# Long Island Anesthesiologists PLLC v. United Healthcare Insurance Company of New York Inc.

> District Court, E.D. New York · November 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10310812

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 21, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10310812

## How later opinions describe it (automated extraction)

- finding that the market had remained unaltered when “[f]ron the consumers’ point of view, nothing about the market has changed”
- finding that a party may not amend its pleadings through statements made in motion papers
- stating that if defendant had been acting alone, Plaintiff “would have little basis for challenging the reimbursement rates” because “[a] firm that has substantial power on the buy side of the market (i.e., monopsony power

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

LONG ISLAND ANESTHESIOLOGISTS
PLLC, MEMORANDUM & ORDER
22-CV-04040 (HG)
Plaintiff,

v.

UNITED HEALTHCARE INSURANCE
COMPANY OF NEW YORK INC., as
Program Administrator, THE EMPIRE PLAN
MEDICAL/SURGICAL PROGRAM,
MULTIPLAN INC.,

Defendants.

HECTOR GONZALEZ, United States District Judge:
Defendants1 have moved to dismiss Plaintiff’s complaint, which asserts antitrust and
unjust enrichment claims based on allegations that Defendants are using their market power to
force out-of-network anesthesia practices in the New York metropolitan area to accept
dramatically lower reimbursement rates for services provided to patients insured by the Empire
Plan. ECF No. 1 (Complaint). For the reasons set forth below, the Court grants Defendants’
motions to dismiss in full. See ECF Nos. 30 & 31 (Defendants’ Motions to Dismiss).
FACTUAL BACKGROUND
Plaintiff Long Island Anesthesiologists PLLC (“LIA”) is a private anesthesia services
provider located in Suffolk County, New York. ECF No. 1 ¶¶ 1, 19. LIA provides anesthesia

1 Although the docket lists The Empire Plan Medical/Surgical Program as a defendant, the
Court’s understanding is that Plaintiff’s intent in its case caption was to name as a defendant
United Healthcare Insurance Company of New York Inc., in its role as Program Administrator of
the Empire Plan Medical/Surgical Program. Additionally, Plaintiff has only served United
Healthcare Insurance Company of New York Inc. and Multiplan Inc. See ECF Nos. 3–4.
Accordingly, references in this Order to “Defendants” refer to United Healthcare Insurance
Company of New York Inc. and Multiplan Inc.
services to patients at Good Samaritan Hospital Medical Center in West Islip, New York, and at
other physician offices and surgery centers throughout the New York metropolitan area. Id. ¶¶ 1,
19, 24. LIA, like many anesthesiology practices in the New York metropolitan area, has an out-
of-network relationship with most health insurance providers. Id. ¶¶ 36–38. Defendant

UnitedHealthcare Insurance Company of New York Inc. (“United”) is a health insurer and health
plan provider and a subsidiary of UnitedHealth Group Incorporated (“UHG”), a multi-national
managed healthcare and insurance company and the world’s second largest healthcare company
by revenue. Id. ¶¶ 2–3, 39–43. United is also the administrator of the Empire Plan, a health plan
in which roughly 1.2 million public-sector employees in the New York metropolitan area are
enrolled. Id. ¶¶ 2–3, 64–71. Approximately 40% of LIA’s revenue comes from the Empire Plan
and LIA estimates that the Empire Plan makes up a similar share of revenue for other anesthesia
groups in the New York metropolitan area. Id. ¶¶ 3, 78–79. Although Plaintiff’s complaint does
not include specific details about Defendant MultiPlan Inc. (“MultiPlan”), MultiPlan provides
billing support services to United. ECF No. 30-1 (MultiPlan Motion to Dismiss) at 2.2

According to LIA, prior to January 2022, the Empire Plan reimbursed out-of-network
physicians at amounts approximating the usual, customary, and reasonable (“UCR”) rate for
medical services in the geographic area in which the services were provided. ECF No. 1 ¶ 72.
This practice did not change when, in March 2015, the Empire Plan began using the independent
dispute resolution (“IDR”) process established by the New York Surprise Bill Law to settle
reimbursement disputes between health plans and out-of-network physicians. Id. ¶¶ 81–90.

2 Because this fact is not alleged in the complaint, the Court is only setting it forth here to
provide background on MultiPlan. It is not a necessary fact that affected the Court’s decision.
However, in January 2022, after the Federal No Surprises Act took effect,3 LIA alleges that the
Empire Plan decreased the rates at which it reimbursed out-of-network providers by more than
80% after determining that it was not bound by the New York Surprise Bill Law. Id. ¶¶ 4, 94–
117.

Plaintiff alleges that after the Empire Plan determined that it was not covered by the New
York Surprise Bill Law’s IDR process, MultiPlan began to communicate with LIA and other
anesthesiology providers, identifying itself as working with United, in an effort to pressure
providers into accepting the lower reimbursement rates offered by MultiPlan. Id. ¶¶ 4, 123–30.
In these communications, MultiPlan allegedly demanded rapid response times and requested
onerous and detailed documentation from providers related to reimbursement claims. Id. ¶¶
125–33. Plaintiff alleges that these communications are designed to force anesthesia providers to
abandon their challenges to the Empire Plan’s newly-decreased reimbursement rates and that the
tactic has been effective because practices lack the resources to pursue challenges to the
reimbursement amounts. Id. ¶ 132–33.

According to LIA, the lower reimbursement rates will decrease the availability of high-
quality anesthesia services in the New York metropolitan area and hamper the ability of out-of-
network practices to recruit and retain new talent. Id. ¶¶ 5, 135–37. Because of United’s size
and market share, LIA alleges that its decision to lower the Empire Plan’s reimbursement rate for
anesthesia services will cause a significant number of anesthesia practices to leave the relevant
market by going out of business or being forced to sell their practices. Id. ¶¶ 7, 143–46. LIA
also alleges that lower reimbursement rates will force patients with high-deductible plans or

3 According to Plaintiff, the IDR process under the Federal No Surprises Act provides for
reimbursement at a substantially lower rate than the UCR. Id. ¶¶ 115–16.
plans with large cost-sharing requirements for out-of-network services to pay significantly more
for medically necessary services. Id. ¶ 147.
LIA claims that United’s actions in reducing reimbursement rates and pressuring
anesthesia providers to accept these lower rates are intended to force anesthesia providers out of

business to the benefit of another UHG subsidiary, Optum, which, through its OptumCare
business, employs physicians, including anesthesia providers. Id. ¶¶ 7, 46–55, 142–44.
According to LIA, OptumCare employs more than 50 anesthesiologists in the New York
metropolitan area. Id. ¶ 54.
Plaintiff asserts five causes of action. First, it alleges that United and MultiPlan have
engaged in an antitrust conspiracy to restrain trade in violation of Section 1 of 15 U.S.C. § 1 (the
“Sherman Act”). ECF No. 1 ¶¶ 183–87. Next, LIA asserts that United possesses monopsony4
power in the relevant market, that it is willfully maintaining that power through anticompetitive
conduct, and that it is leveraging that power to gain an anticompetitive advantage in the relevant
market, in violation of Section 2 of the Sherman Act. Id. ¶¶ 188–92. Third, LIA asserts that

United has engaged in predatory or anticompetitive conduct in an attempt to acquire monopsony
power and that it has a dangerous probability of achieving monopsony power, in violation of
Section 2 of the Sherman Act. Id. ¶¶ 193–97. Fourth, LIA asserts that United and MultiPlan
have engaged in an antitrust conspiracy to restrain trade in violation of New York’s General
Business Law §§ 340, et seq. (the “Donnelly Act”). Id. ¶¶ 198–203. Finally, LIA asserts that
United and MultiPlan were unjustly enriched at LIA’s expense by receiving fees and retaining
reimbursement through their improper scheme. Id. ¶¶ 204–09.

4 A monopsony is a market dominated by a single buyer who controls the market. See
Monopsony, Black’s Law Dictionary (11th ed. 2019).
LEGAL STANDARD
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).5 “A claim is plausible ‘when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d
Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “The purpose of a motion to
dismiss for failure to state a claim under Rule 12(b)(6) is to test the legal sufficiency of
[p]laintiff’[s] claims for relief.” Amadei v. Nielsen, 348 F. Supp. 3d 145, 155 (E.D.N.Y. 2018).
Although all allegations contained in a complaint are assumed to be true, this tenet is
“inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
DISCUSSION
The Court dismisses each of Plaintiff’s claims for the reasons described more fully
below. Plaintiff has not sufficiently alleged an antitrust injury. Accordingly, Plaintiff’s Sherman
Act Section 1 claim alleging an antitrust conspiracy against United and MultiPlan and Plaintiff’s

Sherman Act Section 2 claim against United related to allegations of monopsony power are
dismissed. Plaintiff’s Sherman Act Section 1 claims against both Defendants are also dismissed
because Plaintiff fails to state a plausible claim against MultiPlan. Finally, after dismissing
Plaintiff’s federal claims, the Court declines to exercise supplemental jurisdiction over Plaintiff’s
Donnelly Act and unjust enrichment claims.

5 Unless noted, case law quotations in this order accept all alterations and omit internal
quotation marks, citations, and footnotes.
I. Plaintiff’s Sherman Act Claims Against United and MultiPlan
Plaintiff asserts three Sherman Act claims against United and one Sherman Act claim
against MultiPlan. First, Plaintiff claims that United and MultiPlan engaged in an antitrust
conspiracy to restrain trade in violation of Section 1 of the Sherman Act. ECF No. 1 ¶¶ 183–87.
Next, Plaintiff alleges that United violated Section 2 of the Sherman Act because it possesses

monopsony power that it is willfully maintaining through anticompetitive conduct. Id. ¶¶ 188–
92. And, finally, Plaintiff alleges that United violated Section 2 of the Sherman Act because it
has engaged in predatory or anticompetitive conduct in an attempt to acquire monopsony power.
Id. ¶¶ 193–97.6
A. Plaintiff’s Sherman Act Claims Against United and MultiPlan Fail Because
Plaintiff Has Not Sufficiently Alleged Antitrust Injury
In an antitrust case, a private plaintiff must have constitutional standing under Article III,
as well as antitrust standing. See Associated Gen. Contractors of Cal., Inc. v. Cal. State Council
of Carpenters, 459 U.S. 519, 535 n. 31 (1983). Antitrust standing is “a threshold, pleading-stage
inquiry and when a complaint by its terms fails to establish this requirement [the court] must
dismiss it as a matter of law.” Gatt Commc’ns Inc. v. PMC Assocs. L.L.C., 711 F.3d 68, 75 (2d

6 United also argues that Plaintiff’s complaint should be dismissed or stayed under the
Colorado River abstention doctrine and that Plaintiff’s antitrust claims fail because the Empire
Plan is not subject to New York’s Surprise Bill Law. ECF No. 31-1 at 8–13. According to
United, whether the Empire Plan is subject to New York’s Surprise Bill Law or required to
follow the Federal No Surprises Act is a threshold question on which the Court should abstain
from ruling until the declaratory judgment action in New York Supreme Court regarding the
same question is resolved. In supplemental letters submitted by the parties after the motions
were briefed, the parties note that the New York Supreme Court has issued an opinion in the
declaratory judgment action, which Plaintiff is appealing. ECF Nos. 48 & 49 (Supplemental
Letters). However, because the Court finds that Plaintiff has not sufficiently pled antitrust injury
regardless of whether the New York or Federal law controls the Empire Plan’s reimbursements
and because the parties have not briefed what, if any, preclusive effect they believe the New
York Supreme Court’s ruling has on this case, the Court does not need to reach the question of
whether Plaintiff’s claims fail because the Empire Plan is not subject to New York’s Surprise
Bill Law.
Cir. 2013). To establish antitrust standing with respect to both its Sherman Act Section 1 and
Section 2 claims as a private plaintiff, LIA must do more than allege an injury causally related to
unlawful conduct – it must allege plausible facts that it suffered “injury of the type the antitrust
laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.”

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977); see also Bologna v.
Allstate Ins. Co., 138 F. Supp. 2d 310, 319–20 (E.D.N.Y. 2001) (analyzing plaintiff’s Sherman
Act Sections 1 and 2 claims together and dismissing both for failure to state an antitrust injury).
Therefore, an injury does not constitute an “antitrust injury” unless “it is attributable to an anti-
competitive aspect of the practice under scrutiny.” Atl. Richfield Co. v. USA Petroleum Co., 495
U.S. 328, 334 (1990). This requirement stems from the principle that the antitrust laws were
“enacted for the protection of competition, not competitors.” Brown Shoe Co. v. United States,
370 U.S. 294, 319 (1962); see also Gatt, 711 F.3d at 75 (“Absent such boundaries, the potent
private enforcement tool that is an action for treble damages could be invoked without service
to—and potentially in disservice of—the purpose of the antitrust laws: to protect competition.”).

Therefore, to survive a motion to dismiss, a “plaintiff must plead specific facts
demonstrating that the defendants’ conduct injured the competitive structure of the market.”
S.O. Textiles Co. v. A & E Prod. Grp., a Div. of Carlisle Plastics, Inc., 18 F. Supp. 2d 232, 242–
43 (E.D.N.Y. 1998). “The antitrust injury requirement obligates a plaintiff to demonstrate, as a
threshold matter, that the challenged action has had an actual adverse effect on competition as a
whole in the relevant market; to prove it has been harmed as an individual competitor will not
suffice.” Bologna 138 F. Supp. 2d at 319 (emphasis in original).
To determine whether a plaintiff has antitrust standing, courts in the Second Circuit
analyze “(1) whether the plaintiff suffered an antitrust injury, and then (2) whether any . . .
factors . . . prevent the plaintiff from being an efficient enforcer of the antitrust laws.” Winstar
Comms. LLC, v. Equity Office Properties, Inc., 170 F. App’x 740, 742 (2d Cir. 2006); see also
Gatt, 711 F.3d at 76 (“[W]e require a private antitrust plaintiff plausibly to allege (a) that it
suffered a special kind of antitrust injury, and (b) that it is a suitable plaintiff to pursue the

alleged antitrust violations and thus is an efficient enforcer of the antitrust laws.”). To analyze
whether a plaintiff has plausibly alleged an antitrust injury, courts in this Circuit “employ a
three-step process for determining whether a plaintiff has sufficiently alleged antitrust injury.”
Gatt, 711 F.3d at 76. First, a plaintiff alleging that it has been injured must “identify the practice
complained of and the reasons such a practice is or might be anticompetitive. Next, [the court]
identif[ies] the actual injury the plaintiff alleges[, which] requires [courts] to look at ways in
which the plaintiff claims it is in a worse position as a consequence of the defendant’s conduct.
Finally, [the court] compare[s] the anticompetitive effect of the specific practice at issue to the
actual injury the plaintiff alleges.” Id.
Here, conducting the requisite analysis necessarily leads to the conclusion that Plaintiff

has not sufficiently pled an antitrust injury. According to LIA, it has been injured because
“United, through its role as administrator of the Empire Plan, is abusing its monopsony power to
drive down the out-of-network reimbursement rate for medical [sic] necessary anesthesia
services and thereby cause [sic] significant anticompetitive effects and resulting antitrust injury
in the market for the delivery of anesthesia services in the New York metropolitan area.” ECF
No. 42 at 9. LIA further alleges that MultiPlan assists United in its efforts by providing
“substantial assistance to United to enable it to significantly reduce reimbursement rates to below
competitive [levels].” Id. at 3–4. Plaintiff also attempts to assert injury by averring that because
the Empire Plan reimbursements make up a significant portion of anesthesia practices’ business
in the New York metropolitan area, the lower reimbursement rates will decrease the availability
of high-quality anesthesia services in the New York metropolitan area, force some providers out
of business, force other providers to curtail their services, and hamper the ability of out-of-
network practices to recruit and retain new talent. ECF No. 1 ¶¶ 5, 78, 135–37. Plaintiff alleges

that the effect of United and MultiPlan’s anticompetitive behavior is to drive down the market
rate for out-of-network providers to increase the share of business handled by anesthesiologists
employed by OptumCare and to force providers like Plaintiff to go in-network. Id. ¶¶ 7, 46–55,
142–44.
i. Plaintiff Does Not Allege Facts Sufficient to Support a Finding that
Competition as a Whole in the Relevant Market was Harmed
With respect to the relationship between the anticompetitive effect of the practice at issue
and the actual injury Plaintiff alleges, even if the Court accepts that United has decision-making
power over the rate at which the Empire Plan reimburses out-of-network providers, see id. ¶¶ 7,
46–55, 142–44, the Court finds that Plaintiff has not alleged an injury that the antitrust laws were
intended to protect. Plaintiff has not done so because it has not alleged “an actual adverse effect
on competition as a whole in the relevant market” but has merely alleged that “it has been
harmed as an individual competitor[,which will not suffice].” Bologna, 138 F. Supp. 2d at 319
(emphasis in original).
As an initial matter, Plaintiff fails to state facts sufficient to support a finding that the
consumers in the relevant market–patients–have been harmed by United and MultiPlan’s actions.

See, e.g., Balaklaw v. Lovell, 14 F.3d 793, 798 (2d Cir. 1994) (finding that the market had
remained unaltered when “[f]ron the consumers’ point of view, nothing about the market has
changed”). The complaint does not credibly allege that patients have had to or necessarily will
have to pay more for anesthesia services as a result of the decreased reimbursement rates.
Instead Plaintiff relies on the argument that eventually decreased reimbursement rates will drive
competitors to OptumCare out of business or force them to go in-network with the Empire Plan,
which will eventually allow United to drive up costs. ECF No. 1 ¶¶ 5, 135–46
However, Plaintiff has failed to allege that the lower reimbursement rates have had an

actual or likely adverse effect on competition among insurers in the insurance market. Plaintiff
does not assert that OptumCare or in-network providers are recouping more lucrative
reimbursements under the Empire Plan for their services7 or that anesthesiologists are choosing
to go in-network with respect to the Empire Plan or joining OptumCare rather than remaining
independent, facts that might support a finding that competition in the market for delivery of
anesthesia services was being harmed. See, e.g., Michael E. Jones, M.D., P.C. v. United Health
Grp., Inc., No. 19-cv-7972, 2021 WL 4443142, at *5 (S.D.N.Y. Sep. 28, 2021) (“Plaintiff has
not alleged that medical providers have joined Defendants’ network because of the purported
discrimination against out-of-network providers or that Defendants’ share of the health insurance
market has increased since . . . the year the supposed discrimination began” therefore “there are

no allegations . . . that competition in the insurance market . . . has been affected by
Defendants’ actions vis-à-vis Plaintiff’s claim for reimbursement.”); Korshin v. Benedictine
Hosp., 34 F. Supp. 2d 133, 138 (N.D.N.Y. 1999) (finding that plaintiff had not established
antitrust standing because he had “not alleged any change in the price of anesthesiology services,
a decrease in quality or efficiency of care, or that the consumers of anesthesiology services, be
they patients, referring physicians, or third-party payers, have less of a market choice . . . as a
result of defendants’ actions”).

7 In fact, Plaintiff acknowledges that if it were to choose to go “in-network,” its
reimbursement rate would likely be the same or less than it is now. ECF No. 42 at 15.
And the complaint contains no facts to support a finding that the competitive structure of
the market for the delivery of anesthesia services in the New York metropolitan area has been
affected by the decision of a single health insurance plan to reimburse out-of-network providers
at lower rates to such an extent that providers are closing, thus decreasing the choices available

to patients. S.O. Textiles Co., 18 F. Supp. 2d at 242–43. Although the Court accepts as true
LIA’s assertion that “in the years leading up to 2022, Empire Plan represented approximately
40% of LI Anesthesia’s revenues,” the Court cannot credit LIA’s assertion that “[u]pon
information and belief,” the Empire Plan represented “similar shares of revenues for other
anesthesia groups in the New York metropolitan area.” ECF No. 1 ¶¶ 78–79. “A litigant cannot
merely plop ‘upon information and belief’ in front of a conclusory allegation and thereby render
it non-conclusory. Those magic words will only make otherwise unsupported claims plausible
when the facts are peculiarly within the possession and control of the defendant or where the
belief is based on factual information that makes the inference of culpability plausible.” Citizens
United v. Schneiderman, 882 F.3d 374, 384 (2d Cir. 2018). Information about the percentage of

other anesthesia providers’ revenue that the Empire Plan represents is not information peculiarly
within the possession and control of United. And, without any additional factual basis to support
Plaintiff’s allegation about other anesthesia practices, the Court cannot credit Plaintiff’s
conclusion that an insurance plan that covers only 1.2 million of the more than 19.5 million
inhabitants of the New York metropolitan area8 (roughly 6%) makes up more than 40% of
revenues across the entire market for the delivery of anesthesia services. Accordingly, Plaintiff
has not demonstrated that the lowered reimbursement rates under the Empire Plan are likely to
drive out competition in the provider market.

8 See Census Reporter Data on New York-Newark-Jersey City, NY-NJ-PA Metro Area,
available at https://perma.cc/XBQ4-K3GL (last visited November [X], 2023).
ii. Lowering Reimbursement Rates to a Physician Practice is Generally
Insufficient to Establish Antitrust Injury
The parties agree that a health plan lowering reimbursement rates paid to a physician
practice is generally insufficient to establish antitrust injury. See ECF No. 42 (LIA’s Opposition)
at 13; ECF No. 45 (United’s Reply) at 3; see also Westchester Radiological Associates P.C. v.
Empire Blue Cross & Blue Shield, Inc., 707 F. Supp. 708, 717 (S.D.N.Y. 1989) (“The law does
not prevent a buyer with market power from negotiating a good price, or from specifying what it
will buy.”); Kartell v. Blue Cross Blue Shield of Mass., Inc., 749 F.2d 922, 925, 929 (1st Cir.
1984) (holding that “[a]ntitrust law rarely stops the buyer of a service from trying to determine
the price or characteristics of the product that will be sold” and that “a legitimate buyer is

entitled to use its market power to keep prices down”). However, LIA argues that antitrust injury
can be established when a defendant’s reduced reimbursements are accompanied by “something
more,” such as a conspiracy or differential treatment provided to different market participants
based on their relationship with the defendant. ECF No. 42 at 13–15.
According to Plaintiff, the “something more” alleged here is that United engaged in a
“horizontal conspiracy” with MultiPlan to competitively hobble LIA’s practice to benefit
OptumCare. Id. at 15. However, as discussed in Section I.B., infra, Plaintiff has not put forth
sufficient facts to state a claim that United and MultiPlan were engaged in a conspiracy let alone
a “horizontal” conspiracy, which requires an “agreement[] between two or more competitors.”
Texaco Inc. v. Dagher, 547 U.S. 1, 2 (2006). Additionally, because the complaint does not

allege that United and MultiPlan are horizontal competitors (rather, the facts as alleged in the
complaint support a conclusion that they are not horizontal competitors), Plaintiff’s efforts to cite
a “horizontal conspiracy” as the “something more” required to establish antitrust injury must
necessarily fail. See In re Aluminum Warehousing Antitrust Litig., No. 13-md-2481, 2014 WL
4277510, at *32 (S.D.N.Y. Aug. 29, 2014) (“Plaintiffs claim to have alleged a horizontal
conspiracy in restraint of trade, but they do not allege that [the defendants] are horizontal
competitors. In the absence of the latter, the former cannot be correct.”).
In the absence of proof of a conspiracy or “something more,” Plaintiff’s arguments are

insufficient to establish that it suffered an antitrust injury. West Penn Allegheny Health System,
Inc. v. UPMC, 627 F.3d 85, 103 (3d Cir. 2010) (stating that if defendant had been acting alone,
Plaintiff “would have little basis for challenging the reimbursement rates” because “[a] firm that
has substantial power on the buy side of the market (i.e., monopsony power) is generally free to
bargain aggressively when negotiating the prices it will pay for goods and services.”).
Accordingly, Plaintiff’s three Sherman Act claims against United and single Sherman Act claim
against MultiPlan must be dismissed.
B. Plaintiff’s Sherman Act Claim Against MultiPlan Must Also be Dismissed
Because Plaintiff Does Not State a Plausible Claim Against MultiPlan
Even if Plaintiff’s Sherman Act Section 1 claim against MultiPlan had sufficiently
alleged an antitrust injury, the claim would be dismissed because Plaintiff’s complaint does not
plead “factual content that allows the court to draw the reasonable inference” that MultiPlan is
“liable for the misconduct alleged.” Twombly, 550 U.S. at 570. “To present a plausible claim,
the pleading must contain something more than a statement of facts that merely creates a
suspicion of a legally cognizable right of action.” Jorgensen v. Cnty. of Suffolk, 558 F. Supp. 3d
51, 60 (E.D.N.Y. 2021).

LIA’s complaint contains limited references to MultiPlan. LIA asserts that MultiPlan is
helping United use its market power to force anesthesia providers to accept lower reimbursement
rates by engaging in written and phone communications with providers in which MultiPlan
engages in “bogus negotiations,” asserts “unrealistic deadlines,” and “bur[ies anesthesia]
practices in mountains of correspondence” related to reimbursement rates. ECF No. 1 ¶¶ 4, 140,
174–77. LIA also alleges that MultiPlan is a market participant as a payor for, or purchaser of
anesthesia services “to the extent that it assists plans in terms of calculating reimbursement levels
and facilitating reimbursement.” Id. ¶ 167. These facts are not sufficient to state a claim that

MultiPlan engaged in an antitrust conspiracy.
To survive dismissal of its Sherman Act Section 1 claim against MultiPlan, LIA must
allege “a combination or some form of concerted action between at least two legally distinct
economic entities” that constitutes “an unreasonable restraint of trade.” Primetime 24 Joint
Venture v. NBC, 219 F.3d 92, 103 (2d Cir. 2000). “Proof of unilateral action does not suffice,”
rather, the facts alleged “must reveal a unity of purpose or a common design and understanding,
or a meeting of minds in an unlawful arrangement.” Anderson News, LLC v. Am. Media, Inc.,
680 F.3d 162, 183 (2d Cir. 2012). This requires allegations of “direct or circumstantial evidence
that reasonably tends to prove that [Defendants] had a conscious commitment to a common
scheme designed to achieve an unlawful objective.” Id. at 184. A complaint claiming

conspiracy “must provide some factual context suggesting that the parties reached an agreement,
not facts that would be merely consistent with an agreement.” Id.
Beyond a bare assertion that MultiPlan is working with United to force lower
reimbursement rates,9 the complaint contains no allegations to support a finding that MultiPlan
and United had a “conscious commitment to a common scheme.” Caithness Long Island II, LLC
v. PSEG Long Island LLC, No. 18-cv-4555, 2019 WL 6043940, at *4 (E.D.N.Y. Sept. 30, 2019).
The complaint, for example, does not assert that MultiPlan knew the reimbursement rates it
sought were lower than the rates that United had previously offered, that MultiPlan believed the

9 ECF No. 1 ¶¶ 4, 134–35, 141, 175–77.
rates were below competitive levels, that MultiPlan had any role in helping United or the Empire
Plan determine appropriate reimbursement rates, or that MultiPlan intended to help United drive
out competition. The only plausible finding suggested by the facts alleged in the complaint is
that MultiPlan contracted with United to handle direct communication with providers as part of

the federal IDR process with respect to claims for reimbursement related to treatment provided to
patients insured by the Empire Plan. LIA does not allege any facts suggesting that United and
MultiPlan conspired or agreed to work together to restrain trade unlawfully. Anderson News,
680 F.3d at 183–84. Accordingly, Plaintiff’s Sherman Act Section 1 claim against MultiPlan
must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.10
In its opposition brief, LIA asserts new allegations against MultiPlan, referencing
MultiPlan’s Annual Report and content from its website, and raises additional assertions about
the relationship between MultiPlan and United, including that MultiPlan “receives a percentage
of the ‘savings’ it generates through the reduction of reimbursement rates.” ECF No. 42 at 18–
20. However, it is well-settled that a complaint may not be amended by the brief in opposition to

a motion to dismiss. See, e.g., Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998)
(finding that a party may not amend its pleadings through statements made in motion papers).

10 Because “[a]llegations merely consistent with unilateral action are insufficient” to make
out a violation of Section 1 of the Sherman Act, if Plaintiff fails to state a claim for a Section 1
violation against MultiPlan, its Section 1 claim against United, MultiPlan’s alleged co-
conspirator, must necessarily fail. In re Zinc Antitrust Litig., 155 F. Supp. 3d 337, 366 (S.D.N.Y.
2016) (dismissing plaintiffs’ claims under Section 1 of the Shearman Act because plaintiff
“failed to plausibly alleged unlawful concerted action or an anticompetitive agreement”).
And, because the Court finds that Plaintiff’s Sherman Act claims against United and
MultiPlan must be dismissed for failure to plead antitrust injury, and that Plaintiff’s Sherman Act
Section 1 claims against United and MultiPlan must also be dismissed for failure to state a
plausible claim as to MultiPlan, the Court does not need to reach the parties’ remaining
arguments regarding the sufficiency of Plaintiff’s Sherman Act claims.
Accordingly, although the Court does not believe consideration of these facts would have altered
its finding, the Court did not and could not consider these facts in reaching its conclusion.
II. Plaintiff’s Donnelly Act and Unjust Enrichment Claims
Plaintiff also claims that United and MultiPlan engaged in an antitrust conspiracy to
restrain trade in violation of the Donnelly Act and that United and MultiPlan were unjustly

enriched by receiving fees and retaining reimbursement through their alleged scheme of
improperly reducing LIA’s reimbursement rates. “District courts may use their discretion in
deciding whether to exercise supplemental jurisdiction over state law claims after dismissing a
plaintiff’s only federal claims, so long as the federal claims were not dismissed for lack of
subject matter jurisdiction.” Probiv v. PayCargo LLC, No. 22-cv-2907, 2023 WL 159788, at *5
(E.D.N.Y. Jan. 11, 2023); 28 U.S.C. § 1367(c)(3) (A district court “may decline to exercise
supplemental jurisdiction” over a “state law claim[]” if the district court “has dismissed all
claims over which it has original jurisdiction”); see also Cangemi v. United States, 13 F.4th 115,
134 (2d Cir. 2021). Having dismissed all of Plaintiff’s federal claims, the Court declines to
exercise supplemental jurisdiction over Plaintiff’s Donnelly Act and unjust enrichment claims.11

III. Plaintiff May File a Motion Seeking Leave to Amend
In the final section of Plaintiff’s brief, Plaintiff asks the Court to grant it leave to amend its
complaint to cure any pleading deficiencies. ECF No. 42 at 34. The Second Circuit “strongly

11 Although the Court declines to exercise supplemental jurisdiction over Plaintiff’s
Donnelly Act claims, the Court notes that the Donnelly Act “is modeled after the Sherman Act
and should generally be construed in light of Federal precedent.” Biocad JSC v. F. Hoffman-La
Roche, 942 F.3d 88, 101 (2d Cir. 2019). Accordingly, “[t]he standard for a well-pleaded
Donnelly Act claim is the same as a claim under Section 1 of the Sherman Act.” Nat’l Gear &
Piston, Inc. v. Cummins Power Sys., LLC, 861 F. Supp. 2d 344, 370 (S.D.N.Y. 2012). The Court
has dismissed Plaintiff’s Sherman Act claims against MultiPlan and United because they were
not well-pled, see supra Section I. Accordingly, Plaintiff’s Donnelly Act claims would also fail
on the same grounds if the Court were to exercise supplemental jurisdiction over those claims.
favors liberal grant of an opportunity to replead after dismissal of a complaint under Rule
12(b)(6).” Noto v. 22nd Century Grp., Inc., 35 F.4th 95, 107 (2d Cir. 2022); see also Kopchik v.
Town of East Fishkill, 759 F. App’x 31, 38 (2d Cir. 2018) (“The opportunity to amend the
complaint is appropriately presented after the district court rules on a motion to dismiss.”).

The fact that Plaintiff’s opposition brief provides no explanation about how it intends to
amend its complaint is sufficient reason for the Court to deny leave to amend. See Gregory v.
ProNAi Therapeutics Inc., 757 F. App’x 35, 39 (2d Cir. 2018) (affirming denial of leave to
amend where “plaintiffs sought leave to amend in a footnote at the end of their opposition to
defendants’ motion to dismiss” and “included no proposed amendments”). However, because
Plaintiff has not previously sought to amend its complaint, Plaintiff may file a motion of no more
than ten (10) pages seeking leave to file an amended complaint by December 12, 2023. Any
such motion should include the proposed amended complaint as an exhibit as well as a redline
comparing the proposed amended complaint to the current complaint. The brief should explain
why leave to amend should be granted, including a discussion of how the proposed amended

complaint cures the deficiencies identified herein and in Defendants’ motions to dismiss. If
Plaintiff chooses to file a motion and a proposed amended complaint, Defendants may file a joint
opposition of no more than ten (10) pages on or before January 4, 2023. Unless otherwise
requested by the Court, there will be no replies.
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants’ motions to dismiss. See
ECF Nos. 30 & 31. Plaintiff may file a motion seeking leave to amend its complaint, as
described above, on or before December 12, 2023, and Defendants may file a joint opposition
brief by January 4, 2023. If Plaintiff does not seek leave to amend by December 12, 2023,
judgment shall be entered, and the case closed.
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
November 21, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310812. Public record. Not legal advice.