Medical Diagnostic Laboratories, Llc v. Independence Blue Cross et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.January 30, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Medical Diagnostic Laboratories, LLC, Plaintiff, v. Independence Blue Cross; and Laboratory Corporation of America Holdings Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 2:16-CV-05855-GJP DEFENDANT LABORATORY CORPORATION OF AMERICA HOLDING S’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant Laboratory Corporation of America Holdings (“LabCorp”), by and through its undersigned counsel, hereby moves to dismiss Plaintiff Medical Diagnostic Laboratories’ (“Plaintiff” or “MDL”) Complaint under Fed. R. Civ. P. 12(b)(6) on the grounds that: (1) Plaintiff lacks antitrust standing; (2) Plaintiff has failed to allege essential elements of a Section 1 claim, including the existence of an exclusive agreement, market definition, or anticompetitive effects; (3) Plaintiff has failed to plausibly allege a claim for tortious interference; and (4) Plaintiff’s unfair competition claim, by virtue of being premised on its antitrust and tortious interference claims, must fail for the same reasons as its other claims. The grounds for LabCorp’s motion are set forth more fully in the accompanying memorandum of law. Oral argument is requested. Case 2:16-cv-05855-GJP Document 28 Filed 01/30/17 Page 1 of 3 2 Respectfully submitted, DATED: January 30, 2017 /s/ Stephen A. Loney, Jr._____________ Stephen A. Loney, Jr. HOGAN LOVELLS US LLP 1835 Market Street Philadelphia, PA 19103 Tel: (267) 675-4600 Fax: (267) 675-4601 stephen.loney@hoganlovells.com Steven F. Barley (Pro Hac Vice) HOGAN LOVELLS US LLP 100 International Drive Baltimore, MD 21202 Tel: (410) 659-2700 Fax: (410) 659-2701 steve.barley@hoganlovells.com J. Robert Robertson (Pro Hac Vice) HOGAN LOVELLS US LLP 555 13th Street NW Washington, DC 20004 Tel: (202) 637-5600 Fax: (202) 637-5910 robby.robertson@hoganlovells.com Attorneys for Laboratory Corporation of America Holdings Case 2:16-cv-05855-GJP Document 28 Filed 01/30/17 Page 2 of 3 CERTIFICATE OF SERVICE I hereby certify on this 30th day of January, 2017, I filed the foregoing Defendant Laboratory Corporation of America Holdings’ Motion to Dismiss Plaintiff’s Complaint through the CM/ECF system, which sent notice to all counsel of record in this action. /s/ Stephen A. Loney, Jr. _____________ Counsel for Laboratory Corporation of America Holdings Case 2:16-cv-05855-GJP Document 28 Filed 01/30/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Medical Diagnostic Laboratories, LLC, Plaintiff, v. Independence Blue Cross; and Laboratory Corporation of America Holdings Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 2:16-CV-05855-GJP DEFENDANT LABORATORY CORPORATION OF AMERICA HOLDING S’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S COMPLAINT Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 1 of 34 i TABLE OF CONTENTS Page INTRODUCTION ............................................................................................................. 1 BACKGROUND ................................................................................................................... 3 I. NETWORK CONTRACTING IN THE HEALTH CARE INDUSTRY. .......................... 3 II. IBC SELECTS LABCORP AS A PREFERRED PROVIDER. ........................................ 4 III. PLAINTIFF’S CLAIMED EFFORTS TO BECOME AN IN-NETWORK PROVIDER. .......................................................................................................... 4 ARGUMENT ......................................................................................................................... 6 I. LABCORP IS NOT IBC’S EXCLUSIVE PROVIDER OF LABORATORY SERVICES, AND THUS THE ENTIRE COMPLAINT IS DEFICIENT. ........................ 6 A. The IBC Website Shows Unequivocally that LabCorp is Not the Only Laboratory Service Provider for IBC. ............................................................ 7 B. MDL Has Not Plausibly Alleged Any Other Agreement. ..................................... 8 II. MDL LACKS ANTITRUST STANDING TO BRING A CLAIM UNDER SECTION 1 OF THE SHERMAN ACT. ........................................................................ 9 III. MDL’S FACTUAL ALLEGATIONS ARE INSUFFICIENT TO SATISFY THE OTHER ELEMENTS OF A SECTION 1 CLAIM. .................................................... 11 A. MDL Has Not Properly Defined a Relevant Antitrust Market. ............................ 11 1. MDL Has Not Plausibly Alleged a Relevant Geographic Market. ........... 12 2. MDL Has Not Properly Defined a Relevant Product Market. .................. 13 B. MDL Has Not Alleged Anticompetitive Effects in a Relevant Market. ............... 15 1. MDL Has Not Plausibly Alleged Substantial Foreclosure In a Relevant Market. .................................................................................... 16 2. MDL Has Not Plausibly Alleged Any Other Anticompetitive Effects. ......................................................................................... 17 3. MDL’s Allegations Are Insufficient to Show Market Power. .................. 18 IV. MDL HAS FAILED TO STATE A CLAIM FOR TORTIOUS INTEFERENCE. .......... 19 Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 2 of 34 ii A. MDL Fails to Sufficiently Allege the Existence of an Actual or Prospective Contractual Relationship Between It and any Provider. ................... 19 1. MDL Does Not Identify any Existing Contracts. ................................ 19 2. MDL Does Not Identify any Prospective Contractual Relationships. ....................................................................................... 20 B. MDL Fails to Plausibly Allege any Interference on Behalf of LabCorp – Let Alone Purposeful Interference. ............................................................. 21 C. MDL Fails to Allege the Absence of Privilege or Justification............................ 23 V. MDL’S UNFAIR COMPETITION CLAIM FAILS AS A MATTER OF LAW. ............ 24 CONCLUSION ........................................ ....................................................................... 25 Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 3 of 34 iii TABLE OF AUTHORITIES Cases Page(s) Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199 (3d Cir. 2009) ......................................................................... 20, 21, 24 Allen-Myland, Inc. v. Int’l Bus. Machine Corp., 33 F. 3d 194 (3d Cir. 1994) ...................................................................................... 18 Alpha Pro Tech, Inc. v. VWR Int’l LLC, 984 F. Supp. 2d 425 (E.D. Pa. 2013)........................................................................ 24 Ashcroft v. Iqbal, 556 U.S. 663 (2009) ................................................................................................... 5 Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328 (1990) ................................................................................................. 10 Barr Labs., Inc. v. Abbott Labs., 978 F.2d 98 (3d Cir. 1992) ................................................................................... 7, 18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................................... 5, 8, 12 Bioquell, Inc. v. Feinstein, No. 10-cv-2205, 2010 WL 4751709 (E.D. Pa. Nov. 23, 2010) ....................................... 19, 20 Bldg. Materials Corp. of Am. v. Rotter, 535 F. Supp. 2d 518 (E.D. Pa. 2008).................................................................. 12, 15 Bristow Endeavor Healthcare, LLC v. Blue Cross and Blue Shield Assoc., No. 16-cv-0057, 2016 WL 3199520 (N. D. Okla. June 8, 2016)................................. 9, 11, 17 Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494 ............................................................................................................ 24 Brotech Corp. v. White Eagle Int’l Techs. Group, Inc., No. 03-232, 2003 WL 22797730 (E.D. Pa. Nov. 18, 2003) ............................................ 14,19 Brown Shoe Co. v. U.S., 370 U.S. 294 (1962) ................................................................................................. 14 Brunson Commc’ns, Inc. v. Arbitron, Inc., 239 F. Supp. 2d 550 (E.D. Pa. 2002).......................................................................... 9 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977) ................................................................................................. 10 Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 4 of 34 iv Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111 (10th Cir. 2008)................................................................................. 15 Cannella v. Brennan, No. 12-cv-1247, 2014 WL 3855331 (E.D. Pa. Aug. 6, 2014) .............................................. 19 CGB Occupation Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375 (3d Cir. 2004) ..................................................................................... 19 City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256 (3d Cir. 1998) ....................................................................................... 9 Coachtrans, Inc. v. Uber Techs., Inc., No. 16-cv-88, 2016 WL 4417261 (E.D. Pa. Aug. 19, 2016) ............................................... 23 Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173 (3d Cir. 1988) ....................................................................................... 8 Compliance Mktg., Inc. v. Drugtest, Inc., No. 09-cv-01241, 2010 WL 1416823 (D. Colo. Apr. 7, 2010) ............................................. 16 Council for Educ. Travel, USA v. Czopek, No. 11-cv-00672, 2011 WL 3882474 (E.D. Pa. Sept. 2, 2011) ....................................... 19, 20 Credit Card Sales Supplies Corp. v. Spectrum Metals Inc., No. 03-cv-5906, 2004 WL 3158537 (E.D. Pa. Jan. 31, 2004).............................................. 23 Deborah Heart & Lung Ctr. v. Virtua Health, Inc., 833 F.3d 399 (3d Cir. 2016) ............................................................................... 15, 17 Devon Robotics v. Deviedma, No. 09-cv-3552, 2009 WL 4362822 (E.D. Pa. Nov. 30, 2009) ............................................. 20 Eagle v. Star–Kist Foods, Inc., 812 F.2d 538 (9th Cir. 1987) .................................................................................... 13 Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394 (3d Cir. 2016) ................................................................................. 6, 15 Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223 (3d Cir. 2013) ....................................................................................... 9 Fineman v. Armstrong World Indus., 980 F.2d 171 (3d Cir. 1992) ..................................................................................... 18 Fresh Made, Inc. v. Lifeway Foods, Inc., No. 01-4254, 2002 WL 31246922 (E.D. Pa. 2002) ....... ............................................ 14, 25 Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 5 of 34 v Glenn v. Point Park Coll., 272 A.2d 895 (Pa. 1971) ..................................................................................... 20, 23 Guerrero v. Bensalem Racing Ass’n, I c., 25 F. Supp. 3d 573, 586 (E.D. Pa. 2014) ......................................................................... 10 Health Robotics, LLC v. Bennett, No. 09-cv-0627, 2009 WL 5033966 (E.D. Pa. Dec. 22, 2009).............................................. 21 Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237 (3d Cir. 2010) ....................................................................................... 8 InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d 616 (Pa. 2006) ........................................................................................... 21 Inman v. Technicolor USA, Inc., No. 11-666, 2011 WL 5829024 (W.D. Pa. 2011) .............................................................. 6 In re Ins. Brokerage Antitrust Litig., 618 F.3d 300 (3d Cir. 2010) ....................................................................................... 6 In re Rockefeller Ctr. Prop., Inc. Secs. Litig., 184 F.3d 280 (3d Cir. 1999) ....................................................................................... 6 Int’l Constr. Prods. LLC v. Caterpillar Inc., No. 15-108-RGA, 2016 WL 264909 (D. Del. Jan. 21, 2016) ............................................... 16 J.L. Terrel’s v. Sherwin-Williams Auto. Finishes Corp., No. 02-cv-2645, 2004 WL 870705 (E.D. Pa. March 30, 2004).............................................. 8 Larry Pitt & Assocs. v. Lundy Law, LLP, 57 F. Supp. 3d 445, 456 (E.D. Pa. 2014) ................................................................... 24, 25 Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) ................................................................................ 6 Marion Healthcare LLC v. S. Illinois Healthcare, No. 12-CV-00871-DRH-PMF, 2013 WL 4510168 (S.D. Ill. Aug. 26, 2013) ........................ 15 Mathews v. Lancaster Gen. Hosp., 87 F.3d 624 (3d Cir. 1996) ....................................................................................... 10 McCullough v. Zimmer, Inc., No. 08-cv-1123, 2009 WL 775402 (W.D. Pa. Mar. 18, 2009), aff’d, 382 F. App’x 225 (3d Cir. 2010) ............................................................................................... 17 Menasha Corp. v. News America Mktg. In-Store, Inc., 354 F.3d 661 (7th Cir. 2004) .................................................................................... 10 Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 6 of 34 vi Menkowitz v. Pottstown Mem’l Med. Ctr., No. 97-cv-2669, 1999 WL 410362 (E.D. Pa. June 21, 1999) .............................................. 21 Nat’l Data Payment Sys., Inc. v. Meridian Bank, 212 F.3d 849 (3d Cir. 2000) ..................................................................................... 23 Paddock Publ’n, Inc. v. Chicago Tribune Co., 103 F.3d 42 (7th Cir. 1996) ....................... ............................................................... 18 Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192 (3d Cir. 1993)...................................................................................... 6 Phillips v. Selig, 959 A.2d 420, 428-29 (Pa. Super. Ct. 2008) ............................................................ 20 PNY Techs., Inc. v. SanDisk Corp., No. 11-cv-04689-WHO, 2014 WL 1677521 (N.D. Cal. Apr. 25, 2014) ............................... 16 Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430 (3d Cir. 1997) ........................................................................... 7, 11, 14 Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 922 F. Supp. 1055 (E.D. Pa. 1996), aff’d 124 F.3d 430 (1997) ....................................... 12 Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57 (3d Cir. 2010) ............................................................................... 6, 7, 10 Salveson v. JP Morgan Chase & Co., 166 F. Supp. 3d 242, 260 (E.D. N.Y. 2016), aff’d, No. 15-0015-cv, 2016 WL 6078616 (2d Cir. Oct. 17, 2016) ............................................................................... 13 Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010) ....................................................................................... 5 Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405 (3d Cir. 1997) ....................................................................................... 5 Sidhu v. Mann, No. 1:10-cv-2311, 2011 WL 900982 (M.D. Pa. Mar. 14, 2011) ........................................... 21 Spinelli v. Nat’l Football League, 96 F. Supp. 3d 81, 117 (S.D.N.Y. 2015) ......................................................................... 16 Stop & Shop Supermarket Co. v. Blue Cross & Blue Shi ld of R.I., 373 F.3d 57, 67, 68 (1st Cir. 2004) .................................................................... 15, 16 Synscort, Inc. v. Sequential Software, Inc., 50 Supp. 2d 318 (D. N.J. 1999) ...................................................................................... 11 Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 7 of 34 vii Synthes, Inc. v. Emerge Med., Inc., No. 11-1566, 2012 WL 4473228 (E.D. Pa. Sept. 28, 2012) ............................................ 11, 12 Synthes, Inc. v. Emerge Med., Inc., No. 11-cv-1566, 2014 WL 2616824 (E.D. Pa. June 11, 20 4) ............................................. 24 Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320 (1961) ........................................................................................... 16, 18 Tornese v. Cabrera-Martinez, No. 172 MDA 2014, 2014 WL 10789964 (Pa. Super. Ct. Oct. 8, 2014) ............................... 23 Tunis Bros. Co., Inc. v. Ford Motor Co., 952 F.2d 715 (3d Cir. 1991) ............................................................................... 12, 14 United States v. Colgate & Co., 250 U.S. 300 (1919) ................................................................................................. 11 W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85 (3d Cir. 2010) ....................................................................................... 17 Willow Creek Fuels, Inc. v. Farm & Home Oil, Co., No. 08-5417, 2009 WL 3103738 (E.D. Pa. Sept. 18, 2009) ............................................... 8 Statutes Sherman Act ....................................... ........................................................... 6, 11, 15, 25 Sherman Act Section 1 ............................................................................................ passim Other Authorities Fed. R. Civ. P. 10(c) ............................................................................................................... 6 Fed. R. Civ. P. 12(b)(6) .......................................................................................................... 6 Fed. Trade Comm’n & U.S. Dep’t of Justice, Improving Health Care: A Dose of Competition, Ch.1 (2004) ................................................................................................. 3 Fed. Trade Comm’n Staff Letter at 1 (March 7, 2014) ............................................................ 3 Restatement (Second) of Torts § 766 cmt. (i) (Am. Law. Inst. 1979) .................................... 23 Restatement (Second) of Torts § 768 (Am. Law. Inst. 1979) ................................................ 24 Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 8 of 34 1 INTRODUCTION At issue here is the long-standing and lawful practice of contracting by insurers, who can choose with whom they want to deal in order to get lower cost products for consumers. The reason health insurance networks include only some providers is simple: by limiting the number of healthcare providers who are “in-network,” insurance companies are able to bargain for better deals with healthcare providers. Though this practice promotes competition and results in lower prices, Plaintiff Medical Diagnostics Laboratories (“MDL”) claims that it is anticompetitive and is seeking relief under Section 1 of the Sherman Act and Pennsylvania common law. Plaintiff’s claims are without merit. When a provider, such as Defendant Laboratory Corporation of America (“LabCorp”), is selected to be an in-network provider after competing with other providers and offering lower rates, it has not violated the antitrust laws. Nor has it engaged in tortious interference or unfair competition. Rather, it has simply competed and won—the very conduct the antitrust laws were designed to protect. Nonetheless, MDL alleges that Independence Blue Cross (“IBC”) has an unlawful exclusive agreement with LabCorp, a claim that is ba ed on the IBC website, which MDL selectively quotes. Not only are exclusive dealing arrangements not per se unlawful – and indeed, are often found to be procompetitive – the IBC website (pages of which are attached hereto as Ex. 1, which is also available at http://provcomm.ibx.com/ProvComm/ProvComm.nsf /4bcc623b93e226638525792c00575962/b993d1d9e62f928985 57c8d005a6077!OpenDocument) demonstrates that LabCorp is not the only laboratory provider for IBC.1 In 2014, LabCorp 1 MDL explicitly relied on the IBC website as its basis for this case, as it quoted language from the webpage (Ex. 1), but attributed this language to the wrong webpage. See Compl. ¶ 51 (quoting IBC’s website: “All other laboratories currently in Independence’s network will remain in-network providers with the exception of Quest Diagnostics.”), found in Ex. 1. Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 9 of 34 2 became IBC’s “national” laboratory service provider, after beating Quest Diagnostics in competition for the contract. Compl. ¶ 49-50; Ex. 1 (“After a lengthy evaluation process, we chose LabCorp ....”). Under this arrangement, LabCorp is not the “exclusive” provider of laboratory services for IBC. On the contrary, there a e 22 other regional and local laboratories in IBC’s network, as the IBC website – which is the only source MDL relies on for this core issue – unequivocally shows. Id. These are not the only reasons MDL’s allegations do not add up to an antitrust violation. It is also implausible that excluding MDL from IBC’s network has had anticompetitive effects, such as higher prices to consumers. As MDL alleges in the Complaint, healthcare providers accept lower rates in exchange for being in IBC’s network. Id. at ¶ 47. Moreover, it does not make any sense that MDL competes head-to-head with LabCorp. LabCorp and the other laboratories were chosen to provide broad “outpatient laboratory” services, not a narrow subset of tests for sexually transmitted infections. Nowhere in the Complaint, however, does MDL allege that it is a competitor in the market for “national” laboratory or all “outpatient laboratory” services. Instead, MDL alleges that it sells a uniq e type of testing for STIs. LabCorp cannot be held liable for competing for and winning a contrac for which MDL never even competed. The only plausible conclusion then—based on MDL’s own allegations—is that IBC has chosen not to add MDL to its network for its own independent reasons, which is IBC’s right under the law. In short, Plaintiff’s allegations are nonsensical and unsupported by sufficient facts to plausibly allege an antitrust claim, upon which all its other claims rely. Accordingly, MDL has failed to state a claim under Rule 12(b)(6) and its Complaint must be dismissed. Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 10 of 34 3 BACKGROUND I. NETWORK CONTRACTING IN THE HEALTH CARE INDUSTRY. Like most health insurance companies, IBC maintains etwork of healthcare providers, with whom it has negotiated provider agreements. Comp. ¶ 45. Within this network, IBC may designate certain healthcare providers as “preferred,” see id. ¶ 49, or choose to limit the network to only certain providers based on certain criteria, see id. ¶ 77. Such “selective contracting” is central to keeping healthcare costs low. As the FTC has explained: “The ability of health plans to construct networks that include some, but not all, providers (so-called ‘selective contracting’), has long been seen as an important tool to enhance competition and lower costs in markets for health care goods and services.” March 7, 2014 Fed. Trade Comm’n Staff Letter at 1, available at https://www.ftc.gov/system/files/documents/advocacy_documents/federal-trade-commission- staff-comment-centers-medicare-medicaid-services-regarding-proposed- rule/140310cmscomment.pdf. The way this works is simple. In exchange for being deemed “in network,” healthcare providers agree to accept discounted rates from insurer for their services. Compl. ¶ 46. Healthcare providers are incentivized to accept lower rates, because in-network status garners them more patient volume. See id. ¶ 47; see also Fed. Trade Comm’n & U.S. Dep’t of Justice, Improving Health Care: A Dose of Competition, Ch.1 at 4 (2004) (“Selective contracting intensifies price competition and allows payers to negotiate volume discounts and choose providers based on a range of criteria.”). Moreover, if treatment is obtained from an out-of- network provider, with whom the insurance company has not negotiated a discounted rate, the patient’s insurance may not fully cover the cost. See https://www.ibx.com/pdfs/individuals/find_ provider/innetwork_lab_services.pdf., cited by Compl. ¶ 50. Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 11 of 34 4 II. IBC SELECTS LABCORP AS A PREFERRED PROVIDER. In 2014, IBC selected LabCorp to replace Quest Diagnostics as its national laboratory provider of all laboratory testing services—not just STI testing. See Compl. ¶¶ 49, 51 (citing https://www.ibx.com/individuals/find_provider/laboratory_provider.html); see also Ex. 1. IBC chose LabCorp because it would “provide significant savings” for consumers: Health care is undergoing rapid, remarkable change, spurred by implementation of the health care reform law, an increasing focus on the individual consumer, and continuing cost pressures. After a lengthy evaluation process, we chose LabCorp as our exclusive national outpatient laboratory provider. This initiative will provide significant savings for the benefit of our customers without affecting quality. (Ex. 1) LabCorp is not IBC’s only in-network provider of laboratory services. While LabCorp is the only “national provider of laboratory services,” the IBC website id ntifies 22 other regional or local laboratories that are also providers of labor tory services. Compl. ¶¶ 50, 51, 52; Ex. 1. Although MDL claims implausibly that none of these other laboratories are within 200 miles of Philadelphia, it is not hard to find other laboratoies within the city and its suburbs, such as University of Pennsylvania Hospital, University of Pennsylvania, Thomas Jefferson University Hospital, Mercy Fitzgerald Hospital, and Aculabs, Inc. See Ex. 1. MDL is correct, however, that many of these laboratories, including LabCorp and plaintiff, operate far beyond Pennsylvania—into Delaware, Maryland, and New Jersey. Compl. ¶ 52; Ex. 1. Importantly, MDL does not allege that it competed for, or was even qualified in 2014, to compete against LabCorp, Quest, or any of the other 22 laboratories that are included in IBC’s network for outpatient laboratory services. III. PLAINTIFF’S CLAIMED EFFORTS TO BECOME AN IN-NETWORK PROVIDER. Located in New Jersey, Plaintiff MDL “specializes” in laboratory testing for sexually Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 12 of 34 5 transmitted infections, or STIs. Compl. ¶¶ 2, 6. MDL does not allege that it provides the same “outpatient laboratory” services that LabCorp provides for IBC’s subscribers. On the contrary, MDL alleges that LabCorp “does not and cannot provide” the kind of testing that MDL provides and, thus, does not compete against MDL. Id. ¶ 57. MDL’s central complaint is that it does not belong to IBC’s network in Pennsylvania, id. ¶¶ 70-71, and seemingly never has, id. ¶ 63. Recently, MDL tried to join IBC’s network, but IBC declined its request, explaining that IBC’s existing clinical laboratory network is already “comprehensive and meet[s] the access, availability, and clinical needs of [IBC’s] participating providers and members.” Id. ¶ 71. LEGAL STANDARD To survive a motion to dismiss, a complaint 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. 663, 678 (2009) (internal quotations omitted). “Threadbare recitals of the elements of the cause of action, supported by mere conclusory statements do not suffice.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Nor do “labels and conclusions” or “naked assertion[s].” Id. at 555. Accordingly, a court should “disregard legal conclusions and recitals of the elements of a cause of action, supported by mere conclusory tatements.” Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010) (citation omitted); see also Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997). A claim is “plausible” if a plaintiff has “plead[ed] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. While, “[s]ome claims will demand relatively more factual detail . . . while others require less,” antitrust claims typically require more facts to render a claim plausible in light of Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 13 of 34 6 “common economic experience.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 320 n.18 (3d Cir. 2010). Moreover, under Fed. R. Civ. P. 10(c) and 12(b)(6), the Court need not accept conclusory allegations that are contradicted by facts in the complaint or documents relied upon by the plaintiff. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); In re Rockefeller Ctr. Prop., Inc. Secs. Litig., 184 F.3d 280, 287 (3d Cir. 1999) (a court can consider any “document integral to or explicitly relied upon in the complaint.”). Under Fed. R. Civ. P. 10(c), “[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.” “[A] court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.” Pension Benefit Guar. Corp., 998 F.2d at 1196 (citations omitted). In addition, a court may take judicial notice of a document, which is “‘integral to or explicitly relied upon in the complaint’ without converting a motion to dismiss into one for summary judgment.” Inman v. Technicolor USA, Inc., No. 11-666, 2011 WL 5829024, at *3 (W.D. Pa. 2011) (citing Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004)). ARGUMENT I. LABCORP IS NOT IBC’S EXCLUSIVE PROVIDER OF LABORATO RY SERVICES, AND THUS THE ENTIRE COMPLAINT IS DEFICIEN T. While some types of conduct are considered p r se unlawful under the Sherman Act, exclusive dealing arrangements are not among them. On the contrary, “it is widely recognized that in many circumstances [such arrangements] may be highly efficient – to assure supply, price stability, outlets, investment, best efforts or thelik – and pose no competitive threat at all.” Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 76 (3d Cir. 2010) (citation omitted); see also Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394, 403 (3d Cir. 2016) (noting that exclusive dealing arrangements can “offer consumers various economic benefits, Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 14 of 34 7 such as assuring them the availability of supply and price stability.”). As a result, exclusive dealing claims are evaluated under the rule of reason and are “frequently upheld when challenged on antitrust grounds.” Race Tires Am., Inc., 614 F.3d at 76. To state a rule of reason claim under Section 1 of the Sherman Act, a plaintiff must plausibly allege “(1) concerted action by the defendants; (2) that produced anti-competitive effects within the relevant product and geographic markets; (3) that the concerted action was illegal; and (4) that the plaintiff was injured as proximate result of the concerted action.” Queen City Pizza, Inc. v. Domino's Pizza, Inc., 124 F.3d 430, 442 (3d Cir. 1997) (citations omitted). In the exclusive dealing context, a plaintiff must further allege that (1) the agreement is exclusive and (2) that a substantial portion of the market has been foreclosed. Barr Labs., Inc. v. Abbott Labs., 978 F.2d 98, 110 (3d Cir. 1992). Here, the Court need look no further than the first element, because MDL has failed to allege such an agreement. A. The IBC Website Shows Unequivocally that LabCorp is Not the Only Laboratory Service Provider for IBC. Though the Complaint purports to allege an illegal exclusive dealing agreement, the IBC website makes clear that no such agreement exists. The website identifies 22 other competitors that remain in IBC’s network, making it implausible that the contract between IBC and LabCorp is exclusive. Compl. ¶ 51; see Ex. 1. Indeed, if anything, IBC’s website shows that L bCorp competes with at least 22 other laboratories for IBC’s members. Id. Furthermore, MDL cannot allege that it has been foreclosed from competition in Southeastern Pennsylvania as a result of the contract between LabCorp and IBC. There are other payers – insurance companies, governments, employers, and individuals – that are b ly mentioned in the Complaint, but with whom MDL does business. For example, MDL admits that it has contracts with “32 or the 36 Blue Cross Blue Shield networks” across the country. Compl. ¶ 43. The Complaint fails to Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 15 of 34 8 mention any other insurance company, like Aetna, Medicare, or others, with whom MDL apparently does business. See, e.g., https://www.aetnanyct.com/pdfs/MTA In Network Lab flyer.pdf (listing MDL as a provider). B. MDL Has Not Plausibly Alleged Any Other Agreement. The facts alleged in the Complaint are also insufficient to plausibly show any other agreement between IBC and LabCorp. To plead an agreement, a plaintiff “must allege facts plausibly suggesting ‘a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.’” Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 254 (3d Cir. 2010) (citation omitted); see also Twombly, 550 U.S. at 533. Here, the IBC website upon which MDL relies demonstrates that MDL’s allegation of an exclusive agreement is conclusory. J.L. Terrel’s v. Sherwin-Williams Auto. Finishes Corp., No. 02-cv- 2645, 2004 WL 870705, at *2 (E.D. Pa. March 30, 2004) (dismissing Section 1 claim because conspiracy “allegations are conclusory statements of law rather than factual pleadings”). While MDL alleges examples of purportedly collusive efforts by IBC and LabCorp to pressure healthcare providers into using LabCorp’s services, all of these examples describe independent conduct by IBC, not LabCorp. Compl. ¶¶ 60-61; see Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173 (3d Cir. 1988) (to show conspiracy, plaintiff “must present evidence that tends to exclude the possibility that the alleged conspirators acted independently”) (internal quotations omitted). The only allegation that even mentions LabCorp is ambiguous, stating “a representative from either LabCorp or IBC visited the office of an OB- GYN.” Compl. ¶ 60(g) (emphasis added). That LabCorp would not be involved in such visits is not surprising, as it is in IBC’s lawful interest to direct providers to laboratories that are in- network and with whom IBC has negotiated discounted rates for consumers. See Willow Creek Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 16 of 34 9 Fuels, Inc. v. Farm & Home Oil, Co., No. 08-5417, 2009 WL 3103738, at *1 (E.D. Pa. Sept. 18, 2009) (dismissing exclusive dealing claim where plaintiff failed to allege facts showing defendant acted pursuant to a conspiracy, as opposed t unilaterally). Moreover, it does not make sense for IBC to collude with LabCorp to exclude other laboratories from the relevant market, as this would raise its own costs and those of consumers. Bristow Endeavor Healthcare, LLC v. Blue Cross and Blue Shield Association is instructive on this point. No. 16-cv-0057-CVE-PJC, 2016 WL 3199520 (N.D. Okla. June 8, 2016). Faced with nearly identical conspiracy allegations, the court in Bristow found it implausible that “[defendant insurer] conspired with [healthcare providers] to reduce competition and actually pay higher reimbursement rates to [healthcare providers].” Id. at *6; see also Brunson Commc’ns, Inc. v. Arbitron, Inc., 239 F. Supp. 2d 550, 563 (E.D. Pa. 2002) (plaintiff fa led to plead conspiracy where “defendant had no rational motive to join a conspiracy”). MDL’s unsupported conspiracy theory similarly makes no economic sense. In sum, there is no basis for any claim against LabCorp. It has neither agreed to harm competition, nor agreed to harm consumers. On the contrary, it competed against Quest to become the national provider of laboratory services for IBC and now provides “significant savings” for consumers. Ex. 1. II. MDL LACKS ANTITRUST STANDING TO BRING A CLAIM UNDER SECTION 1 OF THE SHERMAN ACT. MDL’s antitrust claim must also be dismissed because MDL does not have antitrust standing. Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 231-32 (3d Cir. 2013). To establish antitrust standing, a private antitrust MDL must show that it has suffered “antitrust injury.” City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 265 (3d Cir. 1998) (“If antitrust injury is not found, further inquiry is unnecessary.”). That is, “injury of the type the antitrust Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 17 of 34 10 laws were intended to prevent and that flows from that which makes defendant’s acts unlawful.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334 (1990); see also Race Tires Am., Inc., 614 F.3d at 76; Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977). Here, that means MDL must show that its claimed injury stems from the anticompetitive effects of the alleged exclusive dealing arrangement between IBC and LabCorp. More specifically, MDL must allege that its harm flows from injury to “the price[ ], quantity or quality of goods or services, not just his own welfare.” Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 641 (3d Cir. 1996). MDL’s principal complaint is that it has “lost revenue” because IBC refused to admit MDL to its network. See Compl. ¶ 87. This is merely harm to MDL personally, not antitrust injury. Guerrero v. Bensalem Racing Ass’n, I c., 25 F. Supp. 3d 573, 586 (E.D. Pa. 2014) (“[I]t is not enough for [p]laintiff to have suffered harm personally.”). MDL has not alleged that prices to consumers have increased or that output in the laboratory services market has decreased. Nor could it. As MDL admits, healtc re providers accept lower rates in exchange for being in-network. Compl. ¶ 47. Furthermore, it is implausible that MDL suffered antitrust injury as a result of any harm to competition, because according to MDL, it competes with no one, including LabCorp, for its “unique” STI testing service. Compl. ¶¶ 43, 57. Even if it did, “[i]t is well established that competition among businesses to serve as an exclusive supplier should actually be encouraged.” Race Tires Am., Inc., 614 F.3d at 83 (emphasis in original); see also Menasha Corp. v. News America Mktg. In-Store, Inc., 354 F.3d 661, 663 (7th Cir. 2004) (“competition for the contract is a vital form of rivalry, and often the most powerful one, which the antitrust laws encourage rather than suppress”). To be sure, the real thrust of MDL’s complaint is not harm to competition, but that IBC has chosen not to pay more f MDL’s unique test. This is lawful Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 18 of 34 11 unilateral conduct by IBC, for which LabCorp has no legal responsibility. It is well-established that the Sherman Act “does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U.S. 300, 307 (1919). MDL’s failure to connect its injury to any harm to c mpetition is fatal to its claim. See Bristow, 2016 WL 3199520, at *7 (finding no antitrust injury where MDL failed to “plausibly allege with non-speculative facts that the exclusion of [plaintiff healthcare provider from defendant’s network] actually has an anti-competitive effect, such as higher prices for consumers of healthcare.”). Accordingly, MDL cannot establish antitrust standing and its antitrust claim must be dismissed. III. MDL’S FACTUAL ALLEGATIONS ARE INSUFFICIENT TO SATIS FY THE OTHER ELEMENTS OF A SECTION 1 CLAIM. Even if IBC had selected LabCorp as the only provider of outpatient laboratory testing, MDL has not alleged sufficient facts to show it has re ulted in anticompetitive effects in a relevant market. This too is fatal to MDL’s antitrust claim. A. MDL Has Not Properly Defined a Relevant Antitrust Market. In any antitrust case, a plaintiff “must plead facts sufficient to demonstrate a viable relevant market.” Synscort, Inc. v. Sequential Software, Inc., 50 Supp. 2d 318, 327 (D. N.J. 1999). There are two components to a properly pledrelevant market: a geographic market and a product market. Synthes, Inc. v. Emerge Med., Inc., No. 11-1566, 2012 WL 4473228, at *6 (E.D. Pa. Sept. 28, 2012). Failure to plausibly allege either component is a sufficient basis, standing alone, to dismiss an antitrust claim. Queen City Pizza, Inc., 124 F.3d at 436–37; Synthes, 2012 WL 4473228, at *7- 8. Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 19 of 34 12 1. MDL Has Not Plausibly Alleged a Relevant Geographic Market. MDL alleges without any factual basis or other analysis that the relevant geographic market is Southeastern Pennsylvania. This “[t]hreadbare recital” of a crucial component of MDL’s antitrust claim is insufficient as a matter of law. Bldg. Materials Corp. of Am. v. Rotter, 535 F. Supp. 2d 518, 525 (E.D. Pa. 2008) (“[The] Court is not required to accept” a “‘a legal conclusion couched as a factual allegation’ that is un upported by [plaintiff’s] filings.”), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The relevant geographic market is “the area in which customers would look to purchase the product.” Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 922 F. Supp. 1055, 1061 (E.D. Pa. 1996), aff’d 124 F.3d 430 (1997). Stated differently, “the georaphic market is not comprised of the region in which the seller attempts to sell its product, but rather is comprised of the area where his customers would look to buy such a product.” Tunis Bros. Co., Inc. v. Ford Motor Co., 952 F.2d 715, 726 (3d Cir. 1991). Because the outer boundaries of the market are determined by consumer demand, it is crucial that plaintiffs “focus on elasticity of demand, i.e. consumer behavior.” Synthes, Inc., 2012 WL 4473228, at *6 (citation omitted). Where a plaintiff has “not focused on the elasticity of demand,” it has not “adequately plead a geographic market.” Id. (internal quotations omitted). Here, MDL alleges no facts in support of its conclusory assertion that Southeast rn Pennsylvania is a proper geographic market. See Compl. ¶¶ 25-28. For example, the Complaint says nothing about “the market area in which the sell r operates, and to which the purchaser can practicably turn for supplies.” Tunis Bros. Co., 952 F.2d at 726 (citation omitted). Nor does MDL take into account that “the geographic market is not comprised of the region in which the seller attempts to sell its product, but rather is comprised of the area where his customers would Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 20 of 34 13 look to buy such a product.” Id. Indeed, MDL failed to even include itself in the alleged geographic market. For MDL to be included in the market for STI testing services, the market must extend to at least New Jersey (where MDL is located) – and perhaps even farther. See Compl. ¶ 43 (MDL has contracts with 32 Blue Cross Blue Shield companies across the country). Yet under MDL’s erroneous view of the market, it barely extends outside of Philadelphia. The Complaint and the IBC website further show that the geographic market alleged by MDL is implausibly narrow. As both sources demonstrate, laboratories located all over the country provide services to insurers in Pennsylvania, including MDL. See, e.g., Ex. 1; Compl. ¶¶ 18, 29 (MDL is in New Jersey and does business “throughout the United States and abroad.”). There is simply no allegation in the Complaint that explains why “Southeastern Pennsylvania” alone is a geographic market for STI testing services or anything else. MDL’s only explanation is that Southeastern Pennsylvania is an “insurance market,” Compl. ¶ 25, but this is not a market in which MDL competes, and thus is insufficient as a geographic market for STI testing. Eagle v. Star–Kist Foods, Inc., 812 F.2d 538, 539–43 (9th Cir. 1987) (plaintiffs failed to identify a relevant market because they wre “neither consumers nor competitors” in the alleged market); Salveson v. JP Morgan Chase & Co., 166 F. Supp. 3d 242, 260 (E.D. N.Y. 2016), aff'd, No. 15-0015-cv, 2016 WL 6078616, *2 (2d Cir. Oct. 17, 2016). 2. MDL Has Not Properly Defined a Relevant Product Market. Similarly, MDL has failed to plead a proper product market. MDL refers to two product markets: “private health insurance” and “STI specialty testing.”2 Compl. ¶¶ 25, 28. The outer 2 With respect to the latter market, it is not entirely clear what product market MDL is alleging, as MDL’s allegations shift throughout the Complaint. See, e.g., Compl. ¶ 1 (“laboratory testing services”), ¶ 4 (“STI laboratory services”), ¶ 28 (“STI specialty testing market”). Nonetheless, all these product markets fail for the same reasons. Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 21 of 34 14 boundaries of both are fatally unclear. It is black letter law that “[t]he outer boundaries of a product market are determined by the reasonable interchangeability of use or cross-elasticity of demand between the product itself and substitutes for it.” Brown Shoe Co. v. U.S., 370 U.S. 294, 325 (1962); see also Tunis Bros., 952 F.2d at 722 (The relevant product market is defined as “those commodities reasonably interchangeable by consumers for the same purpose.”) (quotations omitted). Failure to allege a product market without any reference to these principles “is legally insufficient and a motion to dismiss may be granted.” Queen City Pizza, Inc., 124 F.3d at 436–37. Here, MDL does not describe who competes in these product markets, let alone whether the products contained in these markets, are reasonably interchangeable. Though MDL alleges that different testing methods exist for diagnosing STIs, see Compl. ¶¶ 34, 40, the Complaint says nothing about whether these methods are interchangeable from the perspective of the consumer or if they are included within the STI specialty testing market. Fresh Made, Inc. v. Lifeway Foods, Inc., No. 01-4254, 2002 WL 31246922, *5 (E.D. Pa. 2002) (dismissing antitrust claim because the plaintiff did “not ground its allegations regarding product market with reference to the rule of interchangeability and cross elasticity of demand”); Brotech Corp. v. White Eagle Int'l Techs. Group, Inc., No. 03-232, 2003 WL 22797730, *5 (E.D. Pa. Nov. 18, 2003) (dismissing antitrust claim because it “failed to define the relevant product market with reference to the rule of reasonable interchangeability of use or cross-elasticity of demand.”). Instead, MDL claims that no other laboratory, including LabCorp, can sell the same “unique” test that MDL offers. Compl. ¶¶ 43, 57. But the laboratory services listed on the IBC website, upon which the Complaint is based, are far broader than just STI testing. They cover all outpatient laboratory testing, which MDL never claims it is qualified to address. Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 22 of 34 15 MDL’s proposed product market for “private health insurance” suffers from the same defects. For example, MDL does not explain why public health insurance should not be counted for market share calculations, which MDL never attempts. See Marion Healthcare LLC v. S. Illinois Healthcare, No. 12-CV-00871-DRH-PMF, 2013 WL 4510168, at *11 (S.D. Ill. Aug. 26, 2013) (dismissing exclusive dealing claims because plaintiff omitted Medicare from the market). MDL fails to even mention other insurance providers rendering its market allegations insufficient as a matter of law. See Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1119 (10th Cir. 2008) (“[w]hen there are numerous sources of interchangeable demand, the plaintiff cannot circumscribe the market to a few buyers in an effort t manipulate the buyers' market share.”); Stop & Shop Supermarket Co. v. Blue Cross & Blue Shi ld of R.I., 373 F.3d 57, 67 (1st Cir. 2004) (government payers should have been included in the market). Thus, without any facts to back up either of its alleged product markets, MDL’s allegations are conclusory and insufficient to satisfy this element of a Sherman Act, § 1 claim. Bldg. Materials Corp., 535 F. Supp. 2d at 525 (dismissing exclusive dealing claim because plaintiff’s market definition was a “legal conclusion couched as a factual allegation”). B. MDL Has Not Alleged Anticompetitive Effects in a Relevant Market. The central purpose of the Sherman Act is to regulate conduct that has anticompetitive effects, and MDL has alleged none. Anticompetitive eff cts can be shown in two ways: (1) “by showing actual anticompetitive effects, such as reduction of output, increase in price, or deterioration in quality of goods and services,” or (2) “by showing the defendant has market power—the ability to raise prices above those that would prevail in a competitive market.” Deborah Heart & Lung Ctr. v. Virtua Health, Inc., 833 F.3d 399, 403 (3d Cir. 2016) (internal quotations omitted). In exclusive dealing cases, a plaintiff must further show that there has been Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 23 of 34 16 “substantial foreclosure of the market for the relevant product.” Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394, 403 (3d Cir. 2016); Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 328 (1961). MDL’s factual allegations are insufficient to satisfy any of these tests. 1. MDL Has Not Plausibly Alleged Substantial Foreclosure In a Relevant Market. MDL’s sole allegation relating to foreclosure refers to five unnamed entities that were purportedly “shut out of competition” in the market for STI specialty testing. Compl. ¶ 84. Standing alone, this allegation is insufficient to establish substantial foreclosure. See, e.g., Int’l Constr. Prods. LLC v. Caterpillar Inc., No. 15-108-RGA, 2016 WL 264909, at *6 (D. Del. Jan. 21, 2016) (allegation that new entrants were “unable to compete successfully for distribution” insufficient to show foreclosure) (citation omitted); PNY Techs., Inc. v. SanDisk Corp., No. 11- cv-04689-WHO, 2014 WL 1677521, *7 (N.D. Cal. Apr. 25, 2014) (dismissing claim where plaintiff alleged “foreclosure” with no supporting facts). Indeed, MDL has not alleged any factual context from which the Court could determine f these five unnamed entities account for a “substantial” portion of the relevant market. For example, MDL does not allege how many firms compete in the supposed market. Nor does MDL allege what percentage of the market these entities purportedly represent. This is significant, as courts have often found foreclosure levels below 30 or 40 percent to be inadequate in establishing substantial foreclosure. See Stop & Shop Supermarket Co., 373 F.3d at 68 (“For exclusive dealing, foreclosure levels are unlikely to be of concern where they are less than 30 or 40 percent.”); see also Spinelli v. Nat’l Football League, 96 F. Supp. 3d 81, 117 (S.D.N.Y. 2015) (same). Nor do MDL’s allegations square with the IBC website, which identifies at least 22 other competitors. Ex. 1. Absent evidence of substantial foreclosure, MDL’s allegations are legally inadequate and its antitrust claim must be dismissed. S e Compliance Mktg., Inc. v. Drugtest, Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 24 of 34 17 Inc., No. 09-cv-01241, 2010 WL 1416823, at *9 (D. Colo. Apr. 7, 2010) (dismissing exclusive dealing claim where plaintiff did not allege facts regarding the total volume of commerce in the relevant market). 2. MDL Has Not Plausibly Alleged Any Other Anticompetitive Effects. MDL’s allegations also are insufficient to establish any other type of anticompetitive effects, such as “increased prices, reduced output, and reduced quality.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 100 (3d Cir. 2010) (citation omitted). Nowhere in the Complaint does MDL allege that prices have increased or that output has decreased in a y relevant market. While MDL alleges that fewer doctors are using its AST “reflex test,” which MDL claims is superior to other AST testing for STIs, “the mere fact that one prospective supplier may lose business because of vertical dealings . . . does not itself establish a public injury to competition.” McCullough v. Zimmer, Inc., No. 08-cv-1123, 2009 WL 775402, at *10 (W.D. Pa. Mar. 18, 2009), aff'd, 382 F. App'x 225 (3d Cir. 2010). MDL likewise has not alleged facts showing that, simply because some doctors are not using its STI test, consumers have been harmed in the “market as a whole.” Deborah Heart & Lung Ctr, 833 F.3d at 404. The only evidence in the record is the IBC website, which says that IBC’s selection of LabCorp over Quest creates “significant savings for the benefit of [IBC’s] customers without affecting quality” and “enhanced clinical initiatives” – all of which are pro- competitive effects. See Ex. 1. MDL does allege that some healthcare providers are being given less choice, but just because physicians and hospitals are not given “absolute choice” by an insurer “does not make it an antitrust violation every time a health insurer decides not to grant in- network status to a healthcare provider.” Bristow Endeavor Healthcare, LLC v. Blue Cross and Blue Shield Assoc., No. 16-cv-0057, 2016 WL 3199520, at *7 (N. D. Okla. June 8, 2016). Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 25 of 34 18 3. MDL’s Allegations Are Insufficient to Show Market Power. MDL’s factual allegations are insufficient to plausibly allege that LabCorp has market power. In assessing whether market power exists, courts consider a variety of factors, including market share, barriers to entry, pricing trends, strength of competing firms, ability of consumers to substitute comparable goods, and consumer demand. See Tampa Elec. Co., 365 U.S. at 328; Allen-Myland, Inc. v. Int’l Bus. Machine Corp., 33 F. 3d 194, 209 (3d Cir. 1994); Barr Labs. v. Abbott Labs, 978 F.2d 98, 112 (3d Cir. 1992). MDL alleges no facts relating to any of these factors. Instead, MDL states in conclusory fashion that LabCorp has a “dominant share of the laboratory services market.” Compl. ¶ 72. This allegation not only concerns the wrong alleged market, cf. id. ¶ 87 (MDL asserts harm in the market for “STI specialty testing”), there are no facts alleged in the Complaint from which the Court could assess what “dominant” means. For instance, MDL does not state what percentage of the STI specialty testing market LabCorp purportedly controls, or attribute any other market share to LabCorp for laboratory testing. This failure in pleading is fatal, as the Third Circuit requires specific allegations of market share to properly allege market power. Fineman v. Armstrong World Indus., 980 F.2d 171, 201 (3d Cir. 1992). The only possibly relevant llegation is that IBC selected LabCorp, rather than Quest, to provide consumers “significant savings.” Ex. 1. That result is not a reflection of market power; it is the result of competition. See Paddock Publ’n, Inc. v. Chicago Tribune Co., 103 F.3d 42, 45 (7th Cir. 1996) (“[c]ompetition-for-the-contract is a form of competition that antitrust laws protect rather than proscribe, and it is common.”). Accordingly, because MDL has failed to plausibly allege anticompetitive effects under any standard, MDL’s antitrust claim must be dismissed as a matter of law. Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 26 of 34 19 IV. MDL HAS FAILED TO STATE A CLAIM FOR TORTIOUS INTEFE RENCE. MDL’s claims for tortious interference with existing and prospective business relations similarly fail to state a claim. To state a claim, MDL must plead facts to plausibly establish: (1) the existence of a contractual, or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intending to harm the existing relation, or to prevent a prospectiv relation from occurring; (3) the absence of privilege or justification on the part of the defenda t; and (4) actual legal damage as a result of the defendant's conduct. CGB Occupation Therapy, Inc. v. RHA Health Servs. Inc , 357 F.3d 375, 384 (3d Cir. 2004); Brotech, 2003 WL 22797730, at *8. The Complaint falls well short of establishing these required elements. A. MDL Fails to Sufficiently Allege the Existence of an Actual or Prospective Contractual Relationship Between It and any Provider. 1. MDL Does Not Identify any Existing Contracts. MDL is required to allege a specific contractual relationship with an identified third party. See Cannella v. Brennan, No. 12-cv-1247, 2014 WL 3855331, at *11 (E.D. Pa.Aug. 6, 2014); Council for Educ. Travel, USA v. Czopek, No. 11-cv-00672, 2011 WL 3882474, at *6 (E.D. Pa. Sept. 2, 2011). It is not sufficient to merely allege a business relationship – a plaintiff must point to a specific contract. See Czopek, 2011 WL 3882474, at *6 (dismissing tortious interference claims and holding allegations of interference with “relationships” insufficient where plaintiff failed to “point to a single contract that was subject to alleged interference”); Bioquell, Inc. v. Feinstein, No. 10-cv-2205, 2010 WL 4751709, at *7 (E.D. Pa. Nov. 23, 2010) (dismissing tortious interference claim notwithstanding allegations of “ongoing relationships with purchasers”). Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 27 of 34 20 MDL does not even allege that MDL has a “contract” wi h any provider, let alone set one forth with the requisite “definite, exacting identification.” While the Complaint includes vague references to a handful of providers that purportedly reduced their use of MDL’s services after they were contacted by one of the Defendants, it does not allege that any of these providers had an existing contract with MDL at that time. At most, MDL has alleged non-binding, no- consideration referral relationships. Compl. ¶¶ 58-67. These allegations are insufficient to state a claim because they do not identify any specific ontractual relationships with which LabCorp supposedly interfered. See Czopek, 2011 WL 3882474, at *6 (alleged interference with “relationships” insufficient); Bioquell, 2010 WL 4751709, at *7 (allegations of “ongoing relationships with purchasers” insufficient). 2. MDL Does Not Identify any Prospective Contractual Relationships. Nor has MDL sufficiently alleged the existence of any prospective contractual relationship with any provider. In determining whet r a plaintiff has plausibly alleged the existence of a prospective contractual relationship, Pennsylvania courts consider “whether the evidence supports a finding that there was a reasonable likelihood that the contemplated contract would have materialized absent the defendant’s interference.” Devon Robotics v. Deviedma, No. 09-cv-3552, 2009 WL 4362822, at *7 (E.D. Pa. Nov. 30, 2009) (citing Glenn v. Point Park Coll., 272 A.2d 895, 898-99 (Pa. 1971)). A “reasonable lik lihood” must be “more than a mere hope,” and must be based “on something other than an existing or current relationship.” Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 213 (3d Cir. 2009) (citing Phillips v. Selig, 959 A.2d 420, 428-29 (Pa. Super. Ct. 2008)). To avoid dismissal, a plaintiff must “identify with sufficient precision which, if any, prospective contracts it would have entered into but for the alleged tortious interference.” Czopek, 2011 WL 3882474, at *7 (emphasis added). Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 28 of 34 21 MDL has not identified any specific examples of prospective relationships, much less alleged facts plausibly suggesting a “reasonable lik lihood” that any specific contract would have materialized but for LabCorp’s conduct. MDL only alleges existing relationships with providers, which cannot form the basis of a prospectiv interference claim. See Acumed, 561 F.3d at 213; Health Robotics, LLC v. Bennett, No. 09-cv-0627, 2009 WL 5033966, at *7 (E.D. Pa. Dec. 22, 2009) (finding allegations of an “expectation” of continuing an existing relationship insufficient). MDL does not allege, for example, that it was engaged in contract negotiations with any provider. See Health Robotics, 2009 WL 5033966, at *8 (dismissing claim where plaintiff had not engaged in any negotiations for extension of existing contract); Sidhu v. Mann, No. 1:10-cv-2311, 2011 WL 900982, at *5 (M.D. Pa. Mar. 14, 2011) (dismissing claim for interference with prospective employment contract where plaintiff had not identified any party with which he had entered negotiations); cf. InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d 616, 628 (Pa. 2006) (prospective financing contract was not reasonably likely where plaintiff was not presently engaged in negotiations with potential investors). Nor does MDL allege any other facts suggesting a reasonable probability of contracting with any provider. B. MDL Fails to Plausibly Allege any Interference on Behalf of LabCorp – Let Alone Purposeful Interference. MDL also has failed to plausibly allege that LabCorp did anything to interfere with such a contract. See Menkowitz v. Pottstown Mem’l Med. Ctr., No. 97-cv-2669, 1999 WL 410362, at *2-4 (E.D. Pa. June 21, 1999) (dismissing claims for failure to “refer to or differentiate among the individual defendants or their respective conduct”). The Complaint identifies nine examples of “Defendants” so-called “unlawful coercive acts,” but does not concretely allege that any of these nine acts were undertaken by LabCorp. Eight of these nine examples make clear that LabCorp had no involvement – they expressly Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 29 of 34 22 allege that IBC contacted certain providers to discuss those providers’ contractual obligations regarding use of in-network laboratories,3 and do not mention LabCorp at all. Compl. ¶ 60(a)- (f), (i). The only allegation that even suggests that LabCorp had any involvement states: On or around May 11, 2016, a representative from either LabCorp or IBC visited the office of an OB-GYN to speak with the doctor about her out-of-network usage. After the visit, this physician informed MDL that she could no longer use MDL until MDL “fixed things” with IBC. As a direct result of IBC’s actions, this medical practice ceased using MDL’s services. Compl. ¶ 60(g) (emphasis added). Even assuming that MDL had a contract or prospectiv contract with the unnamed physician (which the Complaint does not allege), this paragraph is insufficient to state a claim against LabCorp for at least three reasons. First, it i implausible that LabCorp – as opposed to IBC – would have contacted a physician to try to convince them to stop using MDL, but then suggest that that physician continue to use MDL if she “fix[es] things” with IBC. Id. Second, the paragraph is internally inconsistent, alleging that “either LabCorp or IBC” contacted the physician, but that she stopped using MDL “as a direct esult of IBC’s actions,” not LabCorp’s. Id. Third, even if the Court were to infer that LabCorp contacted the physician, MDL merely alleges that the representative spoke with her “about her out-of-network usage.” (Id.). It does not indicate that there was any discussion of MDL or that the alleged conversation caused her to breach any actual or prospective contract with MDL.4 3 LabCorp in no way means to suggest that even had these communications between IBC and the providers alleged in the Complaint occurred, there was anything inappropriate about them. IBC certainly would be well within its rights to encourage providers with which it contracts to use less expensive in-network providers. 4 Paragraph 61 of the Complaint includes a similarly implausible allegation of unspecified “emails, letters, telephone calls, and office visits by both IBC and LabCorp purposefully threatening to terminate providers’ in-network status with IBC if the physicians continued to Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 30 of 34 23 Nor has MDL alleged – beyond conclusory statements – that LabCorp had any knowledge of any existing or prospective contractual rel tionship between MDL and any specific provider. Tortious interference is an intentional tort – liability arises only if the defendant acted “[f]or the purpose of causing harm to the plaintiff.” Glenn v. Point Park Coll., 272 A.2d 895, 899 (Pa. 1971). Even if the Court were to accept MDL’s vague and implausible allegation that “either LabCorp or IBC” contacted the above-referenced physician to “speak with [her] about her out-of-network usage” (Compl. ¶ 60(g)), the Complaint does not allege that LabCorp knew of any contractual or prospective relationship between that physician and MDL, much less that it contacted her for the purpose of causing MDL harm. See Credit Card Sales Supplies Corp. v. Spectrum Metals Inc., No. 03-cv-5906, 2004 WL 3158537, at *9 (E.D. Pa. J n. 31, 2004) (“the actor must have knowledge of the contract with which he is interfering.”) (citing Restatement (Second) of Torts § 766 cmt. (i) (Am. Law. Inst. 1979); Tornese v. Cabrera-Martinez, No. 172 MDA 2014, 2014 WL 10789964, at *6 (Pa. Super. Ct. Oct. 8, 2014) (affirming dismissal of tortious interference claim because “it is unclear th t [defendant] was even aware of the alleged contractual relationship”). C. MDL Fails to Allege the Absence of Privilege or Justification. The Complaint also fails to sufficiently allege that LabCorp acted without privilege or justification. Pennsylvania law recognizes a qualified privilege for parties to interfere with the contracts of its business competitors where (a) the relation concerns a matter involved in the competition between the actor and another; (b) the actor does not employ wrongful means; (c) his action does not create or continue an unlawful restraint of trade; and (d) his purpose is at least refer samples to MDL ....” Of course, LabCorp does not have the power to terminate a provider’s in-network status with IBC, and the Complaint does not allege otherwise. Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 31 of 34 24 in part to advance his interest in competing with the other. Nat’l Data Payment Sys., Inc. v. Meridian Bank, 212 F.3d 849, 857-58 (3d Cir. 2000) (citing Restatement (Second) of Torts § 768 (Am. Law. Inst. 1979). MDL bears the burden of pleading (and ultimately proving) that LabCorp’s alleged actions were not privileged. See Coachtrans, Inc. v. Uber Techs., Inc., No. 16-cv-88, 2016 WL 4417261, at *7 (E.D. Pa. Aug. 19, 2016). According to the Complaint, LabCorp and MDL are “direct competitors” (Compl. ¶ 109), and LabCorp acted in its own interests in engaging in the alleged misconduct. See id. ¶¶ 5, 10, 54-55, 72. As discussed above, MDL has not alleged con uct amounting to an unlawful restraint of trade. See Brokerage Concepts, Inc. v. U.S. Healthcare, Inc. 140 F.3d 494, 530-31 (alleged conduct underlying failed antitrust claim did not cnstitute tortious interference). Nor has MDL alleged interference by “wrongful means,” which requires conduct that is “actionable for a reason independent from the claim of tortious interfer nce itself.” Acumed, 561 F.3d at 215-216; Alpha Pro Tech, Inc. v. VWR Int'l LLC, 984 F. Supp. 2d 425, 449 (E.D. Pa. 2013). MDL has not alleged – and cannot allege – an absence of privilege. V. MDL’S UNFAIR COMPETITION CLAIM FAILS AS A MATTER OF LAW. MDL’s unfair competition claim is entirely derivative of its antitrust and tortious interference claims, and should be dismissed for the reasons set forth above. Although Pennsylvania law recognizes unfair competition as a separate cause of action, courts have made clear that it “is not a catch-all for any form of business misconduct.” Larry Pitt & Assocs. v. Lundy Law, LLP, 57 F. Supp. 3d 445, 456 (E.D. Pa. 2014). Pennsylvania courts have found unfair competition “where there is evidence of, among ther things, trademark, trade name, and patent rights infringement, misrepresentation, tortious interference with contract, improper inducement of another's employees, and unlawful use of confidential information.” Synthes, Inc. Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 32 of 34 25 v. Emerge Med., Inc., No. 11-cv-1566, 2014 WL 2616824, at *25 (E.D. Pa.June 11, 2014). However, even in those contexts, a plaintiff must still establish that “the method of competition employed by the actor is unfair.” Id. Here, MDL does not allege any “unfair” conduct beyond that underlying its other claims. (Compl. ¶¶ 110-12). Because those other claims fail for the reasons stated above, MDL’s entirely duplicative unfair competition claim fails as well. See Larry Pitt & Assocs., 2013 WL 6536739, at *7 (dismissing unfair competition claim that “relie[d] on the same deficient factual allegations [as] his antitrust claims”); Fresh Made v. Lifeway Foods, Inc., No. 01-4254, 2002 WL 31246922, at *9 (E.D. Pa. Aug. 9, 2002) (dismissing unfair competition claim where plaintiff failed to plausibly allege violation of Sherman Act based on the same conduct). CONCLUSION For the foregoing reasons, MDL’s Complaint is defective as a matter of law and all claims against LabCorp should be dismissed. DATED: January 30, 2017 /s/ Stephen A. Loney, Jr. _____________ Stephen A. Loney, Jr. HOGAN LOVELLS US LLP 1835 Market Street Philadelphia, PA 19103 Tel: (267) 675-4600 Fax: (267) 675-4601 stephen.loney@hoganlovells.com Steven F. Barley (Pro Hac Vice) HOGAN LOVELLS US LLP 100 International Drive Baltimore, MD 21202 Tel: (410) 659-2700 Fax: (410) 659-2701 steve.barley@hoganlovells.com J. Robert Robertson (Pro Hac Vice) HOGAN LOVELLS US LLP Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 33 of 34 26 555 13th Street NW Washington, DC 20004 Tel: (202) 637-5600 Fax: (202) 637-5910 robby.robertson@hoganlovells.com Attorneys for Laboratory Corporation of America Holdings Case 2:16-cv-05855-GJP Document 28-1 Filed 01/30/17 Page 34 of 34 Case 2:16-cv-05855-GJP Document 28-2 Filed 01/30/17 Page 1 of 2 Case 2:16-cv-05855-GJP Document 28-2 Filed 01/30/17 Page 2 of 2 EXHIBIT 1 Case 2:16-cv-05855-GJP Document 28-3 Filed 01/30/17 Page 1 of 4 LabCorp named IBC’s exclusive national outpatient laboratory provider PARTNERS IN HEALTH UPDATE March 2014 Posted February 28, 2014 IBC has selected Laboratory Corporation of America® Holdings (LabCorp) as our exclusive national outpatient laboratory provider effective July 1, 2014. The IBC network will also include other currently contracted laboratories that will remain in our network in addition to LabCorp. Why we made this decision Health care is undergoing rapid, remarkable change, spurred by implementation of the health care reform law, an increasing focus on the individual consumer, and continuing cost pressures. After a lengthy evaluation process, we chose LabCorp as our exclusive national outpatient laboratory provider. This initiative will provide significant savings for the benefit of our customers without affecting quality. In addition, it will create an important strategic partnership with a leading national laboratory, which allows for enhanced clinical initiatives. Laboratory providers in the IBC network As of July 1, 2014, LabCorp will be IBC's exclusive national outpatient laboratory provider, and IBC's contract with Quest Diagnostics® will end. LabCorp includes the following members of its specialty testing group: Dianon Pathology, Integrated Oncology, Integrated Genetics, Medtox Laboratories, Monogram, and Litholink. In addition to LabCorp, the IBC network will also continue to include other currently contracted laboratories (see list below). As part of LabCorp's commitment to this new contract, they will be opening additional Patient Service Centers in our region prior to July 1, 2014, and significantly increasing their support staff for physician offices. For more information We will provide you with more information as it becomes available, including the locations of LabCorp's new Patient Service Centers. For additional information, we have a dedicated site — Exclusive National Outpatient Lab Provider — on our Provider News Center to house relevant information about this transition to LabCorp as our exclusive national outpatient laboratory provider. For more information about LabCorp, please visit their website. Participating outpatient laboratory providers in addition to LabCorp • Abington Memorial Hospital • Aculabs, Inc. • Atlantic Diagnostic Laboratories • CBL Path • Genomic Health, Inc. • Health Network Laboratories • Institute for Dermatopathology, PC and AmeriPath New York, LLC (limited to anatomic pathology services related to dermatopathology) • Mercy Fitzgerald Hospital • Myriad Genetics Laboratories, Inc. • NeoGenomic Laboratories • Pottstown Memorial Hospital • SMA Medical Lab, Inc. • Therapath, LLC • Thomas Jefferson University Hospital • University of Pennsylvania: • Penn Cutaneous Laboratory • Penn Cytogenetic Laboratory • Penn Medicine at Radnor • University of Pennsylvania Hospital ◦ Penn Cutaneous Laboratory ◦ Penn Cytogenetic Laboratory ◦ Penn Medicine at Radnor ◦ University of Pennsylvania Hospital Page 1 of 2LabCorp named IBC’s exclusive national outpatient laboratory provider 1/30/2017http://provcomm.ibx.com/ProvComm/ProvComm.nsf/4bcc623b93e226638525792c005759... Case 2:16-cv-05855-GJP Document 28-3 Filed 01/30/17 Page 2 of 4 This content was prepared for the Provider News Center and may not be reproduced in any way without the express written permission of Independence Blue Cross. Independence Blue Cross is an independent licensee of the Blue Cross and Blue Shield Association. Page 2 of 2LabCorp named IBC’s exclusive national outpatient laboratory provider 1/30/2017http://provcomm.ibx.com/ProvComm/ProvComm.nsf/4bcc623b93e226638525792c005759... Case 2:16-cv-05855-GJP Document 28-3 Filed 01/30/17 Page 3 of 4 Outpatient Laboratory Providers Effective July 1, 2014, Laboratory Corporation of America® Holdings (LabCorp) will be Independence Administrators’ (IA) primary provider of laboratory services. Also effective July 1, Quest Diagnostics will no longer be included in the Independence Administrators network. All other laboratories currently in Independence Administrators’ network will remain in-network providers with the exception of Quest Diagnostics. Find a lab near you • Need to find a LabCorp site near you? Use the LabCorp Find-A-Lab tool to see a full list of all the current and new sites opening soon. • View a printable list of LabCorp’s newest sites opening in the Philadelphia five-county area including Bucks, Chester, Delaware, Montgomery, and Philadelphia counties in PA. • If you reside or obtain laboratory services outside of the Philadelphia five-county area: Visit the online provider finder and select National BlueCard PPO from the “Select a Plan” box when searching for providers — such as labs and diagnostic and imaging centers — to confirm their network participation. LabCorp benefits • Enhanced test menu and a commitment to scientific innovation — A broad test menu and specialized testing laboratories offer you single-source laboratory services. LabCorp’s scientific team continually review relevant and/or cutting-edge diagnostic technology to provide physicians and patients with the most scientifically advanced testing in the industry. • Make lab appointments online — Online appointment scheduling is available at all LabCorp sites. Plan members can locate a convenient Patient Service Center and schedule an appointment for laboratory testing on the LabCorp website. • Pay the lowest out-of-pocket costs — While services provided by non-network labs could mean additional costs depending on individual plan benefits, using LabCorp can help plan members incur the lowest out-of- pocket expense on a variety of common services. © 2017 Independence Administrators. All rights reserved. Independence Administrators is an independent licensee of the Blue Cross and Blue Shield Association, serving southeastern Pennsylvania. Language Access Services Español | | Tiếng Việt | Русский | Tiếng Việt | Pennsylvania Deitsch | | Italiano | ةيبرعلا | Français | Deutsch | જુરાતી | Polski | Kreyòl | ែខ រ | Português | Diné Bizaad | Tagalog | | یسراف Notice of Nondiscrimination Page 1 of 1IBXTPA 1/30/2017https://www.ibxtpa.com/find_a_doctor/outpatient_laboratory_provider.html Case 2:16-cv-05855-GJP Document 28-3 Filed 01/30/17 Page 4 of 4