Marion HealthCare, LLC v. Southern Illinois Healthcare et al
Filing
57
ORDER granting in part and denying in part 22 Motion to Dismiss; granting in part and denying in part 25 Motion to Dismiss for Failure to State a Claim. See Order for details. Plaintiff is granted leave to file a second amended complaint on or before September 23, 2013. Signed by Chief Judge David R. Herndon on 8/26/2013. (kar)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARION HEALTHCARE LLC,
Plaintiff,
v.
CIVIL NO. 12-CV-00871-DRH-PMF
SOUTHERN ILLINOIS
HEALTHCARE,
and HEALTH CARE SERVICE
CORPORATION, d/b/a BLUECROSS
AND BLUESHIELD OF ILLINOIS,
Defendants.
MEMORANDUM & ORDER
HERNDON, Chief Judge:
Before the Court is defendant Health Care Service Corporation, d/b/a
BlueCross and BlueShield of Illinois’ (“BCBSI”) motion to dismiss the first
amended complaint (Doc. 22) and memorandum in support (Doc. 23). Also
before the Court is defendant Southern Illinois Healthcare’s (“SIH”) motion to
dismiss the first amended complaint (Doc. 25) and memorandum in support
(Doc. 25-1). Plaintiff filed a single response in opposition to defendants’ motions
to dismiss (Doc. 29) and defendant BCBSI filed a reply (Doc. 31).
BACKGROUND
Plaintiff Marion HealthCare, LLC (“MHC”), filed a seventy-two (72) page,
eleven (11) count amended complaint against SIH and BCBSI alleging violations of
federal and state antitrust law, specifically, Sections 1 and 2 of the Sherman Act
(15 U.S.C. §§ 1, 2), Sections 2 and 3 of the Clayton Act (15 U.S.C. §§ 13, 14), and
the Illinois Antitrust Act (740 ILCS 10), and a state law claim of tortious
interference with a business expectancy.
In sum, plaintiff alleges that defendants SIH and BCBSI, through
exclusionary agreements and other conduct, including exclusive dealing, price
discrimination, and monopolization, have substantially suppressed competition
for outpatient surgical services in a defined relevant market in Southern Illinois.
Plaintiff claims that defendants are foreclosing competition, harming healthcare
consumers through higher prices, diminishing the choice of outpatient service
providers, reducing innovation, and increasing barriers to entry for competing
service providers. Plaintiff seeks damages and for this Court to enjoin defendants
from entering into, maintaining, or enforcing contracts that prevent BCBSI from
contracting with SIH’s competitors, including plaintiff.
Plaintiff raises the following five (5) claims against defendant SIH: (Count I)
exclusive dealing with BCBSI in violation of Section 1 of the Sherman Act (15
U.S.C. § 1) and Clayton Act (15 U.S.C. § 14); (Count III) exclusive dealing with
BCBSI in violation of the Illinois Antitrust Act; (Count V) tying arrangement with
BCBSI in violation of Section 1 of the Sherman Act (15 U.S.C. § 1) and Clayton
Act (15 U.S.C. § 14); (Count VI) tying arrangement with BCBSI in violation of the
Illinois Antitrust Act (740 ILCS 10/3); (Count IX) monopolization in violation of
Section 2 of the Sherman Act (15 U.S.C. § 2).
Plaintiff raises the following six (6) claims against defendant BCBSI: (Count
2
II) exclusive dealing with SIH in violation of Section 1 of the Sherman Act (15
U.S.C. § 1) and Clayton Act (15 U.S.C. § 14); (Count IV) exclusive dealing with SIH
in violation of the Illinois Antitrust Act; (Count VII) tying arrangement with SIH in
violation of Section 1 of the Sherman Act (15 U.S.C. § 1) and Clayton Act (15
U.S.C. § 14); (Count VIII) tying arrangement with SIH in violation of the Illinois
Antitrust Act (740 ILCS 10/3); (Count X) price discrimination against MHC in
violation of Section 2 of the Clayton Act (15 U.S.C. § 13); and (Count XI) tortious
interference with a business expectancy.
A. The Parties and Other Southern Illinois Healthcare Providers
The Court accepts as true, as it must, for the purpose of considering the
motions to dismiss, the following facts alleged in plaintiff’s amended complaint.
Plaintiff, MHC is a multi-specialty freestanding outpatient surgery center which
offers outpatient surgical services. Plaintiff does not offer inpatient services. MHC
opened for business in 2004, and is located in the relevant geographic area,
defined by plaintiff as Williamson County and Jackson County, Illinois, and the
surrounding areas in close proximity to or bordering these two counties.
Defendant SIH is a nonprofit corporation that owns various acute-care
hospitals which provide inpatient and outpatient medical services. In addition,
SIH owns (wholly or partially) freestanding outpatient surgical service providers.
Specifically, Plaintiff claims there are four hospitals within the defined geographic
area that provide outpatient surgical services, namely, Heartland Regional Medical
Center, owned by Community Health Systems, and the remaining three owned by
3
SIH: Memorial Hospital of Carbondale, Herrin Hospital, and St. Joseph Memorial
Hospital. There are also five freestanding providers of outpatient surgical services
within the relevant geographic market, including plaintiff, two providers fully or
partially owned by SIH which compete with plaintiff, Physicians’ Surgery Center,
L.L.C. (“PSC”), and Southern Illinois Orthopedic Center, LLC (“SIOC”), and two
others, Marion Surgery Center, and Pain Care Surgery Center, which provide a
narrow scope of specialized services and do not compete with plaintiff.
B. Allegations Regarding Relevant Market
Plaintiff defines two relevant markets: (1) “the sale of general acute-care
inpatient hospital services, including pediatric services and neonatal care services
to commercial health insurers,” and (2) “the sale of outpatient surgical services to
commercial health insurers.” (Doc. 13 at 2). Commercial health insurers include
managed-care organizations, rental networks, and self-funded plans. Plaintiff
excludes government payers, such as Medicare, Medicaid, and TRICARE from the
relevant markets.
In the relevant geographic market, SIH has approximately a 77% share of
the market for inpatient hospital services sold to commercial insurers, and a
more than an 85.3% share of the market for outpatient services sold to
commercial insurers. Accordingly, plaintiff asserts, most health insurance
companies in the relevant geographic market consider SIH a “must-have” hospital
system for health plans because it is the largest hospital system in the region and
the only local provider of certain essential services.
4
Plaintiff alleges that hospitals or other facilities outside of the relevant
geographic area do not compete with those within the area for the sale of the
relevant products in a manner that would create a competitive market or
otherwise constrain the pricing or other behavior of the providers within the
geographic area. Further, competition for the sale of inpatient and outpatient
services to commercial health insurers from outside the geographic area would
not be sufficient to prevent a hypothetical monopolist provider of either of these
services within the geographic area from profitably maintaining supracompetitive
prices for those services over a sustained period of time.
Defendant BCBSI allegedly is the largest health insurance company in
Illinois, and the dominant health insurer in Williamson and Jackson Counties,
Illinois, and the surrounding area. Accordingly, BCBSI is the dominant provider
of health insurance covering inpatient and outpatient services, and has market
power for health insurance coverage in the defined geographic market. Plaintiff
claims that on at least three (3) occasions, it submitted an application to BCBSI
for acceptance as a network provider with BCBSI, but was denied each time.
Plaintiff believes that SIH, by virtue of its contracts with BCBSI, prohibits BCBSI
from contracting with plaintiff and other competitors for health-care services as
an “in-network” provider, which could thereby make plaintiff competitive within
the relevant area. In 2011, a BCBSI representative informed plaintiff that BCBSI
had an exclusive contract with SIH which precluded or prohibited BCBSI from
contracting with plaintiff. It is this exclusive agreement between SIH and BCBSI
5
that forms the crux of plaintiff’s claims.
C. Basis of Plaintiff’s Claims
Plaintiff alleges that SIH has monopoly power in the two relevant markets
in the defined geographical area, and that its prices have climbed. Further,
plaintiff alleges that SIH is attempting to increase its control over the referral of
patients in the market by acquiring or otherwise controlling independent
providers in the area, in an attempt to further establish its monopoly power.
Plaintiff alleges that SIH is the largest provider of inpatient and outpatient services
in Williamson and Jackson Counties and the surrounding areas.
Plaintiff claims that SIH willfully maintained and extended its monopoly
power through the use of anticompetitive exclusionary contracts. Specifically,
plaintiff alleges that BCBSI had a compelling business need to include SIH in its
network of inpatient service providers. Further, in consideration of discounts
sought by BCBSI on inpatient services, SIH demanded exclusionary language in
its contracts with commercial insurance companies, including BCBSI, prohibiting
BCBSI from contracting with competing providers, including plaintiff, MHC.
Plaintiff alleges that SIH improperly and illegally coerced BCBSI into entering into
an agreement that tied discounts for coverage of SIH’s inpatient hospital services
with exclusive contracting for in-network coverage of SIH’s outpatient surgical
services, prohibiting BCBSI from contracting for in-network coverage with
competing freestanding outpatient surgery centers in the region. Plaintiff alleges
that this arrangement constitutes exclusive dealing and tying.
Plaintiff further alleges that inclusion in health insurance networks is
critical as patients generally seek services from “in-network” providers because,
typically, an insurer charges a member substantially lower co-payments or other
6
charges when the member uses an in-network provider. In this manner, the
patient’s out of pocket costs are generally lower if they use an in-network
provider. Plaintiff alleges that because of SIH’s monopoly power and BCBSI’s
market power, the exclusionary agreements between these parties have
substantially foreclosed plaintiff and other competitors from commercial healthinsurance contracts for outpatient services in the relevant geographic area.
Without these contracts, plaintiff alleges, SIH’s competitors cannot effectively
compete. Additionally, by refusing to grant competitors in-network status, SIH
and BCBSI have substantially reduced the number of patients who would
otherwise use plaintiff or other competitors for outpatient services, and effectively
denied access to non-SIH providers to a substantial percentage of patients who
hold BCBSI insurance coverage.
Further, plaintiff claims that most patients must pay SIH substantially
more for its outpatient surgical services, as compared to having the procedure
performed in a non-SIH owned or partially owned facility. Therefore, plaintiff
alleges, SIH’s contracts prevent members of the public from accessing competing
full service outpatient surgical services in a cost-efficient manner.
Plaintiff alleges that patients covered by government plans like Medicare or
Medicaid are not adequate substitutes for commercially insured patients, because
government plans pay providers significantly less than commercial health
insurers. Through its exclusionary contracts with BCBSI, SIH retains substantial
profits that would otherwise be available to plaintiff. Plaintiff asserts that this
additional earned profit, if available to plaintiff, would provide the basis for
increased competition, increased services, greater innovation and greater choices
for patients.
7
Additionally, plaintiff alleges that SIH’s exclusionary contracts violate
antitrust laws, have reduced competition, and caused substantial anticompetitive
effects, such as: delaying and preventing the expansion and entry of SIH’s
competitors, likely leading to higher healthcare costs and higher insurance
premiums; limited price competition for price-sensitive patients, likely leading to
higher healthcare costs for those patients; reduced quality competition between
SIH and its competitors; reduced the likelihood that patients will be treated at
MHC; and reduced the healthcare options for patients in need of outpatient
surgery, all without a valid business justification.
D. Motions to Dismiss
Both defendants have filed motions to dismiss. BCBSI asserts that (1)
plaintiff’s claims under § 3 of the Clayton Act, namely Counts II (Exclusive
Dealing), VII (Tying), and X (Price Discrimination), should be dismissed because
sections 2 and 3 of the Clayton Act apply to goods, not services; (2) plaintiff’s
claims under Count II (Exclusive Dealing) should also be dismissed because (a)
the “market” identified by plaintiff is deficient as a matter of law, and (b) plaintiff
cannot adequately plead substantial foreclosure; (3) plaintiff’s Count VII claims
under the Sherman Act should also be dismissed because plaintiff has not and
cannot allege that BCBSI has market power in the tying product (inpatient
hospital services) or the tied product (outpatient surgical services); (4) plaintiff’s
state law antitrust claims, Counts IV and VIII, should be dismissed on the same
bases as their federal counterparts; and (5) plaintiff’s tortious interference claim,
Count XI, should be dismissed because the physicians and patients at issue were
alleged to be under contract with BCBSI, and BCBSI cannot interfere with its own
relationships as a matter of law, or, alternatively, Count XI should be dismissed
8
for lack of independent jurisdiction, should the Court determine that there are no
viable federal claims. BCBSI seeks dismissal of all claims against it, with
prejudice.
SIH, in its motion to dismiss, asserts that: (1) plaintiff fails to allege facts
supporting the proposition that SIH coerced BCBSI to contract with SIH for
outpatient surgery services as a condition of a contract for inpatient hospital
services, which is required to state a claim for unlawful tying under Section 1 of
the Sherman Act and the Illinois Antitrust Act (Counts V, VI); (2) plaintiff fails to
allege that the exclusive contract foreclosed plaintiff from the alleged market for
the sale of outpatient surgery services to commercial insurers as it must to state a
claim for exclusive dealing under Section 1 of the Sherman Act and the Illinois
Antitrust Act (Counts I, III); (3) plaintiff fails to allege that SIH acquired or
maintained its allegedly dominant position in the alleged relevant markets
through anticompetitive conduct, which is necessary to state a claim for
monopolization under Section 2 of the Sherman Act (Count IX); plaintiff’s
exclusive dealing and tying claims under Section 3 of the Clayton Act must be
dismissed with prejudice because Section 3 of the Clayton Act only applies to
goods and commodities, and not to services, which are at issue in this case
(Counts I, III, V, and VI).
LEGAL STANDARD
A motion pursuant to Fed. R. Civ. P. 12(b)(6) allows for dismissal for
“failure to state a claim upon which relief can be granted.” To state a claim, a
pleading need only contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Furthermore, the Court
9
must review a complaint in the light most favorable to the plaintiff, accept as true
all well-pleaded facts alleged, and draw all possible inferences in the plaintiff's
favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Detailed
factual allegations are not required, but the pleading must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A plaintiff “can plead himself out of court
by pleading facts that show that he has no legal claim.” Atkins v. City of Chicago,
631 F.3d 823, 832 (7th Cir. 2011). Finally, the court must not apply a heightened
pleading standard in antitrust cases. Endsley v. City of Chicago, 230 F.3d 276,
282 (7th Cir. 2000).
ANALYSIS
I.
Clayton Act Claims - Exclusive Dealing, Tying, Price Discrimination
(Counts I, II, V, VII, X)
Both defendants SIH and BCBSI seek dismissal of plaintiff’s claims to the
extent that they arise under the Clayton Act 1 based upon their assertion that
1
Section 3 of the Clayton Act provides:
It shall be unlawful for any person engaged in commerce, in the course
of such commerce, to lease or make a sale or contract for sale of goods,
wares, merchandise, machinery, supplies, or other commodities,
whether patented or unpatented, for use, consumption, or resale within
the United States or any Territory thereof or the District of Columbia or
any insular possession or other place under the jurisdiction of the
United States, or fix a price charged therefor, or discount from, or
rebate upon, such price, on the condition, agreement, or understanding
that the lessee or purchaser thereof shall not use or deal in the goods,
wares, merchandise, machinery, supplies, or other commodities of a
competitor or competitors of the lessor or seller, where the effect of such
10
Sections 2 and 3 of the Clayton Act (15 U.S.C. §§ 13, 14) apply only to goods and
not to services. In response, plaintiff asserts that it has alleged with specificity
that defendants have engaged in exclusive dealing and tying with respect to goods,
and that BCBSI has discriminated against plaintiff with respect to reimbursement
of certain goods. Additionally, plaintiff asserts that it has specifically described
the essential role of certain goods that are required to perform medical services,
for example, intravenous medications for anesthesia and preoperative and postoperative pain management, fixation devices for orthopedic surgery, and ablation
kits for gynecological surgery, and that these goods are billed separately from the
fees for services. Plaintiff insists that the goods are integral to the performance of
the service and that the surgical services could not be performed without the
goods.
“There is ample authority that § 14 does not encompass the sale of
services.” Satellite T Associate v. Continental Cablevision of Virginia, Inc., 586
F.Supp. 973, 974 (E.D. Va. 1982), aff’d, 714 F.2d 351(4th Cir. 1983) (citing
Hudson Valley Asbestos Corp. v. Tougher Heating & Plumbing Co., 510 F.2d
1140, 1145 (2d Cir. 1975); Advance Business Systems & Supply Co. v. SCM
Corp., 415 F.2d 55, 64 (4th Cir. 1969); Columbia Broadcasting System, Inc. v.
Amana Refrigeration Inc., 295 F.2d 375, 378 (7th Cir. 1961).
lease, sale, or contract for sale or such condition, agreement, or
understanding may be to substantially lessen competition or tend to
create a monopoly in any line of commerce.
15 U.S.C. § 14.
11
In Baum v. Investors Diversified Services, Inc., 409 F.2d 872, 874 (7th
Cir. 1969), the Seventh Circuit upheld a district court’s dismissal of a complaint
“on the ground, inter alia, that a mutual fund share is not a ‘commodity’ within
the meaning of Sec. 2(a) of the Clayton Act, as amended by the Robinson-Patman
Act.” The Court explained:
We think, moreover, that the word “commodity” has the same meaning
in both Sec. 2(a) and Sec. 3 of the Act. Section 3 of the Clayton Act, 15
U.S.C. § 14, renders illegal certain tying clauses in leases or sales of
“goods, wares, merchandise, machinery, supplies, or other
commodities . . . .” Under the principle of ejusdem generis the word
“commodities” is restricted to the same class of articles previously
enumerated, all of which are tangible products.
This court has indicated that the word “commodity” as used in the
Clayton Act is restricted to products, merchandise or other tangible
goods.
409 F.2d at 875. After the district court determined that a mutual fund share
was not a “commodity,” the plaintiff’s complaint was dismissed for failure to state
a claim upon which relief can be granted, and the Seventh Circuit affirmed. Id. at
872, 876
Similarly, in Tri-State Broadcasting Co. v. United Press Intern., Inc., 369
F.2d 268, 269 (5th Cir. 1966), a district court’s dismissal of an action on the
basis that a service supplied by the defendant did not constitute a “commodity”
under the Act, was affirmed by the Fifth Circuit. The Tri-State court noted that
“the mere form of a contract will not be given controlling effect if the substance of
the contemplated transaction brings it within the antitrust laws,” but that it was
apparent that the transaction at issue contemplated the sale of a non-commodity.
12
Id. at 269-70. The Court opined that “[v]irtually no transfer of an intangible in the
nature of a service, right, or privilege can be accomplished without the incidental
involvement of tangibles, and we conclude that in such circumstances the
dominant nature of the transaction must control in determining whether it falls
within the provisions of the Act.” Id. at 270.
The Seventh Circuit has also adopted the “dominant nature” analysis.
“[T]he transfer of an intangible or service can rarely be accomplished without the
incidental involvement of . . . tangibles. To distinguish between goods and
services the dominant nature of the transaction governs whether the activity is
subject to the Act.” First Comics, Inc. v. World Color Press, Inc., 884 F.2d 1033,
1035 (7th Cir. 1989). Notably, the district court in the Satellite T case dismissed
the Clayton Act claims at the pleadings stage, after determining via the “dominant
nature of the transaction analysis” that the contracts at issue were for an
intangible service, and not the tangible equipment required to receive the service,
and this particular determination was upheld by the Fourth Circuit Court of
Appeals in Satellite Television & Associated Resources, Inc. v. Continental
Cablevision of Virgina, Inc., 714 F.2d 351, 358 (4th Cir. 1983), cert denied, 465
U.S. 1027 (1984).
Courts have also recognized that tying claims involving services are outside
the scope of the Section 3 of the Clayton Act, see Chawla v. Shell Oil Co., 75
F.Supp.2d 626, 644 (S.D. Tex. 1999), and that in general, Section 3 does not
apply to services. See Chelson v. Oregonian Pub. Co., 715 F.2d 1368, 1372 (9th
13
Cir. 1983). In Columbia Broadcasting System, Inc. v. Amana Refrigeration,
Inc., 295 F.2d 375, 378 (7th Cir. 1961), the Seventh Circuit affirmed dismissal of
a counterclaim based in part on the claim’s insufficiency given that “15 U.S.C. §
14 does not apply to tie-ins involving services.”
In the case at bar, the plaintiff itself designates the relevant markets as the
sale of inpatient and outpatient services, and has included goods on the basis that
some goods are utilized and billed for separately. The Seventh Circuit has stated,
however, that “[m]edical services are not ‘commodities.’” Ball Memorial Hosp.,
Inc. v. Mutual Hosp. Ins., Inc., 784 F.2d 1325, 1340 (7th Cir. 1986).
Plaintiff argues that a determination as to whether the goods alleged are
“incidental” is premature at the pleadings stage because it is a question of fact
unripe for a motion to dismiss. The Seventh Circuit has stated otherwise,
however: “[p]laintiff contend [sic] that the issue of whether a transaction’s
‘dominant nature’ is tangible or intangible presents a question of fact which
cannot be determined on a motion to dismiss. We disagree.” Freeman v.
Chicago Title & Trust Co., 505 F.2d 527, 531 n.10 (7th Cir. 1974). The
Freeman Court noted that previous cases from both the Seventh and Fifth
circuits dismissed Clayton Act claims on motions to dismiss. Id. “In some cases,
the dominant nature of a transaction may be apparent from the pleadings, and
thus the case may be disposed of on a motion to dismiss. However, in cases
where the nature of the transaction is not apparent from the pleadings, it is
inappropriate to dispose of the case without analyzing a developed record.”
14
Diamond Triumph Auto Glass, Inc. v. Safelite Glass Corp., 344 F.Supp.2d 936,
942-43 (M.D. Pa. 2004) (citation omitted).
It is clear, in this case, that the goods involved are mere incidentals to the
contract for services, and therefore, fall outside the scope of the Clayton Act.
Plaintiff has defined the relevant markets as “inpatient hospital services” and
“outpatient surgical services.” Upon amendment of this portion of its original
complaint, plaintiff added allegations that “prescription medications delivered
intravenously,” “various fixation devices,” and “other products” that patients may
receive during outpatient surgery constitute “goods or commodities,” are billed
separately from services, and are essential to many of the services provided.
Plaintiff’s attempt to add tangential goods to his claims in order to bring them
within the purview of the Clayton Act does not muddle the obvious nature of the
contract for services at issue. Neither BCBSI nor SIH is in the business of selling
drugs, implants, and fixation devices, although some of those materials may be
used incidentally to services provided by SIH. The dominant nature of the
transaction at issue is surely services, and plaintiff’s characterization of the goods
involved is insufficient to invoke the Clayton Act.
The Court is satisfied that the nature of the transaction is apparent from
the pleadings, and that plaintiff has failed to allege that the agreement was one for
goods or commodities as required for the claims to fall under the purview of the
Clayton Act, and these claims cannot survive. Any further amendment of these
claims would be contradictory and/or futile and will not be allowed. To the extent
15
that Counts I, II, III, IV, V, VI, VII, VIII, and X, of plaintiff’s amended complaint
attempt to bring claims pursuant to Sections 2 or 3 of the Clayton Act, those
claims are DISMISSED WITH PREJUDICE for failure to state a claim upon
which relief may be granted because plaintiff cannot bring these claims under the
Clayton Act.
II.
SHERMAN ACT CLAIMS – EXCLUSIVE DEALING, TYING,
MONOPLIZATION (I, II, V, VII, IX)
Section 1 of the Sherman Act provides that “[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, is declared to be illegal.” 15
U.S.C. § 1. “The purpose of the Sherman Act is to protect consumers from injury
that results from diminished competition.” Agnew v. National Collegiate Athletic
Ass’n, 683 F.3d 328, 334-35 (7th Cir. 2012). To state a claim pursuant to 15
U.S.C. § 1, the plaintiff must allege: “(1) a contract, combination, or conspiracy;
(2) a resultant unreasonable restraint of trade in the relevant market; and (3) an
accompanying injury.” Denny’s Marina Inc. v. Renfro Productions, Inc., 8 F.3d
1217, 1220 (7th Cir. 1993). The plaintiff must allege an injury to himself in
addition to an injury to the market. Agnew, 683 F.3d at 335.
The Seventh Circuit recently outlined in Agnew, the three frameworks
under which courts analyze whether actions have anticompetitive effects, noting
that the frameworks “often blend together.” Id. Further, “the determination of
whether a restraint is unreasonable must focus on ‘the competitive effects of
challenged behavior relative to such alternatives as its abandonment or a less
16
restrictive substitute.’” Id. (quoting Philip Areeda, Antitrust Law ¶ 1500, at 36263 (1986)). In other words, each of the three methods is meant to enable the
court to determine: “‘whether or not the challenged restraint enhances
competition.’” Id. (quoting Cal. Dental Ass’n v. FTC, 526 U.S. 756, 780 (1999);
NCAA v. Bd. Of Regents, 468 U.S. 85, 104 (1984)). A brief description of the
three frameworks follows.
Under Rule of Reason analysis (the standard framework):
the plaintiff carries the burden of showing that an agreement or
contract has an anticompetitive effect on a given market within a
given geographic area. As a threshold matter, a plaintiff must show
that the defendant has market power—that is, the ability to raise
prices significantly without going out of business—without which
the defendant could not cause anticompetitive effects on market
pricing. If the plaintiff meets his burden, the defendant can show
that the restraint in question actually has a procompetitive effect on
balance, while the plaintiff can dispute this claim or show that the
restraint in question is not reasonably necessary to achieve the
procompetitive objective.
Id. at 335-36 (internal citations omitted).
The second framework is the “per se rule.” Courts use the “per se rule”
when “a ‘practice facially appears to be one that would always or almost always
tend to restrict competition and decrease output.’” Id. at 336 (quoting Bd. of
Regents, 468 U.S. at 100). Under this method, certain restraints, such as
horizontal price fixing and output limitation, are found to be unreasonable as a
matter of law without an inquiry into the market in which the restraint operates.
Id.
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The third framework is the “quick-look” analysis. Courts use the “quicklook” analysis “where the per se framework is inappropriate, but where ‘no
elaborate industry analysis is required to demonstrate the anticompetitive
character of . . . an agreement,’ and proof of market power is not required.” Id.
(quoting Bd. of Regents, 468 U.S. at 109). “Under this approach, if no legitimate
justifications for facially anticompetitive behavior (such as price-fixing) are found,
no market power analysis is necessary and the court ‘condemns the practice
without ado.’” Id. (quoting Chicago Prof’l Sports Ltd. P’ship v. NBA, 961 F.2d
667, 674 (7th Cir. 1992). “[I]f justifications are found, a full Rule of Reason
analysis may need to take place.” Id.
A. Exclusive Dealing
Defendant BCBSI asserts that Count II (exclusive dealing), must be
dismissed because plaintiff has failed to plead, and cannot adequately plead, a
relevant market 2 or substantial foreclosure. BCBSI assets that vertical exclusive
dealing arrangements, like the one alleged here in which BCBSI secured lower
prices on inpatient hospital and outpatient surgical services subject to the
condition that BCBSI would purchase outpatient services only from SIH, are not
presumed illegal. BCBSI asserts that the agreement is not subject to “per se”
2
“The relevant market has both a product and a geographic dimension.” Republic
Tobacco Co. v. North Atlantic Trading Co. Inc., 381 F.3d 717, 738 (7th Cir. 2004).
“Identifying a geographic market requires both, ‘careful selection of the market area in
which the seller operates, and to which the purchaser can practicably turn for supplies.’”
Id. (quoting Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327 (1961)). At
this point in the proceedings, the relevant geographic market is not in dispute.
18
analysis, but instead, falls under the “rule of reason” framework. The Court
agrees that this vertical arrangement is not subject to the “per se” analysis.
Under the “rule of reason” framework, BCBSI asserts that the relevant
markets alleged by the plaintiff are deficient as a matter of law, and that the
foreclosure allegations are fatally flawed. BCBSI asserts that the markets defined
by plaintiff are deficient because they are limited to inpatient hospital and
outpatient surgical services paid for by commercial insurers and, therefore,
exclude government payers (Medicare and Medicaid) to whom plaintiff can and
does sell its services.
Plaintiff opposes dismissal of its claim on this basis, arguing that private
insurance payments and payments from government insurers are not
interchangeable, in that Medicare and Medicaid pay providers significantly lower
prices than do private insurers. In this way, plaintiff argues, the two payers are
not interchangeable, in that Medicare/Medicaid patients provide only a fraction the
reimbursement provided by private insurers.
In support of its position, BCBSI cites Little Rock Cardiology Clinic PA v.
Baptist Health, 591 F.3d 591 (8th Cir. 2009), in which the court considered the
question of whether the relevant market could be limited to patients covered by
private insurance in an antitrust case (in which plaintiffs alleged exclusive dealing
and monopolization) brought by a cardiology clinic and its physicians against a
hospital and insurance providers. The court decided that the relevant market
could not be so limited and upheld the dismissal of plaintiff’s antitrust claims
19
(with prejudice) on this basis. Id. at 597-98. The Little Rock court stated that the
plaintiff’s market, limited by the consumer’s method of payment, lacked “support
in both logic and law.” Id. at 597. The court noted that the relevant inquiry in
that particular case, “an exclusive dealing case involving shut-out cardiologists . . .
is whether there are alternative patients available to the cardiologists.” Id.
The plaintiff in Little Rock, like the plaintiff here, argued that private
insurance and government insurance, as methods of payment, are not reasonably
interchangeable. Id. The court reasoned that in light of plaintiff’s allegation that
defendant’s unlawful actions resulted in plaintiff’s access to fewer patients, the
relevant question was, to whom might the cardiologists/plaintiffs provide services?
Id. In that case, as in this one, the plaintiff/provider could provide services to
patients who utilize Medicare or Medicaid, as well as those who pay for services
via a private insurer. Id.
“Patients able to pay their medical bill, regardless of the method of
payment, are reasonably interchangeable from the cardiologist’s perspective—the
correct perspective from which to analyze the issue in this case.” Id. The court
focused on the inquiry, “to whom can the supplier sell?” and noted that the
plaintiff made no allegation that patients covered by private insurance were the
only patients to whom it could sell. Id. The Court held that “as a matter of law, in
an antitrust claim brought by a seller, a product market cannot be limited to a
single method of payment when there are other methods of payment that are
acceptable to the seller.” Id. at 598. Other courts have similarly held, “[w]hen
20
there are numerous sources of interchangeable demand, the plaintiff cannot
circumscribe the market to a few buyers in an effort to manipulate the buyers’
market share.” Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111,
1119 (10th Cir. 2008); see also, Stop & Shop Supermarket Co. v. Blue Cross &
Blue Shield of R.I., 373 F.3d 57, 67 (1st Cir. 2004).
Plaintiff cites United States v. Dentsply Int’l, Inc., 399 F.3d 181, 189-90
(3d Cir. 2005), for the proposition that exclusive dealing turns on denial or
disadvantaged access to significant sources of input. 3 Although plaintiff has
alleged that government payers pay less than commercial insurers, and that the
government reimbursement amounts are not negotiable, plaintiff has not
adequately alleged that, Medicare or Medicaid patients are not significant sources
of input to it as a supplier of outpatient services.
The Court finds the Little Rock case to be persuasive, and upon
consideration of the facts of this case, FINDS that the relevant markets as defined
by plaintiff are not plausible as stated. Plaintiff failed to include in the relevant
markets all potential buyers of inpatient or outpatient services. Plaintiff’s
exclusive dealing claims (Counts I and II) are DISMISSED WITHOUT
PREJUDICE. Plaintiff will be granted leave to replead his claims, curing the
noted deficiencies as part of an amended complaint.
3
Plaintiff also heavily relies on a consent judgment which resulted from claims similar to
plaintiff’s in United States and State of Texas v. United Regional Health Care System, 7:11-cv00030 (N.D. Tex. 2011), (Complaint, Final Judgment, and Competitive Impact Statement
available at http://www.justice.gov/atr/cases). The matters in this cited proceeding, however, were
not adjudicated by a court on the merits on any issue of fact or law, and are not authoritative or
controlling. See Beatrice Foods Co. v. F.T.C., 540 F.2d 303, 312 (7th Cir. 1976) (“The entering of
a consent decree, . . . , is not a decision on the merits and therefore does not adjudicate the
legality of any action by a party thereto.”).
21
This determination affects not only plaintiff’s claims of exclusive dealing,
but each of plaintiff’s antitrust claims brought pursuant the Sherman Act and the
Illinois Antitrust Act. Absent allegations of a “per se” violation, plaintiff must
allege a relevant market in order to state a plausible antitrust claim. Little Rock,
591 F.3d at 596. “Without a well-defined relevant market, a court cannot
determine the effect that an allegedly illegal act has on competition.” Id.
For instance, BCBSI also asserts that plaintiff’s allegations of foreclosure
are fatally flawed. BCBSI asserts that even accepting all of plaintiff’s allegations of
foreclosure as true, plaintiff has merely asserted that it has been foreclosed from
effectively competing for a “subgroup” of possible patients, namely, patients using
commercial insurance who have selected BCBSI as their provider. BCBSI asserts
that plaintiff has not raised a claim that it has been foreclosed from competing for
patients enrolled in commercial plans other than BCBSI’s plans, nor has plaintiff
plead that it has been completely foreclosed from serving BCBSI members, only
that BCBSI members that utilize the plaintiff’s services must pay higher out of
pocket costs than those who use SIH.
In light of the Court’s ruling on the “relevant market” aspect of plaintiff’s
exclusive dealing claim, the Court need not consider, at this juncture, whether
plaintiff has adequately plead that it is “substantially foreclosed” from a defined
market, in that the Court found the definition to be flawed.
B. Tying
22
Plaintiff’s claims regarding illegal tying also require an adequate relevant
market definition. “Tying arrangements involve an agreement to sell one product
(the tying product) only on the condition that the purchaser buy a second product
(the tied product).” A.O. Smith Corp. v. Lewis, Overbeck & Furman, 979 F.2d
546, 547 (7th Cir. 1992). “The principal evils of tying arrangements are the
foreclosure of competitors in the tied product market and the denial to buyers of
the advantages of marketplace shopping.” Photovest Corp. v. Fotomat Corp., 606
F.2d 704, 724 (7th Cir. 1979).
Under the Sherman Act, a properly plead unlawful tying claim consists of
the following four elements: (1) a tie exists between two separate products or
services; (2) the tying seller has sufficient economic power in the tying product
market to restrain free competition in the tied product market; (3) the tie affects
more than an insubstantial amount of interstate commerce in the tied product;
and (4) the tying seller has some economic interest in the sales of the tied
product. Reifert v. South Cent. Wisconsin MLS Corp., 450 F.3d 312, 317 (7th
Cir. 2006) (citing Carl Sandburg Vill. Condo. Ass’n No. 1 v. First Condo. Dev.
Co., 758 F.2d 203, 207 (7th Cir. 1985)).
“The joint sale of two products is a ‘tie’ only if the seller exploits its control
of the tying product ‘to force the buyer into the purchase of a tied product that the
buyer either did not want at all, or might have preferred to purchase elsewhere on
different terms.’” Will v. Comprehensive Accounting Corp., 776 F.2d 665, 669
(7th Cir. 1985) (quoting Jefferson Parish Hosp. District No. 2 v. Hyde, 466 U.S.
23
2, 12 (1984)). A plaintiff must show “that the buyer did not want to take both
products from the same vendor.” Id. “Only if buyers are forced to purchase the
tied services as a result of the seller’s market power would the arrangement have
anticompetitive consequences.” Id. (citation omitted). If a buyer wants both
products together, the element of forcing is not met, and there is no tie-in. Id.
1. Tying Claim Against Defendant SIH
Defendant SIH seeks dismissal of the tying claims against it, Counts V and
VI, on the basis that plaintiff failed to allege “forcing,” the second element of a
tying claim. In light of the Court’s ruling on the “relevant market” aspect of
plaintiff’s claims, the Court need not consider, at this time, whether plaintiff has
adequately plead that SIH through its exclusive contracts, coerced BCBSI to
purchase outpatient services from it, because SIH’s market power in the relevant
market cannot be analyzed until the relevant market is defined. 4 Accordingly,
plaintiff’s tying claims against SIH, Counts V and VI 5 are DISMISSED WITHOUT
PREJUDICE in order to allow amendment of the claims so that they may comply
with the Court’s relevant market ruling.
2. Tying Claim Against Defendant BCBSI
4
SIH asserts that plaintiff has not adequately plead coercion, and has merely established that SIH
and BCBSI negotiated a contract provision that provided BCBSI members with larger discounts
for SIH’s inpatient and outpatient services in exchange for a limitation on BCBSI’s ability to enter
into contracts with non-SIH providers of outpatient services in a limited area. Plaintiff responds
that it has sufficiently alleged coercion through its allegations that SIH has a more than 75% share
of the market for acute care services and the ability to coerce BCBSI economically to agree not to
provide in-network insurance coverage of outpatient surgical services provided by plaintiff and
other competitors.
5
As noted infra, plaintiff’s Illinois Antitrust Act claims are subject to the same analysis as its
federal claims, and its state law tying claim, Count VII, is dismissed on the same basis as the
substantially similar federal claim.
24
A different analysis is in order with respect to plaintiff’s tying claims against
BCBSI, however, even in light of the Court’s determination regarding the relevant
market. In Count VII, plaintiff asserts that SIH coerced BCBSI into entering into
an agreement that tied discounts for coverage of SIH’s inpatient hospital services
with exclusive contracting for in-network coverage of SIH’s outpatient surgical
services, prohibiting BCBSI from contracting for in-network coverage with
competing freestanding outpatient surgery centers in the region, constituting a per
se illegal tie by SIH, or alternatively, an unlawful tie pursuant to the rule of
reason.
BCBSI asserts that a threshold requirement for a tying claim under Section
1 of the Sherman Act is that the defendant must have market power in the tying
product, citing Ill. Tool Works Inc. v. Indep Ink, Inc., 547 U.S. 28, 46 (2006). In
Illinois Tool Works, the Supreme Court held that, “in all cases involving a tying
arrangement, the plaintiff must prove that the defendant has market power in the
tying product.” Id. (emphasis added). According to BCBSI, plaintiff does not and
cannot allege that BCBSI even offers the tying (inpatient hospital) or tied
(outpatient surgical) services, and cannot, therefore allege that BCBSI has market
power in either of those markets. BCBSI argues that plaintiff merely alleges that
BCBSI had a dominant market share in the health insurance market, but alleging
market power in markets other than the one for the tying product are insufficient
to state a claim.
25
At the outset, the Court agrees with BCBSI that allegations of defendant’s
market power in the tying and/or tied product markets is a required showing
under either the per se standard, or the rule of reason analysis. See Digital
Equip. Corp. v. Uniq Digital Technologies, Inc., No. 88 C 0644, 1993 WL
338985, at *4 (N.D. Ill. Sept. 1, 1993), modified on reconsideration, No. 88-0644,
1995 WL 12297 (N.D. Ill. Jan 11, 1995), aff’d, 73 F.3d 756 (7th Cir. 1996).
Furthermore, plaintiff has not alleged and cannot allege that BCBSI has market
power in the tying and/or tied product, which are hospital services. The case law
firmly holds that the plaintiff must show that the “seller has ‘market power’ in the
market for the tying product.” Sheridan v. Marathon Petroleum Co. LLC, 530
F.3d 590, 594 (7th Cir. 2008) (citing Ill. Tool Works, 547 U.S. at 35; Jefferson
Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 15-18 (1984)). The fact that
plaintiff delineated its markets as services paid for by commercial insurers, still
does not give BCBSI market power in the services at issue -- inpatient and
outpatients services, because BCBSI is not a seller of these services. The
allegation that BCBSI has market power in the health insurance market is
irrelevant. See Rick-Mik Enterprises, Inc. v. Equilon Enterprises LLC, 532 F.3d
963, 971-72 (9th Cir. 2008). Plaintiff has simply failed to allege a requisite
element of its claim against BCBSI. Plaintiff’s argument that BCBSI received a
direct economic benefit from the exclusion effectuated by the tie in the form of
discounted rates for inpatient services from SIH does not cure the deficiency or
respond to the relevant case law requiring a showing of defendant’s market power
26
in the particular product market. Furthermore, even if plaintiff were to amend its
pleadings to include all possible payers, it would not save plaintiff’s tying claim
against BCBSI. Accordingly, Count VII against BCBSI, tying in violation of the
Sherman Act, is DISMISSED WITH PREJUDICE.
Similarly, to the extent that MHC attempts to raise a monopolization claim
against BCBSI in Count IX, that claim as to BCBSI is DISMISSED WITH
PREJUDICE. The Seventh Circuit has previously left undisturbed a district
court’s determination that a health insurance provider “cannot, as a matter of law,
monopolize or attempt to monopolize the hospital services industry because [the
health insurance provider] has never and does not now compete in that market.”
Ball Mem’l Hosp., Inc. v. Mut. Hosp. Ins. Inc., 603 F.Supp. 1077, 1087 (S.D. Ind.
1985) aff’d, 784 F.2d 1325 (7th Cir. 1986).
C. Monopolization Claim Against Defendant SIH
Section 2 of the Sherman Act “forbids not the intentional pursuit of monopoly
power but the employment of unjustifiable means to gain that power.” Endsley v.
City of Chicago, 230 F.3d 276, 282 (7th Cir. 2000). There are two elements to a
monopoly claim: “‘(1) the possession of monopoly power in the relevant market
and (2) the willful acquisition or maintenance of that power as distinguished from
growth or development as a consequence of a superior product, business acumen,
or historic accident.’” Id. (quoting Eastman Kodak Co. v. Image Technical
Servs., 504 U.S. 451, 481 (1992).
27
In light of the Court’s ruling on the “relevant market” aspect of plaintiff’s
other Sherman Act claims, the Court need not consider, at this juncture, whether
plaintiff has adequately plead that SIH acquired or maintained its alleged
monopoly position unlawfully. To analyze plaintiff’s claim, the Court must first
determine whether SIH has monopoly power in the relevant market, which cannot
be determined until plaintiff adequately pleads a relevant market. Based on the
Court’s relevant market ruling, plaintiff’s claim based on a violation of Section 2
of the Sherman Act, Count IX, is DISMISSED WITHOUT PREJUDICE.
III.
ILLINOIS ANTITRUST CLAIMS
“Illinois law provides that its courts should use the construction of federal
antitrust law by federal courts to guide their construction of those state antitrust
laws that are substantially similar to federal antitrust law.” State of Ill., ex rel.
Burris v. Panhandle Eastern Pipe Line Co., 935 F.2d 1469, 1480 (7th Cir. 1991).
In other words, federal courts (and Illinois state courts) use federal law in
construing provisions of the Illinois Antitrust Law that are substantially similar to
federal law. See, id. Plaintiff does not dispute that the provisions of the Illinois
Antitrust law at issue in this case are substantially similar to the relevant federal
law. Accordingly, plaintiff’s Illinois Antitrust claims against defendants, to the
extent that each is based upon the portion of the Illinois law that is substantially
similar to the Clayton Act (Counts III, IV, VI, and VII) are DISMISSED WITH
PREJUDICE, and plaintiff’s claims against defendants, to the extent that each is
based upon the portion of Illinois law that is substantially similar to the Sherman
28
Act (Counts III, IV, VI, and VII) are DISMISSED WITHOUT PREJUDICE.
Plaintiff’s Illinois Antitrust claim against BCBSI based on tying (Count VIII) is
DISMISSED WITH PREJUDICE, in accordance with the Court’s ruling on the
federal claim supra.
IV.
TORTIOUS INTERFERENCE WITH A BUSINESS EXPECTANCY
Under Illinois law, the elements of a claim of tortious interference with a
business expectancy are “‘(1) the plaintiff’s reasonable expectation of entering into
a valid business relationship; (2) the defendant’s knowledge of the plaintiff’s
expectancy; (3) the purposeful interference by the defendant that prevents the
plaintiff’s legitimate expectancy from ripening into a valid business relationship;
and (4) damages to the plaintiff resulting from such interference.’” Botvinick v.
Rush University Medical Center, 574 F.3d 414, 417 (7th Cir. 2009) (quoting
Fellhauer v. City of Geneva, 568 N.E.2d 870, 878 (Ill. 1991)).
Defendant BCBSI asserts that plaintiff’s tortious interference allegations
must be dismissed because plaintiff claims that BCBSI improperly caused innetwork physicians and plan participants, with whom BCBSI had an existing,
ongoing, relationship, not to use MHC’s out-of-network surgical center. BCBSI
asserts that a party may not tortiously interfere with its own relationships, even if
another party may be affected. BCBSI asserts that it is a party to the very
relationships with which MHC asserts BCBSI interfered. Specifically, MHC
alleged that BCBSI informed its in-network physicians (parties to BCBSI provider
contracts) and plan member-patients (parties to health benefit contracts) that
29
patients would pay a higher out-of-network rate if they utilized MHC (an out-ofnetwork provider). BCBSI also asserts that its actions are privileged because of
its ongoing relationship with the relevant physicians and patients, and therefore,
the tortious interference claims must be dismissed.
Plaintiff asserts that BCBSI misrepresents the relationships at issue, and
looks to the wrong relationship in taking its position. Plaintiff asserts that BCBSI
is not a party to the “business expectancy” of plaintiff. Specifically, plaintiff points
to the fact that BCBSI has threatened its network physicians that if they permit a
patient with out of network benefits (PPO benefits), BCBSI will terminate the
physician’s network agreement. In that case, MHC asserts that BCBSI is a third
party and its efforts to coerce medical staff to take cases elsewhere is actionable.
Plaintiff fails to address the fact, however, that BCBSI is taking action
pursuant to already existing relationships, in that an “in-network” physician
already has a contractual relationship with BCBSI. “In order to maintain a cause
of action for tortious interference with a contract or prospective contractual
relationship, the tortfeasor must be a third party to the contractual relationship.”
Quist v. Board of Trustees of Community College Dist. No. 525, 629 N.E.2d 807,
811 (Ill. App. Ct. 1994). Any in-network physician or patient covered by BCBSI
has an existing contractual relationship with BCBSI, and plaintiff, as a service
provider, could only be paid for services rendered by or to these individuals
through its existing contractual agreements. In this scenario, BCBSI cannot be a
non-party to the business expectancy relationships alleged by plaintiff, and any
30
amendment would contradict the allegations already set forth, and would be
futile. Accordingly, plaintiff’s claim against BCBSI for tortious interference with a
business expectancy, Count XI is DISMISSED WITH PREJUDICE.
CONCLUSION
Defendant’s motions to dismiss (Docs. 22 and 25) are GRANTED IN PART
and DENIED IN PART as follows:
To the extent that Counts I, II, V, VII, and X, of plaintiff’s amended
complaint attempt to bring claims pursuant to Sections 2 or 3 of the Clayton Act,
those claims are DISMISSED WITH PREJUDICE for failure to state a claim upon
which relief may be granted.
Plaintiff’s Sherman Act claims as to defendant SIH are DISMISSED
WITHOUT PREJUDICE (Counts I, V, and IX). As to defendant BCBSI, plaintiff’s
Sherman Act claim regarding exclusive dealing (Count II) is DISMISSED
WITHOUT PREJUDICE, and plaintiff’s claims regarding tying (Count VII) and
monopolization (Count IX) are DISMISSED WITH PREJUDICE.
Plaintiff’s Illinois Antitrust claims against defendants, to the extent that
each is based upon the portion of the Illinois law that is substantially similar to
the Clayton Act (Counts III, IV, VI, and VII) are DISMISSED WITH PREJUDICE.
Plaintiff Illinois Antitrust claims against defendant SIH, to the extent that each is
based upon the portion of Illinois law that is substantially similar to the Sherman
Act (Counts III and VI), are DISMISSED WITHOUT PREJUDICE. Plaintiff
Illinois Antitrust claims against defendant BCBSI, to the extent that each is based
31
upon the portion of Illinois law that is substantially similar to the Sherman Act
based upon exclusive dealing (Count IV) is DISMISSED WITHOUT PREJUDICE,
and based upon tying (Count VIII) is DISMISSED WITH PREJUDICE.
Plaintiff’s claim against BCBSI for tortious interference with a business
expectancy, Count XI, is DISMISSED WITH PREJUDICE.
Plaintiff is granted leave to file a second amended complaint on or before
September 23, 2013.
IT IS SO ORDERED.
Signed this 26th day of August, 2013.
Digitally signed by
David R. Herndon
Date: 2013.08.26
15:45:14 -05'00'
______________________________
CHIEF JUDGE
UNITED STATES DISTRICT COURT
32
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