Opelousas General Hospital Authority, a Public Trust, D/B/A Opelousas General Health System v. Louisiana Health Service & Indemnity Company, D/B/A Blue Cross Blue Shield of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 21-175

OPELOUSAS GENERAL HOSPITAL AUTHORITY, A PUBLIC TRUST,

D/B/A OPELOUSAS GENERAL HEALTH SYSTEM

VERSUS

LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY,

D/B/A BLUE CROSS BLUE SHIELD OF LOUISIANA

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 16-C-3647-C
HONORABLE LEDRICKA THIERRY, DISTRICT JUDGE

**********

SHARON DARVILLE WILSON
JUDGE

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Court composed of D. Kent Savoie, Sharon Darville Wilson, and Charles G.
Fitzgerald, Judges.

REVERSED.

Michael William Magner
Jones, Walker
201 St. Charles Ave., 51st Fl.
New Orleans, LA 70170
(504) 582-8266
COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service & Indemnity Company

Richard Allen Sherburne, Jr.
Attorney At Law
P.O. Box 98029
Baton Rouge, LA 70898
(225) 295-2116
COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service & Indemnity Company

Joseph C. Giglio, Jr.
Liskow & Lewis
P. O. Box 52008
Lafayette, LA 70505-2008
(337) 232-7424
COUNSEL FOR INTERVENOR APPELLANT:
Blue Cross Blue Shield Association

Patrick Craig Morrow, Sr.
Morrow, Morrow, Ryan & Bassett
324 W Landry Street
Opelousas, LA 70570
(337) 948-4483
COUNSEL FOR PLAINTIFF APPELLEE:
Opelousas General Hospital Authority, A Public Trust

Stephen Barnett Murray
Murray Law Firm
701 Poydras St., Ste. 4250
New Orleans, LA 70139
(504) 525-8100
COUNSEL FOR PLAINTIFF APPELLEE:
Opelousas General Hospital Authority, A Public Trust

Michael H. Rubin
McGlinchey, Stafford
301 Main Street, 14th Fl
Baton Rouge, LA 70801
(225) 383-9000
COUNSEL FOR OTHER APPELLANT:
Louisiana Department of Insurance

James Alcee Brown
Liskow & Lewis
701 Poydras, Ste 5000
New Orleans, LA 70139-5099
(504) 581-7979
COUNSEL FOR INTERVENOR APPELLANT:
Blue Cross Blue Shield Association

James Huey Gibson
Gibson Law Partners
P. O. Box 52124
Lafayette, LA 70505
(337) 761-6023
COUNSEL FOR :
Anthem, Inc., Et Al.

Thomas Allen Filo
Cox, Cox, & Filo
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF APPELLEE:
Opelousas General HospitalAuthority, A Public Trust

Ronnie L. Johnson
McGlinchey Stafford
301 Main St., Ste. 1400
Baton Rouge, LA 70801
(225) 383-9000
COUNSEL FOR OTHER APPELLANT:
Louisiana Department of Insurance

Mark Aaron Cunningham
Jones, Walker, Waechter, Poite
201 St. Charles Ave, 51st Flr
New Orleans, LA 70170-5100
(504) 582-8266
COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service & Indemnity Company

Pride Justin Doran
Doran & Cawthorne, P.L.L.C
P. O. Box 2119
Opelousas, LA 70571
(337) 948-8008
COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service & Indemnity Company

Douglas Michael Chapoton
Attorney At Law
P. O. Box 98029
Baton Rouge, LA 70898
(225) 295-2116
COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service & Indemnity Company

Juston M. O'Brien
McGlinchey, Stafford
301 Main Street, 14th Floor
Baton Rouge, LA 70801
(225) 383-9000
COUNSEL FOR OTHER APPELLANT:
Louisiana Department of Insurance

James David Caldwell, Jr.
Dept. of Insurance Legal Serv.
P. O. Box 94214
Baton Rouge, LA 70804-9214
(225) 342-5272
COUNSEL FOR OTHER APPELLANT:
Louisiana Department of Insurance

Arthur M. Murray
Murray Law Firm
701 Poydras St., Ste. 4250
New Orleans, LA 70139
(504) 525-8100
COUNSEL FOR PLAINTIFF APPELLEE:
Opelousas General HospitalAuthority, A Public Trust

Michael C. Drew
Jones, Walker
201 St. Charles Ave., 51st Fl
New Orleans, LA 70170
(504) 582-8318
COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service & Indemnity Company

Alan W. Stewart
Gibson Law Partners
2448 Johnston Street
Lafayette, LA 70505
(337) 761-6023
COUNSEL FOR :
Anthem, Inc., Et Al.

Graham H. Ryan
Jones, Walker, LLP
201 St. Charles Ave., 51st Fl.
New Orleans, LA 70170
(504) 582-8266
COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service &Indemnity Company

Jessica W. Chapman
Attorney At Law
P. O. Box 98029
Baton Rouge, LA 70898
(225) 295-2116
COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service &Indemnity Company

Raven C. Boxie
Doran & Cawthorne, P.L.L.C.
P. O. Box 2119
Opelousas, LA 70571
(337) 948-8008
COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service & Indemnity Company

William E. Kellner
Liskow & Lewis
P. O. Box 52008
Lafayette, LA 70505-2008
(337) 232-7424
COUNSEL FOR INTERVENOR APPELLANT:
Blue Cross Blue Shield Association

Monica M. Vela-Vick
Phelps Dunbar
400 Convention St., Ste. 1100
Baton Rouge, LA 70802
(225) 346-0285
COUNSEL FOR APPELLEE:
Blue Cross Blue Shield of South Carolina

Hayley Franklin
McGlinchey Stafford
301 Main St., Ste. 1400
Baton Rouge, LA 70801
(225) 383-9000
COUNSEL FOR OTHER APPELLANT:
Louisiana Department of Insurance

Zachary Holmstead
Kirkland & Ellis, LLP
300 North LaSalle
Chicago, IL 60654
(312) 862-2392
COUNSEL FOR INTERVENOR APPELLANT:
Blue Cross Blue Shield Association

Ryan M. Kantor
Morgan, Lewis & Bockius
1111 Pennsylvania Ave., NW
Washington, DC 20004-2541
(202) 739-5343
COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service & Indemnity Company

WILSON, Judge.

In this anti-trust class action, Defendant, Louisiana Health Service &

Indemnity Company d/b/a Blue Cross And Blue Shield of Louisiana (BCBSLA),

along with the Louisiana Commissioner of Insurance, Louisiana Department of

Insurance, and the Blue Cross Blue Shield Association (the Association) appeal the

trial court’s grant of partial summary judgment in favor of Plaintiff Class. The trial

court found that BCBSLA’s “Blue Card” provision operates in restraint of trade in

violation of La.R.S. 51:122. Additionally, on appeal, BCBSLA and the

Association raised a peremptory exception for non-joinder. For the following

reasons, we reverse the trial court’s grant of partial summary judgment and deny

the exception for non-joinder.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting
Plaintiffs’ partial motion for summary judgment
finding that the Blue Card provision operates in
restraint of trade in violation of La.R.S. 51:122;
and

(2) whether the Association and all other
participants in the Blue Card Program are
parties needed for just adjudication under
La.Code Civ.P. art. 641.

II.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Opelousas General Hospital Authority, a Public Trust d/b/a

Opelousas General Health System (Plaintiffs or Plaintiff Class) filed a class action

on August 24, 2016, against BCBSLA, alleging BCBSLA conspired with the

Association and thirty-five other Blue Cross Plans to engage in anticompetitive

conduct in violation of La.R.S. 51:122. At this time, several anti-trust class actions

were brought against various Blue Cross Blue Shield entities which were

consolidated in a federal Multi-District Litigation in the United States District

Court for the Northern District of Alabama. Prior to certification of the class,

attempts were made by BCBSLA to remove this case to federal court, but it was

ultimately remanded back to Louisiana from the United States Eleventh Circuit

Court of Appeal which cited a lack of diversity.

BCBSLA participates in the Blue Card Program. Under that Program,

BCBSLA and Blue Plans from other states sign licensing agreements with the

Association for the exclusive use of the Blue Cross and Blue Shield trademarks

when contracting insurance in their respective states. Each insurer participates in

the Blue Card Program whereby patients from out of state Blue Plans can receive

the same discounted in-network rates from providers that were negotiated with that

state’s Blue insurer. Each Blue insurer may only use the Blue trademarks within

their respective states.

The Plaintiff Class here represents Louisiana health providers who

entered into contracts, known as provider agreements, with BCBSLA. Those

agreements defined the term “member” to include insureds from out of state

affiliate Blue Plans, and required the contractual discounts negotiated by BCBSLA

for its insureds also apply to any patient with an out of state Blue Plan receiving

care from the Louisiana contractual providers. This suit was tailored to include

only provider agreements with BCBSLA and asserts only monetary claims under

Louisiana Law. The Association filed a petition for intervention which was denied

by the trial court and affirmed by this court. Opelousas Gen. Hosp. Auth. v. La.

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Health Serv. & Indem. Co., 19-265 (La.App. 3 Cir. 11/12/19), 284 So.3d 643, writ

denied, 19-01912 (La. 1/28/20), 291 So.3d 1060.

On October 7, 2020, Plaintiffs moved for partial summary judgment

seeking the return of contractual discounts for patients insured by out of state Blue

insurers. In response, BCBSLA filed a motion to strike. Both motions were set for

hearing on December 16, 2020, before Judge Alonzo Harris. At the hearing, the

trial court denied the motion to strike and took the motion for partial summary

judgment under advisement. On December 29, 2020, the trial court issued written

reasons for judgment finding that BCBSLA’s “Blue Card” provision operates in

restraint of trade in violation of La.R.S. 51:122. In so finding, the trial court

granted the motion for partial summary judgment. Judge Harris retired December

31, 2020. Plaintiffs circulated a proposed judgment on January 7, 2021, and

BCBSLA objected. The trial court held a hearing on January 25, 2021, and stated

that the successor Judge, Ledricka Thierry, would sign the judgment. The

judgment was signed January 25, 2021, granting the partial motion for summary

judgment and awarding Plaintiffs $416,830,039.60 together with costs and legal

interest. BCBSLA timely filed this suspensive appeal. The Association, the

Louisiana Commissioner of Insurance, and the Louisiana Department of Insurance

also appealed in this matter. The Association filed peremptory exceptions of non-

joinder of a party and BCBSLA joined in support.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, applying the

same criteria that govern the trial court’s determination of whether summary

3

judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591

So.2d 342 (La.1991). A motion for summary judgment shall only be granted when

there are no genuine issues of material fact and the mover is entitled to judgment as

a matter of law. La.Code Civ.P. art. 966.

IV.

LAW AND DISCUSSION

Exception for non-joinder

We will first address the exception for non-joinder before delving into

the heart of this appeal. BCBSLA and the Association filed peremptory exceptions

of non-joinder alleging that the Association, along with the licensees of the

Association, were parties needed for just adjudication. After reviewing the record,

we disagree.

The objection of non-joinder of a party under La.Code Civ.P. arts. 641

and 642 may be raised through the peremptory exception. La.Code Civ.P. art. 927.

“The appellate court may consider the peremptory exception filed for the first time

in that court, if pleaded prior to a submission of the case for a decision, and if proof

of the ground of the exception appears of record.” La.Code Civ.P. art. 2163.

Louisiana Code of Civil Procedure Article 641 provides:

A person shall be joined as a party in the action when
either:
(1) In his absence complete relief cannot be accorded
among those already parties.
(2) He claims an interest relating to the subject matter of
the action and is so situated that the adjudication of the
action in his absence may either:
(a) As a practical matter, impair or impede his ability to
protect that interest.
(b) Leave any of the persons already parties subject to a
substantial risk of incurring multiple or inconsistent
obligations.

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“A person should be deemed needed for just adjudication only when absolutely

necessary to protect substantial rights.” Indus. Cos., Inc. v. Durbin, 02-0665, p. 14

(La. 1/28/03), 837 So.2d 1207, 1217. BCBSLA and the Association contend that

the Association, along with all participants in the Blue Card Program, must be

joined to this lawsuit because the judgment below directly impacts their rights and

interests in coverage. The Association has consistently tried to participate in this

case, and they have consistently been denied by the courts. In the trial court, the

Association filed a petition to intervene in the matter asserting the same arguments

put forth in the instant exception. Those arguments were rejected by the trial court

and the intervention was denied. The denial was then affirmed by this court.

Opelousas Gen. Hosp. Auth., 284 So.3d. 643.

The record does not contain any evidence that supports finding the

Association and the out of state Blue Plans are parties needed for just adjudication.

Plaintiffs are only seeking review of the provider agreements with BCBSLA and

money damages under those agreements. They are not attacking the entire Blue

Card Program or any of the Association’s rules. Thus, there is no reason that

complete relief could not be afforded in the absence of these additional parties.

Similarly, while the parties may have an interest in the subject matter, given the

limited scope of the claim in this case, it cannot be said that they are so situated

that adjudication in their absence may impair or impede their ability to protect their

interest or subject any of the parties to a substantial risk of incurring multiple and

inconsistent obligations.

In support of the peremptory exception for non-joinder, the

Association cites to several cases where they purport that compulsory joinder had

been ordered on significantly less important interests of a non-party than their

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interests in the present case. However, after reviewing each of those cases, they

are all easily distinguishable. See Richmond v. Bd. of Comm'rs of Orleans Levee

Dist., 08-774 (La.App. 4 Cir. 11/26/08), 2 So.3d 485; Shamieh v. Liquid Transp.

Corp., 07-1282 (La.App. 3 Cir. 1/30/08), 975 So.2d 161; Milton v. Pilgrim Life Ins.

Co. of Am., 500 So.2d 434 (La. Ct. App.1986); Gulf Fed. Sav. & Loan Ass'n of

Jefferson Par. v. Sehrt, 233 So.2d 268 (La. Ct. App.1970); Thomas v. Craig, 424

So.2d 1090 (La. Ct. App.1982); Wellman v. Tufail, 04-656 (La.App. 5 Cir.

12/28/04), 891 So.2d 106. The non-parties in those cases all had direct interests in

the subjects of the cases, such as security rights in the property subject to litigation,

or were subject to the contracts at issue in the case. That is not so here. We find

no evidence in the record that supports the contention that the parties seeking to be

joined were parties needed for just adjudication. Accordingly, the peremptory

exception of non-joinder is denied.

Partial Motion for Summary Judgment

Although Appellants assert various assignments of error, the heart of

this appeal is whether the trial court erred in granting the motion for partial

summary judgment in favor of Plaintiffs. Because we find it dispositive, we will

first address BCBSLA’s second assignment of error concerning the appropriate

standard of analysis for a La.R.S. 51:122 claim. Louisiana Revised Statutes

51:122(A) provides that “[e]very contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal.”

This statute is virtually identical to section 1 of the Sherman Anti-trust Act, 15

U.S.C § 1, thus federal analysis of the Sherman Act is persuasive. Although both

“[t]he federal and state antitrust laws were intended to be sweeping in breadth,

encompassing every conspiracy, contract or combination that restrains trade, [n]ot

6

every business arrangement that restrains trade in some manner is illegal.”

Plaquemine Marine, Inc. v. Mercury Marine, 03-1036, p. 9 (La.App. 1 Cir.

7/25/03), 859 So.2d 110, 118 (internal citations omitted). To state a claim under

La.R.S. 51:122, the restraint of trade must be unreasonable. Id.

The United States Supreme Court explained the standards for finding

a restraint unreasonable in the seminal case, Leegin Creative Leather Products, Inc.

v. PSKS, Inc., 551 U.S. 877, 885-86, 127 S.Ct. 2705 (2007), which states:

The rule of reason is the accepted standard for
testing whether a practice restrains trade in violation of §
1. See Texaco, supra, at 5, 126 S.Ct. 1276. “Under this
rule, the factfinder weighs all of the circumstances of a
case in deciding whether a restrictive practice should be
prohibited as imposing an unreasonable restraint on
competition.” Continental T. V., Inc. v. GTE Sylvania
Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 53 L.Ed.2d 568
(1977). Appropriate factors to take into account include
“specific information about the relevant business” and
“the restraint's history, nature, and effect.” Khan, supra,
at 10, 118 S.Ct. 275. Whether the businesses involved
have market power is a further, significant consideration.
See, e.g., Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984)
(equating the rule of reason with “an inquiry into market
power and market structure designed to assess [a
restraint's] actual effect”).

The rule of reason is not the only standard, as some restraints are deemed unlawful

per se. “The per se rule, treating categories of restraints as necessarily illegal,

eliminates the need to study the reasonableness of an individual restraint in light of

the real market forces at work.” Id. at 886. Thus, the per se rule is “confined to

restraints . . . that would always or almost always tend to restrict competition and

decrease output.” Id. “To justify a per se prohibition a restraint must have

manifestly anticompetitive effects and lack . . . any redeeming virtue.” Id. (internal

citations and internal quotation marks omitted).

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As a consequence, the per se rule is appropriate
only after courts have had considerable experience with
the type of restraint at issue, see Broadcast Music, Inc. v.
Columbia Broadcasting System, Inc., 441 U.S. 1, 9, 99
S.Ct. 1551, 60 L.Ed.2d 1 (1979), and only if courts can
predict with confidence that it would be invalidated in all
or almost all instances under the rule of reason, see
Arizona v. Maricopa County Medical Soc., 457 U.S. 332,
344, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982).

Id. at 886-87.

The first step in analyzing an agreement to restrain trade
is to determine whether it should be categorized as
horizontal or vertical. A horizontal conspiracy is an
agreement between competitors that restrains trade at the
same level of distribution, and such agreements are
generally considered “per se” violations of anti-trust law.
Plaquemine Marine, Inc., 859 So.2d at 117; Southern
Tool & Supply, Inc., 862 So.2d at 280. A vertical restraint
is imposed by persons at different levels of distribution,
usually by one higher up in the distribution chain than the
party restrained.

Van Hoose v. Gravois, 11-0976, p. 7 (La.App. 1 Cir. 7/7/11), 70 So.3d 1017, 1022.

Following the decision in Leegin, “[w]hen a vertical conspiracy is

alleged, plaintiffs must show that the restraint of trade violates the ‘rule of reason.’”

Id. (citing Plaquemine Marine Inc., 859 So.2d at 118). See Leegin, 551 U.S. at 899.

The case before us only questions the agreements between the medical providers

and the insurer, BCBSLA. Nothing presented suggests that the providers and

BCBSLA are competitors. Consequently, we find, and the parties agree, that the

agreement in this case is properly classified as vertical in nature. This

classification necessitates a rule of reason analysis. Although Plaintiffs argue that

Leegin supports deeming a vertical agreement unlawful if it facilitates a horizontal

cartel, see Leegin, 551 U.S. at 893, this case involves the provider agreements only

and is not attacking the Blue Card Program as a whole. Therefore, we are

8

prohibited from considering whether the Blue Card Program constituted an illegal

horizontal cartel and must limit our analysis to the vertical provider agreements.

On motion for summary judgment, the burden of proof remains with

the movant. La.Code Civ.P. art. 966(D)(1). Thus, Plaintiffs must show through

the motion, memorandum, and supporting documents that there is no genuine issue

as to material fact and they are entitled to judgment as a matter of law. La.Code

Civ.P. art. 966(A)(3).

In ruling on a motion for summary judgment, the judge’s
role is not to evaluate the weight of the evidence or to
determine the truth of the matter, but instead to determine
whether there is a genuine issue of triable fact. All doubts
should be resolved in the non-moving party’s favor.
Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d
764, 765. A fact is material if it potentially ensures or
precludes recovery, affects a litigant’s ultimate success,
or determines the outcome of the legal dispute. A
genuine issue is one as to which reasonable persons could
disagree; if reasonable persons could reach only one
conclusion, there is no need for a trial on that issue and
summary judgment is appropriate. Id. at 765–66.

Larson v. XYZ Ins. Co., 16-0745 pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416. We find

that Plaintiffs have not carried their burden on summary judgment.

“The rule of reason analysis under both federal and Louisiana law

requires proof of three elements: that the defendants (1) engaged in a conspiracy (2)

that restrained trade or injured competition (3) in a particular market.” Van Hoose,

70 So.3d at 1022. It is critical to note that “anti-trust laws are for the protection of

competition,” and all claims under the statute “must include an allegation of

damage to competition.” Plaquemine Marine, Inc., 859 So.2d at 118. “This

requirement cannot be met by broad allegations of harm to the ‘market’ as an

abstract entity[,]” and “[a] mere conclusion unsupported by material facts does not

set forth a cause of action; therefore, conclusory statements of fact or formulaic

9

recitations of the elements of an anti-trust violation are insufficient to state a claim.”

HPC Biologicals, Inc. v. UnitedHealthcare of La., Inc., 16-0585, p. 13 (La.App. 1

Cir. 5/26/16), 194 So.3d 784, 795.

Plaintiffs assert that they have suffered injury by a lack of ability to

contract with the out of state Blue Plans and by being forced to grant patients

insured by the out of state plans the same contractual rates negotiated by BCBSLA.

They evidence this injury through billing spread sheets showing what they would

have charged these patients absent the provider agreements. Plaintiffs do not

however, provide any evidence of injury to competition in general. In Plaquemine

Marine, Inc., the court found that plaintiffs failed to allege facts to indicate that

anyone other than themselves was injured, which was insufficient to support a

claim under La. R.S. 51:122. After reviewing the record, we find that Plaintiffs

failed to prove damage to competition, an essential element to any anti-trust claim.

Plaintiffs were also required to prove a relevant economic market to

meet their burden in this case. We find the evidence submitted by Plaintiffs was

insufficient to meet that burden.

In claims under both La. R.S. 51:122 and R.S.
51:123, a plaintiff is required to identify the particular
market that is the subject of the anti-trust claim. See Van
Hoose, 70 So.3d at 1022; Plaquemine Marine, Inc., 859
So.2d at 119. . . . Under the rule of reason, as applied to
Sherman Act cases, proof that a defendant’s activities
adversely affected competition in the appropriate product
and geographic markets is essential to recovery. Doctor’s
Hospital of Jefferson, Inc. v. Southeast Medical Alliance,
Inc., 123 F.3d 301, 307 (5th Cir.1997). The relevant
market has both geographic dimensions and product
dimensions. Domed Stadium Hotel, Inc. v. Holiday Inns,
Inc., 732 F.2d 480, 487 (5th Cir.1984). The relevant
market includes a geographic market, which is the
section of the country in which sellers of a particular
product operate, as well as the product market, which
encompasses the differences among various commodities

10

and the willingness of buyers to substitute one product
for another. Plaquemine Marine, Inc., 859 So.2d at 120.
A proposed product market must include all commodities
reasonably interchangeable by consumers for the same
purposes. United States v. E.I. du Pont de Nemours &
Co., 351 U.S. 377, 395, 76 S.Ct. 994, 100 L.Ed.2d 1264
(1956). The market is established by examining the
substitutes that a consumer might employ and the extent
to which consumers will change their consumption of
one product in response to a price change in another, i.e.,
the cross-elasticity of demand. Eastman Kodak Co. v.
Image Technical Services, Inc., 504 U.S. 451, 469, 112
S.Ct. 2072, 119 L.Ed.2d 265 (1992).

HPC Biologicals, Inc.,194 So.3d at 793–94. Plaintiffs assert that the relevant

market is the state of Louisiana which is undisputed. This satisfies the geographic

dimensions of the relevant market.

However, where a plaintiff fails to define its proposed
relevant market with reference to the rule of reasonable
interchangeability and cross-elasticity of demand, or
alleges a proposed relevant market that does not
encompass all interchangeable substitute products, even
when all factual inferences are granted in plaintiff’s favor,
the plaintiff fails to sufficiently plead the relevant market.
Id. at 794. The record in this case is devoid of any evidence that defines the

relevant market under the appropriate standards. Additionally, the United States

Supreme Court has equated the rule of reason with “an inquiry into market power

and market structure designed to assess the combination’s actual effect.”

Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 2740

(1984). Plaintiffs here failed to present any evidence of market power as part of

their motion for partial summary judgment.

If Plaintiffs had included relevant evidence proving their market

power and the injury to competition caused by the provider agreements in the

relevant markets, summary judgment could potentially be granted in their favor.

However, Plaintiffs failed to put forth the necessary evidence. As such, we find

11

that Plaintiffs failed to show they were entitled to judgment as a matter of law and

that the trial court erred in granting the partial motion for summary judgment.

The Association, the Louisiana Commissioner of Insurance, and the

Louisiana Department of Insurance asserted several other assignments of error on

appeal. Given our decision to reverse the trial court’s ruling granting the motion

for partial summary judgment, a review of those assignments is unnecessary.

V.

CONCLUSION

For the foregoing reasons, we find that the trial court erred in finding

Plaintiffs met their burden on summary judgment. Accordingly, this court reverses

the ruling of the trial court granting the motion for partial summary judgment and

awarding Plaintiffs damages in the amount of $416,830,039.60. Additionally, this

court denies the peremptory exception of non-joinder filed by the Association.

REVERSED.

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