Opposition Brief — Levine v. Central Florida Medical Affiliates, Inc.

ghey

No. 95-2000 Y) Supreme Court

JE

AUG 12 1996

Supreme Court af the Hnitey States

October Term, 1995

SCOTT D. LEVINE, M.D.,

Petitioner,

vs.

CENTRAL FLORIDA MEDICAL AFFILIATES, INC.;

HEALTHCHOICE, INC.; SAND LAKE HOSPITAL;

ORLANDO REGIONAL HEALTHCARE SYSTEM, INC.

f/k/a ORLANDO REGIONAL MEDICAL CENTER,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

CENTRAL FLORIDA MEDICAL AFFILIATES, INC.

RONALD M. SCHIRTZER

Counsel of Record

ROBERT J. ENDERS

MARK J. WAXMAN

FOLEY & LARDNER

Attorneys for Respondent

Central Florida Medical

Affiliates, Inc.

111 North Orange Avenue

Suite 1800

P.O. Box 2193

Orlando, Florida 32802-2193

(407) 423-7656

9384 A

bz (800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21

LIST OF INTERESTED PARTIES

The Petitioner is Scott D. Levine, M.D., anindividual. The

Petitioner was the plaintiff in the district court, and the appellant

before the Eleventh Circuit.

The caption of this case properly contains the name of all

parties to this action. Respondent Central Florida Medical

Affiliates, Inc. is a Florida corporation with no parent

corporations or non-wholly owned subsidiaries. Central Florida

Medical Affiliates, Inc. was a defendant in the district court, and

an appellee before the Eleventh Circuit.

Respondent Healthchoice is a Florida for-profit

corporation. It is a wholly owned subsidiary of Healthnet

Services, Inc., a wholly owned for-profit subsidiary of

Respondent Orlando Regional Healthcare System, Inc., f/k/a

Orlando Regional Medical Center. Healthchoice, Inc. has no

non-wholly owned subsidiaries. Healthchoice, Inc. was a

defendant in the district court, and an appellee before the

Eleventh Circuit.

Respondent Orlando Regional Healthcare System, Inc.,

f/k/a Orlando Regional Medical Center is a Florida non-profit

corporation. Orlando Regional Healthcare System, Inc. has no

parent corporation, and no non-wholly owned subsidiaries.

Orlando Regional Healthcare System, Inc. was a defendant in the

district court, and an appellee before the Eleventh Circuit.

Respondent Sand Lake Hospital is a licensed hospital in the

State of Florida, which is owned by Orlando Regional

Healthcare System, Inc. Sand Lake Hospital has no wholly

owned subsidiaries. Sand Lake Hospital was a defendant in the

district court, and an appellee before the Eleventh Circuit.

ii

TABLE OF CONTENTS

Page

Lsst OF Snteresind Pasties i566. 5 bcd tea keobwatota i

SORT ONES ivi ivcicteicieciaeiens meee li

Be BE Or Pere ee rr rr ean iii

eB Pee eePrT Ee rtr re ee re l

statement OF G6 COO 6s Five beds setae eehoesaasen 3

Reasons for Denying the Writ ................0008. 6

I. The Petitioner Failed to Establish Any Factual

Basis for an Alleged Horizontal Group Boycott for

which Per Se Treatment Can Be Afforded Under

CRO AMUNUSLOWE.. 0 cecleaedee becnciivedert. 6

A. There Is No “Confusion” Regarding the

Circumstances When the Per Se Rule Can Be

SUVOROE,. 6-0 0 snd ee Cee eee hea ekA 6

B. The Petitioner Failed to Demonstrate Any

Evidence of Requisite Horizontal Collusive

Behavior Necessary to Establish a Group

Boycott Claim Subject to the Per Se Illegal

Rubric Under Section One of the Sherman

PMA, Ccctctvervévintsadestiniatiie 8

C. Petitioner Failed to Demonstrate a Clear

Anticompetitive Effect With No Redeeming

Virtue — A Prerequisite for Invocation of the

POS SO REM. 6 i dccticnere pended hea iaes 12

iii

Contents

D. Summary Judgment Was Properly Awarded

to the Respondents With Regard to

Petitioner’s Group Boycott Claims. ......

II. The Petitioner Failed to Provide Any Evidence of

an Agreement to Fix Prices. ...........-+445.

A. The Petitioner Failed to Present Evidence of

Collusive Behavior Necessary to Establish a

Price-Fixing Conspiracy Under Section One

go ee ere

B. The Petitioner Lacks Standing to Pursue a

Section One Price-Fixing Claim Against the

PODER, co tc cc ccdcvccectcccececes

ee die hee b edd Deeet cree dh es

TABLE OF CITATIONS

Cases Cited:

Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996 (3d

SR er eee eb anes aehe ed Cese Sbee e's

Arizona v. Maricopa County Medical Society, 457 U.S.

Page

15

15

15

21

24

12

332, 102 S. Ct. 2466, 73 L. Ed. 2d 48 (1982) ..17,18, 19,23

Associated General Contractors of California, Inc. v.

California State Council of Carpenters, 459 U.S.519,

103 S. Ct. 897, 74 L. Ed. 2d 723 (1983) ............

iv

Contents

Page

Associated Press v. United States, 326 U.S. 1, 65 S. Ct.

al OT | ee ee ee 8,9,11

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S.

477,978. Ct. 690, 50 L. Ed. 2d 701 (1970) ......... 22,24

Capital Imaging Associates, P.C. v. Mohawk Valley

Medical Associates, Inc., 791 F. Supp. 956 (N.D.N.Y.

1992), aff’d, 996 F.2d 537 (2d Cir. 1992), cert. denied,

510 U.S. 947, 1148S. Ct. 388, 125 L. Ed. 2d 337 (1993)

$4 606d dand yes bie BG B46 Oa REeARUMEE eee e aD 404s 14

Cargill Inc. v. Monfort of Colorado, Inc., 479 U.S. 104,

107 S. Ct. 484, 93 L. Ed. 2d 427 (1986) ............ 22

Copperweld Corp. v. Independent Tube Corp., 467 U.S.

752, 1048. Ct. 2731, 81 L. Ed. 2d 628 (1984) ...... 20

Denny’s Marina, Inc. v. Renfro Productions, Inc., 8 F.3d

eee | re ey ey eee yyy Pee 11,12

Doctors Hospital of Jefferson, Inc. v. Southeast Medical

Alliance, Inc., 897 F. Supp. 290 (E.D. La. 1985) .... 14

F-T.C. v. Indiana Federation of Dentists, 476 U.S. 447, 106

S.Ct. 2009, 90 L. Ed. 2d 445 (1986) .............. 8,11

F.T.C. v. Superior Court Trial Lawyers Assn., 493 U.S.

411,110S. Ct. 768, 107 L. Ed. 2d 851 (1990) ....... 8,10

Glen Eden Hospital, Inc. v. Blue Cross & Blue Shield of

Michigan, 740 F.2d 423 (6th Cir. 1984) ........... 19

v

Contents

Page

Hassan v. Independent Practice Associates, Inc., 698 F.

Supp. 679 (E.D. Mich. 1988) ..........cccceceees 14

Jefferson Parish Hosp., Dist. No. 2 v. Hyde, 466 U.S. 2,

1048S. Ct. 1551, 80 L. Ed. 2d2 (1984) ............. 14

Kartell v. Blue Shield, 749 F.2d 922 (1st Cir. 1984), cert.

denied, 471 U.S. 1029, 105 S.Ct. 2040, 85 L. Ed. 2d 322

bj BPSPe Prarie Pekar lor CPSs PORPE RE ORET ESTE 18,20

Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207,

79S. Ct. 705, 3 L. Ed. 24 741 (1959) .... cc ccc coee 8,9,11

Levine v. Central Florida Medical Affiliates, Inc.,72 F.3d

1538 (11th Cir. 1996) ..1,4,6,8, 12, 13, 16, 17, 18,21, 22,24

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 106S. Ct. 1348, 89 L. Ed. 2d 538

CUO i roe Care oe be Coke ord eerie tte etk py he

Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752,

1048S. Ct. 1464, 79 L. Ed. 2d 775 (1984) ........... 20

Northern Pacific Railroad Co. v. United States, 356 U.S.

1,78S.Ct.514,2 L. Ed. 2d 545 (1958) ............ 7

Northwest Medical Laboratories, Inc. v. Blue Cross Blue

Shield of Oregon, 775 P.2d 863 (Or. Ct. App. 1989),

aid, T94 P.28 SEB (OF. UF9G) . vcviccccsvecensess 14

vi

Contents

Page

Northwest Wholesale Stationers, Inc. v. Pacific Stationery

and Printing Co., 472 U.S. 284, 105 S. Ct. 2613, 86L.

es PEED 0.00 vince cdavdussbibecdorieria 7,8, 11

Pennsylvania Dental Ass'n v. Medical Service Ass'n of

Pennsylvania, 745 F.2d 248 (3d Cir. 1984), cert.

denied, 471 U.S. 1016, 105 S. Ct. 2021, 85 L. Ed. 2d 303

GEPUEE.. wei Sail dais dcbawedbuendbudabdne 18, 19,20

Standard Oil Co. v. United States, 221 U.S. 1,31 S.Ct. 502,

Fe hse EG CROGED v0. bu scled Kossveeendien eeu 7

United States v. General Motors Corp., 384 U.S. 127, 86S.

CX. 1530, SEO. SESS CIOS 0 kvciveis vaweewes 8,10, 11

Virginia Academy of Clinical Psychologists v. Blue Shield

of Virginia, 624 F.2d 476 (4th Cir. 1980) .......... 19

White Motor Co. v. United States, 372 U.S. 253, 83S. Ct.

Go Fak es OO FEUER) a veercceedevesteneceues 8

Williamson v. Sacred Heart Hospital of Pensacola, 1993

WL543002 (N.D. Fla. 1993), aff'd, 41 F.3d 667 (1994),

cert. denied,__U.S.__, 115 S. Ct. 2556, 132 L. Ed. 2d

SENN) cnc tcc tinuss descr esa becmeees Weeees 14

Statute Cited:

Pen, Seat. SOS SE7.GSTk. . cewcidvesvuctaudevescs 13

Rule Cited:

DOPING COOGEE RUS BG oo o-c cccceveauccvctbeseeunes 1,3

l

PRELIMINARY STATEMENT

Petitioner Scott D. Levine,, M.D. seeks certiorari review of

the decision of the Eleventh Circuit upholding the district court’s

award of summary judgment to the Respondents, including

Central Florida Medical Affiliates, Inc. (““CFMA”). Levine v.

Central Florida Medical Affiliates, Inc.,72 F.3d 1538 (11th Cir.

1996). The Petitioner contends that it was error for the Eleventh

Circuit to refuse to afford per se treatment to the Petitioner’s

claims under Section One of the Sherman Act, and that

“confusion” exists regarding this Court’s allegedly inconsistent

prior rulings regarding the application of per se treatment for

alleged antitrust violations.

Under Rule 10, Rules of the Supreme Court, review on writ

of certiorari is not a matter of right, but of judicial discretion.

Rule 10 specifically indicates that a petition for writ of certiorari

is rarely granted when the asserted error consists of erroneous

factual findings, or the misapplication of a properly stated rule

of law.

Recognizing the unlikelihood of a grant of certiorari review

based upon an allegedly erroneous factual finding, the Petitioner

alleges the Eleventh Circuit opinion conflicts with relevant

decisions of this Court, and conflicts with decisions of other

United States courts of appeal. To create the appearance of a

question of law rather than a question of fact, in the questions

presented in his petition, the Petitioner asks this Court to review

the ruling of the Eleventh Circuit based on the premise that he has

presented evidence of (1) a horizontal boycott of competitors

which limits competition and consumer choice; and (2) a

combination of competitors, through a professional association,

that promotes and secures adherence to a fee schedule.

CFMArespectfully objects to Petitioner’s statement of the

2

questions presented to this Court because, as evidenced in the

opinions of both the district court and the Eleventh Circuit, the

record below, treated in the light most favorable to the Petitioner,

does not support the stated factual premises. The only

“confusion” in this action comes from the Petitioner’s false

assumptions regarding the evidence presented to the district

court and the Eleventh Circuit. Once that “confusion” is cleared

up, it is readily apparent that the Eleventh Circuit properly

followed a long and consistent line of legal precedent from this

Court in denying the Petitioner’s request for per se treatment of

his antitrust ciaims, and upholding the district court’s award of

summary judgment to the Respondents.

In light of the erroneous premises in the questions presented

by the Petitioner, CFMA offers the following restatement of the

question to be presented to this Court for consideration of

Petitioner’s writ of certiorari:

1. Did the Eleventh Circuit, based upon the facts actually

presented by the Petitioner to the district court, properly

apply the appropriate legal standards of antitrust law in

upholding the district court’s grant of summary

judgment to the Respondents?

In evaluating acase on summary judgment, where the record

taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial, and

summary judgment is properly awarded to the non-moving

party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio

Corp.,475 U.S. 574, 586-87, 106S. Ct. 1348, 1356, 89 L. Ed. 2d

538 (1986). As will be demonstrated below, both the district

court and the Eleventh Circuit determined that the Petitioner

failed to demonstrate collusive behavior by the Respondents that

had any anticompetitive effect, and also failed to demonstrate

any antitrust injury, despite ample opportunity to do so. The

3

purported error by the Eleventh Circuit is therefore nota failure

to follow established principles of law, but rather alleged

erroneous factual determinations based upon the record.

Petitioner’s request for certiorari review should accordingly be

denied in accordance with the guidelines of Rule 10.

STATEMENT OF THE CASE

This case arises out of the denial of the Petitioner’s request

to participate in a preferred provider organization (“PPO”)

operated by Respondent Healthchoice, Inc. (“Healthchoice”’).

Like the majority of other PPOs and health maintenance

organizations (“HMOs”) in the Orlando area, Healthchoice

utilizes a closed panel, which means that participation is not

available to all qualified interested physicians or other

providers. Closed panels permit PPOs to exercise greater control

over physicians through utilization review, and customers of

Healthchoice desire and often demand utilization of closed

panels by PPOs and HMOs. [R3-80, 7] 5-9; R3-81, 47 5-8; R3-

76, Tf 6 and 7.]

The record below indicates a dynamic and changing market

for the purchase and sale of health care services. At the time

summary judgment was granted to the Respondents by the

District court, Healthchoice was one of thirty-eight (38) PPOs

operating in the Orlando area. There were also eleven (11) HMOs

and a vast array of traditional comprehensive insurance coverage

companies (“TCICs”) operating in the Orlando area as of the date

summary judgment was granted. [R3-80, Exh. A.] PPOs,

HMOs, and TCICs all compete against one another to provide

comprehensive medical group coverage toemployers, insurance

companies, third party administrators, and government agencies

(hereinafter collectively referred to as “Payors”). Individuals

whose health care services are provided through Healthchoice

represent less than a 6% share of the potential patients in the

Orlando area. [R3-80,] 18.]

4

Healthchoice, like other PPOs, enters into bilateral

contracts with a limited number of healthcare providers,

including physicians, hospitals, pharmacies, and durable

medical equipment companies. Healthchoice then markets its

panel of providers to interested Payors. Healthchoice negotiates

with individual Payors the maximum allowable prices for

services rendered or products furnished by panel members to

enrollees of those Payors. After specific fees for a Payor are

negotiated and agreed to by Healthchoice, pane] members are

given the option of providing services or products for no more

than the negotiated price, or opting out of the panel for a

particular Payor. [R4-110, Tab 40 at 100206-207.]

Healthchoice is a wholly owned for-profit subsidiary, two

tiers removed, of Respondent Orlando Regional Healthcare

Systems, Inc., f/k/a Orlando Regional Medical Center

(“ORHS”). CFMA is a for-profit corporation owned and

controlled by physicians who participate in Healthchoice.

CFMA primarily acts as a physician advocacy group in non-price

related matters such as the scope and nature of utilization review.

[R3-80, 7 10.)

CFMA does not determine which physicians will be invited

to participate in the Healthchoice panel. That decision is made

by Healthchoice non-physician staff members. [R3-80, { 10;

Levine, 72 F.3d at 1547.] As noted by the Eleventh Circuit,

CFMA members, including the four physicians who are on the

board of directors of Healthchoice, are excluded from

participating in the establishment of the maximum fee schedule

used by Healthchoice, or the negotiation of prices for medical

services between Healthchoice and employers, insurers, and

other Payors. Levine, 72 F.3d at 1546. While participation in

Healthchoice is a prerequisite for membership in CFMA,

participating Healthchoice physicians do not have to be

members of CFMA, and many are not. /d. at 1547.

5

As of the date summary judgment was granted by the

District court, there were approximately 2,200 licensed

physicians in the Orlando area, and more than 400 internists who

participated in PPOs and HMOs, including the Petitioner, whois

a panel member of two PPOs that compete with Healthchoice.

The Healthchoice panel included 863 physicians and 80

internists as of the date summary judgment was granted. [R3-49,

¥ 15; R3-80, J 16.] The denial of the Petitioner’s request to

participate in the Healthchoice panel had no adverse impact on

his ability to compete in the Orlando area. In 1990, his first full

year of practice after moving to the Orlando area in 1989, the

Petitioner had a pre-tax net income of $553,176. In 1991, his pre-

tax net income rose to $724,722, an increase of 31%. [R2-52, pg.

72.] In comparison, the average pre-tax net income of self-

employed Florida internists in an American Medical Association

study was $191,200 in 1992. [R2-49,]37.]

In addition to the improper premises discussed above, the

Petitioner has made several misstatements of fact in his petition.

The following three examples reflect erroneous statements of

fact contained in the Petition:

1. In an effort to imply collusion, the Petitioner states

that CFMA is privately owned by the same hospital which owns

Healthchoice. [Pg. 22.] This is patently false. CFMAis owned

by its physician members, as recognized by the Petitioner in his

identification of the Parties to the Proceeding in his petition. [Pg.

ii.)

2. Inaneffort to demonstrate anticompetitive effect and

intent, the Petitioner states that CFMA doctors are prohibited

from participating in any plan for a prospective Healthchoice

Payor who has declined to do business with Healthchoice. [Pg.

5.] This is again false. Physicians are free to join other PPOs and

HMOs, and most physicians on the Healthchoice panel are

6

members of several competing panels. [R2-49, { 15; R3-80,

q 21.) The cited six (6) month restriction only applies to a

former Healthchoice Payor that seeks to bypass utilization of

Healthchoice by forming its own PPO provider panel. (R4-1 10,

tab 32, 100026-27.]

3. In a further effort to demonstrate anticompetitive

effect, the Petitioner contends that the fees paid to CFMA

members were stable, uniform, and trending upward during a

four-year period. [Pg.21.] Yet, as noted by the Eleventh Circuit,

there was no evidence presented by the Petitioner demonstrating

that prices for services of Healthchoice physicians charged to

Payors increased, and absolutely no evidence of how fees for

Healthchoice physicians compare with those of non-

Healthchoice physicians. Levine, 72 F.3d at 1553.

REASONS FOR DENYING THE WRIT

I.

THE PETITIONER FAILED TO ESTABLISH ANY

FACTUAL BASIS FOR AN ALLEGED HORIZONTAL

GROUP BOYCOTT FOR WHICH PER SE TREATMENT

CAN BEAFFORDED UNDER THE ANTITRUST LAWS.

A. There Is No “Confusion” Regarding the Circumstances

When the Per Se Rule Can Be Invoked.

The Petitioner alleges that it is necessary for this Court to

clear up “confusion” regarding the treatment of horizontal group

boycotts under the antitrust laws. Pg. 12. There is no confusion

in the prior opinions of the this Court cited by the Petitioner, nor

was the Eleventh Circuit “confused” in its refusal to grant per se

treatment to the Petitioner’s claims in this case.

7

This Court has clearly and unequivocally addressed the

standards for application of per se treatment to alleged antitrust

violations. Perse treatment is limited to those situations where:

the challenged action falls into the category

of agreements or practices which because of

their pernicious effect on competition and

lack of any redeeming virtue are

conclusively presumed to be unreasonable

and therefore illegal without elaborate

inquiry as to the precise harm they have

caused or the business excuse for their use.

Northwest Wholesale Stationers, Inc. v. Pacific Stationery and

Printing Co.,472 U.S. 284, 289, 105 S. Ct. 2613, 86 L. Ed. 2d 202

(1985), (citing Northern Pacific Railroad Co. v. United States,

356 U.S. 1,5, 78S. Ct. 514,2L. Ed. 2d 545 (1958)).

Thus, before per se treatment is afforded, a plaintiff must

demonstrate that the challenged activity is one that has a clear

and apparent anticompetitive effect and no redeeming virtue.

Demonstrating clear and apparent anticompetitive effect is not,

as the Petitioner contends, a change of direction by this Court

first evidenced in Northwest Wholesale Stationers. Preliminary

review of the challenged activity to determine whether the per se

or rule of reason approach should be applied in a particular case

has been utilized by this Court since Standard Oil Co. v. United

States, 221 U.S. 1,318. Ct. 502, 55 L. Ed. 619 (1911).

The Petitioner has attempted to overcome the hurdles of

demonstrating clear anticompetitive effect by invoking the

mantra of “per se illegal group boycott,” and citing to other cases

in which this Court has afforded per se treatment to “group

boycotts.” In doing so, the Petitioner has ignored the prior

8

warnings of this Court against efforts to obtain per se treatment

by pigeon-holing an activity into the broad category of “group

boycott” without demonstrating that it is a naked restraint of

trade with no purpose except stifling competition. White Motor

Co. v. United States; 372 U.S. 253, 263, 83 S. Ct. 696, 702, 9 L.

Ed. 2d 738 (1963); Northwest Wholesale Stationers, 472U.S.at

298: FT.C. v. Indiana Federation of Dentists, 476 U.S. 447,458,

106 S. Ct. 2009, 2018, 90 L. Ed. 2d 445 (1986).

B. The Petitioner Failed to Demonstrate Any Evidence of

Requisite Horizontal Collusive Behavior Necessary to

Establish a Group Boycott Claim Subject to the Per Se Illegal

Rubric Under Section One of the Sherman Act.

The Petitioner failed to produce any evidence of aconcerted

refusal to deal involving agreement among the Petitioner’s

competitors. The evidence on record is undisputed that

Healthchoice’s staff, not CFMA or the CFMA members of

Healthchoice’s board of directors, make the decisions regarding

which physicians will be invited to participate in Healthchoice’s

panel. Levine, 72 F.3d at 1547.

Thus, despite Petitioner’s claims to the contrary, the denial

of participation in Healthchoice does not fall into the category of

horizontal group boycotts deemed per se illegal by this Courtin

Associated Press v. United States, 326 U.S. 1,65 S.Ct 1416, 89

L. Ed. 2013 (1944), Klor’s, Inc. v. Broadway-Hale Stores, inc.,

359 U.S. 207,79 S.Ct. 705, 3L. Ed. 24741 (1959), United States

v. General Motors Corp., 384 U.S. 127, 86S. Ct. 1321, 16L. Ed.

2d 415 (1966), and F-T.C. v. Superior Court Trial Lawyers Assn.,

493 U.S. 411, 110S. Ct. 768, 107 L. Ed. 2d 851 (1990). Neither

does the Eleventh Circuit’s decision represent a deviation from

the standard analysis utilized by courts to review antitrust

claims. In each of the cases cited above, this Court determined

whether the plaintiffs were able to demonstrate collusive activity

9

that had a clear and apparent anticompetitive effect before

affording per se treatment.

In Associated Press, the plaintiff demonstrated that

Associated Press was the largest news agency in the United

States, and that exclusion from membership in the organization

placed the plaintiff at a significant competitive disadvantage.

326 U.S. at 17-18. The Associated Press bylaws, established and

controlled by existing Associated Press members, placed

restrictions on new members who competed with existing

members (including payment of significant fees and other

onerous conditions) that were not imposed on new members who

did not compete with existing members. Because of the clear

impact on competition, and obvious anticompetitive and

discriminatory treatment of new members who competed with

existing members, this Court determined that the adoption and

enforcement of the bylaws by Associated Press members

constituted collusive behavior that was a per se antitrust

violation. /d. at 18-19.

In Klor’s, Inc., the plaintiff was able to demonstrate that one

of its direct competitors convinced various manufacturers and

distributors of electrical appliances to refuse to sell products to

the plaintiff, orto only sell products at discriminatory prices with

highly unfavorable terms. These agreements seriously

handicapped the plaintiff’s ability to compete, and resulted in

significant loss of profits, goodwill, reputation, and prestige for

the plaintiff. 359 U.S. at 208. Although the plaintiff was not able

to demonstrate that his exclusion from the market would cause a

significant impact on the availability of products to consumers,

this Court was persuaded that the plaintiff had demonstrated a

clear and apparent anticompetitive effect with no redeeming

virtue. App! ying a per se analysis, this Court held that the boycott

of the plaintiff by many of the major manufacturers and

distributors in the affected industry violated the antitrust laws.

Id. at 213.

10

In United States v. General Motors Corp., the challenged

activity was a mandate imposed by General Motors (as the result

of complaints by several competing General Motors dealers)

precluding dealers from selling cars to discount houses, The

United States demonstrated that the participation of General

Motors, which controlled the supply of cars to the dealers,

combined with the vigilant enforcement efforts of competing

dealers, effectively ended the practice of selling cars to discount

houses for resale to consumers in the Los Angeles area. 384 U.S.

at 135-138. This Court held that the government had

demonstrated the requisite collusive activity and clear

anticompetitive effect required for per se treatment of a Section

One Sherman Act claim. /d. at 145.

In Superior Court Trial Lawyers Association, the F.T.C. was

able to demonstrate that members of the defendant association

had collusively agreed not to take on additional court-appointed

cases unless the government increased the fees for court

appointed attorneys. The Association’s efforts proved

successful, as the system essentially shut down when the boycott

went into effect, and the government was persuaded to increase

the fees. 493 U.S. at 417-418. Having demonstrated the clear

anticompetitive effect of the collusive group effort, this Court

held that there was no special exemption from per se treatment

where the intended efforts of the defendants were to provoke

legislative action. This Court therefore utilized a per se analysis

in ruling that the boycott was a violation of the antitrust laws. /d.

at 430-31.

Unlike the circumstances in Superior Court Trial Lawyers

Association, the Petitioner’s case is not one in which the victim

of the boycott is a buyer of the allegedly colluding defendants.

Instead, the Petitioner’s only plausible horizontal claim in this

case is premised on an alleged conspiracy involving agreement

among CFMA members to “boycott” nota buyer from or seller to

those competitors, but simply another competitor, the Petitioner.

1]

Nor is the Petitioner’s case similar to the circumstances in

FTC v. Indiana Federation of Dentists. In that case, the alleged

horizontal boycott involved an agreement among competing

dentists to withhold patient x-rays from insurance companies

that requested them in reviewing dentists’ services for

reimbursement. 476 U.S. at 451. Thus, once again, the intended

victims of the horizontal boycott were the customers of the

conspirators, not a fellow competitor.’

In Associated Press, Klor’s Inc., and United States v.

General Motors, this Court applied the per se approach where the

alleged collusive action by competitors was to disadvaniage one

or more of their direct competitors, either by directiy denying, or

persuading or coercing suppliers or customers to deny,

relationships the competitors needed in the competitive

struggle. See also, Northwest Wholesale Stationers,472 U.S. at

294. But the Petitioner in this case has produced no evidence of

any such coercion by CFMA or its members, or the denial of

relationships necessary for the Petitioner to compete for patients

in the Orlando area. Thus, the holdings of Associated Press,

Klor’s Inc. and United States v. General Motors are inapposite to

the Petitioner’s case.”

1. Itis interesting to note that the Court in F.T.C. v. Indiana Federation

of Dentists applied a rule of reason rather than a per se analysis to the group

boycott claims, despite the uncontested fact that a large group of competing

dentists conspired with one another to withhold x-rays from insurance

companies seeking to determine appropriate levels of reimbursement for

dental services. Jd. 458-59. The Court did, however, rule that the F.T.C. was

not required to conduct a detailed market analysis to support its antitrust

claims under the rule of reason analysis because significant anticompetitive

effect had been established, and no compelling procompetitive justification

for the boycott had been offered by the defendants. Jd. 460-61; 463-64.

2. Similarly, despite the Petitioner's claims to the contrary, there is no

conflict among the circuit courts in the invocation of the per se rule. In Denny's

(Cont'd)

12

C. Petitioner Failed to Demonstrate a Clear

Anticompetitive Effect With No Redeeming Virtue — A

Prerequisite for Invocation of the Per Se Rule.

As the Eleventh Circuit noted, Dr. Levine failed to

demonstrate that Healthchoice and CFMA have the requisite

market power that would allow them to deny relationships

necessary for the Petitioner to compete in the Orlando area.

Levine, 72 F.3d at 1550. Healthchoice patients are free to use

non-Healthchoice physicians, limited only by higher deductible

payments established by the Payors, not by Healthchoice or

CFMA and its members. /d. at 1547. Healthchoice patients are

also provided with options regarding their health plans, and are

(Cont'd)

Marina, Inc. v. Renfro Productions, Inc., 8 F.3d 1217 (7th Cir. 1993), the

plaintiff demonstrated that because of his price cutting efforts, his competitors

colluded with the operators of the major boat shows in Indiana to exclude the

plaintiff from participating, significantly impacting the plaintiff's ability to

compete. Jd. at 1219-1220. Although the Court elected not to perform a “quick

look” into the potential effect of the restraint on the relevant market, it based

its decision to afford per se treatment to the plaintiff's claims on the undisputed

fact that the boycott was a retaliatory effort by other boat dealers against a price

cutting competitor, and no procompetitive justification was offered by the

defendants to explain their behavior.

The Petitioner also cites to Alvord-Polk, Inc. v. F. Schumacher & Co., 37

F.3d 996 (3d Cir. 1994), as an alleged use of per se treatment for a group boycott

case. The only reference to per se treatment in that case, however, is a

discussion of the availability of per se treatment for Section One violations,

and the lack of per se treatment for Section Two cases. /d. at 1000. Nowhere

in the opinion (which reversed an award of summary judgment to the

defendants based upon a determination that a sufficient factual question of

collusive behavior existed) does the Third Circuit require that the alleged

conspiracy by retail wallpaper stores and wallpaper manufacturers against

discount wallpaper dealers be afforded per se treatment upon remand.

13

free to switch to other plans if they are dissatisfied with the

Healthchoice program. Jd. at 1552-53. Thus, even if the

Petitioner had presented any evidence of an agreement between

Healthchoice and CFMA members to exclude the Petitioner

from the Healthchoice panel, that agreement would most

properly have been analyzed under a rule of reason approach due

to the lack of apparent anticompetitive effect.

The Respondents also demonstrated significant “redeeming

virtue” associated with closed-panel PPOs and HMOs. Managed

care Organizations, which are relatively new to the healthcare

market, have overtaken traditional comprehensive insurance

coverage as the health care plan of choice. Such organizations

accounted for 69% of potential patients in the Orlando area at the

time summary judgment was awarded by the District court. [R3-

80, 418; R6-147. pg. 17.] There also is vigorous competition in

the Orlando area for comprehensive healthcare coverage, with

no one organization covering more than 7.5% of the population.

[R3-80, {18.] The procompetitive benefits of PPOs have been

widely acknowledged. [R3-49, 97 7, 10.] Further, as the Eleventh

Circuit noted, the Department of Justice (“DOJ”) enforcement

policy has recognized that selective contracting by PPOs and

providers may be a method by which the PPOs achieve quality

and cost containment goals that enhance their ability to compete

in the market. DOJ Enforcement Policy at 42.

The Petitioner has conspicuously failed to identify a single

instance in which the exclusion of a physician from panel

participation in a managed care organization was analyzed under

the per se approach. In fact, every antitrust case involving

membership in a managed care organization that the undersigned

3. The DOJ therefore requires a rule of reason rather than a per se

analysis of potential antitrust violations. DOJ Enforcement Policy at 42.

Additionally, the State of Florida has authorized the utilization of closed

panels by PPOs. Section 627.6471, Fla. Stat.

14

counsel was able to find was analyzed under the rule of reason

approach. Doctors Hospital of Jefferson, Inc. v. Southeast

MedicalAlliance, Inc.,897 F. Supp. 290 (E.D. La. 1995); Capital

Imaging Associates, P.C. v. Mohawk Valley Medical Associates,

Inc.,791 F. Supp. 956(N.D.N.Y. 1992), aff'd, 996 F.2d 537 (2d

Cir. 1992), cert. denied, 510 U.S. 947, 114S. Ct. 388, 125 L. Ed.

2d 337 (1993); Williamson v. Sacred Heart Hospital of

Pensacola, 1993 WL 543002 (N.D. Fla. 1993), aff'd, 41 F.3d667

(1994), cert. denied,__ U.S. __, 115 S. Ct. 2556, 132 L. Ed. 2d

810 (1995); Hassan v. Independent Practice Associates, Inc.,

698 F. Supp. 679 (E.D. Mich. 1988); Northwest Medical

Laboratories, Inc. v. Blue Cross Blue Shield of Oregon, 775 P.2d

863 (Or. Ct. App. 1989), aff'd, 794 P.2d 428 (Or. 1990).

Further support for a rule of reason approach in the context

of physician “privileges” is found in this Court’s opinion in

Jefferson Parish Hosp, Dist. No. 2 v. Hyde,466 U.S.2,104S.Ct.

1551, 80 L. Ed. 2d 2 (1984). In that case, this Court refused to

utilize a per se analysis in evaluating the antitrust claims of a

physician who was denied staff privileges at a hospital. /d. at 15-

16. Yet, denial of access to a hospital with a 30% market share (/d.

at 426) has far more potential for anticompetitive effects than

denial of a single competitor's application for membership ina

PPO with less than 6% of the available patients in the Orlando

area.

The record below indicates that the Petitioner failed to

establish that Healthchoice’s utilization of a closed panel had

any apparent anticompetitive effect on the market for medical

services with no redeeming value. Based upon that record, the

Eleventh Circuit properly followed established precedent in

rejecting the Petitioner’s assertion that the Respondents’ alleged

“group boycott” activities should be evaluated under the per se

approach. There was accordingly no error in the Eleventh

Circuit’s treatment of antitrust precedent, nor its ruling.

15

D. Summary Judgment Was Properly Awarded to the

Respondents With Regard to Petitioner’s Group Boycott

Claims.

Under the guidelines established by this Court in

Matsushita, the Petitioner could not withstand the Respondents’

motions for summary judgment merely by alleging the existence

of a horizontal group boycott. He was required to present some

evidence that CFMA or its members controlled the decision by

Healthchoice to utilize aclosed panel, or that the utilization of a

closed panel had a clear and apparent anticompetitive effect.

This is especially true in light of the numerous procompetitive

reasons for utilization of a closed panel offered by the

Respondents in their motions for summary judgment. 475 U.S.

at 588.

Viewing the evidence, facts, and inferences in the light most

favorable to the Petitioner, both the District court and the

Eleventh Circuit determined that he failed toestablish an alleged

horizontal group boycott with a clear and apparent

anticompetitive effect that would require per se treatment under

the antitrust laws. Having failed to meet his burden in the District

court, the Petitioner’s request for certiorari should be denied.

THE PETITIONER FAILED TO PROVIDE ANY

EVIDENCE OF AN AGREEMENT TO FIX PRICES.

A. The Petitioner Failed to Present Evidence of Collusive

Behavior Necessary to Establish a Price-Fixing Conspiracy

Under Section One of the Sherman Act.

The Petitioner asserts that the utilization of a Master Payor

Rate Schedule constitutes an illegal conspiracy to fix prices for

16

which per se treatment is mandated. Through his phrasing of the

question presented to this Court, the Petitioner seems to imply

that there was some question in the Eleventh Circuit’s analysis of

his claim as to whether the claim should be analyzed under a rule

of reason or per se approach. This was not, in fact, an issue

addressed by the Eleventh Circuit. The basis for the Eleventh

Circuit's decision to uphold the award of summary judgment to

the Respondents on the price-fixing claim was clearly and

succinctly stated:

Because there is no genuine issue of material

fact regarding the existence of an agreement

among Healthchoice, CFMA, or its member

doctors to fix provider fees, and because

defendants are entitled to judgment as a

matter of law, Dr. Levine’s section | claim

against these defendants, to the extent that it

alleges illegal price fixing, fails.

Levine, 72 F.3d at 1548.

In addition to his confusing references to per se treatment,

the Petitioner misleads this Court by substituting CFMA for

Healthchoice when discussing the establishment and

negotiation of fees with Healthchoice Payors. The record is,

however, devoid of any evidence supporting the Petitioner’s

contention that CFMA or any of its members have any

involvement in establishing the Master Payor Rate Schedule, or

negotiating the maximum prices that individual Payors will pay

for physician services. As noted by the Eleventh Circuit:

Although Dr. Levine did not specifically

argue to this Court that the Defendants

illegally fixed prices, i.e. provider fees, there

are portions of his brief where he appears to

17

assume the existence of such an agreement.

That assumption is contrary to the

uncontroverted evidence in the record, which

establishes that there was no agreement

between Healthchoice, CFMA, and their

member physicians to fix provider fees.

Healthchoice negotiates the provider

reimbursement schedule directly with the

payors, not with providers. Healthchoice

does not consult any physician providers

when it compiles the CPT code unit values or

the Master Payor Rate Schedule, and

physician members of the Healthchoice

board of directors are excluded from the

reimbursement schedule proposal and

approval process. Providers must either

accept not more than the maximum

reimbursement negotiated by Healthchoice

with the payors and not charge the patient for

any difference between their fee and the

reimbursement, or else opt out.

Levine, 72 F.3d at 1548.

The Petitioner relies heavily on this Court’s decision in

Arizona v. Maricopa County Medical Society, 457 U.S. 332, 102

S. Ct. 2466, 73 L. Ed. 2d 48 (1982), in support of his contention

that the Eleventh Circuit erred in upholding summary judgment

on the Petitioner's price-fixing claims. The Petitioner, however,

ignores a significant distinction between the facts presented to

this Court in Maricopa County Medical Society and the facts

presented to the District and Circuit courts in this case.

In Maricopa County Medical Society, the evidence clearly

established that the medical society which established the

18

maximum fee schedule was controlled by its physician

members, and that the maximum fee schedule was established by

majority vote of the physicians. 457 U.S. at 340-341. This

contrasts significantly with the facts in this case. Here, it is

undisputed that Healthchoice establishes the maximum

allowable fee schedule and negotiates the provider

reimbursement schedule directly with individual Payors. Fees

are established and negotiated without any involvement of or

participation from CFMA, including the CFMA members on the

Healthchoice board of directors. Levine, 72 F.3d at 1548.

This Court indicated in footnote 26 in Maricopa County

Medical Society that it was not condemning arrangements in

which physicians, through bilateral contracts, agreed to a

maximum fee schedule set by someone other than the physicians.

457 U.S. at 352. It further noted that the United States, in an

amicus curiae brief, believed that such arrangement in which the

maximum fees were set by an insurer would be legal, absent

evidence of aconspiracy by the providers. Jd. Shortly thereafter,

analogous situations were addressed in two Circuit court cases.

Both Circuit courts found that no antitrust violation had

occurred, and this Court denied petitions for certiorari in both

instances. Pennsylvania Dental Ass'n v. Medical Service Ass'n

of Pennsylvania, 745 F.2d 248 (3d Cir. 1984), cert. denied, 471

U.S. 1016, 105 S. Ct. 2021, 85 L. Ed. 2d 303 (1985); Kartell v.

Blue Shield, 749 F.2d 922, 923-26 (1st Cir. 1984), cert. denied,

471 U.S. 1029, 105 S. Ct. 2040, 85 L. Ed. 2d 322 (1985).

The facts of Pennsylvania Dental Association are strikingly

similar to those in this case. The defendant, Blue Shield, entered

into bilateral contracts with dentists that required the dentists to

accept the maximum fee determined by Blue Shield as payment

in full for services provided to patients covered by Blue Shield

plans. 745 F.2d at 253. Like Healthchoice, one-half of the board

19

of directors of Blue Shield was comprised of physicians and

dentists who provided services to Blue Shield customers. /d.

However, unlike Healthchoice, Blue Shield did not exclude its

physician and dentist board members from participation in the

establishment of fees to be paid to physicians and dentists. /d. at

253-254.

Despite the involvement of physician and dentist board

members in pricing decisions, the Third Circuit found no price-

fixing conspiracy among the defendants due to the lack of any

evidence that the dentists or physicians controlled the pricing

policies of Blue Shield. The Third Circuit reasoned that in the

absence of any evidence of collusive behavior among dentists

that affected Blue Shield’s payments, there could be no Section

One violation. Blue Shield was therefore not precluded by the

antitrust laws from establishing a maximum fee policy, or from

having physicians and dentists agree in advance to abide by that

policy. Jd. at 256.

The Third Circuit noted that under the controlling precedent

of Maricopa County Medical Society, if the plaintiffs had

established that the pricing structure utilized by Blue Shield was

controlled by ttie competing physicians and dentists, the

maximum fee structure could be considered a price-fixing

conspiracy. Jd. at257. Other Circuit courts had found potential

antitrust violations where control by competing physicians had

been established. Virginia Academy of Clinical Psychologists v.

Blue Shield of Virginia, 624 F.2d 476 (4th Cir. 1980); Glen Eden

Hospital, Inc. v. Blue Cross & Blue Shield of Michigan, 740 F.2d

423 (6th Cir. 1984).

Despite ample opportunity through discovery to establish

any evidence of physician control over pricing policies, the

plaintiffs in Pennsylvania Dental Association were unable to

present any such evidence. Jd. at257. Similarly, the Petitioner in

20

this action, despite receiving an extension of time from the

District court to complete discovery and supplement his

response to the Respondents’ summary judgment motions [R3-

92; R4-117], was unable to provide any evidence that CFMA or

its physician members had any control over the maximum fees

for physician services established by Healthchoice and the

individual payors.

In Kartell, the First Circuit, in an opinion by Justice Breyer,

used reasoning similar to that of the Third Circuit in

Pennsylvania Dental Association in rejecting a price-fixing

challenge to a maximum fee structure. The defendant, Blue

Shield, required physicians seeking reimbursement for services

provided to Blue Shield enrollees to execute contracts which

required acceptance of Blue Shield’s “usual and customary

charge” as paymentin full. With no evidence of control of the fee

schedule by the participating physicians, the First Circuit held

that the bilateral contracts between Blue Shield and numerous

competing physicians did not amount to collusive behavior

necessary to establish a price-fixing claim, despite the fact that

the bilateral contracts tended to make fees paid to the competing

physicians uniform. Kartell, 749 F.2d at 925.

Proof of collusive behavior is essential to any Section One

claim. Copperweld Corp. v. Independent Tube Corp., 467 U.S.

752, 767-69, 104S. Ct. 2731, 2739-41, 81 L. Ed. 2d 628 (1984).

A conspiracy, combination, or agreement in violation of the

antitrust laws cannot be inferred unless the Petitioner presents

evidence that tends to exclude the possibility of independent

action by the alleged conspirators. Monsanto Co. v. Spray-Rite

Service Corp., 465 U.S. 752, 768, 104S. Ct. 1464, 79 L. Ed. 2d

775 (1984). Execution of bilateral. contracts between

Healthchoice and CFMA members, under which CFMA

members agreed to accept the maximum fees negotiated between

21

Healthchoice and Payors as payment in full for service rendered

to Healthchoice patients, without any evidence that CFMA

members controlled Healthchoice, or colluded among

themselves to fix prices, cannot be the basis for inferring

collusive behavior necessary for a price-fixing claim. The

Eleventh Circuit therefore properly upheld the grant of summary

judgment to the Respondents.

B. The Petitioner Lacks Standing to Pursue a Section One

Price-Fixing Claim Against the Respondents.

In upholding the grant of summary judgment to the

Respondents on the Petitioner’s Section One price-fixing claim

based upon the absence of evidence of collusion, the Eleventh

Circuit consciously elected not to address the issue of the

Petitioner’s standing to pursue this claim. Levine, 72 F.3d at

1545. Assuming, arguendo, that the Petitioner had been able to

offer any evidence of collusive behavior of participating

physicians in establishing the maximum fees to be charged by

Healthchoice providers, the District court’s grant of summary

judgment to the Respondents was still proper due to Petitioner's

lack of standing to pursue his antitrust claims. CFMA’s

successful challenge to the Petitioner's standing to pursue his

antitrust claims is not, as the Petitioner suggests, meritless, nor

has CFMA abandoned its challenge.

To establish standing to pursue an antitrust claim, the

Petitioner was required to demonstrate each of the following

requirements: (1) that he suffered some injury as a result of the

alleged anticompetitive action; (2) that his alleged injuries

coincide with the public detriment tending to result from the

alleged anticompetitive action; and (3) that he is an efficient

enforcer of the antitrust laws. Associated General Contractors

of California, Inc. v. California State Council of Carpenters, 459

U.S.519, 537,542, 103 S. Ct. 897, 908, 910-11, 74L. Ed. 24723

22

(1983); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,429 U.S.

477, 489, 97S. Ct. 690, 697, 50 L. Ed. 2d. 701 (1970); Cargill

Inc. v. Monfort of Colorado, Inc.,479 U.S. 104, 111, 107 S.Ct.

484, 490, 93 L. Ed. 2d 427 (1986). The Petitioner has failed to

provide any evidence demonstrating that he can meet any of the

three requirements.

The undisputed evidence on record establishes that the

Petitioner’s practice has expanded and prospered, despite the

alleged existence of a price-fixing conspiracy among CFMA

members and others. Levine, 72 F.3d at 1551. As the Eleventh -

Circuit noted, the Petitioner failed to produce any evidence that

the Petitioner lost a single patient as a result of the alleged

conspiracy to limit the Petitioner’s access to patients or control

prices in the Orlando market for healthcare services. Jd. at 1552-

53. Further, there is nothing in the record that indicates that the

Petitioner was prevented from directly contracting with Payors

to provide services to their enrollees at any price to which the

Petitioner and the Payors could agree. Thus, as the district court

found in granting summary judgment to the Respondents,

Petitioner suffered no perceivable injury as a result of the alleged

anticompetitive activities.

The district court also found that the Petitioner did not suffer

injuries that coincide with the public detriment tending to result

from the alleged anticompetitive actions of the Respondents.

[R6-147, pp. 15-16.] As the Eleventh Circuit noted, no evidence

was presented demonstrating that the maximum fee schedule

established by Healthchoice artificially inflated the fees of

Healthchoice providers over non-Healthchoice providers.

Levine, 72 F.3d at 1552. Indeed, the Petitioner presented no

evidence that prices charged to Payors for services of

Healthchoice panel members had any effect on prices outside of

the Healthchoice network.

23

Even if, contrary to the record, higher provider prices to

Healthchoice Payors had resulted from the Respondents’

actions, the Petitioner still would have suffered no injury. Any

higher in-network prices would increase the Petitioner’s ability

to compete for Healthchoice enrollees, by reducing the impact to

Petitioner of waiving deductible and co-payment requirement

imposed on Healthchoice enrollees by the Payors. Further, if any

impact to non-Healthchoice prices had been established, the

likely impact from higher prices for Healthchoice physicians

would be higher prices to non-Healthchoice patients. This would

again fail to create any injury to the Plaintiff, as he would suffer

no damage from higher prevailing prices for physician services.

As this Court discussed in Maricopa County Medical

Society, a possible adverse effect of amaximum fee schedule that

artificially lowers prices is the tendency to drive down prices

outside the network, and to limit innovative but more costly

methods of providing services. 457 U.S. at 347. The Petitioner,

however, presented no evidence that the maximum fee schedule

utilized by Healthchoice artificially deflated the prices he was

able to charge his patients, or in any way interfered with the

manner in which he treated patients. Thus, he has demonstrated

no “antitrust injury” associated with the alleged price-fixing

scheme.

As the district court noted, if the Petitioner had been able to

demonstrate any injury resulting from the alleged price-fixing

scheme, he still would not be an efficient enforcer of the antitrust

laws. [R6-49, pg. 16.] The Petitioner is a single practitioner who,

while alleging that Healthchoice and CFMA were engaging in an

illegal price-fixing scheme, also seeks to join Healthchoice and

CFMAso that he can obtain access to Healthchoice patients. The

only “injury” that would be redressed by permitting the

Petitioner to join the Healthchoice panel is potential loss of

market share or foregone extra profits. Injury to a single

24

competitor, rather than to competition, is not the kind of injury

the antitrust laws were intended to forestall. Brunswick Corp.,

429 U.S. at 487-88. This is especially true in the present case,

where the Petitioner is already earning substantially more than

the average internist in the Orlando area. Levine, 72 F.3dat 1551.

CONCLUSION

As noted above, the Eleventh Circuit followed controlling

precedent in its analysis of the Petitioner’s claims, and found no

antitrust violation due to the absence of any record evidence

demonstrating collusive behavior among competitors,

anticompetitive effect in any market, or antitrust injury suffered

by the Petitioner. The Supreme Court and circuit court cases

cited by the Petitioner in his request for “GVR” treatment of the

Eleventh Circuit opinion, many of which were not cited by the

Petitioner in his briefs to the district court or the Eleventh

Circuit, are not inconsistent with the Eleventh Circuit opinion.

In each of those cases, the plaintiffs presented evidence of

anticompetitive activity leading to anticompetitive effects — a

necessity to withstand a motion for summary judgment. Put

plainly and simply, this Petitioner has not, despite ample

opportunity to do so.

Thus, even if this Court desires to consider the antitrust

implications of maximum fee schedules and closed panels in the

managed healthcare field, Petitioner’s case, in which there was

no demonstration of injury to the competitor plaintiff, let alone

competition, isapoorchoiceforsuch eview. This Court should

accordingly deny the Petitioner’s request for certiorari review.

25

Respectfully submitted,

RONALD M. SCHIRTZER

Counsel of Record

ROBERT J. ENDERS

MARK J. WAXMAN

FOLEY & LARDNER

Attorneys for Respondent

Central Florida Medical Affiliates, Inc.

111 North Orange Avenue

Suite 1800

P.O. Box 2193

Orlando, Florida 32802-2193

(407) 423-7656