Lifewatch Services Inc v. Highmark Inc

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 17-1990
LIFEWATCH SERVICES INC,
Appellant
v.
HIGHMARK INC; BLUE CROSS & BLUE
SHIELD ASSOCIATION; WELLPOINT INC;
HORIZON BLUE CROSS BLUE SHIELD
OF NEW JERSEY;BLUE CROSS & BLUE SHIELD OF
SOUTH CAROLINA; BLUE CROSS & BLUE SHIELD OF
MINNESOTA
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-12-cv-05146)
District Judge: Honorable Eduardo C. Robreno
Argued January 16, 2018
Before: AMBRO, RESTREPO, and FUENTES, Circuit
Judges
(Opinion filed: August 28, 2018)
Gary M. Elden, Esquire (Argued)
Anna S. Knight, Esquire
Shook, Hardy & Bacon
111 South Wacker Drive, 51st Floor
Chicago, IL 60606
Michael J. McCarrie, Esquire
Artz McCarrie Health Law
1500 Market Street
Centre Square, West Tower, Suite 4100
Philadelphia, PA 19102
Counsel for Appellant
Sheryl L. Axelrod, Esquire
The Axelrod Firm
The Beasley Builiding
1125 Walnut Street
Philadelphia, PA 19107
Sarah J. Donnell, Esquire
Daniel E. Laytin, Esquire (Argued)
David J. Zott, Esquire
Kirkland & Ellis
300 North LaSalle Street, Suite 2400
Chicago, IL 60654
Counsel for Appellee
Blue Cross & Blue Shield Association
2
Justin W. Bernick, Esquire
John R. Robertson, Esquire
Hogan Lovells US LLP
555 Thirteenth Street, N.W.
Columbia Square
Washington, DC 20004
Stephen A. Loney, Jr., Esquire
Hogan Lovells US LLP
1735 Market Street, 23rd Floor
Philadelphia, PA 19103
Counsel for Appellees
Wellpoint Inc.;
Horizon Blue Cross Blue Shield of New Jersey,
Blue Cross & Blue Shield of South Carolina;
Blue Cross & Blue Shield of Minnesota
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
The seller of a medical device, believing it was shut
out of the market for it, brought suit on federal antitrust
grounds against associated health insurance companies. The
claim was that they shielded themselves from patient demand
for the seller’s device by agreeing to deny coverage as “not
medically necessary” or “investigational,” even while the
medical community, other insurers, and independent arbiters
viewed it as befitting the standard of care. The District Court
dismissed the claim. For the reasons that follow, we reverse
its judgment and remand the case for further consideration.
3
I. Factual Background
We base our analysis, as we must on review of a Rule
12(b)(6) dismissal, on the allegations in the operative
complaint—here the Third Amended Complaint (for
convenience, the “Complaint”). According to it,
cardiovascular disease and disorders are the leading cause of
death in the United States. Plaintiff LifeWatch Services, Inc.
(“LifeWatch”) is one of the two largest sellers of telemetry
monitors. They are one of several types of outpatient cardiac
monitoring devices used to diagnose and treat arrhythmias, or
changes in heart rate or rhythm, which may signal or lead to
more serious medical complications. An arrhythmia can be
without noticeable symptoms; hence the patient may not
know it is occurring.
Other outpatient cardiac monitors include Holter
monitors, various forms of event monitors, and insertable
monitors. All record the electrical activity of a patient’s heart
to catch any instance of an arrhythmia. But they vary in
price, method of data capture, and mechanism by which the
data are transmitted to an analyst or physician for diagnosis.
For example, telemetry monitors are about three times as
expensive as event monitors. They record up to 30 days of a
patient’s cardiac activity and automatically transmit the data
to an analyst center. Event monitors, by contrast, record short
windows of data (in some cases no more than a minute),
which the patient must then take some action to transmit.
Many event monitors also require the patient to trigger the
data capture, creating a risk that asymptomatic arrhythmias go
undetected. Insertable monitors, which are surgically
implanted and less frequently used, are the most expensive;
they cost eight to ten times more than event monitors. While
the Complaint quotes from medical studies that recommend
only telemetry monitors to treat some patients with certain
4
conditions, in other cases telemetry and other monitors are all
appropriate treatments.
LifeWatch brought suit against the Blue Cross Blue
Shield Association (the “Association”) and five of its member
insurance plan administrators 1 (the “Blue Plans”; together
with the Association, “Blue Cross”) for violating Section 1 of
the Sherman Act, 15 U.S.C. § 1. It claims the Blue Plans
have impermissibly conspired with each other and the
Association to deny coverage of telemetry monitors.
The Association, which is not an insurer itself, owns
the rights to the Blue Cross and Blue Shield trademarks and
trade names. It licenses the right to the Blue Cross brand to
36 insurers nationwide. These Blue Plans are allegedly the
largest commercial health insurance group in the country,
collectively insuring 105 million Americans, with a national
network that covers 96% of hospitals and 92% of doctors. As
1
The Defendant Blue Plans named in the Complaint are:
Wellpoint, Inc., allegedly an Indiana corporation that,
combined with its affiliates, serves more than 71 million
people in California, Colorado, Connecticut, Georgia,
Indiana, Kentucky, New York, Maine, Missouri, Nevada,
New Hampshire, Ohio, Virginia, and Wisconsin, or more than
a third of all privately insured Americans; Horizon Blue
Cross Blue Shield of New Jersey, allegedly the largest health
insurer in New Jersey; Blue Cross and Blue Shield of
Minnesota, which allegedly has more members, products, and
services than other insurers in that state; BlueCross
BlueShield of South Carolina; and Highmark, Inc., allegedly
one of the largest health insurers in the country serving, with
affiliates, insureds in Pennsylvania, Delaware, and West
Virginia. As described later, LifeWatch has since settled its
case against Highmark.
5
a group, they are a major purchaser of medical devices and
services nationwide.
The Association maintains a model medical policy that
recommends to the Blue Plans which treatments, devices, or
services to cover. Each Blue Plan participates in the
development of these recommendations by voting on them.
A panel of some kind—the Complaint is vague—then meets
several times a year to finalize the model policy. 2
For more than a decade the model policy has
recommended against covering prescriptions for telemetry
monitors, explaining that in some cases they are not
“medically necessary” and in the rest they are
“investigational.” This provision of the model policy has
been adopted in near lockstep 3 by the Association’s member
Blue Plans. Though the Plans’ language denying coverage is
not always identical, the reasoning is the same.
Meanwhile, Medicare, Medicaid, and other private
insurers, including Aetna, cover telemetry monitor
2
LifeWatch’s brief on appeal explains that the “Medical
Policy Panel” is “the name Defendants give to themselves
acting in concert.” Appellant Br. 3. However, we see no
basis in the pleadings on which to infer who or what the panel
comprises.
3
The Complaint references only two Blue Plans that ever
contracted with LifeWatch to cover telemetry. One, a Plan in
Illinois, settled with LifeWatch outside this lawsuit. As
described later, the other, Highmark, partially changed course
and stopped covering telemetry in some cases. The claims
against Highmark were dismissed on June 9, 2016, after the
parties reached a settlement.
6
prescriptions. Multiple medical studies—the Complaint
references 10—have reviewed telemetry monitors and found
them to be effective, superior to other treatments in some
cases, or medically necessary. In at least 20 cases brought
between 2010 and 2012 by patients appealing a denial of
telemetry monitor coverage, independent, expert review
boards overturned the insurers’ denials; the review board
frequently determined that telemetry monitors were a
standard of care or clinically necessary. Blue Plans were
parties to several, if not all, of those appeals.
Nonetheless, with near uniformity, and for a decade,
the Blue Plans have declined to cover telemetry monitors. As
a result, LifeWatch claims both its sales and cardiac
monitoring treatment in general have suffered. It seeks treble
damages for its losses and an injunction under Sections 4 and
16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, which
authorize private plaintiffs to sue for Sherman Act violations.
II. Analysis
Section 1 of the Sherman Act makes illegal “[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.
To state a Section 1 claim, then, a plaintiff must allege (1) an
agreement (2) to restrain trade unreasonably. In re Ins.
Brokerage Antitrust Litig., 618 F.3d 300, 315 (3d Cir. 2010).
A private plaintiff suing under the Clayton Act must also
allege antitrust standing, including that its “injury [is] of the
type the antitrust laws were intended to prevent and . . . flows
from that which makes defendants’ acts unlawful.” Id. n.9.
(quoting (A.D. Bedell Wholesale Co. v. Philip Morris Inc.,
263 F.3d 239, 247 (3d Cir.2001)). Finally, the claim in this
case could still fail under the McCarran-Ferguson Act, 15
7
U.S.C. §§ 1011-1015, which exempts insurance providers
from federal antitrust liability in certain instances.
The District Court had subject matter jurisdiction
under 28 U.S.C. §§ 1331 and 1337. Blue Cross moved the
Court to dismiss LifeWatch’s Sherman Act Section 1 claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
It argued that the Complaint fails to allege either agreement
or anticompetitive effects in the relevant product market, that
LifeWatch lacks antitrust standing because it could not show
antitrust injury, and that Blue Cross’s telemetry monitor
coverage decisions are immune from antitrust challenge under
the McCarran-Ferguson Act.
The District Court dismissed for failing to allege
anticompetitive effects, and therefore failing to establish the
restraint was unreasonable. LifeWatch Servs., Inc. v.
Highmark, Inc., 248 F. Supp. 3d 641, 648-49 (E.D. Pa. 2017).
The Court emphasized that, because “each Blue [P]lan treats
all telemetry providers equally,” LifeWatch failed to allege
“competition-reducing” conduct. Id. at 649 (alteration and
emphasis in original) (internal quotation marks omitted). It
concluded that, “even assuming . . . a conspiracy amongst
Blue Plans to deny coverage for telemetry devices, . . . this
alleged conspiracy does not violate antitrust laws.” Id. at 646.
“[T]he Defendants’ refusal—whether concerted or not—to
purchase any telemetry device—whether produced by
LifeWatch or not—is not an antitrust violation, but rather a
legal exercise of Defendants’ monopsony power.” 4 Id. at
650.
4
A monopoly exists if only “one supplier or producer” has
“control or advantage . . . over the commercial market within
a given region.” Black’s Law Dictionary 1160 (10th ed.
2014). If “one buyer controls the market” instead of a seller,
8
The Court also suggested in a dictum that LifeWatch
failed to allege an agreement, as it believed the Plans could
have independently decided “that the benefits of telemetry
devices do not (yet) outweigh their costs.” Id. at 649. It did
not reach antitrust standing or the McCarran-Ferguson Act.
Id. at 650.
LifeWatch timely appealed, and the same four issues
are now before us for review. We have appellate jurisdiction
under 28 U.S.C. § 1291. We exercise plenary review of
dismissals under Rule 12(b)(6), “accept[ing] all factual
allegations in the complaint as true and, examining for
plausibility, ‘determin[ing] whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to
relief.’” In re Lipitor Antitrust Litig., 868 F.3d 231, 249 (3d
Cir. 2017) (quoting Bronowicz v. Allegheny County, 804 F.3d
338, 344 (3d Cir. 2015)); see also Burtch v. Milberg Factors,
Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
For the reasons that follow, we hold that LifeWatch
plausibly stated a claim and has antitrust standing. However,
we leave Blue Cross’s McCarran-Ferguson Act argument for
the District Court’s consideration on remand.
A. Agreement
We take in order the elements of a claim under Section
1. It prohibits “every contract, combination . . . , or
conspiracy” that unreasonably restrains trade. 15 U.S.C. § 1.
We have interpreted these three terms collectively simply to
mean an agreement. Ins. Brokerage, 618 F.3d at 315.
that is a monopsony. Id. Likewise, if “a few large sellers”
have “control or domination of a market,” it is an oligopoly,
while oligopsony is where “a few large buyers or customers”
do. Id. at 1260.
9
“Unilateral activity by a defendant, no matter the motivation,
cannot give rise to a [S]ection 1 violation.” InterVest, Inc. v.
Bloomberg, L.P., 340 F.3d 144, 159 (3d Cir. 2003). Instead,
a plaintiff must plead “some form of concerted action . . . , in
other words, a unity of purpose or a common design and
understanding or a meeting of minds or a conscious
commitment to a common scheme . . . .” Ins. Brokerage, 618
F.3d at 315 (citations and internal quotation marks omitted).
An agreement may be shown by either direct or
circumstantial evidence. W. Penn Allegheny Health Sys., Inc.
v. UPMC (“West Penn”), 627 F.3d 85, 99 (3d Cir. 2010).
LifeWatch asserts it has provided allegations of both.
Because we hold it pled sufficient circumstantial evidence of
agreement here, we do not reach its direct evidence theory.
As the Supreme Court explained in detail in Bell
Atlantic Corp. v. Twombly, to survive a motion to dismiss, a
plaintiff must plead “enough factual matter (taken as true) to
suggest that an agreement was made.” 550 U.S. 544, 556-57
(2007). “[A]n allegation of parallel conduct and a bare
assertion of conspiracy,” such as “a conclusory allegation of
agreement at some unidentified point,” will not suffice. Id.
Rather, “allegations of parallel conduct . . . 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.” Id. at 557.
For circumstantial evidence of an agreement, then, a
plaintiff must allege both parallel conduct and something
“more,” which we have sometimes called a “plus factor.” Ins.
Brokerage, 618 F.3d at 321. This “more” could include
evidence (1) “that the defendant had a motive to enter into a
. . . conspiracy,” (2) “that the defendant acted contrary to its
interests,” or (3) “implying a traditional conspiracy.” Id. at
321-22 (quoting In re Flat Glass Antitrust Litig., 385 F.3d
10
350, 360 (3d Cir. 2004)). In cases involving concentrated
markets like oligopolies or oligopsonies—where a small
number of sellers or buyers of a particular product dominate
the market—we have recognized that competitors are more
likely to be influenced by each other’s behavior even without
agreeing to act in concert. For example, “[o]ne oligopolist
may refrain from lowering its price because it fears, indeed
knows, that its rivals will match it.” Phillip E. Areeda &
Herbert Hovenkamp, Fundamentals of Antitrust Law
(“Fundamentals”) § 14.10[G] n.24 (4th ed. Supp. 2017). In
those cases we de-emphasize the first two types of evidence,
which “largely restate [that] phenomenon of
interdependence,” Valspar Corp. v. E.I. Du Pont De Nemours
& Co., 873 F.3d 185, 193 (3d Cir. 2017) (quoting Flat Glass,
385 F.3d at 360), often called “conscious parallelism,” see id.
We focus instead on the third, id., which is “‘non-economic
evidence “that there was an actual, manifest agreement . . . ,”’
which may include ‘proof that the defendants got together and
exchanged assurances of common action or otherwise
adopted a common plan even though no meetings,
conversations, or exchanged documents are shown,’” Ins.
Brokerage, 618 F.3d at 322 (quoting Flat Glass, 385 F.3d at
361).
LifeWatch pled parallel conduct. The Complaint
quotes the provision in the Association’s model policy that
recommends the Blue Plans deny telemetry monitor coverage.
It then asserts the Blue Plans adopted the model policy’s
approach with near total uniformity and references their use
of similar or identical language to deny coverage of telemetry
monitors.
Blue Cross proposes that we end our analysis here
because the Complaint alleges, at best, no more than parallel
conduct. In particular, Blue Cross cites the alleged higher
price of telemetry monitors relative to event monitors (but
11
lower price relative to insertable monitors) as providing all
the Plans an independent basis for denying coverage. Indeed,
if LifeWatch had alleged only that the Association and the
Plans reached the same telemetry monitor coverage decisions
en masse multiple years in a row, and that telemetry monitors
are more expensive than some other treatment options, Blue
Cross might have the better argument. However, LifeWatch
also pled something “more”: evidence implying a traditional
conspiracy.
As an initial matter, the Complaint states that the
Association’s model policy is set during meetings several
times a year, where a panel reviews the votes of all Blue
Plans regarding whether to cover particular treatments. As
noted, this model policy, which the Blue Plans participate in
creating, recommends denying coverage of telemetry
monitors as either not medically necessary or investigational.
Blue Cross does not dispute this description of the model
policy or its creation. Instead, it argues that its member Plans
are not bound to follow the model policy; in fact, it explicitly
disclaims that notion in its text. Thus, according to Blue
Cross, the Plans must make wholly independent decisions
regarding which treatments are medically necessary.
This argument apparently misunderstands the nature of
the alleged agreement, which is not contained within the
model policy’s text. 5 LifeWatch claims instead that the Blue
5
As we have noted in the criminal conspiracy context,
“common sense suggests, and experience confirms, that
illegal agreements are rarely, if ever, reduced to writing or
verbalized with the precision that is characteristic of a written
contract.” United States v. McKee, 506 F.3d 225, 238 (3d
Cir. 2007).
12
Plans agreed with each other and the Association that they
would substantially comply with the model policy. It dubs
this agreement the “Uniformity Rule.” The Association then
allegedly enforces the Plans’ conformance with the model
policy through audits. If a Plan strays too far from the model,
it could face sanctions, including losing the right to use the
Blue Cross name.
Even if these allegations were too conclusory to tip
the scales in favor of plausibility, the Complaint then
provides a particular example of the Uniformity Rule’s
enforcement. Highmark initially contracted with LifeWatch
to deem telemetry monitors medically necessary and cover
prescriptions for them. Under that contract, Highmark
covered claims for telemetry monitors submitted both by
Highmark subscribers and by subscribers to other Blue Plans;
those Blue Plans would then reimburse Highmark in some
fashion. However, allegedly under pressure by the other Blue
Plans and the Association, it stopped paying for claims from
non-Highmark subscribers. As we and other courts have
observed, “[c]oncerted action is established . . . [by] proof of
a causal relationship between pressure from one conspirator
and an anticompetitive decision of another conspirator.” 6
Gordon v. Lewistown Hosp., 423 F.3d 184, 207 (3d Cir.
2005); see also Schachar v. Am. Acad. of Ophthalmology,
Inc., 870 F.2d 397, 397-99 (7th Cir. 1989).
That so many sophisticated third parties allegedly view
telemetry monitors as medically necessary or meeting the
standard of care further undercuts Blue Cross’s theory that
6
Although LifeWatch’s claim against Highmark has been
dismissed, it and other unsued Blue Plans remain alleged co-
conspirators to the purported agreement. Thus their conduct
can be evidence of the agreement’s existence.
13
nearly three dozen Plans independently made the opposite
determination for 10 consecutive years. As noted, according
to the Complaint, other large insurers, including Aetna as well
as Medicaid and Medicare, cover telemetry monitors as
medically necessary. Multiple medical studies reached
similar conclusions. In states that mandate independent,
expert review of appeals of insurance coverage denials,
LifeWatch also funded many costly patient appeals of
telemetry monitor denials. It allegedly prevailed in an
overwhelming number of cases; the Complaint identifies 20
successful appeals between 2010 and 2012 decided by at least
six different independent review boards. The Complaint
indicates that many, if not all, were appeals of a Blue Plan’s
denial. The review boards in several cases determined that
telemetry monitors were clinically necessary or a standard of
care.
Viewed in the light most favorable to LifeWatch, see,
e.g., In re Avandia Mktg., Sales Practices & Prod. Liab.
Litig., 804 F.3d 633, 638 (3d Cir. 2015), these allegations
make an agreement among the Defendants plausible. While a
claim based on parallel—even consciously parallel—conduct
alone would be insufficient to survive dismissal, see Ins.
Brokerage, 618 F.3d at 321, the Complaint provides more. It
alleges the type of agreement reached by the Blue Plans and
the Association, an auditing mechanism by which the
agreement is enforced, a particular time when a Blue Plan
declined to cover telemetry monitors due to pressure from the
Association and other Plans, and the improbability that the
same coverage decision would be reached by nearly all the
Blue Plans independently. 7 The agreement and enforcement
7
The Complaint also gestures at a motive to conspire when it
describes the Defendants’ shared goal to save costs and
increase profits by shifting demand to less expensive
14
mechanism pled here provide the “reasonably founded hope
that the [discovery] process will reveal relevant evidence.”
Twombly, 550 U.S. at 559; see also Ins. Brokerage, 618 F.3d
at 324.
B. Unreasonable Restraint of Trade
To state a Section 1 claim, LifeWatch must also plead
that Blue Cross’s agreement has unreasonably restrained
trade. See NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 133
(1998) (“[T]he Sherman Act’s prohibition of ‘[e]very’
agreement in ‘restraint of trade’ . . . prohibits only agreements
that unreasonably restrain trade.” (emphasis in original)
(citation omitted)). An “unreasonable” restraint is one that
inhibits competition in the relevant market. Eichorn v. AT &
T Corp., 248 F.3d 131, 138 (3d Cir. 2001).
A restraint among competitors—called “horizontal,” as
opposed to “vertical” restraints on market participants at
different points in a product’s supply chain—is more
rigorously scrutinized for an antitrust violation because it
could more easily facilitate competitive harms, such as the
exclusion of rivals, price fixing, or the consolidation of
market power. See Areeda & Hovenkamp, Fundamentals,
supra, § 14.11[A]. In particular, “when a firm exercises
monopsony power pursuant to a conspiracy, its conduct is
treatment options. However, in our case law the mere desire
to shift demand to lower cost devices is not a plus factor
establishing an agreement without further evidence “of
concerted, collusive conduct.” Burtch, 662 F.3d at 229
(quoting In re Baby Food Antitrust Litig., 166 F.3d 112, 137
(3d Cir. 1999)). “In a free capitalistic society, all
entrepreneurs have a legitimate understandable motive to
increase profits.” Id. (same).
15
subject to more rigorous scrutiny . . . .” West Penn, 627 F.3d
at 103. “[U]nlike independent action, concerted activity
inherently is fraught with anticompetitive risk insofar as it
deprives the marketplace of independent centers of
decisionmaking that competition assumes and demands.” Id.
(internal quotation marks omitted). Indeed, some horizontal
restraints, including price fixing and market division, are
considered anticompetitive by their very nature. NYNEX
Corp., 525 U.S. at 133-34 (citing United States v. Socony-
Vacuum Oil Co., 310 U.S. 150, 218 (horizontal price-fixing),
and Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49-50 (1990)
(per curiam) (horizontal market division)). These are treated
as per se Sherman Act Section 1 violations. Id.
However, many horizontal restraints are not so clearly
harmful to competition. Deutscher Tennis Bund v. ATP Tour,
Inc., 610 F.3d 820, 829-30 (3d Cir. 2010). Instead, or in
addition, they may, for example, facilitate the creation of new
products, improve efficiencies, or lead to lower consumer
costs. A restraint that is not per se unreasonable is analyzed
under some form 8 of a “rule of reason” burden-shifting
8
Some horizontal restraints may warrant only a “quick look,”
rather than a complete rule-of-reason analysis. See F.T.C. v.
Ind. Fed’n of Dentists, 476 U.S. 447, 459 (1986); see also
Ohio v. Am. Express Co., 138 S. Ct. 2274, 2285 n.7 (2018).
A quick look “presum[es] competitive harm without detailed
market analysis” because “the anticompetitive effects on
markets and consumers are obvious.” Deutscher Tennis
Bund, 610 F.3d at 832. It is inappropriate if “‘the contours of
the market’ . . . are not ‘sufficiently well-known or defined to
permit the court to ascertain without the aid of extensive
market analysis whether the challenged practice impairs
competition . . . .’” Id. (quoting Worldwide Basketball &
16
framework, which seeks to determine whether the restraint’s
harmful effects are outweighed by any procompetitive
justifications and, if so, whether there are less restrictive
alternatives. Id.; see also United States v. Brown Univ., 5
F.3d 658, 678-79 (3d Cir. 1993).
LifeWatch claims the Blue Plans are engaged in a
horizontal, concerted refusal to deal. The parties agree that
this conduct should be analyzed under the rule of reason
framework. 9 Thus LifeWatch can satisfy the unreasonable-
restraint element in two ways. It can plead “‘actual
detrimental effects [on competition],’ . . . such as reduced
output, increased prices, or decreased quality in the relevant
market.” Am. Express Co., 138 S. Ct. at 2284 (quoting Ind.
Fed’n of Dentists, 476 U.S. at 460). Alternatively, it can
plead that the Blue Cross Defendants have “market power[,]
plus some evidence that the challenged restraint harms
competition.” Id. Under either approach, “courts usually
cannot properly apply the rule of reason without an accurate
definition of the relevant market” because, in most cases, a
court must “conduct a fact-specific assessment of ‘market
power and market structure . . . to assess the [restraint]’s
Sport Tours, Inc. v. Nat’l Collegiate Athletic Ass’n., 388 F.3d
955, 961 (6th Cir. 2004)).
9
We note that some group boycotts, which are similar to
concerted refusals to deal, are treated as unlawful per se. Ind.
Fed’n of Dentists, 476 U.S. at 458. But “the category of
restraints classed as group boycotts is not to be expanded
indiscriminately, and the per se approach has generally been
limited to cases in which firms with market power boycott
suppliers or customers in order to discourage them from
doing business with a competitor,” id., which LifeWatch does
not allege here.
17
actual effect’ on competition.” Id. at 2284-85 (alteration in
original) (quoting Copperweld Corp. v. Indep. Tube Corp.,
467 U.S. 752, 768 (1984)).
The parties do not dispute that LifeWatch must allege
a relevant market in this case. We thus begin with those
allegations, which provide the context for both its assertions
of anticompetitive effects and the District Court’s rationale in
granting Blue Cross’s motion to dismiss.
1. Market Definition
The relevant market in a Section 1 case is “the area of
effective competition . . . within which significant substitution
in consumption or production occurs.” Am. Express Co., 138
S. Ct. at 2285 (internal quotation marks omitted). In other
words, “the outer boundaries of a relevant market are
determined by reasonable interchangeability of use” of a
particular product within a particular geographic area. Queen
City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 437,
442 (3d Cir. 1997). In addition to substitutability or
interchangeability, “[w]e also look to . . . cross-elasticity of
demand, which is defined as ‘[a] relationship between two
products, usually substitutes for each other, in which a price
change for one product affects the price of the other.’” Mylan
Pharm. Inc. v. Warner Chilcott Pub. Ltd. Co., 838 F.3d 421,
435-36 (3d Cir. 2016) (quoting Black’s Law Dictionary 458
(10th ed. 2014)).
Critically, in a buyer-side conspiracy case, seller rather
than consumer or purchaser behavior is the focus. Todd v.
Exxon Corp., 275 F.3d 191, 2012 (2d Cir. 2001) (Sotomayor,
J.) (citing Roger D. Blair & Jeffrey L. Harrison, Antitrust
Policy and Monopsony, 76 Cornell L. Rev. 297, 324 (1991)).
“[The] market is comprised of buyers who are seen by sellers
as being reasonably good substitutes.” Campfield v. State
18
Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1118 (10th Cir.
2008) (quoting Todd, 275 F.3d at 202). Thus a court should
be wary of applying the market-definition analysis for seller-
side conspiracies “mechanically in the context of monopsony
or oligopsony.” Todd, 275 F.3d at 202.
A complaint may be properly dismissed if it defines
the relevant market without reference to interchangeability or
cross-elasticity of demand or if it “alleges a proposed relevant
market that clearly does not encompass all interchangeable
substitute products even when all factual inferences are
granted in plaintiff’s favor . . . .” Queen City Pizza, 124 F.3d
at 436. However, absent such obvious oversights, courts are
cautious before dismissing for failure to define a relevant
market. See Todd, 275 F.3d at 199-200 (collecting cases).
Ultimately the relevant market must “both correspond to the
commercial realities of the industry and be economically
significant.” Brown Shoe Co. v. United States, 370 U.S. 294,
336-37 (1962) (internal quotation omitted). That is why, “in
most cases, proper market definition can be determined only
after a factual inquiry into the commercial realities faced by
consumers” or purchasers, in seller-side conspiracies, or
sellers, in buyer-side conspiracies. Queen City Pizza, 124
F.3d at 436; see also Todd, 275 F.3d at 199-200 (“Because
market definition is a deeply fact-intensive inquiry, courts
hesitate to grant motions to dismiss for failure to plead a
relevant product market.”). Our case deals with the latter:
commercial realities faced by medical device sellers seeking
purchases. For example, these might be direct, out-of-pocket
purchases by the end-user patients, patient purchases funded
by a health insurer intermediary, or patient purchases
reimbursed by a health insurer after the fact.
A plaintiff bears the burden of defining both a relevant
geographic and a relevant product market. The Complaint
asserts several relevant markets here: national and regional
19
markets for the sale of health insurance plans and a national
market for the purchase of outpatient cardiac monitors.
However, LifeWatch forfeited its insurance-market theories
by not fully briefing them on appeal. Fed. R. App. P.
28(a)(8)(A); Barna v. Bd. of Sch. Directors of Panther Valley
Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017). When pressed
during oral argument, it then explicitly waived them. We
therefore turn to the only market definition still before us: the
national outpatient cardiac monitor market.
The parties do not dispute that the alleged market is
national, and the Complaint alleges commercial realities to
support a nationwide market. Patients nationwide suffer
arrhythmias that may require treatment with cardiac monitors.
Telemetry device firms and other unspecified monitoring-
device firms allegedly sell their products nationwide.
Insurers on the buyer side that allegedly compensate sellers of
cardiac monitors also operate nationally, including Medicaid
and Medicare. The Association’s model policy
recommending that Blue Plans not pay for telemetry monitors
is distributed nationally to each Blue Plan. And, as noted, the
Blue Plans operating across the country allegedly cover 105
million Americans collectively, purportedly about half of all
Americans with private insurance.
However, the parties vigorously dispute whether
LifeWatch has pled a relevant product market. The focus of
the parties’ briefing on appeal is whether telemetry monitors
compete with other types of monitors. According to
LifeWatch, all outpatient cardiac monitor sellers compete
within the same market. The Complaint repeatedly references
an “outpatient cardiac monitor” market and describes the four
categories of monitors that compete within it: telemetry,
Holter, event, and insertable monitors.
20
Although its opinion does not say so outright, the
District Court seemingly rejected that market when it
dismissed LifeWatch’s claim. It reasoned that the Blue
Plans’ alleged refusal to purchase telemetry monitors had no
anticompetitive effects among telemetry monitor providers
because it treated them all equally. See LifeWatch Servs., 248
F. Supp. 3d at 649. Blue Cross argues the District Court
implicitly, and correctly, held that LifeWatch’s claimed
product market was implausible and therefore adopted a
telemetry-monitor-only market for purposes of its
anticompetitive-effects analysis.
Read in the light most favorable to LifeWatch,
however, the Complaint alleges competition among all
outpatient cardiac monitors such that they are plausibly
within the same product market. All four of the alleged
categories of monitors capture the same type of data from a
patient’s heart. They capture it for the same purpose: to
identify and treat cardiac arrhythmias. The principal harm
LifeWatch alleges is that Blue Cross is shifting demand to
other outpatient cardiac monitors—presumably conduct that
would be impossible if the monitors were not interchangeable
to some relevant degree. Indeed, LifeWatch claims many
doctors have given up prescribing telemetry monitors and
instead rely exclusively on other cardiac monitors to treat
their patients. The Complaint also quotes a medical study by
the American Heart Association recommending telemetry
monitors alongside other cardiac monitors to treat certain
conditions.
Undoubtedly the Complaint alleges that certain
monitors are less able to function in some areas than others,
while others are costlier. It describes telemetry monitors as
superior to Holter and event monitors in their ease of use,
greater data capture, and ability to diagnose infrequent or
incapacitating arrhythmias. It asserts that only telemetry
21
monitors ought to be prescribed for patients with certain
conditions.
Blue Cross argues these allegations are fatal to
LifeWatch’s claim because they establish that telemetry
monitors are not reasonably interchangeable with other
cardiac monitors. But differentiation is often present among
competing products in the same market. For example, as we
have long observed, different brands of cars may compete to
provide a consumer’s main transportation to and from work—
and, depending on the circumstances, they may also compete
with other modes of travel. Queen City Pizza, 124 F.3d at
437. “Many machines performing the same function—such
as copiers, computers, or automobiles—differ not only in
brand name but also in performance, physical appearance,
size, capacity, cost, price, reliability, ease of use, service,
customer support, and other features.” Areeda &
Hovenkamp, Fundamentals, supra, § 5.11[A]. “Nevertheless,
they generally compete with one another sufficiently that the
price of one brand is greatly constrained by the price of
others.” Id.
Beyond the question of competition among cardiac
monitors, however, there is apparently a more fundamental
problem with the District Court’s reasoning and Blue Cross’s
arguments on appeal. The underlying question driving the
unreasonable-restraint analysis in a buyer-side conspiracy
case is whether the defendants’ purchasing power is
constrained by competition from other purchasers in the
relevant market. Thus, from the perspective of a seller, the
interchangeability that matters is for purchasers of outpatient
cardiac monitors.
Once again, as LifeWatch argues, the Complaint
alleges sufficient facts to survive a motion to dismiss. It
notes that sellers of medical devices like LifeWatch “are often
22
small and highly dependent on a limited number of products,”
suggesting they cannot easily change their products or expand
their offerings to induce a disinterested buyer to purchase
from them. 10 Third Am. Compl. ¶ 63. It also plausibly
alleges that health insurers are gatekeepers controlling patient
purchases in the market. According to the Complaint, it is
exceedingly rare for a patient to pay for a medical device out
of pocket. It describes in detail the difficulties patients face
in obtaining outpatient cardiac monitors not covered by their
insurers, including the opaque, costly appeals process for
coverage denials and that patients are often locked into
whatever health plan their employer sponsors. Thus it is fair
to infer that individual consumers do not constrain the Blue
Plans’ ability to control purchases or purchase prices. The
Complaint acknowledges that other insurers like Aetna,
Medicaid, and Medicare also fund patient purchases of
outpatient cardiac monitors. It also describes the
prohibitively high entry barriers to the health insurance
business. According to these allegations, only established
insurers effectively control purchases of outpatient cardiac
monitors.
10
We note that LifeWatch allegedly began offering a lower-
priced “Elite” monitor after Highmark’s decision to stop
covering telemetry monitors in part. However, the Complaint
suggests that the Elite product still costs LifeWatch the same
amount to make and that it operates at less-than-optimal
performance, as it is a standard telemetry monitor with some
functions either not provided or disabled. LifeWatch’s Elite
monitor allegations illustrate that medical device sellers may
not be able to change their inventories readily in response to
changing buyer preferences. No allegations support a
contrary inference.
23
In this context, we conclude the Complaint plausibly
states that the Blue Plans compete with other insurers, but not
individual consumers, in a national market for the purchase of
outpatient cardiac monitors.
2. Anticompetitive Effects
Armed with the proper market definition, the
unreasonable-restraint analysis becomes straightforward. The
Complaint alleges various “actual anticompetitive effects,”
which, as noted, could include “reduction of output, increase
in price, or deterioration in quality of goods and services.”
Deborah Heart & Lung Ctr. v. Virtua Health, Inc., 833 F.3d
399, 403 (3d Cir. 2016) (quoting Angelico v. Lehigh Valley
Hosp., Inc., 184 F.3d 268, 276 (3d Cir. 1999)).
According to the Complaint, the Blue Plans refuse to
pay for telemetry monitors “not as a result of independent
decisionmaking, but pursuant to a conspiracy” with each
other and the Association. See West Penn, 627 F.3d at 104.
We have held in similar cases that it is “certainly plausible”
for this sort of agreement to “unreasonably restrain[] trade.”
Id. “Such shortchanging poses competitive threats similar to
those posed by conspiracies among buyers to fix prices . . .
and other restraints that result in artificially depressed
payments to suppliers—namely, suboptimal output, reduced
quality, allocative inefficiencies, and (given the reductions in
output) higher prices for consumers in the long run.” Id.
(citation omitted).
Indeed, these are the anticompetitive effects LifeWatch
claims. According to the Complaint, Blue Cross’s concerted
denial of telemetry monitor coverage has harmed consumers
by reducing demand for and output of more effective devices,
by interfering with a patient’s choice of medical treatment,
and by reducing the quality of cardiac monitors in general.
24
LifeWatch alleges the restraint artificially shifts demand from
telemetry monitors to lower quality substitutes. It
discourages physicians and their patients from choosing the
most appropriate treatment. Further, physicians, who
typically do not know which insurance a patient has, are
allegedly deterred from prescribing telemetry monitors
altogether, even if it is the preferred treatment for patients
whose insurance would cover it. They simply prescribe a
cardiac monitor that will certainly be covered, rather than risk
discovering later that the patient cannot afford a telemetry
monitor. And because the restraint reduces current and
anticipated demand for telemetry monitors in favor of older
technology, it hinders research, development, and innovation
in the market for cardiac monitors.
The District Court’s reasoning that there can be no
anticompetitive effects from a restraint that treats all sellers of
telemetry monitors equally rests on a telemetry-monitor-only
product market that was not alleged. A concerted refusal to
deal with all sellers of telemetry monitors, regardless of its
equality, may still restrain competition in the alleged market
for the purchase of outpatient cardiac monitors.
The District Court also attempted to distinguish this
case from Blue Shield of Virginia v. McCready, 457 U.S. 465
(1982). But with our understanding of the alleged product
market, those distinctions disappear. In McCready, a plaintiff
patient denied coverage for psychological treatment brought a
class action against Blue Shield health insurance companies
and a group of psychiatrists for allegedly agreeing “to exclude
and boycott clinical psychologists from receiving
compensation under the Blue Shield plans.” 457 U.S. at 470.
In analyzing whether the patient’s injury was of a type the
antitrust laws were intended to prevent, the Supreme Court
described the alleged agreement as an “anticompetitive
scheme.” Id. at 483. “Blue Shield sought to induce its
25
subscribers into selecting psychiatrists over psychologists” by
“refusing to reimburse subscribers for psychotherapy
performed by psychologists, while providing reimbursement
for comparable treatment by psychiatrists.” Id. at 467, 483-
84. A subscriber presented with this alleged “Hobson’s
choice . . . between visiting a psychologist and forfeiting
reimbursement, or receiving reimbursement by forgoing
treatment by the practitioner of their choice” was injured by
“that which makes the defendants’ acts unlawful”—i.e., by
their anticompetitive effects. Id. at 484.
Similarly, LifeWatch claims that the Blue Plans induce
doctors and insureds to use other outpatient cardiac monitors
instead of telemetry monitors by refusing to fund telemetry
monitor prescriptions while funding comparable treatment
with other monitors. See id. at 483-84. The District Court
suggested there can be no “Hobson’s choice” as in McCready
where the Blue plans “do not cover any telemetry device
supplied by any provider.” LifeWatch Servs., 248 F. Supp. 3d
at 648. But the “Hobson’s choice” here is not among
telemetry monitor brands but among all cardiac monitors—
just as in McCready the choice was not among psychologists
but among all psychotherapy providers.
Because LifeWatch has alleged actual anticompetitive
effects in the relevant market, the unreasonable restraint
element of the Section 1 claim is satisfied directly. We thus
need not consider whether LifeWatch also satisfied it
indirectly by alleging Blue Cross’s market power over the
purchase of outpatient cardiac monitors. See Am. Express
Co., 138 S. Ct. at 2284.
C. Antitrust Standing
In the preceding analysis we concluded that LifeWatch
pled a Section 1 violation. However, its claim could
26
nonetheless fail if it lacks antitrust standing to bring suit
under the Clayton Act.
Sections 4 and 16 of the Clayton Act enable private
plaintiffs to sue for treble damages for and to enjoin antitrust
injuries. 15 U.S.C. §§ 15, 26. While the statutory language
of those provisions is broad, and apparently requires only
constitutional standing to bring suit, 11 the Supreme Court has
held that private plaintiffs must also have “antitrust standing.”
See Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc.,
806 F.3d 162, 171 (3d Cir. 2015). The Court articulated
several factors to consider when analyzing whether a plaintiff
has such standing. Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 538
(1983). We have summarized these factors as:
(1) the causal connection between the antitrust
violation and the harm to the plaintiff and the
intent by the defendant to cause that harm, with
neither factor alone conferring standing; (2)
whether the plaintiff's alleged injury is of the
type for which the antitrust laws were intended
11
Standing is a term for “[a] party’s right to make a legal
claim or seek judicial enforcement of a duty or right.”
Black’s Law Dictionary 1625 (10th ed. 2014). Constitutional
standing derives from Article III of the U.S. Constitution,
which limits the federal court’s “judicial power,” or
jurisdiction, to deciding “cases” or “controversies.” U.S.
Const. art. III, § 2; see also Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1547 (2016). For a federal court to have jurisdiction
over any claim, “[t]he plaintiff must have (1) suffered an
injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.” Id. at 1547.
27
to provide redress; (3) the directness of the
injury, which addresses the concerns that liberal
application of standing principles might
produce speculative claims; (4) the existence of
more direct victims of the alleged antitrust
violations; and (5) the potential for duplicative
recovery or complex apportionment of
damages.
In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d
1144, 1165-66 (3d Cir. 1993).
The parties here dispute only whether LifeWatch
alleged the second factor, antitrust injury, which “is a
necessary but insufficient condition of antitrust standing.”
Hanover 3201 Realty, 806 F.3d at 171. It seeks to ensure that
the antitrust laws are enforced to protect competition and not
individual competitors. Brunswick Corp. v. Pueblo Bowl–O–
Mat, Inc., 429 U.S. 477, 488 (1977). An antitrust injury (1)
“flows from that which makes [the] defendants’ acts
unlawful” and (2) “is an injury of the type the antitrust laws
were intended to prevent.” West Penn, 627 F.3d at 101
(quoting Brunswick Corp., 429 U.S. at 489).
To analyze the first prong of antitrust injury, “we must
examine the causal connection between the purportedly
unlawful conduct and the injury.” City of Pittsburgh v. W.
Penn Power Co., 147 F.3d 256, 265 (3d Cir. 1998). Blue
Cross argues that intervening factors, such as the Plan’s
independent ability to decline coverage of telemetry monitors,
a doctor’s choice not to prescribe telemetry monitors, and a
patient’s desire for alternative treatments, “‘cut[] the causal
chain’ and convert any claim of causation into ‘a speculative
exercise.’” Appellee Br. 32 (quoting City of Pittsburgh, 147
F.3d at 267-68).
28
We find this causation argument unpersuasive. The
Complaint asserts that the Plans’ near universal decision to
deny coverage of telemetry monitors would not occur without
enforcement of the Uniformity Rule—as evidenced by other
insurers’ coverage, independent arbitrators’ decisions that
they should be covered, and scientific studies finding them
effective and in some circumstances preferable. It also
alleges that doctors are deterred from prescribing telemetry
monitors because of the Blue Plans’ decision not to cover
them and the hassle caused by not knowing whether a
patient’s insurer will deny coverage. And it alleges that the
Uniformity Rule insulates the Plans from demand for
telemetry treatment. This sufficiently pleads a causal link
between LifeWatch’s injury—lost profits from depressed
telemetry monitor sales—and the Plans’ denial of telemetry
monitor coverage due to the Uniformity Rule. See
McCready, 457 U.S. at 480-81, 483 (noting providers, in
addition to consumers, of a medical treatment would have a
claim for “Blue Shield’s selective refusal to reimburse”
(internal quotation marks omitted)); cf. City of Pittsburgh,
147 F.3d 267 (finding no causal link where plaintiff’s injury
was due to regulations preventing competition between
defendant utility companies, not the defendants’ proposed
merger).
Likewise, LifeWatch’s alleged injury due to
anticompetitive effects in the outpatient cardiac monitor
market is “of the type” the antitrust laws were meant to
prevent. “As a general matter, the class of plaintiffs capable
of satisfying the antitrust-injury requirement is limited to
consumers and competitors in the restrained market . . . and to
those whose injuries are the means by which the defendants
seek to achieve their anticompetitive ends.” West Penn, 627
F.3d at 102 (internal citations omitted). Denying coverage for
LifeWatch’s telemetry device was the means by which the
Blue Plans and the Association depressed demand for
29
telemetry monitors in the outpatient cardiac monitor market.
Its ability to compete as a seller of outpatient cardiac
monitors has been allegedly hindered by the Uniformity Rule.
See McCready, 457 U.S. at 483-84 (noting where insureds
“were compelled to choose” between a covered treatment
provider and one for whom Blue Shield denied coverage, the
denied treatment provider also had antitrust injury). Its injury
“reflect[s] the anticompetitive effect either of the violation or
of anticompetitive acts made possible by the violation.” West
Penn, 627 F.3d at 101 (quoting Brunswick Corp., 429 U.S. at
489).
Blue Cross counters that no competition-reducing
conduct was alleged because all telemetry monitor providers
are treated equally; therefore LifeWatch’s injury is not “of the
type” the antitrust laws seek to prevent. Of course, this only
reiterates the District Court’s implicit product market analysis
with which we have already disagreed.
In sum, LifeWatch sufficiently pled both elements of
antitrust injury, and its antitrust standing is not otherwise in
dispute.
D. McCarran-Ferguson Act
Finally, LifeWatch’s claim can only survive Blue
Cross’s motion to dismiss if the McCarran-Ferguson Act, 15
U.S.C. §§ 1011-1015, does not exempt Blue Cross from
antitrust liability. As Blue Cross acknowledged at oral
argument, a defendant bears the burden of establishing its
immunity under that Act. See Doctors, Inc. v. Blue Cross of
Greater Phila., 490 F.2d 48, 50 n.2 (3d Cir. 1973) (“The
motions to dismiss were filed before either defendant
submitted an answer. As a result, the essential facts
necessary to support this claim of immunity have not as yet
been pleaded.”); Grp. Life & Health Ins. Co. v. Royal Drug
30
Co., 440 U.S. 205, 216 (1979) (analyzing the Act’s
exemption according to what the defendants demonstrated).
On the heels of a Supreme Court ruling that “insurance
transactions were subject to federal regulation under the
Commerce Clause, and that the antitrust laws in particular,
were applicable to them,” Congress passed the McCarran-
Ferguson Act to clarify that regulation of the “business of
insurance” should be relegated to the states. Sec. & Exch.
Comm’n v. Nat’l Sec., Inc., 393 U.S. 453, 458 (1969).
However, the Act provides that the Sherman Act still applies
to “the business of insurance to the extent that such business
is not regulated by State Law” and to “agreement[s] to
boycott, coerce, or intimidate.” 15 U.S.C. §§ 1012(b),
1013(b). Therefore, for Blue Cross to be exempted from
liability in this case, its challenged conduct “(1) must
constitute the business of insurance, (2) must be regulated by
state law, and (3) must not amount to a boycott, coercion, or
intimidation.” Union Labor Life Ins. Co. v. Pireno, 458 U.S.
119, 124 (1982). The parties agree that Blue Cross has
satisfied the third element but dispute whether it can satisfy
the first two.
Because it dismissed on other grounds, the District
Court did not address whether Blue Cross has shown it is
exempt. We do not decide the issue and leave it for the
Court’s consideration on remand.
III. Conclusion
LifeWatch plausibly pled an agreement between the
Blue Plans and the Association that unreasonably restrains
trade in the national market for outpatient cardiac monitors.
It pled that its injury stems from the competitive harms
caused by this agreement. Thus LifeWatch has stated a
Sherman Act Section 1 claim.
31
Blue Cross nonetheless may be exempt from liability
under the McCarran-Ferguson Act, a question the District
Court did not reach in its opinion. We therefore reverse its
dismissal and remand for it to consider Blue Cross’s
McCarran-Ferguson Act argument.
32