Company v. Adair “at least suggests” that the ascertainability
requirement applies to Rule 23(b)(2) actions. 338 F.R.D. at 51.
In that case, “the Fourth Circuit discussed ascertainability with
respect to the plaintiffs’ ‘ownership classes’ for which
plaintiffs sought class certification under both Rules 23(b)(2)
and (3).” Id. at 51 (citing EQT Prod. Co., 764 F.3d at 357)
(emphasis in original).27 “Specifically, the classes that the
Fourth Circuit ultimately ordered the district court to reconsider
on ascertainability grounds sought ‘a declaration that the class
members [were] true owners of CBM, as well as payment of the
royalties they believe [defendants] have improperly escrowed or

27 Thus, Plaintiffs are plainly incorrect when they assert “the discussion
of ascertainability [in EQT] was [only] in the context of a Rule 23(b)(3)
class.” (Doc. 192 at 15 n.6.) The only discussion in EQT specific to
a Rule 23(b)(3) class concerned “underpayment of royalties” class claims.
See EQT Prod. Co., 764 F.3d at 364-71.
withheld.’” Id. (quoting EQT Prod. Co., 764 F.3d at 358) (emphasis
in original). The Fourth Circuit neither “suggest[ed] a different
analysis for each rule” nor “distinguish[ed] between rulings that
involve declaratory relief, covered by Rule 23(b)(2), and rulings
rewarding royalties or other individualized relief.” Id. Thus,
the J.O.P. court held that “threshold requirement of

ascertainability that is implicit in Rule 23 applies to Plaintiffs’
propose class.” Id. So it is here. Accordingly, the court finds
that the ascertainability requirement applies to Plaintiffs’
proposed Common Class.
ii. Application
Here, LabCorp is correct that even were Plaintiffs’ proposed
Common Law Class able to overcome the other hurdles for
certification, it fails to satisfy the ascertainability
requirement. As discussed above, each class depends on a class
member being charged a list price “in excess of the reasonable
market rate” despite no agreement or awareness of the potential

charges. (See, e.g., Doc. 111 at 25.) However, even assuming
LabCorp possesses the internal records to identify each potential
class member who was charged the list price (see Doc. 111 at, 33
n.19, 35), Plaintiffs have failed to identify an objective and
administratively feasible way to determine whether a potential
class member (or their “agent”)28 nevertheless was aware of or
agreed to pay the list price.29 Such determinations and extensive
fact finding would require the sort of “mini trials” that the
ascertainability requirement is designed to avoid. See Peters v.
Aetna Inc., 2 F.4th 199, 242 (4th Cir. 2021). LabCorp is correct
that Plaintiffs’ attempt to curtail these administrative problems

through their class definitions creates impermissible fail-safe
classes; whether a potential plaintiff qualifies as a member cannot
depend on whether LabCorp is unable to raise various individual
fact-driven defenses. See supra note 22. Thus, the court finds
that Plaintiffs’ Common Law Class fails to satisfy the
ascertainability requirement.
4. Rule 23(b) Requirements
In addition to meeting the Rule 23(a) requirements, “the
[proposed] class action must fall within one of the three
categories enumerated in Rule 23(b).” Gunnells, 348 F.3d at 423.
Plaintiffs seek to certify their Common Law Class under Rule

23(b)(2). (Doc. 111 at 33-34, 36-37.) Plaintiffs also seek to
certify the Misleading Estimates, Select Silver, and Urine Testing

28 See supra notes 20-21 and accompanying text.

29 Additionally, there is already evidence in the record that the list
price is not “unreasonable” or “in excess of the reasonable market rate”
in at least some instances. See supra note 26. Plaintiffs have not
submitted an administratively feasible way of distinguishing where the
list price charged was “reasonable” and where it was not.
subclasses pursuant to Rule 23(b)(3), and alternatively, under
Rule 23(b)(2). (Doc. 111 at 34-36.)30
a. Rule 23(b)(2)
Certification under Rule 23(b)(2) is appropriate if “the
party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief

or corresponding declaratory relief is appropriate respecting the
class as a whole.”31 Fed. R. Civ. P. 23(b)(2). By its terms, Rule
23(b)(2) therefore sets forth two requirements: (1) that the
defendant acted or refused to act on grounds generally applicable
to all class members, and that (2) final relief of an injunctive
nature or a corresponding declaratory nature, settling the
legality of the behavior with respect to the class, is appropriate.

30 As explained above, the Plaintiffs’ proposed subclasses cannot be
certified because the underlying claims were not adequately pleaded.
See supra, Part II-A-2 (“Subclass Certification”). However, the court
also finds that, in the alternative, these subclasses fail to satisfy
the requirements of Rule 23. See Ford, 703 F.3d at 711 n.2. For purposes
of the following analysis, moreover, the court considers Plaintiffs’
claims as to the credit card authorization in the Misleading Estimate
Subclass in the context of Plaintiffs’ overarching claim that LabCorp
is limited to seek a “reasonable value” for its services and not some
other disclosed value. (Doc. 111 at 25 (defining the Misleading Estimate
Subclass as those “Labcorp patients who were provided a written statement
describing potential charges not based on PLP, but were charged based
on PLP in excess of the reasonable market rate for the clinical lab
testing services Labcorp performed”) (emphasis added).)

31 “Because of the group nature of the harm alleged and the broad
character of the relief sought, the (b)(2) class is, by its very nature,
assumed to be a homogenous and cohesive group with few conflicting
interests among its members. Accordingly, Rule 23(b)(2) classes are
‘mandatory,’ in that ‘opt-out rights’ for class members are deemed
unnecessary and are not provided under the Rule.” Berry v. Schulman,
807 F.3d 600, 608-09 (4th Cir. 2015) (quotations omitted).
See Thorn, 445 F.3d at 330; Shook v. Board of County Commissioners
of County of El Paso, 543 F.3d 597, 604 (10th Cir. 2008) (noting
that the Tenth Circuit has “interpreted the rule to require that
a class must be amenable to uniform group remedies” (citation
omitted)).
“Rule 23(b)(2) applies only when a single injunction or

declaratory judgment would provide relief to each member of the
class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011);
Shook, 543 F.3d 597, 604 (“[T]he class must be sufficiently
cohesive that any class-wide injunctive relief can satisfy the
limitations of Federal Rule Civil Procedure 65(d) — namely, the
requirement that it ‘state its terms specifically; and describe in
reasonable detail . . . the act or acts restrained or
required.’”). “The requirement that declaratory or injunctive
relief predominate, of course, echoes the predominance requirement
of Rule 23(b)(3), and, albeit indirectly, serves essentially the
same function.” Thorn, 445 F.3d at 330. This rule does not

authorize class certification, however, when “each class member
would be entitled to an individualized award of monetary damages.”
Dukes, 564 U.S. at 360-61. “Rule 23(b)(2)’s categorical exclusion
of class actions seeking primarily monetary relief, like Rule
23(b)(3)’s predominance requirement, therefore ensures that the
class is sufficiently cohesive that the class-action device is
properly employed.” See Thorn, 445 F.3d at 330. Moreover, “[i]f
redressing the class members’ injuries requires time-consuming
inquiry into individual circumstances or characteristics of class
members or groups of class members, ‘the suit could become
unmanageable and little value would be gained in proceeding as a
class action.’” Shook, 543 F.3d at 604 (quoting Barnes v. American
Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998)). “In short, under

Rule 23(b)(2) the class members’ injuries must be sufficiently
similar such that they can be addressed in a single injunction
that need not differentiate between class members.” Id.; Thorn,
445 F.3d at 330 (“[T]he goal of the remedy phase is either to make
a declaration about or enjoin the defendant’s actions affecting
the class as a whole, and individual hearings will not be
necessary.”)
Plaintiffs argue that the Common Law Class satisfies Rule
23(b)(2) because an injunction would prevent LabCorp from
recovering a list price amount “that exceeded a reasonable value”
and require “advanced disclosure” of the list price. (Doc. 111 at

33.) Additionally, Plaintiffs argue that the Misleading Estimate,
Urine Testing, and Select Silver subclasses may be certified under
Rule 23(b)(2) because “Labcorp has acted in a uniform manner” in
“providing uniform documents with inadequate and misleading
estimates,” not acting “in conformance with industry standards”
when billing Urine Testing class members, and not “charging Select
Silver patients” the list price. (Id. at 37.)
In response, LabCorp argues that the Common Law class “fails
to satisfy Rule 23(b)(2)” because “disparate factual
circumstances” surround each potential class member. (Doc. 190 at
33.) For example, LabCorp argues that “an unidentified segment of
the proposed class . . . actually knew the PLP before service or
had their services ordered by a provider on their behalf who knew

the PLP” – render the proposed class “not cohesive.” (Id.) They
also argue that “Plaintiffs have not offered a workable injunction
plan with sufficient specificity.” (Id. (noting Plaintiffs’
proposed injunction is “unlimited as to time” and “would enjoin
conduct unrelated to liability”).) Further, LabCorp contends that
the Misleading Estimate, Urine Testing, and Select Silver
subclasses should not be certified under Rule 23(b)(2) in the
alternative, as “such a class may be certified only when monetary
damages are ‘incidental’ to the injunction sought.” (Id. at 40
(citing Berry v. Schulman, 807 F.3d 600, 609 (4th Cir. 2015)). In
reply, Plaintiffs suggest various types of injunctive relief the

court “could” provide to generally “protect class members.” (Doc.
192 at 8, 8 n.5.)
The problems that inhere in the determination of a “reasonable
price” for the thousands of tests for the class members infect the
injunctive relief request. (See Doc. 120-2 at 17 (Dr. Song
acknowledging the existence of 281,341 unique tests); Doc. 190-3
at 260 (deposition of LabCorp Senior Vice President Tammy Karnes,
explaining that LabCorp has “thousands of tests”).) As discussed
above, determining the list price for each test will depend on a
factfinder analyzing numerous factors, including those offered by
LabCorp’s pricing department.32 (See Doc. 190 at 9-10.) Thus,
even if a list price for one test for one class member was deemed
unreasonable and LabCorp was enjoined from collecting it, that

would not necessarily mean that a different list price for any of
the thousands of different tests is unreasonable for different
class members. Any appropriate injunctive relief would require
individualized assessments of whether a particular class member is
entitled to an order barring the collection of the list price as
to each test in his or her bill, and thus there is no “cohesiveness
among class members with respect to their injuries.” Shook, 543
F.3d at 604; see Dukes, 564 U.S. at 360. In other words, Plaintiffs
do not satisfy Rule 23(b)(2) because “as a substantive matter the
relief sought would merely initiate a process through which highly
individualized determinations of liability and remedy are made.”

Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 499 (7th Cir. 2012)
(finding district court erred by certifying an injunction class
under Rule 23(b)(2)). This cuts against the very definition of a
cohesive class. See Gates, 655 F.3d at 264 (“The key to the [Rule
23](b)(2) class is ‘the indivisible nature of the injunctive or

32 See supra note 26 and accompanying text.
declaratory remedy warranted — the notion that the conduct is such
that it can be enjoined or declared unlawful only as to all of the
class members or as to none of them.’”) (quoting Dukes, 564 U.S.
at 360)); see Shook, 543 F.3d at 604 (“The latter half of Rule
23(b)(2) requires that final injunctive relief be appropriate for
the class as a whole . . . and we have interpreted the rule to

require that a class must be amenable to uniform group remedies.”
(internal quotation marks omitted)(emphasis in original)); see
also Thorn, 445 F.3d at 330 (“[T]he goal of the remedy phase is
either to make a declaration about or enjoin the defendant’s
actions affecting the class as a whole, and individual hearings
will not be necessary.”).
Furthermore, Plaintiffs do not attempt to justify their
proposed injunctive remedy, which asks the court to “enjoin[]
collection of PLPs on past or future lab tests when there is no
patient written acknowledgment of that price.” (Doc. 111 at 24.)
This proposal is problematic because it appears to reach what even

Plaintiffs concede is lawful conduct. Plaintiffs’ theory of
liability in this case is that it is unlawful for LabCorp to
collect the list price without disclosing that price before the
test is performed. (Doc. 111 at 9.) Yet under their proposed
injunction, LabCorp would be subject to contempt proceedings even
when a patient was orally advised of the list price – whether by
LabCorp, a treating physician, or otherwise - but did not provide
that patient with a written acknowledgment of that price. As such,
the proposed injunction goes far beyond enjoining the conduct
complained of and violates “traditional concepts of judicial
restraint in equity matters.” Bhd. of R.R. Carmen of Am., Local
No. 429 v. Chi. & N.W. Ry. Co., 354 F.2d 786, 800 (8th Cir. 1965);
see N.L.R.B. v. Express Publ'g Co., 312 U.S. 426, 435-36 (1941)

(“This Court will strike from an injunction decree restraints upon
the commission of unlawful acts which are thus [disassociated]
from those [acts] which a defendant has committed.”); Mallet & Co.
Inc. v. Lacayo, 16 F.4th 364, 390 (3d Cir. 2021) (“Injunction
orders should not restrain competitors from engaging in lawful
business activities.”).
Plaintiffs’ other vague suggestions for injunctive relief
fare no better. (See Doc. 192 at 8, 8 n.5 (“The Court could also
enjoin Labcorp from collecting PLPs from class members, to make
its PLPs publicly available (such as on its website), and/or
requiring a patient’s signature to acknowledge PLPs before being

billed them.”).) While Plaintiffs need not “come forward with an
injunction that satisfies Rule 65(d) with exacting precision at
the class certification stage,” Shook, 543 F.3d at 605 n.4, they
must at least be able to describe it in “reasonably particular
detail” to permit the court to “at least ‘conceive of an injunction
that would satisfy Rule 65(d)'s requirements,’ as well as the
requirements of Rule 23(b)(2).” Id. at 605 (alteration omitted)
(quoting Monreal v. Potter, 367 F.3d 1224, 1236 (10th Cir. 2004)).
“Rule 65(d) reflects Congress’[s] concern with the dangers
inherent in the threat of a contempt citation for violation of an
order so vague that an enjoined party may unwittingly and
unintentionally transcend its bounds.” Sanders v. Air Line Pilots
Ass'n, Int'l, 473 F.2d 244, 247 (2d Cir. 1972) (citing Int'l

Longshoremen's Ass'n, Local 1291 v. Phila. Marine Trade Ass'n, 389
U.S. 64 (1967)). Here, Plaintiffs’ indefinite intentions for their
injunction are not sufficient to trigger the remedial power of the
court to dictate how a private company conducts its business. See
Gunn v. University Committee to End the War in Vietnam, 399 U.S.
383, 389 (1970) (“An injunctive order is an extraordinary writ,
enforceable by the power of contempt.”); CPC Int'l, Inc. v. Skippy
Inc., 214 F.3d 456, 459 (4th Cir. 2000) (“The terms of Rule 65(d)
are mandatory and must be observed in every instance.”) (internal
quotation marks omitted).
Finally, LabCorp is correct that, although Plaintiffs’ class

certification of the Misleading Estimates, Urine Testing, and
Select Silver subclasses nominally seeks an injunction, “[w]here
monetary relief predominates, Rule 23(b)(2) certification is
inappropriate.” Berry, 807 F.3d at 609. The clear purpose of
each of Plaintiffs’ proposed subclasses is monetary relief – it is
not enough that LabCorp ceases to perform the conduct at issue to
each class member. In order to be granted relief, each class
member primarily seeks compensation for LabCorp’s alleged
wrongdoing. Thus, Rule 23(b)(2) certification is improper as “the
presumption of cohesiveness” is broken down and “the procedural
safeguard of opt-out rights” is necessary. Id.
Accordingly, Plaintiffs’ proposed classes fail to satisfy the
requirements of Rule 23(b)(2).

b. Rule 23(b)(3)
Rule 23(b)(3) class actions are proper where “the court finds
that the questions of law or fact common to class members
predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.” Fed. R.
Civ. P. 23(b)(3). These two requirements relate to the action’s
“manageability,” which is “a practical problem, and primarily a
factual one with which a district court generally has a greater
familiarity and expertise.” See Windham v. American Brands, Inc.,
565 F.2d 59, 65 (4th Cir. 1977) (en banc) (citation omitted).

Accordingly, trial courts enjoy “a wide range of discretion” in
evaluating whether the requirements of Rule 23(b)(3) have been
met. Id. (citation omitted); see Reiter v. Sonotone Corp., 442
U.S. 330, 345 (1979) (noting that district courts “have broad power
and discretion vested in them” as to the “certification and
management of potentially cumbersome” class actions).
The predominance requirement - that questions common to the
class “predominate” over other individual questions - is more
stringent than the “commonality” requirement under Rule 23(a).
See Lienhart v. Dryvit Systems, Inc., 255 F.3d 138, 146 n.4 (4th
Cir. 2001). An individual question is one where proposed class
members will need to present “evidence that varies from member to
member,” while a common question can be proved by the same evidence

for each member in order to make a prima facie showing “or the
issue is susceptible to generalized, class-wide proof.” Tyson
Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (citation
omitted). The predominance inquiry begins “with the elements of
the underlying cause of action.” Erica P. John Fund, Inc. v.
Haliburton Co., 563 U.S. 804, 809 (2011). At bottom, the inquiry
determines whether a trial meant to resolve class-wide issues is
manageable or whether it is likely to devolve into a series of
individual mini-trials examining questions specific to individual
class members. See Thorn, 445 F.3d at 327–29.
Plaintiffs argue that, as to the Misleading Estimate, Urine

Testing, and Select Silver subclasses, their class definitions
satisfy the predominance requirement. (Doc. 111 at 34-36.) In
response, LabCorp argues that “individualized [fact] questions”
will predominate over Plaintiffs’ proposed common questions, and
that “Plaintiffs also failed to show that individualized issues
regarding state law will not predominate.” (Doc. 190 at 39.)
LabCorp further contends that “Plaintiffs previously represented
to this Court that ‘each state’s [consumer protection law] statute
is distinct and requires separate analysis as to whether the claim
may proceed.’” (Id. at 39-40 (citing Doc. 36 at 14).) Plaintiffs
did not respond to these arguments in their reply. (See Doc. 192.)
That silence is ordinarily deemed a concession of the
argument. See Mahdi v. Stirling, 20 F.4th 846, 905 (4th Cir. 2021)

(citations omitted) (explaining that a failure to respond to an
argument in reply brief results in waiver of that issue). But
even so, it is apparent that common questions for these proposed
classes do not predominate. First, as discussed above with respect
to Rule 23(a)’s requirement of commonality, the question of whether
a class member was charged a list price that exceeds a reasonable
value “turns on a consideration of the individual circumstances of
each class member.” Thorn, 445 F.3d at 319 (citation omitted).
Whether the factors LabCorp considers when determining the list
price for a particular test at a particular time in a particular
region was “reasonable” for that particular class member is

necessarily a specific inquiry for individual class members. Cf.
Maldonado v. Ochsner Clinic Foundation, 493 F.3d 521, 525 (5th
Cir. 2007) (“[T]he reasonableness of medical fees depends on
multiple factors, including the services rendered, patient’s
financial status, and customary fee for similar services, [so] it
is unlikely Appellants could ever demonstrate that the
chargemaster rates are unreasonable.”). Such individualized
questions, applied to the diverse situations of the potential class
members, illustrates that the predominance requirement cannot been
met.
In addition to the nature of each test, there is an
individualized component as to the damages suffered. See Deiter,
436 F.3d at 467 (discussing, in class action antitrust claim

context, the requirement that the plaintiffs establish proof of
damages). While individual questions as to damages do not
necessarily defeat class certification alone, see Gunnells, 348
F.3d at 429, Plaintiffs’ theory assumes that proof that one test
exceeds the “reasonable value” is sufficient to show injury across
the class. Not only is that not true for any specific test, it is
not true across the hundreds (perhaps thousands) of tests at issue
in this litigation. Merely demonstrating that a list price exceeds
the reasonable value as to one test for one class member in one
locale does not necessarily demonstrate that a separate list price
exceeds a separate reasonable value for a different class member.

Further, as to the Misleading Estimates subclass, LabCorp is
correct that “Plaintiffs have not tried to show that the consumer
protection laws of all states are sufficiently similar to warrant
certification of nationwide subclasses.” (Doc. 190 at 39.) Where
attempting to certify a class across the law of several states,
“plaintiffs have the burden of showing that common questions of
law predominate, and they cannot meet this burden when the various
laws have not been identified and compared.” Gariety v. Grant
Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004) (emphasis added).33
Here, Plaintiffs have failed to identify and compare the possible
consumer protection statutes applicable to their class claims.
Additionally, Plaintiffs’ prior representations to this court
suggests that any effort to do so would be fruitless. (See Doc.

36 at 14 (noting that “each state’s [consumer protection law]
statute is distinct and requires separate analysis as to whether
the claim may proceed”); see also Doc. 190 at 40 (discussing
“relevant differences” between the consumer protection laws at
issue here).) See BMW of North America, Inc. v. Gore, 517 U.S.
559, 568–70 (1996) (describing the states’ deceptive trade
practice laws as “a patchwork of rules representing the diverse
policy judgments of lawmakers in 50 States”).
Accordingly, Plaintiffs’ motion for class certification (Doc.
99) will be denied, and Plaintiffs’ motion for appointment of class
counsel under Rule 23(g) contained therein will be denied as moot.

B. Motion to Seal
The parties have moved jointly to seal certain portions of
the record. (Docs. 196, 197.) Plaintiffs later filed an objection
to certain designations addressed in the joint motion (Doc. 198),

33 This is borne out by the related case, Nolan, supra, whose claims are
predicated on the unfair and deceptive trade practice laws of Florida
and Nevada, which differ not only in their statutory text but also in
their judicial interpretations.
and LabCorp filed a reply (Doc. 199). For the reasons stated
below, the motion to seal will be granted.
“[T]he courts of this country recognize a general right to
inspect and copy . . . judicial records and documents.” Nixon v.
Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). “The operations
of the courts and the judicial conduct of judges are matters of

utmost public concern,” Landmark Commc'ns, Inc. v. Virginia, 435
U.S. 829, 839 (1978), “and the public's business is best done in
public.” Cochran v. Volvo Grp. N. Am., LLC, 931 F. Supp. 2d 725,
727 (M.D.N.C. 2013). The right of public access derives from both
the common law and the First Amendment. See Va. Dep’t of State
Police v. Washington Post, 386 F.3d 567, 576 (4th Cir. 2004).
“While the common law presumption in favor of access attaches to
all ‘judicial records and documents,’ the First Amendment
guarantee of access has been extended only to particular judicial
records and documents.” Stone v. Univ. of Md. Med. Sys. Corp.,
855 F.2d 178, 180 (4th Cir. 1988) (citation omitted). Accordingly,

in any given case, some documents will “fall within the common law
presumption of access,” others will be “subject to the greater
right of access provided by the First Amendment,” and some “may
not qualify as ‘judicial records’ at all.” United States v.
Moussaoui, 65 F. App'x 881, 889 (4th Cir. 2003) (unpublished)
(citing United States v. Amodeo, 44 F.3d 141, 145–46 (2d
Cir.1995)).34
When a party makes a request to seal judicial records, a
district court “must comply with certain substantive and
procedural requirements.” Washington Post, 386 F.3d at 576.
Procedurally, the court must (1) give the public notice and a
reasonable opportunity to challenge the request to seal; (2)

“consider less drastic alternatives to sealing”; and (3) if it
decides to seal, make specific findings and state the reasons for
its decision to seal over the alternatives. Id. “As to the
substance, the district court first must determine the source of
the right of access with respect to each document, because only
then can it accurately weigh the competing interests at stake.”
Id. (internal quotation marks and alteration omitted).
As to the source of the right at issue, this court has
previously explained that “[t]here does not appear to be a First
Amendment right of access” to briefs and exhibits filed in
connection with a motion for class certification. Cochran, 931 F.

Supp. 2d at 728; see Garey v. James S. Farrin, P.C., No. 1:16CV542,
2020 WL 1676947, at *1 (M.D.N.C. Apr. 6, 2020). Nevertheless, as
“documents filed with the court that play a role in the
adjudicative process,” briefs and exhibits filed in connection

34 Unpublished opinions of the Fourth Circuit are not precedential but
can be cited for their persuasive, but not controlling, authority. See
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).
with a motion for class certification are considered “judicial
records” to which the common law presumption of access attaches.
See Cochran, 931 F. Supp. 2d at 727–29 (citing In re Application
of U.S. for an Order Pursuant to 18 U.S.C. Section 2703(d), 707
F.3d 283, 290 (4th Cir. 2013)).
The common law presumption of access may be overcome when

“there is a ‘significant countervailing interest’ in support of
sealing that outweighs the public's interest in openness.” In re
Application, 707 F.3d at 293 (quoting Under Seal v. Under Seal,
326 F.3d 479, 486 (4th Cir. 2003)). The burden of establishing
such a countervailing interest is on the party seeking to keep the
information sealed. See Rushford v. New Yorker Magazine, Inc.,
846 F.2d 249, 253 (4th Cir. 1988).
In evaluating whether a party has met its burden to overcome
the public's right of access, the court should consider “the
interests advanced by the parties in light of the public interest
and the duty of the courts.” Nixon, 435 U.S. at 602. As the Nixon

Court noted, “access has been denied where court files might have
become a vehicle for improper purposes,” such as using court
records to gratify private spite, to promote public scandal, or as
“sources of business information that might harm a litigant's
competitive standing.” Id. at 598.
In their joint motion to seal, the parties contend that there
are three categories of documents and information appropriate for
sealing: (1) “Medical, insurance, and records containing
Plaintiffs’ individually identifiable health information,”
including “information protected by” the Health Insurance
Portability and Accountability Act (“HIPPA”); (2) “LabCorp’s
sensitive and confidential competitive business information”; and
(3) “[A]nalysis discussing information produced by a non-party,

Quest Diagnostics, Inc.,” which was “designated by Quest’s counsel
as” highly confidential. (Doc. 197 at 4-5.) Two weeks after
filing the joint motion to seal, however, Plaintiffs apparently
changed tack and objected to certain of LabCorp’s “sealing
designation of data derived from LabCorp’s publicly available
pricing.” (Doc. 198 at 3.) They also sought to “withdraw their
sealing designations for any Protected Health Information” for all
named plaintiffs and affiants, except for Lily Martyn and Ramzi
Khazen. (Id.) In reply, LabCorp maintains that its confidential
business information should be sealed and stresses that
Plaintiffs’ objection mischaracterizes its request as an effort to

seal its patient list prices. (Doc. 199 at 3.) As to Plaintiffs’
reversal of their own request to seal portions of their documents
containing HIPPAA-protected information, LabCorp “takes no
position” but “respectfully seeks further direction from the Court
to ensure compliance with federal law” as it relates to the
protected health information contained in its own filings. (Id.
at 3-5.)
First, as to the joint motion’s second and third categories
– concerning LabCorp’s sensitive and confidential business
information and certain confidential analysis provided by Quest
Diagnostics, a non-party – the court finds that that the
presumption of access has been overcome and therefore that sealing
is appropriate. It is well-established that “[o]ne exception to

the public's right of access is where such access to judicial
records could provide a ‘source[] of business information that
might harm a litigant's competitive standing.’” Woven Electronics
Corp. v. Advance Group, Inc., 930 F.2d 913 (4th Cir. 1991)
(unpublished) (quoting Nixon, 435 U.S. at 598); see Bayer
Cropscience, Inc. v. Syngenta Crop Prot., LLC, 979 F. Supp. 2d
653, 656–57 (M.D.N.C. 2013) (explaining that sealing is
appropriate when the information contains “certain marketing,
sales, and licensing information which is not ordinarily public”
whose disclosure would harm “[t]he competitive and financial
interest of the part[y]”); Longman v. Food Lion, Inc., 186 F.R.D.

331, 335 (M.D.N.C. 1999) (noting documents could “be sealed even
given the public access requirements because they contain
Defendants’ trade secrets, confidential business information, or
information protected by attorney-client privilege”).
While statements by counsel in briefs are not evidence, INS
v. Phinpathya, 464 U.S. 183, 188 n. 6 (1984), superseded by statute
on other grounds, 8 U.S.C. § 1254(b)(3), LabCorp’s representation
to the court “that documents contain confidential business
information can be considered as some evidence.” Cochran, 931 F.
Supp. 2d 730 (citing Pittston Co. v. United States, 368 F.3d 385,
406 (4th Cir. 2004)). Moreover, the court’s own review of the
materials reveals that LabCorp, far from attempting to conceal the
patient list prices, seeks only to keep secret certain non-public

business information whose disclosure would harm its competitive
standing. Furthermore, LabCorp has narrowly tailored its proposed
redactions to allow for public access to the majority of the
filings, a less drastic alternative to sealing the documents in
their entirety. See Garey, 2020 WL 1676947, at *2. Here, too,
the public notice of the request to seal was filed on January 12,
2022, over a year ago, and since then no member of the public has
objected despite a reasonable opportunity to do so. See Silicon
Knights, Inc. v. Epic Games, Inc., No. 5:07-CV-275-D, 2008 WL
3914463, at *3 (E.D.N.C. Aug. 22, 2008). Accordingly, the motion
to seal, as it relates to LabCorp’s confidential and sensitive

business information, is granted.
Next, as to the joint motion’s second category of information
– the “[m]edical, insurance, and records containing Plaintiffs’
individually identifiable health information and other health
information, including information protected by [HIPPA]” – the
court also finds that the presumption of access has been overcome.
Courts regularly recognize that an individual’s interest in the
privacy of his or her health information is a legitimate basis for
sealing. See Ansara v. Maldonado, No. 219CV01394GMNVCF, 2022 WL
17253803, at *3 (D. Nev. Nov. 1, 2022); K.K. v. Premera Blue Cross,
No. 21-cv-1611, 2022 WL 1719134, at *4 (W.D. Wash. May 27, 2022);
Frohn v. Globe Life & Accident Ins. Co., No. 1:19-CV-713, 2022 WL
214553, at *1 (S.D. Ohio Jan. 25, 2022); U.S. ex rel. Lockyer v.

Hawaii Pac. Health, No. CIV. 04-00596 ACK-LE, 2007 WL 128853, at
*1 (D. Haw. Jan. 10, 2007). Congress, too, has recognized the
importance of that privacy interest when it enacted HIPAA, 42
U.S.C. § 1320d et seq., a federal statute which obliges LabCorp,
as a covered entity, to carefully guard the use and disclosure of
its patients protected health information. (Doc. 199 at 4). This,
too, weighs in favor of sealing. See Shane Grp., Inc. v. Blue
Cross Blue Shield of Michigan, 825 F.3d 299, 308 (6th Cir. 2016)
(explaining that sealing is appropriate when the information is
protected by statute or regulation). Finally, the public’s
interest in access to this information is at best minimal,

especially considering the court’s limited reliance on the
information sought to be kept secret.35 See Lesnik v. Eisenmann
SE, No. 16-CV-01120-LHK, 2021 WL 2093062, at *2 (N.D. Cal. Feb.
12, 2021) (explaining that because the court “did not rely on any
of the information that the parties seek to seal” the “public

35 The court’s only citation to this redacted information can be found
at footnote 26, supra.
interest in access to this information is minimal.”) Accordingly,
the compelling reasons for sealing here outweigh the public’s need
for direct access to the information sought to be redacted.
Plaintiffs indicate, however, that they no longer “object to
the public disclosure” of their medical information and thus seek
to “withdraw” their requests to seal made in connection with their

filings. (Doc. 198 at 6.) LabCorp does not oppose this request.
(Doc. 199 at 4-5.) Of course, should they so choose, Plaintiffs
may voluntarily file documents on the public docket which contain
references to their own confidential health information.
Accordingly, the court grants the motion to seal; provided,
however, that the grant is stayed for seven days and is without
prejudice to Plaintiffs’ withdrawal of the sealed documents filed
with the court and refiling same for public view with redactions
of only personal identifiers (such as birthdate, social security
number, etc.). See United States v. Dunlap, 458 F. Supp. 3d 368,
372 (M.D.N.C. 2020).

III. CONCLUSION
This case, which has been through various iterations over
almost six years, seeks to address an issue endemic to the present
health care economy: the often-indeterminate cost of healthcare.
The present context involves laboratory testing. Many, perhaps
most, patients who seek laboratory testing do so at the behest of
a treating physician. With the patchwork of insurance coverage
options – including Medicare, Medicaid, and scores of insurers -
physicians themselves are ill-suited to know the range of prices
applicable to any particular patient for any particular test by
any particular testing laboratory. While patients could inquire
of their physician’s business staff or of the laboratory services
company itself about their full potential financial liability,

this case demonstrates that some, perhaps many, fail to do so.
The same is true when patients order tests directly from LabCorp
at one of its service centers. By contrast, it would be a rare
thing for a customer to conduct any other business transaction in
a similar fashion.
Plaintiffs here seek to prohibit LabCorp from charging its
list prices to patients who order laboratory testing through their
physicians or at LabCorp service centers on the grounds that such
prices, which often exceed negotiated prices with insurers or the
government, are excessive and undisclosed. Plaintiffs’ proposed
remedy is a court-imposed nationwide average “reasonable rate”

across hundreds, if not thousands, of tests. This “reasonable
rate” would be imposed as well on all LabCorp customers who
presented to a LabCorp service center and received an estimate of
their costs based on the customer’s proffered insurance
information but for whom the insurer later denied coverage, in
whole or in part. Finally, Plaintiffs seek injunctive relief,
including a requirement that LabCorp post its list prices on the
internet and disclose its list prices in its interactions with
patients at its service centers, even though the patients claim to
have insurance which, if applicable, would likely entitle them to
a lower rate.
Some jurisdictions have addressed so-called “surprise”
medical billing legislatively, mandating certain disclosures.36

While legislatures are not bound by the Federal Rules of Civil
Procedure, this court is. In seeking to impose such a remedy
judicially in this proposed class action, Plaintiffs’ claims
cannot overcome the important hurdles that distinguish a court
from a legislature. For the reasons stated, the problems alleged
in this case are not amenable to judicial relief. Therefore,
IT IS ORDERED that the Plaintiffs’ motion for class
certification (Doc. 99) is DENIED, their motion for appointment of
class counsel under Rule 23(g) (Doc. 99) is DENIED as moot, and
the parties’ joint motion to seal (Doc. 196) is GRANTED, provided,
however, that the grant is STAYED for seven days and is without

prejudice to Plaintiffs’ withdrawing those identified sealed
documents filed with the court and re-filing them for public view
with redactions of only personal identifiers (such as birthdate,
social security number, etc.).

36 See, e.g., No Surprises Act, Pub. L. 116-260, 134 Stat. 2758 (2021);
Conn. Gen. Stat. § 38a-477aa (2015) (the “Surprise Billing Law”); Wash.
Rev. Code § 48.49, et seq. (2019) (“Balance Billing Protection Act”);
N.M. Stat. Ann § 59a, et seq. (2019) (the “Surprise Billing Protection
Act”).
/s/ Thomas D. Schroeder
United States District Judge
February 13, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254229. Public record. Not legal advice.