Kissing Camels Surgery Center, LLC et al v. HCA Inc. et al

Filing 295

ORDER Denying Defendants' Motions to Dismiss. Ordered that the Motions to Dismiss filed by Defendants Rocky Mountain Hospital and Medical Service, Inc, d/b/a Anthem Blue Cross and Blue Shield of Colorado 259 , UnitedHealthCare of Colorado, Inc. 260 , Colorado Ambulatory Surgery Center Association, Inc. 261 , and Aetna, Inc. 264 are DENIED. Ordered that the Motion to Dismiss filed by Audubon Ambulatory Surgery Center, LLC 266 is DENIED AS MOOT by Judge William J. Martinez on 06/16/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-3012-WJM-NYW
KISSING CAMELS SURGERY CENTER, LLC,
CHERRY CREEK SURGERY CENTER, LLC,
ARAPAHOE SURGERY CENTER, LLC, and
HAMPDEN SURGERY CENTER, LLC,
Plaintiffs,
v.
CENTURA HEALTH CORPORATION,
COLORADO AMBULATORY SURGERY CENTER ASSOCIATION, INC.,
ROCKY MOUNTAIN HOSPITAL AND MEDICAL SERVICE, INC., d/b/a ANTHEM BLUE
CROSS AND BLUE SHIELD OF COLORADO,
UNITEDHEALTHCARE OF COLORADO, INC., and
AETNA, INC.,
Defendants.

ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

Plaintiffs Kissing Camels Surgery Center, LLC (“Kissing Camels”), Cherry Creek
Surgery Center, LLC (“Cherry Creek”), Arapahoe Surgery Center, LLC (“Arapahoe”), and
Hampden Surgery Center, LLC (“Hampden”) (collectively “Plaintiffs”) bring this antitrust
action alleging violations of the Sherman Act, 15 U.S.C. §§ 1 et seq., and the Colorado
Antitrust Act, Colo. Rev. Stat. §§ 6-4-101 et seq. (Sec. Am. Compl. (“SAC”) (ECF No.
213) at 56–62.) Before the Court are four Motions to Dismiss (collectively “Motions”),
filed by Defendants Rocky Mountain Hospital and Medical Service, Inc., d/b/a Anthem
Blue Cross and Blue Shield of Colorado (“Anthem”), UnitedHealthCare of Colorado, Inc.
(“United”), Aetna, Inc. (“Aetna”) (collectively the “Insurer Defendants” or “Insurers”), and

Colorado Ambulatory Surgery Center Association, Inc. (“CASCA”). 1 (ECF Nos. 259, 260,
261, 264.) For the reasons set forth below, the Motions are denied.
I. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to
dismiss a claim in a complaint for “failure to state a claim upon which relief can be
granted.” In evaluating such a motion, a court must “assume the truth of the plaintiff’s
well-pleaded factual allegations and view them in the light most favorable to the
plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
In ruling on such a motion, the dispositive inquiry is “whether the complaint contains
‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh
remedy which must be cautiously studied, not only to effectuate the spirit of the liberal
rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of
Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation marks omitted). “Thus, ‘a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.’” Id. (quoting
Twombly, 550 U.S. at 556).
II. BACKGROUND
Plaintiffs are four ambulatory surgery centers (“ASCs”) performing outpatient
surgical procedures and treatments in a non-hospital environment. (SAC ¶¶ 1, 19.)

1

A fifth pending Motion to Dismiss was filed by Audubon Ambulatory Surgery Center,
LLC (“Audubon”). (ECF No. 266.) As Plaintiffs have since stipulated to dismiss Audubon as a
Defendant (ECF No. 290), Audubon’s Motion is denied as moot.

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Plaintiff Kissing Camels provides services in the area of Colorado Springs, Colorado,
and the other three Plaintiffs provide services in the Denver, Colorado metropolitan
area. (Id. ¶¶ 6–9.)
Defendant Centura Health Corporation (“Centura”) owns a system of hospitals
and surgery centers in both Denver and Colorado Springs, which compete with
Plaintiffs to provide ambulatory surgery services in both geographic areas. (Id. ¶¶ 10,
36–39.) Former defendant Audubon is an ASC which is a joint venture between
Centura and several local physicians, and Centura holds more than 40% ownership of
Audubon. (Id. ¶¶ 38, 123.) Audubon competes with Plaintiff Kissing Camels to provide
ambulatory surgery services in the Colorado Springs area. (Id. ¶ 40.) Former
defendant HCA, Inc. owns former defendant HCA-HealthONE LLC (“HCA”), which
operates a system of hospitals and surgery centers in Metro Denver that compete with
Plaintiffs Cherry Creek, Arapahoe, and Hampden to provide ambulatory surgery
services. (Id. ¶¶ 27–28.)
Defendant CASCA is a trade association purporting to represent the interests of
ASCs, to which Centura and HCA both provide substantial financial support. (Id. ¶¶ 45,
83.) At least two HCA employees sit on CASCA’s Board of Directors, and six Board
members are employed by companies with contractual relationships with Centura,
including one, Brent Ashby, who is the Administrator of Audubon and another of
Centura’s joint venture ASCs. (Id. ¶¶ 46, 53.) Plaintiffs allege that CASCA worked
directly with the Colorado Association of Health Plans (“CAHP”), an association of
insurers whose Board of Directors includes executives from United and Anthem, to

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assist in formulating the alleged conspiracy. (Id. ¶¶ 46, 53, 101.) Defendants Anthem,
United, and Aetna are health insurance companies doing business in Colorado. (Id. ¶¶
13–15.)
Plaintiffs Arapahoe and Kissing Camels began doing business in 2010. (Id.
¶ 28.) Plaintiffs allege that, beginning that year, Centura and HCA conspired to reduce
competition for ambulatory surgery services by not doing business with Plaintiffs, and
by using their market power to pressure physicians and insurers with whom HCA and
Centura have relationships not to do business with Plaintiffs. (Id. ¶¶ 47–50.) CASCA
allegedly joined the conspiracy at the behest of HCA and Centura, holding strategy
meetings at which the conspiracy was formed and meeting separately with CAHP and
various Insurers to coordinate action against Plaintiffs. (Id. ¶¶ 59, 75, 90–93, 99–102,
125.) Despite the fact that Plaintiffs were CASCA members, CASCA acted in secret
and excluded Plaintiffs from meetings at which the conspiratorial objectives were
discussed. (Id. ¶¶ 95, 133.)
A non-hospital ASC is required to have transfer agreements with hospitals to
ensure that a patient requiring emergency hospitalization receives rapid and adequate
care. (Id. ¶ 66.) HCA and Centura have both refused to sign transfer agreements
between their hospitals and Plaintiffs’ facilities, despite the predicted benefit to the
hospital of increased patient flow. (Id. ¶¶ 66–67.) In December 2010, a Centura-owned
hospital canceled a planned patient transf er agreement with Plaintiff Kissing Camels,
and in February 2012, a HCA hospital refused to sign a transfer agreement with Cherry
Creek. (Id.)

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Plaintiffs’ allegations make reference to specific pieces of evidence, principally emails and meeting notes, in which Defendants discussed strategies to lessen the
competitive threat posed by Plaintiffs. (See id. ¶¶ 42, 51–55, 59–62, 70, 77–78, 80,
91–95, 99–102, 124.)
Spearheaded by CASCA and CAHP, a conference call meeting to discuss
actions against Plaintiffs was held on May 18, 2012, which was attended by
representatives from Aetna, Anthem, United, and other insurance companies, as well
as CASCA Board members. (Id. ¶¶ 94–95.) A follow-up meeting, which was scheduled
in order for the “right” Insurer personnel to attend, was held on August 29, 2012, and
was attended by CASCA Board members, including Mr. Ashby of Audubon, and
executives from Anthem, United, and Aetna (by phone), as well as other insurance
companies. (Id. ¶¶ 95–97.) Based on notes taken by a CAHP representative, Plaintiffs
allege that the meeting participants agreed to follow a strategy of “stop[ping] the flow of
dollars” from the Insurers to Plaintiffs. (Id. ¶¶ 98–99.) Subsequent e-mails between
CASCA and CAHP indicate that both parties would work to take indirect action against
Plaintiffs through governmental agencies, CASCA, and insurer actions against
physicians referring patients to Plaintiffs. (Id. ¶ 100.)
At the request of Centura and HCA, and pursuant to the agreement among the
alleged co-conspirators, CASCA’s Executive Director sent a letter to the Colorado
Department of Regulatory Agencies (“DORA”) alleging that Plaintiffs violated state law
prohibiting them from waiving or discounting insurance copayments and deductibles
and asking DORA to take legal action against Plaintiffs. (Id. ¶ 103.) DORA took no

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action against Plaintiffs based on this letter, and noted that no com plaints had been
received by the Colorado Medical Board for unlawful billing practices. (Id.) Plaintiffs
allege that their billing practices did not violate state law, and that these claims were
mere pretext for Defendants’ conspiratorial actions. (Id. ¶ 128.)
Plaintiffs allege that, starting in 2010, Centura and Audubon asked the Insurers
to penalize physicians referring business to Plaintiffs. (Id. ¶¶ 118, 124.) The Insurers
were compelled to comply because they needed Centura’s and HCA’s hospitals in their
provider networks. (Id.) The Insurers renewed their efforts to take action against
Plaintiffs as a result of the agreements reached at the May 18, 2012 conference call
and August 29, 2012 meeting. (Id. ¶ 104.)
Mr. Ashby of Audubon notified United in 2010 of Kissing Camels’ opening and
raised concerns regarding its billing practices. (Id. ¶ 123.) United conducted an
investigation which concluded that such concerns were unfounded and that its network
contracts with physicians permitted out-of-network referrals to Kissing Camels, but
nevertheless agreed to take action against physicians referring patients to Plaintiffs.
(Id.) In 2011, United threatened Dr. Steven Topper of Colorado Hand Center with
termination for breach of his network contract based on his referral of patients to
Kissing Camels, and terminated his contract by letter on December 16, 2011. (Id.
¶ 72.) On August 31, 2012, two days after the CASCA/CAHP meeting, United
terminated another facility, Metro Denver Pain Management, purportedly “for cause”
due to its regular use of Plaintiff Arapahoe’s facility. (Id. ¶ 106.) United also threatened
primary care physicians with termination from its network because they referred

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patients to specialists that used Plaintiffs’ facilities. (Id. ¶¶ 72–23.) Plaintiffs assert,
based on e-mail evidence, that United’s threatening letters were strategically targeted at
physicians referring patients to Kissing Camels. (Id. ¶¶ 57, 70.)
Beginning in at least October 2011, Anthem contacted physicians who were
using Plaintiffs’ facilities, and sent letters threatening network termination for
purportedly inappropriate referrals. (Id. ¶ 75.) Anthem employees met with CASCA
and HCA regarding strategies for such actions against Plaintiffs. (Id. ¶ 75.) Plaintiffs
allege that, based on e-mails sent by senior Anthem employees, Anthem coordinated
its actions with HCA, CASCA, and CAHP. (Id. ¶¶ 77–78.) On August 31, 2012, two
days after the CASCA/CAHP meeting, Anthem sent a threatening letter to Colorado
Orthopaedic Consultants regarding referrals to Plaintiffs, and a week later it sent similar
letters to Colorado Hand Center and Interwest Rehabilitation. (Id. ¶¶ 109–10.)
Beginning in at least May 2012, Aetna threatened physicians with termination
from its provider network based on their referrals to Plaintiffs, and threatened to post
information on its provider website that those physicians were referring patients to outof-network providers, which would increase costs for patients. (Id. ¶ 80.) Aetna also
sent certified letters terminating physicians for out-of-network referrals to Plaintiffs’
facilities within a few days of the August 29, 2012 CASCA/CAHP meeting. (Id. ¶ 112.)
Plaintiffs allege that the justifications the Insurers provided for their threatening
letters to physicians—namely, breaches of network contracts and unlawful billing
practices—were pretexts for the anti-competitive goal of driving Plaintiffs out of
business. (Id. ¶ 128.) Indeed, Plaintiffs allege, Audubon and other ASCs had the sam e

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billing practices as Plaintiffs. (Id. ¶ 131.)
On November 15, 2012, Plaintiffs filed a Complaint against HCA, Centura,
CASCA, and Kaiser Foundation Health Plan of Colorado, bringing claims under the
Sherman Act and the Colorado Antitrust Act. (ECF No. 1.) Plaintif fs filed their FAC on
April 3, 2013, adding claims against Arapahoe, Anthem, United, and Aetna. (ECF No.
70.) Plaintiffs subsequently stipulated to dismiss their claims against Kaiser (ECF No.
140) and HCA (ECF No. 175).
On February 13, 2014, the Court granted Motions to Dismiss filed by CASCA,
Aetna, Anthem, United, and Audubon (“Dismissal Order”), based largely on Plaintiffs’
failure to plead sufficient facts establishing the predicate agreement for their conspiracy
claims. (ECF No. 177.) Plaintiffs then moved to amend their complaint to restate their
claims against the dismissed parties, and the Court permitted the amendment. (ECF
Nos. 179, 212, 242.) The SAC was thus accepted as filed. (ECF No. 213.)
On September 30, 2014, Centura filed a Motion for Summary Judgment, which
remains pending. (ECF No. 228.) The instant Motions to Dismiss, as well as a similar
motion by Audubon, were filed on December 17, 2014. (ECF Nos. 259, 260, 261, 264,
266.) Plaintiffs filed an Omnibus Response (ECF No. 283), and Anthem, Aetna,
CASCA, and United filed Replies (ECF Nos. 284, 285, 287, 288). Plaintif fs
subsequently stipulated to dismiss Audubon from this action (ECF No. 290), rendering
moot its Motion to Dismiss (ECF No. 266). The other four Motions are fully briefed and
ripe for disposition.

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III. ANALYSIS
CASCA and the Insurers each move for dismissal of Plaintiffs’ claim under § 1 of
the Sherman Act (Count I), and the analogous state claim pursuant to Colorado
Revised Statutes § 6-4-104 (Count IV), the only claims asserted against them. (ECF
Nos. 259, 260, 261, 264; see SAC ¶¶ 134–38, 149–53.) As federal antitrust law
principles control both the federal and state antitrust claims, the Court will consider the
two challenged claims together. See Four Corners Nephrology Assocs., P.C. v. Mercy
Med. Ctr. of Durango, 582 F.3d 1216, 1220 n.1 (10th Cir. 2009).
Plaintiffs’ claims under § 1 of the Sherman Act allege that Defendants conspired
to put Plaintiffs out of business, which unreasonably restrained trade in the Denver and
Colorado Springs markets for ambulatory surgery services and damaged Plaintiffs.
(SAC ¶¶ 134–38, 149–53.) Section 1 of the Sherman Act prohibits “[e]very contract,
combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations . . . .” 15 U.S.C. § 1.
Notably, § 1 prohibits only concerted, multilateral action. See Bell v. Fur Breeders
Agric. Coop., 348 F.3d 1224, 1232 (10th Cir. 2003). “Because § 1 of the Sherman Act
does not prohibit all unreasonable restraints of trade but only restraints effected by a
contract, combination, or conspiracy, the crucial question is whether the challenged
anticompetitive conduct stems from independent decision or from an agreement, tacit
or express.” Twombly, 550 U.S. at 553 (internal citations and brackets om itted).
Accordingly, at the pleading stage, stating a § 1 claim “requires a complaint with
enough factual matter (taken as true) to suggest that an agreement was made. . . [and]

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to raise a reasonable expectation that discovery will reveal evidence of illegal
agreement.” Id. at 556. Such an agreement is established by evidence that the
conspiring parties “had a conscious commitment to a common scheme designed to
achieve an unlawful objective.” Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752,
764 (1984).
If the complaint does not directly allege an agreement but instead makes only
“allegations of parallel conduct . . . in order to make a § 1 claim, they must be placed in
a context that raises a suggestion of a preceding agreement, not merely parallel
conduct that could just as well be independent action.” Twombly, 550 U.S. at 557.
That is, the complaint must contain “allegations plausibly suggesting (not merely
consistent with) agreement.” Id.
1.

CASCA

CASCA’s Motion argues that Plaintiffs have failed to allege sufficient facts to
establish that it was a member of a conspiracy to put Plaintiffs out of business. (ECF
No. 262 at 8–14.) CASCA further argues that its letter petitioning DORA to take action
against Plaintiffs is protected by the First Amendment and the Noerr-Pennington
doctrine, and that its alleged coordination of negative statements to the press is
protected commercial speech. (Id. at 7–8, 14–15.)
In the Dismissal Order, the Court found that Plaintiffs’ allegations in the FAC that
CASCA provided a venue at which the conspiracy was formed were insufficient to state
a claim that CASCA itself was a co-conspirator. (ECF No. 177 at 13.) Ultimately, the
Court found that “Plaintiffs’ allegations suggest that CASCA provided passive facilitation

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of the conspiracy, not that it agreed to participate, tacitly or expressly,” and noted that
“Plaintiffs apparently concede that CASCA was a tool of the conspiracy, rather than a
co-conspirator . . . .” (Id. at 14.)
As to CASCA’s actions in petitioning DORA to take action against Plaintiffs, the
Court held in the Dismissal Order that “the Supreme Court’s decisions in [Eastern R.R.
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961)] and [United
Mine Workers of America v. Pennington, 381 U.S. 657 (1965)] establish that no
Sherman Act liability arises from ‘a concerted effort to influence public officials,
regardless of [anticompetitive] intent or purpose.’” (ECF No. 177 at 13–14 (quoting
Pennington, 381 U.S. at 670).) CASCA reasserts its argument in the instant Motion,
but Plaintiffs fail to respond to CASCA’s Noerr-Pennington or First Amendment
arguments in their Response. (See ECF No. 283.) On the same basis as that asserted
in the Dismissal Order, the Court concludes that the allegations of government petition
and speech to the press cannot support a claim for a § 1 conspiracy.
However, Plaintiffs’ SAC now includes direct allegations that CASCA was a coconspirator, not a mere tool of the conspiracy. (See SAC ¶¶ 3, 59, 75, 90–93, 99–102,
125.) Through Centura’s and HCA’s joint venture partners’ membership on CASCA’s
Board of Directors, Plaintiffs allege that Centura and HCA dominate CASCA and it
thereby represents their interests to Plaintiffs’ detriment. (Id. ¶¶ 39, 45–46.) Plaintiffs
allege that CASCA worked with CAHP to develop a strategy among the Insurer
Defendants and to execute that strategy against Plaintiffs. (Id. ¶¶ 46, 51.) In support of
these allegations, Plaintiffs also assert that in July 2012, HCA’s CEO sent an e-mail in

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response to an HCA employee’s e-mail confirmation that one of the Plaintiffs’ facilities
had recently opened, which stated, “TIME TO CALL IN THE DOGS!!!!!,” and “can we
discuss Round 2 with the payer [insurer] community—off-line not on email?” (Id. ¶ 61.)
A follow-up e-mail between HCA executives included the statements, “Can we add
more pressure to the payers to stop the proliferation of the out-of-network [Plaintiff]
ASCs? Their letters aren’t working.” (Id.) This latter e-mail was copied to an HCA
representative on CASCA’s Board. (Id.) Plaintiffs allege meetings between Insurers
and CASCA in furtherance of this strategy, culminating in the October 29, 2012
CASCA/CAHP meeting at which a plan was established for the Insurers to “stop the
flow of dollars” to Plaintiffs. (Id. ¶¶ 75, 78, 91.)
The Court finds these allegations sufficient to plausibly allege that CASCA was a
participant in the alleged conspiracy. While CASCA contends that one Board member’s
receipt of HCA’s e-mail insufficiently implicates it in HCA’s attempts to involve the
Insurers in taking action against Plaintiffs (ECF No. 262 at 13), the Court finds that this
allegation supports Plaintiffs’ contention that CASCA coordinated meetings the
following month on behalf of HCA in order to instigate action by the Insurers. These
allegations also support Plaintiffs’ assertion in the SAC that CASCA joined the
conspiracy as an active participant, and was not merely a venue at which the
conspiracy was formed. (See SAC ¶ 125.) Plaintiffs further allege a motive for
CASCA’s conspiratorial participation, namely that its Board members—which operate
competing ASCs—feared competition from Plaintiffs, and note that CASCA hid its
actions from Plaintiffs and never attempted to get Plaintiffs to change their allegedly

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unlawful conduct directly. (Id. ¶¶ 93, 125, 133.)
CASCA’s Motion emphasizes certain of Plaintiffs’ allegations, noting that each of
them could just as easily have been innocent. However, on a motion to dismiss, the
law requires only “a complaint with enough factual matter (taken as true) to suggest that
an agreement was made. . . [and] to raise a reasonable expectation that discovery will
reveal evidence of illegal agreement.” Twombly, 550 U.S. at 556. The Court finds that
Plaintiffs’ SAC meets this standard. CASCA’s Motion is therefore denied.
2.

Insurer Defendants

The Motions filed by Aetna, Anthem, and United each argue that Plaintiffs’
allegations are insufficient to establish an agreement to conspire against Plaintiffs.
(ECF Nos. 259, 260, 264.)
In the Dismissal Order, the Court held that Plaintiff’s First Amended Complaint
(“FAC”) contained insufficient allegations of conspiracy against the Insurer Defendants.
(ECF No. 177 at 16–20.) Specifically, the Court noted as follows:
Plaintiffs’ allegations of the specific actions each Insurer
Defendant took against physicians and health care providers
using Plaintiffs’ facilities are numerous and detailed.
However, with regard to an agreement to conspire, these
allegations fall short. Although Plaintiffs allege that Centura
and HCA requested that the Insurers perform these kinds of
actions in furtherance of the conspiracy, Plaintiffs do not
directly allege that the Insurers made such an agreement,
nor do they allege facts directly evidencing the Insurers’
agreement with Centura and HCA. Instead, Plaintiffs’
allegations only indirectly support an inference of such an
agreement, pleading parallel acts by each Insurer against
physicians that were using Plaintiffs’ facilities.
(Id. at 18.) While Plaintiffs had not explicitly alleged an agreement, the Court noted that
Plaintiffs could still state a § 1 claim through allegations of “conscious parallel conduct”
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that “raise[] a suggestion of a preceding agreement.” Twombly, 550 U.S. at 557.
However, such allegations are insufficient if they establish “merely parallel conduct that
could just as well be independent action.” Id. (emphasis added). The Court concluded
that Plaintiffs’ allegations failed on this front as well, noting that Plaintiffs had alleged
plausible legitimate, independent reasons for the Insurers’ actions.
Plaintiffs’ allegations of the Insurers’ parallel conduct, which
targeted physicians using Plaintiffs’ facilities and caused
indirect injury to Plaintiffs, are insufficient to reasonably
suggest that the parallel conduct was the result of an
agreement and not the result of independent factors. . . .
[T]he FAC sets forth no facts supporting the inference of
pretext, nor does the FAC clearly assert pretext. Instead,
Plaintiffs ask the Court to reasonably infer that the Insurers,
under pressure from powerful hospitals and in the face of
allegations that Plaintiffs were violating state law, did not
terminate these physicians’ network contracts because their
out-of-network referrals breached those contracts, but
instead terminated them because the Insurers had
previously agreed with the hospitals to conspire to put
Plaintiffs out of business. While such an inference is
possible, Plaintiffs’ FAC does not “raise[] a suggestion of a
preceding agreement” or otherwise make it plausible.
Twombly, 550 U.S. at 557. Plaintiffs’ allegations with
respect to the Insurers do not suggest that they made “a
conscious commitment to a common scheme designed to
achieve an unlawful objective.” Monsanto, 465 U.S. at 764.
Instead, the Court finds that the Insurers’ parallel conduct
could just as well be independent action. See Twombly, 550
U.S. at 557.
(Id. at 18–20.) Consequently, the Court dismissed Plaintiffs’ claims against the
Insurers. (Id.)
The Insurers’ Motions now argue that Plaintiffs’ SAC contains the same
deficiencies as the FAC, and that Plaintiffs’ new allegations fail to support a conspiracy.
(ECF Nos. 259, 260, 261, 264.) These arguments ignore the simple basis for the
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Court’s decision in the Dismissal Order: Plaintiffs’ FAC did not explicitly allege that the
Insurer Defendants agreed with Centura and HCA to take action against Plaintiffs, nor
did it explicitly assert that the Insurers’ reasons for their actions were pretextual. (See
ECF No. 177 at 18–20.) In contrast, Plaintiffs’ SAC now contains explicit allegations of
agreement, and goes further by alleging the existence of evidence supporting those
allegations. (See, e.g., SAC ¶¶ 42, 51–55, 59–62, 70, 77–78, 80, 91–95, 99–102, 124.)
In particular, the Court finds compelling Plaintiffs’ allegations regarding the
alleged October 29, 2012 meeting, including an attendee’s notes evidencing the
establishment of a strategy by the participating Insurers to prevent Plaintiffs from
obtaining patients, and the actions taken by each of the Insurer Defendants within a
matter of days after that meeting in accordance with the agreement. These allegations
support the SAC’s direct assertion that the Insurers entered into an ag reement to take
action against Plaintiffs, and thus suggest that the Insurers “had a conscious
commitment to a common scheme designed to achieve an unlawful objective.”
Monsanto, 465 U.S. at 764. Furthermore, the temporal proximity of the October 29,
2012 meeting and subsesquent Insurers’ actions against physicians for their referrals to
Plaintiffs “tends to exclude the possibility that . . . [they] were acting independently.” Id.
The Court consequently rejects Aetna’s argument that its participation in a trade
association meeting is necessarily innocent, as Plaintiffs have alleged that the
participants explicitly agreed on a strategy for the Insurers to take actions against
Plaintiffs at that meeting, that such actions were taken within days afterward, and that
CASCA organizers purposefully excluded Plaintiffs from those meetings. (See ECF No.

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264 at 7–9; SAC ¶¶ 95–100, 112.)
The Court finds that Plaintiffs have directly alleged a conspiracy and supported it
with plausible factual allegations. As a result, the Court need not conside r the Insurers’
arguments relating to allegations that merely establish “conscious parallel conduct,”
namely that Plaintiffs have failed to exclude other plausible explanations for their
actions. See Twombly, 550 U.S. at 557. While these arguments might well be
persuasive before a jury, they need not be preemptively defeated by a plaintiff directly
alleging an anticompetitive agreement in a well-pled complaint, as all such allegations
are taken as true on a motion to dismiss.2 See id. at 570. Accordingly, the Insurers’
Motions are denied on this basis.
United’s Motion raises a second argument, namely that an antitrust claim does
not lie against a party alleged to have joined an unlawful boycott where the party had no
rational motive to join the boycott. (ECF No. 260 at 13 (citing Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986)).) This argument is easily
rejected. Plaintiff’s SAC explicitly alleges that the Insurers entered the conspiracy at
the behest of Centura and HCA because those hospitals possessed g reat market
power and were essential to the Insurers’ networks. (See SAC ¶¶ 123, 128.) As to
United in particular, Plaintiffs allege that Centura threatened to terminate its contract,

2

For example, Aetna’s Motion argues that two e-mails on which Plaintiffs’ SAC relies
contain evidence that Aetna attempted to bring Plaintiffs into its provider network, which
contradicts Plaintiffs’ allegations that Aetna sought to put Plaintiffs out of business. (ECF No.
264 at 9–13.) While Aetna correctly notes that a document referred to in a complaint may be
considered on a motion to dismiss, the Court finds that the evidence contained therein does not
make Plaintiffs’ claims implausible, and instead raises a dispute of fact more appropriate for
resolution by a jury. Therefore, the Court will not dismiss Plaintiffs’ claims on this basis.

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and notes that despite United’s independent inv estigation that Plaintiffs were not
causing breaches of physician contracts, it nonetheless took action against Plaintiffs.
(Id. ¶ 123.) Faced with threats of losing valuable customers, the Court finds that the
Insurers had a plausible, rational motive to join the alleged conspiracy. Accordingly, the
Court denies the Motions on that basis.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Motions to Dismiss filed by Defendants Rocky Mountain Hospital and
Medical Service, Inc, d/b/a Anthem Blue Cross and Blue Shield of Colorado
(ECF No. 259), UnitedHealthCare of Colorado, Inc. (ECF No. 260), Colorado
Ambulatory Surgery Center Association, Inc. (ECF No. 261), and Aetna, Inc.
(ECF No. 264) are DENIED; and

2.

The Motion to Dismiss filed by Audubon Ambulatory Surgery Center, LLC (ECF
No. 266) is DENIED AS MOOT.
Dated this 16th day of June, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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