In Re Blue Cross Blue Shield Antitrust Litigation MDL 2406
MEMORANDUM OPINION. Signed by Judge R David Proctor on 2/14/2017. (AVC)
2017 Feb-14 PM 02:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
IN RE: BLUE CROSS BLUE SHIELD
(MDL No. 2406)
Master File No. 2:13-CV-20000-RDP
This document relates to both tracks.
This case is before the court on the Motions of Certain Defendants for Certification under
28 U.S.C. § 1292(B). (Doc. # 244, Case No. 2:12-cv-02169-RDP; Doc. # 424, Case No. 2:12cv-02532-RDP; Doc. # 109, Case No. 3:16-cv-00297-RDP; Doc. # 85, Case No. 2:16-cv-00464RDP). Moving Defendants1 seek certification of the court’s December 22, 2016 Orders2 in the
four Alabama actions of this multi-district litigation. Those orders denied Moving Defendants’
motions to dismiss on personal jurisdiction and venue grounds. The certification motions are
fully briefed. (E.g., Docs. # 250, 251, Case No. 2:12-cv-02169-RDP). Moving Defendants have
submitted a particularly well-written brief on why these orders present appropriate issues for
certification. But Plaintiffs have responded with a decidedly strong reason for why certification
is improper. After careful review, and for the following reasons, the court concludes the motions
are due to be denied.
Moving Defendants include the following Blue Cross and Blue Shield plans who have filed the
certification motion or joined in it: (1) Blue Cross Blue Shield of Arizona, (2) Blue Cross and Blue Shield of
Kansas, Inc., (3) Noridian Mutual Insurance Company d/b/a Blue Cross Blue Shield of North Dakota, (4) Blue Cross
Blue Shield of Wyoming, (5) HealthNow New York, Inc., d/b/a BlueCross BlueShield of Western New York and
BlueShield of Northeastern New York, (6) Triple-S Salud, Inc., (7) Blue Cross Blue Shield of Mississippi, (8)
Excellus Blue Cross Blue Shield, and (9) Capital Blue Cross. (See Docs. # 244, 245, 247, 248, 249, Case No. 2:12cv-02169-RDP). The vast majority of Blue Defendants before the court have not contested venue and personal
(Doc. # 243, Case No. 2:12-cv-02169-RDP; Doc. # 423, Case No. 2:12-cv-02532-RDP; Doc. # 108, Case
No. 3:16-cv-00297-RDP; Doc. # 84, Case No. 2:16-cv-00464-RDP).
Background and Procedural History
In June 2016, following jurisdictional discovery, Moving Defendants filed their latest
round of motions to dismiss based on personal jurisdiction and venue defenses in the four
Alabama actions. (See, e.g., Docs. # 208-213, Case No. 2:12-cv-02169-RDP). The court held
oral argument concerning these motions on November 29, 2016. On December 22, 2016, the
court denied Moving Defendants’ motions to dismiss. (Doc. # 243, Case No. 2:12-cv-02169RDP; Doc. # 423, Case No. 2:12-cv-02532-RDP; Doc. # 108, Case No. 3:16-cv-00297-RDP;
Doc. # 84, Case No. 2:16-cv-00464-RDP). The court concluded that three grounds exist for
exercising personal jurisdiction over Moving Defendants: (1) Section 12 of the Clayton Act, (2)
Alabama’s conspiracy theory of personal jurisdiction, and (3) Moving Defendants’ purposeful
availment within this forum. (See Doc. # 925 at 24-59, Case No. 2:13-cv-20000-RDP).
Moving Defendants now seek to certify the following three issues to the United States
Court of Appeals for the Eleventh Circuit:
Whether in judging the transaction of business standard under Section 12
of the Clayton Act from the point of view of the average business man, the
Court should consider the percentage of business transacted in the district.
Whether to establish personal jurisdiction under a conspiracy theory
plaintiffs must satisfy the constitutional requirements of due process,
including the minimum contacts requirements of purposeful availment and
a substantial causal relationship between the alleged contacts and
plaintiffs’ cause of action.
Whether participation in the BlueCard Program establishes that Moving
Defendants have minimum contacts with Alabama as required by the Due
Process Clause of the Fourteenth Amendment.
(Doc. # 244 at 2, Case No. 2:12-cv-02169-RDP).
Standard of Review
Section 1292(b) allows for discretionary appellate review of a district court’s
interlocutory order upon certification by the district court “that such order involves a controlling
question of law as to which there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). A certified interlocutory appeal is a “rare exception” to the rule
that appellate review is to be conducted after final judgment. See McFarlin v. Conseco Servs.,
LLC, 381 F.3d 1251, 1264 (11th Cir. 2004); see also OFS Fitel, LLC v. Epstein, Becker &
Green, P.C., 549 F.3d 1344, 1359 (11th Cir. 2008) (noting that Section 1292(b) “sets a high
threshold for certification to prevent piecemeal appeals” and that “[m]ost interlocutory orders do
not meet this test”).
To obtain certification of an interlocutory order under Section 1292(b), a party must
demonstrate that (1) the order presents controlling questions of law (2) over which there is a
substantial ground for difference of opinion among courts, and (3) the immediate resolution of
the issues would materially advance the ultimate termination of the litigation. See McFarlin, 381
F.3d at 1257-59 (describing the three requirements for certifying an issue for interlocutory
review). Moving Defendants shoulder the burden of persuading the court “that exceptional
circumstances justify a departure from the basic policy of postponing appellate review until after
the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)
(citation and internal quotation marks omitted); McFarlin, 381 F.3d at 1256 (internal quotations
omitted) (holding that certification is proper “only in exceptional cases where a decision of the
appeal may avoid protracted and expensive litigation . . . and there is serious doubt as to how [a
dispositive question] should be decided”).
Therefore, certification is by a wide margin the exception, not the rule.
permitting piecemeal appeals is bad policy, permitting liberal use of § 1292(b) interlocutory
appeals is bad policy.” McFarlin, 381 F.3d at 1259. “Routine resort to § 1292(b) requests
would hardly comport with Congress’ design to reserve interlocutory review for ‘exceptional’
cases while generally retaining for the federal courts a firm final judgment rule.” Caterpillar v.
Lewis, 519 U.S. 61, 74 (1996) (internal quotation marks omitted).
Here, the parties disagree on whether Moving Defendants have met any of the three
requirements for certification of their proposed issues. But the court need only discuss the
second and third requirements to explain why certification of the orders at issue is inappropriate.
Moving Defendants Have Not Presented a Clayton Act Issue Over Which
There is a Substantial Ground for Difference of Opinion
Plaintiffs argue that Moving Defendants cannot show a substantial ground of
disagreement concerning their first and second proposed issues because both issues are
controlled by binding precedent. (See Doc. # 250 at 2-5, Case No. 2:12-cv-02169-RDP). With
regard to the first proposed certification issue, the court agrees.
A legal issue can be certified under Section 1292(b) if there is a substantial dispute about
the correctness of a legal principle applied by the district court. McFarlin, 381 F.3d at 1259.
The Eleventh Circuit has declined to review legal issues pursuant to Section 1292(b) where it
completely and unequivocally agreed with the district court. Id. at 1258. See also Burrell v. Bd.
of Trustees of Ga. Military Coll., 970 F.2d 785, 788-89 (11th Cir. 1992) (declining to review a
certified legal issue on appeal because the Eleventh Circuit fully agreed with the district court).
The Sixth Circuit has held that a legal issue cannot be certified for interlocutory review if it is
governed by binding precedent. See In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013)
(“Where our circuit has answered the question, the district court is bound by our published
authority. And so are we.”). Obviously, the Miedzianowski decision is not binding here, and it
does not appear that the Eleventh Circuit has had an occasion to address the issue decided in
Miedzianowski. But the court finds that Miedzianowski is highly persuasive.3
The first issue on which Moving Defendants seek certification essentially asks whether
Green v. United States Chewing Gum Manufacturing Co., 224 F.2d 369 (5th Cir. 1955), should
be overruled. The court cannot certify Moving Defendants’ first proposed issue because (1) it is
governed by binding precedent from the former Fifth Circuit, and, (2) therefore, the court cannot
say there is a substantial ground for disagreement among the courts. (See Doc. # 925 at 27-29,
Case No. 2:13-cv-20000-RDP). The former Fifth Circuit held in Green that a court cannot
consider the percentage of a defendant’s total revenue that the defendant obtained from business
in a particular district when reviewing whether that defendant has transacted substantial business
in that district. 224 F.2d at 371-72. This holding was reaffirmed by the former Fifth Circuit in
Black v. Acme Markets, Inc., 564 F.2d 681, 687 (5th Cir. 1977).
And, as noted in the
Memorandum Opinion, the Eleventh Circuit has not addressed the “transacting business” test in
any detail. (Doc. # 925 at 27 n. 25, Case No. 2:13-cv-20000-RDP). Green remains the rule of
law in this circuit. The Moving Defendants may believe there is a more “persuasive” rule in
another circuit. However, when there is a split among the courts on an issue, this court hardly
needs a reminder that it (and any Eleventh Circuit panel) is bound to follow the controlling
precedent of this circuit, not a different rule adopted by a different court. Springer v. Wal-Mart
Assocs. Grp. Health Plan, 908 F.2d 897, 900 & n. 1 (11th Cir. 1990). This is especially true
given the strength of the prior panel precedent rule in the Eleventh Circuit. See Smith v. GTE
If Sixth Circuit law applied here, Moving Defendants would be unable to obtain certification of the first
proposed issue because binding precedent has decided the issue. Miedzianowski, 735 F.3d at 384. The court is
confident that the Eleventh Circuit would agree with and adopt the rule in Miedzianowski.
Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (explaining that the prior panel precedent rule binds
a panel to a prior decision’s holding even if the panel is convinced that the prior precedent is
The standard for certifying an interlocutory appeal is justifiably high.
Defendants face an especially high burden because they seek to certify three questions, which in
turn address three independent grounds for the court’s exercise of in personam jurisdiction over
them. And, one of the questions is squarely governed by Green, a binding decision of the former
Fifth Circuit. Regardless of how the other two issues may be answered, Green’s binding effect
renders any interlocutory appeal improper because that decision makes clear that Moving
Defendants have conducted substantial business in Alabama, and, therefore, in personam
jurisdiction over all Moving Defendants may be maintained under Section 12 of the Clayton Act.
Moving Defendants assert that the Eleventh Circuit could distinguish the present cases
from Green and Black. (Doc. # 251 at 5-6, Case No. 2:12-cv-02169-RDP). This argument is
unavailing for two reasons. First, Moving Defendants have asked the court to certify particular
legal issues for interlocutory review, but (again) their first proposed legal issue has been squarely
addressed by binding precedent. Second, to the extent Moving Defendants intend to request
interlocutory review of the court’s conclusion that they all have transacted substantial business in
this district, that issue is inappropriate for interlocutory review under Section 1292(b) because it
is too fact-specific.
Cf. McFarlin, 381 F.3d at 1259 (“The legal question [proposed for
certification] must be stated at a high enough level of abstraction to lift the question out of the
details of the evidence or facts of a particular case . . . .”). Regardless of whether Moving
Defendants’ first proposed issue presents substantial grounds for disagreement in the abstract, it
Although Moving Defendants correctly state that the Eleventh Circuit would be able to overturn the
binding precedent established in Green, (see Doc. # 251 at 4, Case No. 2:12-cv-02169-RDP), the Eleventh Circuit
has not indicated a willingness to certify an interlocutory appeal for en banc consideration of a settled issue of law.
is not subject to dispute before this court or a three-judge panel of the Eleventh Circuit. Green
could only be overruled by the court of appeals sitting en banc.5
An Interlocutory Appeal Will Not Materially Advance the Termination of
Moving Defendants argue that an immediate appeal would materially advance the
termination of this litigation because the appeal would guide them to litigate in the court with
appropriate jurisdiction and could reduce the amount of litigation left for the Moving
Defendants. (Doc. # 244, Memorandum of Certain Defendants, at 10, Case No. 2:12-cv-02169RDP). The court finds this argument misses the mark.
The appeal proposed by Moving Defendants does not meet the third McFarlin factor.
Because the court has found three independent grounds for personal jurisdiction over Moving
Defendants, they must present a basis for successfully contesting each ground of jurisdiction in
order to prevail on their proposed interlocutory appeal. As already noted, however, they have
failed to present a contestable basis for challenging personal jurisdiction (and venue) under
Section 12 of the Clayton Act. Accordingly, the court finds that certification of the orders
denying Moving Defendants’ motions to dismiss will not materially advance the termination of
For the reasons stated above, Moving Defendants’ motions for certification (Doc. # 244,
Case No. 2:12-cv-02169-RDP; Doc. # 424, Case No. 2:12-cv-02532-RDP; Doc. # 109, Case No.
3:16-cv-00297-RDP; Doc. # 85, Case No. 2:16-cv-00464-RDP) are due to be denied. The court
will issue separate orders in the four active Alabama cases in this multi-district litigation.
The Eleventh Circuit’s local rules indicate that the court of appeals is not inclined to consider en banc
review of a legal issue presented in a non-final opinion. See 11th Cir. R. 35-4 (stating that the Eleventh Circuit will
not consider a petition for rehearing en banc relating to an administrative or interim order as an en banc court and
will construe such a petition as a motion for reconsideration).
DONE and ORDERED this February 14, 2017.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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