# Opposition Brief — Riverview Health Institute LLC v. Medical Mutual of Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2154%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2010 - **Citation:** 562 U.S. 841 ## Text No. 09-1575 : GRICE Or THE <1 IN THE Supreme Court of the Guited States RIVERVIEW HEALTH INSTITUTE LLC, ET AL., etitioners, V. MEDICAL MUTUAL OF OHIO, ET AL.., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI Pierre H. Bergeron James I). ‘Thomas* SQUIRE, SANDERS & SQUIRE, SANDERS & DrmMPpsky LLP DEMPSEY LLP 1201 Pennsylvania Ave. NW 200 South Biscayne Suite 500 Boulevard, Suite 4100 Washington, D.C. 20004 Miami, Florida 8313] (202) 626 6600 (306) 577-7050 jdthomas@ssd.com Stephen F. Gladstone Michael E. Smith Philp M. Oliss Frantz Ward LLP SQUIRE, SANDERS & 2500 Key Tower DEMPSEY LLP 127 Public Square 4900 Key Tower Cleveland, Ohio 44114 127 Public Square (216) 515-1660 Cleveland, Ohio 44114 (216) 479-8500 Counsel for Respondents *Counsel of Record August 27, 2010 re RE Be WILSON-EPES PRINTING CO., IN (202) 789 0096 -—- WASHINGTON, D C. 20007 QUESTIONS PRESENTED The questions presented are: (1) Whether the Sixth Circuit properly applied the test set forth in U.S. Dept. of the Treasury v. Fabe, 508 U.S. 491 (1993) and Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119 (1982) in determining that the Ohio laws poverning Petitioners’ allegations that Kespondents wrongly delayed, diminished, and denied payment of insurance claims were enacted for the purpose of regulating the “business of insurance.” and (2) Whether the Sixth Circuit properly applicd the test set forth in Jlumana, Inc. v. Forsyth, 525 U.S 299 (1999) 1n determining that Petitioners’ claims under the Racketeer Influenced and Corrupt Organizations Act ( RICO’), 18 U.S.C. § 1961 et seq., would impair Ohio's comprehensive = regulatory scheme to regulate the business of insurance RULE 29.6 CORPORATE DISCLOSURE STATEMENT No parent or publicly held company owns 10 percent or more of the stock in Respondent Medical Mutual of (ohio TABLE OF CONTENTS Pape Questions Presented Rule 29.6 Corporate Disclosure Statement 1 ‘Table of Content 11) ‘Table of Authoriti A Introduction | ptutement of the Case } i sae Lua be kvround Latutory iM rearme work > UA B.,tdTd hoy By myiht Lrie |? Lition 1() | The Sixth Circuit Properly Followed and Applied this Court Vrecedent (concerning: the Musine of insurance iz | }¢) 1 | Phe Test Set Forth in /lumana |] hollowed [by Iibvery Circuit | Lire CPnce Oy Vb ence qo] the mtute ie Mion j if Statutory Kivht of Private Action ind Common Law Khemedics 1G ( (Other State Law | ‘/ Dy Damape 1% hte ly) mnce state In ure! Re TABLE OF AUTHORITIES Case: Pape American Chiro. vo. Tripon tlealthcare $67 bd 212 (Ath Cir. 2004) 14 Bancoklahoma Mortgage Corp. v. Capital Title Co 194 bod 1089 (Oth Cir, 1999) 14 ftiowen vo. Massachusetts 14 J ; 4/9 (198%) Z llamana brie I horsyth, yyy 29d € 159593) pa Liii Kenty vo. Thank One. Columbus. N.A 9% ik 4d 444 (6th Cir. 1996) 14 Laltarre { (lredul Acceptance (lorp hod 640 (Kth Gir, 1999) 14 leiwerview Health Institute. LLC vo. Medical Mutual Of CANO GOI | $1 O05 (6th ¢ IT 2010) 14 (. Paul ure & Marine In Clo. ov. barry 13% US. $1] C199 78) e (/nion Labor Life In . 1 frareno 16% Ub. T19 (1982) passim United States v. South-lastern Underwriters Assn, 322 U.S. 533 (1944) United States Dep't of Treasury ov. Fabe, 508 US. 491 (1993) Weiss v. first Unum Life Ins. Co 482 F.3d 254 (3d Cir. 2007) Statutes & Rules M6 USO. § 196) Ohio Rev. Code § 6901.48 1 passim PpPassti Passtiil RESPONDENTS’ BRIEF IN OPPOSITION INTRODUCTION The Petition does not even begin to present any question worthy of this Court’s review. Indeed, the Petition fails to identify any new rule of law that this Court should impose. Kather, it quibbles with the Sixth Circuit's application of well-settled rules of law and urges this Court to more finely “parse” the allegations in the complaint These types of questions are quintessentially ill-suited for this Court’s review. 5. Ct. R. 10 (‘loser inspection of the questions presented by the Petition reveals further obstacles to review Petitioners self-limit the scope of the first question to “nsurance Companies in the State of Ohio” (Pet. at 1) hardly a question of national significance. Indeed, they conecede that this Court has repeatedly ¢cxamined the “business of insurance” requirement set forth in the McCarran-Ferguson Act, 15 U.S.C. & 1012(b), and they acknowledge that the Sixth Circuit relied on Supreme Court precedent when it determined that the “business of insurance” requirement was satisfied here. Petitioners simply do not care for the result. Yet Petitioners’ surprise at the outcome 1s difficult to square with their concession that the complaint actually pleads conduct that “comes within the ‘business of insurance.” (Pet. at 19) ‘This concession reveals the fact-dependent nature of the inquiry they invite this Court to undertake. [ven if the Court were nevertheless inclined to go down that path, its opinion would be one of limited utility constrained to insurance companies in Ohio that have allegedly perpetrated a scheme almost identical to - the conduct alleged here. Understandably, Petitioners never had much confidence in this argument in the first place; they did not bother to raise it before the district court except by a passing reference ip a footnote. Petitioners’ second question fares no better. ‘The purported “circuit split” they depict is illusory. This Court set forth a standard for “impairment” under McCarran-Ferguson in Humana, Inc. v. Forsyth, 525 US. 299 (1999). The circuits Gneluding the Sixth Circuit’ here) have apphed the ffumana test to varying fact patterns under several different state law ansurance regimes. To the extent the ultimate outcomes differ, any such discrepancies can be traced to substantive differences in the laws of the respective States, the facts, and the application of those facts to the state laws presented. The Court need not take this case to compare and contrast Ohio's insurance regime with that of New Jersey or other states. Moreover, this is the only case among those cited by Petitioners where the State itself submitted an amicus brief specifically positing that appheation of Petitioners’ RICO allegations would iumpatr Ohio's insurance = reyulations. The Sixth Circuit's interpretation of Ohio law is entitled to deference by this Court. See, e.g., Bowen v. Massachusetts, 487 U.S. 679, 908 (1988) (“We have a settled and firm policy of deferring to regional courts of appeals in matters that involve the construction of state law.”) The Petition should be demed 3 STATEMENT OF THE CASE Factual Background Respondent Medical Mutual of Ohio! (Medical Mutual”), is a mutual company that underwrites and provides pvroup and individual health insurance. Petitioners Riverview Health Institute, LLC, Middletown Surgical Associates, Inc., d/b/a/ The Surgical Weight Loss Center, and Oak Leaf Health Group LLC, d/b/a’ St. Elizabeth’s Laboratories (collectively “Riverview”), are health-care providers of hospital, physician and laboratory services that provide surgical weight loss procedures to patients at a facility in Dayton, Ohio. This case does not arisc, however, from any direct relationship between Medical Mutual and Riverview. Rather, this case arises from the relationship between Medical Mutual and certain’ of its policyholders who allegedly assigned to Riverview their nights to receive benefits from Medical Mutual for medical services that Riverview provided. Riverview had no direct “provider” relationship with Medical Mutual, meaning that Riverview operates “exclusively on an out-of-network basis.” (Pet. App. 67a). Prior to performing any medical services for Medical Mutual policyholders, Riverview ' Petitioners alao named in their Complaint Respondents Kent W. Clapp, who is now deceased but at the time the Complaint was filed was Medical Mutual's Chairman, President and CKO, David Quiring, Medical Mutual’s Vice President of Claims Operations, and Kathy Schneeberger, an employee in Medical Mutual's financial investigation unit. The Reapondents are referred to collectively as “Medical Mutual” throughout this bref 4 requires the insured patient to execute an “Assignment of Medical Benefits,” which purports to assign to Riverview all of the insured’s riphts to receive benefit payments from Medical Mutual. (Ud. at 67a-G8a). The only contact between Riverview and Medical Mutual alleged in the Complaint is that Riverview conferred with representatives from Medical Mutual to ensure the proposed services would be covered by the paticnt-insured’s out-of network insurance coverage, and that from time to time, Medical Mutual and Riverview would negotiate and settle the amounts that Medical Mutual would pay for a given procedure. (Ud. at 80a, 83a, 85a). This dispute began in August 2006 when Medical Mutual notified Riverview that the’ Financial Investigations Department at Medical Mutual had performed a review of claims and clinical data that revealed systemic and fraudulent billing practices on the part of Riverview. (Pet. App. Vila). Riverview eventually responded by requesting more details regarding the claims that Medical Mutual alleged Kiverview had improperly submitted. (/d. at’ 72a). Medical Mutual rephed in January 2007 with a letter detailing the claims that Riverview had improperly submitted to Medical Mutual, causing Medical Mutual a loss of $796,692.41. Ud. at 72-73a) In response, and in an effort to avoid Medical Mutuals claims for damages arising from Riverview’s fraudulent claim submissions, Riverview launched a preemptive lawsuit purporting to assert’ three different federal RICO’ claims To satisfy the predicate act requirement for its RICO claims, Riverview alleged that Medical Mutual “acted to delay, diminish and deny payment of the lawful oO Claims of patient-insureds as submitted by out-of network health providers . . . through a scheme or artifice, utilizing the U.S. mail and demonstrating a specific intent to defraud the patient-insureds and out-of-network health providers . .. ” (Pet. App. &la). Riverview also alleged that “as part of its regular way of doing business,” Medical Mutual “violated provisions of Ohio’s ‘Prompt Pay Act’ (O.R.C. § 3901.381, et seq.), utilizing the mails and demonstrating a specific intent to defraud patient insureds and out-of-network providers.” (Ud. at 82a). For each RICO claim, Riverview based its alleged standing to recover damages solely on its status as an assignee of the medical insurance benefits resulting from the “Assignment of Medical Benefits” Riverview required its patient-insureds to execute. Ud. at Q3a- Vda). Medical Mutual moved to dismiss the RICO Claims on a two-fold) basis: (1) pursuant to the McCarran-Ferguson Act, the RICO allegations were reverse preempted by Ohio laws regulating the business of insurance; and (2) the Complaint failed to adequately plead the required elements of RICO (an argument never reached by the district court). As the Sixth Circuit) succinetly explained: “Reverse preemption 1s a form of inverse preemption that prevents a generally applicable federal law from inadvertently invalidating, impairing, or superseding state laws enacted to regulate the business of insurance.” (Pet. App. 6a). In its opposition brief, Riverview addressed the “business of insurance” requerement of McCarran Ferguson (which underlies the first question now advanced in its Petition) only in a footnote, asserting © merely that “payment agreements with the patients, because they do not deal with the spread of risk, are not the ‘business of insurance ....” (Dist. Ct. Doc. 11 at 6n.5).% The balance of its argument focused on the “ampairment” prony of McCarran-lferguson. The district court dismissed Riverview’s RICO claims as reverse preempted under the McCarran Ferguson Act. (Pet. App. 47a). On appeal, the Sixth Circuit panel unanimously affirmed. (/d. at 33a) Before the Sixth Circuit, Riverview tried to retreat from the fact that its RICO claims explicitly rested on its status “as the assignees of the patient-insureds.” (Pet. App. 93a-95a) Contrary to its Complaint, Riverview argued for the first time that it was relyingy “in substantial part” upon its own relationship with Medical Mutual and was secking to enforce its own rights, as opposed to those of the patient-insureds. (Riverview Sixth Cir. Bro at 19). The Sixth Circuit was unpersuaded by this recasting, finding that Riverview'’s Complaint “focuse[d] on the idea that Medical Mutual ‘acted to delay, diminish and deny payment of ... lawful claims of patient insureds as submitted by out-of-network health providers through a scheme or artifice, utilizing the U.S. Mail and demonstrating a specific intent to defraud the palient-insureds and out-of-network health-care providers.” (Pet. App. 14a). Relying on Pireno and * Filings in the district court case, Riverview Health Inst. et al. v. Medical Mutual of Ohvw, etal., Case No. 3-07 CV 354 (S_D Ohio), are available on PACER at https-//ect ohsd_uscourts gov/cpi-bin/login pl. With the exception of the Complaint, references in this Opposition to district court filings will be by docket entry number Fabe, the Sixth Circuit accordingly found that Riverviews allegations “relate to the actual performance of the insurance contract between Medical Mutual and its insureds, thus satisfying all three prongs of the /zreno test.” Ud.). Having found the business of insurance requirement satisfied, the Sixth Circuit analyzed each of the seven factors identified in Jiumana and found, as the district court did, that’ Riverview’s RICO claims would impair) Ohio's | insurance regulatory scheme and were’ therefore reverse preempted by McCarran-Ferguson. (Pet. App. 18a 24a). After carefully reviewing Ohio’s comprehensive scheme for regulating the processing of insurance claims set forth in the Ohio Prompt Pay Act, the court found that each of the fflumana factors weighed in favor of preemption: We conclude that application of federal RICO in this case would impair Ohio's insurance reyulatory scheme. The conduct at the heart of Plaintiffs) complaint implicates Obhnio’s — law regarding payment of claims and the Ohio Department of Insurance is) charged = with administering the applicable state law. In this case, Plaintiffs have no common law remedy or private right of action. ‘The state RICO statute is inapplicable and the damages available pursuant to federal RICO would far exceed the damages contemplated by the Oho legislature when enacting its ansurance’ regulatory scheme. Moreover, the State of Ohio has filed a brief as amicus curtae in support of Defendants, arguing that the imposition of the federal RICO statute will impair Ohio's ability to detect insurance fraud a and reverse preemption will not prevent insurers from using state or federal RICO to combat fraud. Accordingly, Plaintiffs’ RICO claims are reverse preempted by the McCarran-Ferguson Act and we, therefore, affirm the district court’s dismissal of Plaintiffs’ RICO claims. (Pet. App. 23a-24a). Statutory Framework The MecCarran-Ferguson Act was enacted “to restore the supremacy of the States in the realm of Insurance regulation.” abe, 508 U.S. at 500. Accordingly, the Act “precludes application of a federal statute in face of state law ‘enacted ... for the purpose of regulating the business of insurance,’ if the federal measure does not ‘specifically relate to the business of insurance,’ and would ‘invalidate, impair, or supersede’ the State’s law.” Hlumana, 525 US. at 307 (citing abe, 508 US. 491) Prior to United States v. South-Eastern Underwriters Ass’n., 322 US. 533 (1944), the issuance of policy insurance was not considered a transaction in interstate Commerce subject to federal regulation and, therefore, “the States enjoyed a virtually exclusive domain over the insurance industry.” Fabe, 508 U.S. at 499 (citing St. Paul Fire & Marine Ins. Co. vo. Barry, 438 U.S. 531, 539 (1978)). In South-Eastern Underwriters, however, the Court held that insurance companies’ that conducted substantial business across state lines were enpaped in interstate commerce and were thus subject to federal antitrust laws. ‘This holding was widely considered to be a threat to state regulation of the insurance industry, and within a year of the decision, v Congress enacted the McCarran-Ferguson Act. See kabe, 508 US. at 499-500 To accomphsh its primary purpose to preserve state regulation of the activities of insurance companies,? McCarran-Ferguson provides for reverse preemption by state laws regulating the business of insurance The tripartite test for determining Whether a federal statute is reverse preempted by state law is well established. The threshold question is Whether the federal statute at issue “specifically relates to the business of insurance.” flumana, 525 U.S. at 307 (citing frabe, 508 U.S. at 501). If not, two questions remain that, if answered in the affirmative, compel the conclusion that the federal law at issue 1: preempted by state law: (1) whether the state law was “enacted ... for the purpose of regulating the business of insurance,” and (2) whether the federal law would “invalidate, impair, or supersede the State’s law.” ld Riverview does not dispute that RICO does not “specifically relate” to the business of insurance, and thus its Petition focuses upon the two remaining questions Congress made clear this purpose in the first section of the Act Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance 18 in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to. Chie regulation or taxation of such business by the several State: 15 U.S.C. § 1011 LO REASONS FOR DENYING THE PETITION 8B The Sixth Circuit Properly Followed and Applied this Court’s Precedents Concerning The “Business of Insurance” Test. As acknowledged by Riverview, this Court) has repeatedly addressed the “business of insurance’ element of McCarran-lerguson. (Pet. at 4 (collecting cases)). With the test well-established, and having no rule of law to offer in its stead, Riverview seeks to distort the Sixth Circuit's opinion so as to imbue its question presented with greater importance Riverview's assertions that “[t}he Sixth Cireurt did not follow Pireno and related cases, posing a conflict” (Pet. at 17), and that the Sixth Circuit “relhed exclusively’ on Fabe (id. at 6), are impossible to reconcile with the Sixth Circuit’s quotation of and reliance upon the Pireno test. (Pet. App. 12a). The Sixth Circuit conducted its analysis of the business of insurance requirement by: (a) quoting Pireno as “articulatiing| three critermma that determine whether an activity is part of the ‘business of insurance,” (b) citing each of those criteria, and (c) concluding its discussion of the matter by holding that Rivervicew’'s “allegations relate to the actual performance of the insurance contract between Medical Mutual and its insureds, thus satisfying all three prongs of the Pireno test.” (Pet. App. 12a-14a). Far from ignoring or rejecting Prreno, the Sixth Circuit determined that, under the facts alleged, the Pireno test was satisfied The same test that the Sixth Circuit applied (Pet. App. 12a) is the test urged by Riverview. (Pet at 18). Because the Sixth Circuit applied the test that Riverview requests, any quarrel by Riverview is 1] lamated lo the appheation of — that lest. “Misapplieation” questions are rarely of interest to thas Court. S. Ct. R. 10. tut even calling this a misapplication question Jends too much credit to the Petition in’ hyht of Kaverview's concession that the Complaint alleves conduct on the part of Medical Mutual that “comes within the ‘busimess of insurance.” (Pet. at 19). In the face of this admission, particularly when juxtaposed with the Sixth Cireuit’s application of the legal test requested by Riverview, Riverview’s yrievance is further delimited to a simple point: “the Sixth Circuit failed to parse” the Complaint sufficrently. Cd) Jt is axiomatic that it is not the role of thas Court, the Sixth Circuit, or a district court to “parse” a RICO complaint for isolated references that might rehabilitate a facially deficient claim. Petitioners neglected to undertake this task before the district court, and their effort to do so at the Sixth Circuit was too late in the process. In any event, the Sixth Circuit's review of the complaint revealed that the “conduct at the heart of Plaintulfs complaint” fell clearly within the business of insurance. (Pet. App. 2.34). Any “parstany|’ cxercuse by this Court) would neither contribute anything meaningful to the body of law onterpreting McCarran-Ferguson, nor save Riverview's RICO claims. To illustrate the point, out of ats entire LO4-parayraph Complaint, Riverview identifies just six parapraphs supposedly containing allegations outside the business of insurance. (Pet. at 19) ISurying a handful of allegations amony many others that point an the opposite dircetion cannot salvage Kiverview's Complaint iZ Rtevardless, the allegations to which Riverview now clings do not withstand scrutiny. ‘specifically, faiverview claims that it alleged fraud incident to direct agreements it had with Medical Mutual, as well as fraud committed by Medical Mutual in its capacily a8 an insurance Claims administrator. (d.). Whether such conduct falls outside the business of insurance is Immaterial, however, because Riverview expressly staked its right to recover damages for each of its three RICO claims on its alleged status “as the assignees of the patient-insureds who were injured in their business and property as a result of Medical Mutual’s alleged conduct. (Pet. App. G4a-95a). It is beyond serious dispute that payment (or alleged non- payment) of the patient-insureds’ medical benefits by Medical Mutual constitutes the “business — of insurance.” ‘That is why this issue merited only a conclusory footnote from Riverview before the district court. (Dist. Ct. Doc. 1) at 6 n.d). tiverview accuses the Sixth Circuit of “wrongly relyfing) on an impermissibly expansive reading of this Court’s majority opinion in... Mabe... so as to bar any application of RICO to insurance companies in the State of Ohiol.|? (Pet. ata). That is simply not true The Sixth Circuit specifically and = properly applied abe and Mireno to the RICO allegations in this case and found Riverview’s RICO claims fall within the business of insurance: “Plaintiffs contend that their federal RICO claims do not fall within the ambit of the ‘business of insurance’ requirement for reverse preemption. We disagree.” (Pet at 12a). The Sixth Circuit's decision is fact-dependent and does not purport to “bar any application of RICO’ to ») insurance companies in the State of Ohio,” as ' supgested by Petitioners in the first question. (Pet at) The first question presented is Imited— to Insurance Companies operating in Ohio, does not present any lepval issue for this Court to resolve, and turns on the specific facts alleged. It simply docs not meet the high standard for certiorari Il. The Test Set Forth In Humana Is Followed By Every Circuit. Sulferiny from the same flaw as the first question presented, Riverview’s second question does not ask this Court to issue any new rule of law. Instead, it simply poses another misapplication question. Moreover, this misapplication question is one steeped in state law, and ill-suited for this Court’s review. As Riverview points out, this Court, in /fumana, established the “proper test” for determining when a federal law 1s reverse preempted for impairing a state law enacted to regulate the business of insurance. (Pet. at &) In analyzing whether the RICO allegations in Jlumana would impair the Nevada statutory scheme at issue in that case, the Court made clear that the impairment test 1s an as applied halancing test that involves a consideration of seven factors. See Hlumana, 525 U.S. at 303 (We hold that RICO can be applied in this case in harmony with the State's repulation.”); wd. at 303-04 (analyzing the ypecific factual alleyations in the complaint); ed. at $11 CApplying the standard just announced to the facts of this case ....”); id. (analyzing Nevada's specific statutory and common law remedies); ud. at 314 CIn sum, we see no frustration of state policy in the RICO litivation at essue here.”) (emphasis supplied as to all) 14 The Sixth Circuit balanced cach of the Humana factors and determined that Riverview’s RICO claims would impair Ohio’s particular statutory scheme for regulating the business of insurance. (Pet. App. 24a) Rivervicw's sugpvestion that the Sixth Circuit failed to apply Humana, (Pet. at 11, 22), is incorrect: the Sixth Carcuit cited the Humana factors and then analyzed cach of them over the course of several pages in its opinion.4 (Pet. App. 18a-24a) In light of the nature of this balancing test, 1t 1s no wonder that Riverview’s circuit split proves illusory. Riverview posits a circuit split with the ‘Third, fourth, and Tenth Circuits supposedly following Humana by permitting application of RICO. to insurance fraud, and the Sixth and Eighth Circuit that allegedly show less fidelity to /lumana. ach of these cases, however, examined different state insurance schemes through the lens of /iumana. See ltiverview Health Institute, LLC v. Medical Mutual of Qhio, GOL F.3d 505 (th Cir. 2010) (Ohio); Weiss vu First Unum Life Ins. Co., 482 F.3d 254 (3d Cir. 2007) (New Jersey); American Chiro. v. Trigon Healthcare, $67 I sd 212 (Ath Cir 2004) (Virginia); Bancoklahoma Mortgage Corp. vo. Capital Title Co., 194 F.3d 1089 (Oth Cir. 1999) (Missouri); LaBarre v. 175 F.Sd 640 (th Cir, 1999) (Minnesota). That courts analyzing the laws of Credit Acceptance Corp ’ * for similar reasons, Riverview's suggestion that the Sixth Carcuit went astray by relying upon Kenty v. Bank One, Columbus, N_A. 92 F 3d 484 (6th Cir. 1996) 18 unavailing. Firat, ivermiew never argued below that /fumana overruled Kenty (Vet at 11 nbd) Second. in the course of the Sixth Circuits appheation of the /lumana factors, it never cites Kenty. (Pet App 1%a-244) different states might come to different conclusions as to whether particular RICO allegations would ipair state law is hardly surprising. Indeed, that was the result preordained by //umana’s balancing LESL. None of the federal circuits has deseribed these eases as being a split. In fact, Riverview’s featured Case Weiss, properly attrmbuted the different outcomes in these cases to variances in the laws of the different states at issue: “[Wje find nothing in cases from other Courts of Appeals dealing with different state schemes pvoverning insurers that would cause us to alter our view in this case.” 482 Kosd at 26% After surveying those cases and the respective state laws, Weiss contrasted them with New Jersey law: “We do not find that true of New Jersey. Id. at 269 A review of the /lumana factors (made with reference to Wetss) reveals both the absence of any circuit split as well as how dependent Kiverview : question is on the vagaries of state law A.Presence or Absence of the § State’s Position A central distinction between the causes cited by Riverview and the decision below 1s the position taken by the State of Ohio in this case. The State of Qhio, through its Attorney General, submitted an amicus brief at the Sixth Circuit supporting Medical Mutuals position. As the State of Oho explained, the State's Department of Insurance 1s the “regulator of the insurance industry in the State of Ohio (Ohio Amicus Br. at 1). The Department of Insurance has “enacted extensive rules, regulations and orders, mecluding specific regulations pvoverning prompt 16 payment to providers and prohibiting unfair claims practices.” Ud. at 6G). Between state statutes and these regulations, Ohio “has a unique and complete set of standards that pvovern the business’ of insurance... .” QUd.). Allowing Riverview to assert RICO claims for the same conduct covered by Ohio statutes and remedies “would impair Ohto's regulation of the business of insurance.” (Ud. at 7). The State of Ohio concluded that allowing Riverviews RICO claim would also frustrate the Department of Insurance’s ability to combat insurance fraud. (Ud. at 11). Recognizing that this amicus brnefis both fatal to its Petition and fatal to the /iumana analysis, Riverview resorts to simply attacking the integrity of the Attorney General's office. Repardless, this factor distinguishes the case below from all of the cases cited by Riverview in none of those cases did the State appear and articulate its position on impairment. This is yet another example of how this case differs factually from the others highlizyhted by Riverview. .Statutory Right of Private Action and Common Law Remedies. Unlike the Nevada regime at issue in fflumana, the New Jersey regime at issue in Weiss and the Oho regime at issue here do not allow for a private right of action under their respective statutory regimes. See Weiss, 442 F.3d at 264; (Pet. App. 19a). While it 1s truce that Nevada, New Jersey, and Ohio all allow common law claims to work in tandem with their respective statutory schemes, the Petition ignores an important feature that distinguishes this case from Weiss and Humana: the Sixth Circuit expressly found that based on the facts of this case, under Ohio law, 17 Riverview had “no common law remedies available, which renders Ohio’s Prompt Pay Act [Riverview’s] exclusive source of remedies.” (Pet. App. 19a). Riverview’s disagreement with the Sixth Circuit’s determination that Riverview had no viable fraud or bad faith claims under Ohio law does not mean that the Sixth Circuit transgressed Humana or created a circuit split. The Sixth Circuit simply interpreted state law and found that Riverview could not state a claim. Moreover, to even challenge the Sixth Circuit's determination, Riverview 1s forced to take divergent positions, simullaneously disclaiming and relying on its alleged status as assignee of Medical Mutual's insureds. On one side, Riverview argues that the business of insurance requirement is not satisfied because it brought claims on its own behalf, apart from its alleged status as assignee of the patient- insureds (Pet. at 5). On the other, Riverview argues the impairment arm of the McCarran-lerguson test is not satisfied because Riverview “sued Respondents on the basis of full assignments from the imsureds” and therefore had the same right as the insureds to sue for fraud and bad faith. (Pet. at 24). Riverview yimply cannot have it both ways. i Other State Laws Citing both Weiss and tlumana, the Sixth Circuit examined whether other state statutes might provide the basis for the suit. (Pet. App. 2la). Specifically, at Riverview’s invitation, the court analyzed whether Ohio's RICO statute —even though Riverview did not assert such a claim—would theoretically apply to this Case. The Sixth Circuit held that it would not, noting that Ohio’s Prompt Pay Act, which Riverview 1% specifically alleged Medical Mutual had violated, (Pet. App. 82a), was not a corrupt activity under Ohio’s RICO statute. In contrast, the Weiss court specifically found that the claims alleged in that case would likely be covered by New Jersey's Consumer Fraud Act. Weiss, 482 F.3d at 266. In other words, the Third Circuit in Weiss, and the Sixth Circuit here, applied the same test—whether other state laws provided grounds for suit—to different conduct and different state laws, and came to different conclusions. This is not a conflict. ID. Damapyes In Nevada, as noted by this Court in /flumana, punitive damages are expressly available — for insurance fraud claims and, in fact, “plaintiffs seeking rebef under Nevada law may be eligible for damages exceeding the treble damages available under RICO” flumana, 525 U.S. at 313. In Wetss, the Third Circuit likewise held that it was at least possible that a “racketeering scheme by an insurer’ could warrant punitive damages under New Jersey law. See Wetss, 482 F.3d at 267 In this case, however, the Sixth Circuit expressly determined that punitive damayes were unavailable to Riverview because it lacked a viable fraud or bad faith claim and, therefore, treble damages under RICO “would vreatly exceed” the damuapves available to Riverview under Ohio law. (Pet. App. 22a). ‘The Petition simply disputes this interpretation of Ohio law when it argues punitive damages are available in Ohio for bad faith and fraud claims K. Reliance by State Insurers Finally, Riverview once again ignores the actual Sixth Circuit opimion and argues that’ prohibiting 1) insurers in’ Ohio from bringing RICO claims. to combat insurance fraud would contravene Ohto’'s regime for regulating the business of insurance. (Pet. at 27). In fact, the Sixth Circuit determined just the opposite. Unlike Werss, in which the court “assumed” the preemption of the plaintiffs RICO claims “would deprive insurers of an important weapon of self defense,” Wetss, 482 F.3d at 267, the Sixth Circuit examined Ohio's regulatory scheme and determined that insurers would “still have a cause of action under both Ohio and= federal RICO. for fraud perpetrated against tin no by insureds.” (Pet. App 23a) Riverview's second question does not present an issue worthy of this Court’s review because: (1) there is no proposed rule of law for the Court to recognize; (2) the Sixth Circuit properly apphed this Court's existing precedent; (3) there is no circuit split; (4) the case hinges on factual distinctions that would render it of limited utility in future cases; and (5) resolving this question would require this Court to interpret and construe Ohio, rather than federal, law CONCLUSION lor all of the forevoiny reasons, the Petition for a 24 34 writ of certtorart should be denied Respectfully submitted, Pierre H. Bergeron James D. ‘Thomas* SQUIRE, SANDERS & NQUIRE, SANDERS & DEMPSEY LLP DEMPSEY LLP 1201 Pennsylvania Ave. NW, 200 South Biscayne Suite 500 Boulevard, Suite 4100 Washington, 1.0 (202) 626-6600 otephen I Ciladst Michael Kk. Smith Ktrantz Ward LIP 2500 Key ‘Tower LZ0004 CoTie 127 Public oquare Ohio 14:60 ( ‘leveland C210) 14 14114 LU Miami, Flonda 3313] (309) 304 ¢- O50 ait homas(a Ssqd Co) Philip M. Oliss X OQUIRE SANDE Hs & DEMPSEY LIP YOU Key ‘Towel! 127 Publi moquare Cleveland, Ohio 44114 (216) 449-8500 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2154%3A2. Public record. Not legal advice.