Bon Secours Mercy Health, Inc. v. Blue Cross Blue Shield Association

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UNITED STATES JUDICIAL PANEL □□□

on 705 WE 13 PIBNS

MULTIDISTRICT LITIGATION US. DISTRI CT COURT

iD. OF ALABAMA

IN RE: BLUE CROSS BLUE SHIELD

ANTITRUST LITIGATION MDL No. 2406

TRANSFER ORDER

Before the Panel: Plaintiffs in the twelve actions listed on Schedule A move under Panel

Rule 7.1 to vacate our orders that conditionally transferred the actions to the Northern District of

Alabama for inclusion in MDL No. 2406. More than 30 Blue Cross Blue Shield defendants oppose

the motions to vacate, as do the provider class plaintiffs in the MDL.

After considering the parties’ arguments, we find that the actions listed on Schedule A

involve common questions of fact with the actions transferred to MDL No. 2406, and that transfer

under 28 U.S.C. § 1407 will serve the convenience of the parties and witnesses and promote the

just.and efficient conduct of the litigation. Transfer is warranted for the reasons set forth in our

initial order establishing this MDI docket, which is comprised of actions involving factual

questions regarding ‘“‘the licensing agreements between and among the Blue Cross Blue Shield

Association (BCBSA) and its 38 licensees (Blue Plans).” Jn re Blue Cross Blue Shield Antitrust

Litig., 908 F. Supp. 2d 1373, 1374 (J.P.M.L. 2012). There are two categories of MDL plaintiffs,

health insurance subscribers and healthcare providers, both of which “contend that the 38 Blue

Plans are independent health insurance companies that, but for any agreement to the contrary,

could and would compete with one another.” Jd. at 1375. Plaintiffs in the twelve actions listed on

Schedule A are providers (hospitals, health systems, and physician groups), and the allegations in

their complaints mirror those asserted in the MDL actions.

Plaintiffs in these actions have opted out of a proposed class settlement of the provider

claims inthe MDL. They argue that the MDL is too advanced to justify transferring these provider

opt-out actions. Plaintiffs contend that the MDL has reached the remand stage, that the transferee

judge has stated that continued centralized pretrial proceedings of the provider actions would not

be efficient, and that the remaining factual questions in the provider actions—such as adjudication

of injury-in-fact and damages—are plaintiff-specific. Plaintiffs further argue that transfer will

cause them inconvenience by, infer alia, delaying the prosecution of their claims. They maintain

that they can informally coordinate with respect to any common discovery.

We do not find these arguments persuasive. Settlement approval proceedings with respect

to the MDL provider plaintiffs are ongoing. If the settlement is not granted final approval,

substantial pretrial proceedings will remain. See Transfer Order at 2 n.4, In re Payment Card

Interchang e-& Merch. Disc. Antitrust Litig., MDL No. 1720 (J.P.M.L. Oct. 16, 2013), ECF No.

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204 (“The Panel has long recognized that transfer of opt-out actions to the MDL addressing the

proposed class settlement. is desirable because of the efficiencies from the transferee court’s

management of overlapping actions, integration of existing discovery with discovery in the new

actions, and the court’s expertise in the issues.”).

Furthermore, the parties have identified one provider opt-out action pending in the MDL

(the A4 action), and at least three other provider opt-out actions have been filed—one of which

recently was transferred to the MDL without opposition. See Conditional Transfer Order

(Finalized), MDL No. 2406 (J.P.M.L. July 30, 2025), ECF No. 934. The factual and legal issues

raised by the provider opt-out actions, as well as their procedural posture, are substantially similar.

Plaintiffs focus on the common discovery and pretrial motion practice that have been completed

in the MDL, but they unduly minimize the common pretrial proceedings that opt-out litigation

itself will entail. Most of the opt-out actions name all the Blue Cross Blue Shield entities as

defendants, and even those that are targeted at a narrower set of Blue Cross Blue Shield entities

overlap with the others. All plaintiffs allege that the defendants’ nationwide market allocation

scheme and other anticompetitive conduct caused them economic injury. While the opt-out actions

will require some unique discovery as to damages issues, they also will require common discovery

of the defendants’ alleged conspiracy. The transferee court is best positioned to manage access to

the common discovery obtained to date (much of which is subject to protective orders), apply its

prior rulings to the opt-out claims, address legal questions common to the opt-out plaintiffs, and

organize any additional common discovery required for these actions.’ Transfer thus will

eliminate the potential for duplicative discovery and inconsistent pretrial rulings.

No provider actions have been remanded by the transferee court. We have consulted with

the transferee judge, who has informed the Panel that the continued transfer of provider opt-out

actions will yield significant efficiency and convenience benefits: Given the number of opt-out

actions already filed and the number of involved counsel, transfer of the opt-out actions to a single

Judge with extensive familiarity with the issues, discovery, and players in this litigation will be far

more efficient than the parties attempting to informally coordinate pretrial schedules among

actions pending in at least seven district courts to date.

Plaintiffs offer only speculation to support their argument that transfer will result in delay.

There is no reason to believe that transfer of these opt-out actions will delay final approval of the □ -

provider class settlement. Indeed, the transferee court has already conducted the fairness hearing

for the settlement. Likewise, there is no reason to believe the transferee court will delay addressing

the common pretrial issues and discovery in the opt-out actions. The conduct of the subscriber

track demonstrates that, when common pretrial proceedings have concluded, the transferee court

has shown a willingness to promptly suggest Section 1407 remand, See Suggestion of Remand,

MDL No. 2406 (J.P.M.L. Nov. 18, 2024), ECF No. 576 (suggesting remand of subscriber opt-out

action). See also In re Zimmer Durom Hip Cup Prods. Liab. Litig.,717 F. Supp. 2d 1376, 1378

' In their opposition to the motions to vacate, the MDL provider class plaintiffs describe significant

confidentiality issues that arose with respect to the production of the MDL common discovery in

related California state litigation, which required substantia! time and attention by the transferee

court. Such issues are likely to be duplicated if the opt-out actions proceed separately in multiple

districts.

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(J.P.M.L. 2010) (encouraging the transferee court to suggest remand if it “determines that the

further adjudication of certain claims or actions would better take place in the transferor district”).

In any event, where the actions arise from a common factual core, plaintiffs’ individual preferences

do not outweigh the collective benefits of centralization to the parties, witnesses, and judicial

system as a whole. See In re Watson Fentanyl Patch Prods. Liab. Litig., 883 F. Supp. 2d 1350,

1351-52 (J.P.M.L. 2012) (“[W]Je look to the overall convenience of the parties and witnesses, not

Just those of a single plaintiff or defendant in isolation.”). Notably, plaintiffs in three of the actions

listed on Schedule A (Temple University Health System, LHHeaith, and Phoebe Putney Memorial

Hospital) do not oppose transfer if any other opt-out actions are transferred to the MDL.

IT IS THEREFORE ORDERED that the actions listed on Schedule A are transferred to the

Northern District of Alabama and, with the consent of that court, assigned to the Honorable R.

David Proctor for coordinated or consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Karen K. Caldwell

/ Chair

. Nathaniel M. Gorton Matthew F. Kennelly

David C. Norton Roger T. Benitez

Dale A. Kimball Madeline Cox Arleo

Ae ere ee ee Ee eee cl ee Se et Re le FR Le ee Ne ee te i “Sa a at

IN RE: BLUE CROSS BLUE SHIELD

ANTITRUST LITIGATION MDL No. 2406 ~

. SCHEDULE A

Northern District of California

BON SECOURS MERCY HEALTH, INC., ET AL. v. BLUE CROSS BLUE SHIELD

ASSOCIATION, ET AL., C.A. No. 5:25-02231 □

NORTHBAY HEALTHCARE CORPORATION, ET AL. v. BLUE CROSS BLUE

SHIELD ASSOCIATION, ET AL., C.A. No. 5:25-03570

Middle District of Georgia

PHOEBE PUTNEY MEMORIAL HOSPITAL, INC., ET AL. v. BLUE CROSS AND

BLUE SHIELD ASSOCIATION, ET AL., C.A. No. 1:25-00062

Northern District of Illinois se

IES CENTRAL TEXAS PLLC, ET AL. v. BLUE CROSS AND BLUE SHIELD OF

ALABAMA, ET AL., C.A. No. 1:25-02267

AMERITEAM SERVICES, ET AL. v. BLUE CROSS AND BLUE SHIELD OF

ALABAMA, ET AL., C.A. No. 1:25-02295

COMMONSPIRIT HEALTH, ET AL. v. BLUE CROSS AND BLUE SHIELD OF

ALABAMA, ET AL., C.A. No. 1:25-02296

ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE CORPORATE, ET AL.

v. BLUE CROSS AND.BLUE SHIELD ASSOCIATION, ET AL.,

C.A. No. 1:25-02367

DUKE UNIVERSITY HEALTH SYSTEM, INC., ET AL. v. BLUE CROSS AND

BLUE SHIELD ASSOCIATION, ET AL., C.A. No. 1:25-03565

□ Southern District of New York

WEILL CORNELL MEDICINE v. BLUE CROSS BLUE SHIELD ASSOCIATION,

ET AL., C.A. No. 1:25-02516

Eastern District of Pennsylvania □

TEMPLE UNIVERSITY HEALTH SYSTEM, INC., ET AL. v. BLUE CROSS BLUE

SHIELD ASSOCIATION, ET AL., C.A. No. 5:25-01156

LHHEALTH, LLC v. BLUE CROSS BLUE SHIELD ASSOCIATION, ET AL.,

C.A. No. 5:25-01158

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Middle District of Pennsylvania . □

MOUNT NITTANY HEALTH SYSTEM vy. BLUE CROSS BLUE SHIELD

ASSOCIATION, ET AL., C.A. No. 4:25-00549