Case 5:20-cv-02251-EJD Document 80 Filed 02/16/21 Page 1 of 9
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`PACIFIC RECOVERY SOLUTIONS, et al.,
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`Plaintiffs,
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`v.
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`CIGNA BEHAVIORAL HEALTH, INC., et
`al.,
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`Defendants.
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`Case No. 5:20-cv-02251-EJD
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`ORDER DENYING MOTION TO
`CONSOLIDATE
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`Re: Dkt. No. 63
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`This case is one of three related cases pending before the Court in which a Cigna entity is
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`alleged to have reneged on its agreement to reimburse mental health provider claims at the usual,
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`customary, and reasonable (“UCR”) rates. Cigna Behavioral Health, Inc. (“Cigna”) moves to
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`consolidate this case, hereinafter referred to as “Pacific Recovery,” with Summit Estate, Inc. v.
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`Cigna Health and Life Insurance Co., No. 20cv4697 EJD (“Summit”), pursuant to Federal Rule of
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`Civil Procedure 42(a). Dkt. No. 63. Plaintiffs in the Pacific Recovery case, Pacific Recovery
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`Solutions, Miriam Hamideh, Bridging the Gaps, Inc., and Summit Estate Inc. (“Plaintiffs”) filed
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`an opposition. Dkt. No. 65. Cigna filed a reply. Dkt. No. 68. The motion is scheduled for hearing
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`on February 11, 2021. The Court finds it appropriate to take the motion under submission for
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`decision without oral argument pursuant to Civil Local Rule 7-1(b) and General Order 72. For the
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`reasons stated below, the Court will deny Cigna’s motion.
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`Case No.: 5:20-cv-02251-EJD
`ORDER DENYING MOTION TO CONSOLIDATE
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`Case 5:20-cv-02251-EJD Document 80 Filed 02/16/21 Page 2 of 9
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`I.
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`BACKGROUND1
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`A. Summit, Case No. 20cv4697
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`Summit Estate, Inc. (“Summit”) initiated the Summit action against Cigna Health and Life
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`Insurance Company (“Cigna Health and Life”) in July of 2020. This lawsuit encompasses only the
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`claims and patients that were the subject of a prior lawsuit entitled Summit Estate v. Cigna, No.
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`17cv3871 LHK, that the parties agreed to dismiss, subject to a tolling agreement, so that they
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`could engage in efforts to reprocess medical insurance coverage claims for substance abuse
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`treatment for ten patients. Compl. ¶¶ 4-5. The Complaint alleges that within the past two years,
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`Summit took steps to verify available benefits for substance abuse for the patients and was advised
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`through telephone communications that Cigna Health and Life would pay for treatment at the
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`UCR rates. Id. ¶ 6. In reasonable reliance on Cigna Health and Life’s representations and
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`agreements, Summit provided services to the ten patients. Id. ¶ 7. Cigna Health and Life breached
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`their agreements by refusing to pay Summit at the UCR rates and paying instead a different and
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`significantly lower amount for treatment. Id. ¶ 8. Summit further alleges that at the time benefits
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`were verified, Cigna Health and Life was using and planning on using a third-party repricing
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`company to make unreasonably low claim payments and/or to negotiate lower claim payments
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`after the fact. Id. Based on the foregoing, Summit asserts claims for “Breach of Contract-Pre-
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`Admission Oral Agreement”; intentional misrepresentation; negligent misrepresentation;
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`fraudulent concealment; negligent failure to disclose; promissory estoppel; and breach of implied
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`contract.
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`B. Pacific Recovery, Case No. 20cv2251
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`Plaintiffs in Pacific Recovery are a group of four out-of-network behavioral health care
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`providers that provide Intensive Outpatient Program treatment (“IOP”) in the United States.
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`Compl. at 4, ¶¶ 67-70. Pacific Recovery Solutions d/b/a Westwind Recovery (“Westwind”), is
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`a California Limited Liability Company and a duly licensed behavioral health treatment provider
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`1 The Background is a brief summary of the allegations in the Summit and Pacific Recovery
`operative complaints.
`Case No.: 5:20-cv-02251-EJD
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`with a primary place of business in Los Angeles, CA. Id. ¶ 68. Miriam Hamideh PhD Clinical
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`Psychologist Inc. d/b/a PCI Westlake Centers (“PCI Westlake”), is a California corporation and a
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`duly licensed behavioral health treatment provider with a primary place of business in Westlake
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`Village, CA. Id. ¶ 69. Bridging the Gaps, Inc. (“BTG”), is Virginia corporation and a duly licensed
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`behavioral health treatment provider with a primary place of business in Winchester, VA. Id. ¶ 70.
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`Summit Estate Inc. d/b/a Summit Estate Outpatient, is a California corporation and duly licensed
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`behavioral health treatment provider with a primary place of business in Saratoga, CA 95070. Id. ¶
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`70. They seek to represent a class of similarly situated providers against Cigna, a Minnesota
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`corporation with its principal place of business in Eden Prairie, MN, and Viant, Inc. (“Viant”), a
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`third-party “repricer” incorporated in Nevada with its principle place of business in Naperville, IL.
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`Id. ¶¶ 1, 18, 71-72.
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`Prior to providing treatment to patients insured by Cigna, Plaintiffs confirmed with Cigna
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`during an initial Verification of Benefits (“VOB”) call that the patient had active coverage and
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`benefits for out of network IOP treatment services. Id. ¶¶ 3, 22, 30. For all the insurance claims at
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`issue, Cigna represented that the claims would be paid at a percentage of the UCR rates, which
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`Cigna would calculate by using either Cigna’s “Maximum Reimbursable Charge” (“MRC”) I or II
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`methodologies. Id. ¶¶ 9-12. Alternatively, Cigna would arrive at the UCR rates “based on rates
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`charged by similar providers in a similar geographic area.” Id. ¶ 12. During the VOB call, none of
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`the Plaintiffs were told by Cigna that their claims could be subject to third-party pricing by Viant.
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`Id. ¶ 36. Rather, Plaintiffs specifically asked and were told that a patient’s claims were not subject
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`to third party repricing. Id. ¶¶ 233-34.
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`In reliance upon Cigna’s representations, Plaintiffs agreed to treat Cigna’s insured and
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`timely submitted bills on industry standard forms and in keeping with industry practices. Id. ¶¶ 12,
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`140, 142. Pursuant to contract, patients were responsible for paying Plaintiffs the difference
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`between the amount Plaintiffs billed and the amount Cigna reimbursed. Id. ¶¶ 157, 161, 243.
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`Contrary to Cigna’s representations, Cigna did not pay at the UCR rates. Id. ¶ 18. Instead,
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`Cigna engaged Viant to negotiate reduced reimbursements with IOP treatment providers. Id.
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`Case No.: 5:20-cv-02251-EJD
`ORDER DENYING MOTION TO CONSOLIDATE
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`Northern District of California
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`United States District Court
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`Cigna sent claims to Viant via an Electronic Data Interchange (“EDI”), which included a “repriced
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`rate” that represented the maximum that Viant was authorized to negotiate with providers. Id. ¶
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`112. After Viant received the EDI, it sent providers a proposed payment for claims at reduced
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`reimbursement rates. Id. ¶ 114. These reduced reimbursement rates are not derived from a
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`calculation of the UCR rates, notwithstanding Viant’s representations to the contrary. Id. ¶¶ 18,
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`46, 116. Nor are they set based on the insured’s plan terms or language. Id. ¶¶ 43-44. Rather,
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`Plaintiffs allege on information and belief that the reduced reimbursement rates represent the
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`lowest payment amount that a Viant representative convinced a provider to accept and are
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`“arbitrary, capricious and unreasonably low.” Id. ¶¶ 97, 117. At no point have Cigna or Viant
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`disclosed their pricing methodologies. Id. ¶¶ 175, 246. Viant only tells Plaintiffs that pricing is
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`determined by a “proprietary database.” Id. ¶ 254-55.
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`At the time Viant made its offers to Plaintiffs, it also sent a “patient advocacy letter”
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`(“PAD” letter) to the patient, claiming to represent the patient in a negotiation to reduce the billed
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`amount. Id. ¶ 118. Viant, however, does not have patient authorization to negotiate billed charges
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`on behalf of patients. Id. ¶ 235.
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`Cigna then paid the claims at issue at the reduced Viant rate, which often resulted in
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`patients left to pay for more than ninety percent of their care. Id. ¶ 19. Cigna and Viant allegedly
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`“collude[d] to illegally withhold these out-of-network benefits” to avoid paying tens, and
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`sometimes hundreds, of thousands of dollars per patient and to drive out-of-network providers out
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`of business. Id. ¶¶ 20, 41. The amounts that should have been paid to health care providers were
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`allegedly unjustly retained and used to pay a “kick-back” to Viant. Id. ¶ 20.
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`Every claim at issue in Pacific Recovery is for IOP behavioral health treatment for which
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`Cigna failed to pay at the UCR rates. Id. ¶¶ 21, 164. Coverage for the underlying medical
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`treatment is not in dispute; only the amount to be paid for the covered treatment is in dispute. Id. ¶
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`32. Plaintiffs do not have contractual relationships with Cigna or Viant. Id. ¶¶ 87, 94. Plaintiffs
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`did not agree to the reduced rates arrived at by Viant. Id. ¶¶ 19, 152-53, 241. When Plaintiffs or
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`patients contacted Cigna to dispute or challenge Viant’s reimbursement rates, Cigna refused to
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`Case No.: 5:20-cv-02251-EJD
`ORDER DENYING MOTION TO CONSOLIDATE
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`Northern District of California
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`United States District Court
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`handle or process the claim. Id. ¶ 120. Plaintiffs ultimately had no choice but to “balance bill”
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`their patients for the amounts that they were owed as a result of Cigna’s underpayment. Id. ¶ 161.
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`If Plaintiffs did not “balance bill,” Cigna would assert that Plaintiffs waived patient responsibility
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`and therefore, Cigna had no further obligation to pay any additional amounts on claims. Id. ¶ 247-
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`48, 259. For all the claims at issue in Pacific Recovery, Plaintiffs’ patients were unable to pay
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`Cigna’s shortfall. Id. ¶ 181.
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`Westwind has treated more than 10 patients for whom claims for payment of IOP
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`services were repriced by Viant. Id. ¶ 194. Viant’s repricing resulted in partial payments that, in
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`sum, averaged only 11% of billed charges. Id. ¶ 197. Westwind has not been paid the remaining
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`89% of the billed amounts owed. Id. Westwind estimates that it has been underpaid by at least
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`$177,317.45. Id. ¶ 198.
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`PCI Westlake has treated more than 9 Cigna patients for whom claims for payment of IOP
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`services were repriced by Viant. Id. ¶ 201. Viant’s pricing resulted in partial payments that, in
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`sum, averaged only 14% of billed charges. Id. ¶ 204. PCI Westlake has not been paid the
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`remaining 86% of the billed amounts owed. Id. PCI Westlake estimates that it has been underpaid
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`by at least $238,108.22. Id. ¶ 205.
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`BTG has treated more than 21 patients for whom claims for payment of IOP services were
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`repriced by Viant. Id. ¶ 208. Viant’s pricing resulted in partial payments that, in sum, averaged
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`only 14% of billed charges. Id. ¶ 211. BTG has not been paid the remaining 86% of the billed
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`amounts owed. Id. BTG estimates that it has been underpaid by at least $736,998.47. Id. ¶ 212.
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`Summit Estate Inc. d/b/a Summit Estate Outpatient has treated more than 10 Cigna patients
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`for whom claims for payment of IOP services were repriced by Viant. Id. ¶ 215. Viant’s pricing
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`resulted in partial payments that, in sum, averaged only 15% of billed charges. Id. ¶ 218. Summit
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`has not been paid the remaining 85% of the billed amounts owed. Id. Summit Estate Inc. d/b/a
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`Summit Estate Outpatient estimates that it has been underpaid by at least $325,000.00. Id. ¶ 219.2
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`2 The Complaint alleges that Summit Estate Inc. d/b/a Summit Estate Outpatient has been
`“overpaid” by at least $325,000.00. Id. ¶ 219. The Court assumes that “overpaid” is a
`Case No.: 5:20-cv-02251-EJD
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`Case 5:20-cv-02251-EJD Document 80 Filed 02/16/21 Page 6 of 9
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`Based on the foregoing, Plaintiffs assert the following claims: (1) unfair and unlawful
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`business acts and practices in violation of California Business & Professions Code § 17200 against
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`Cigna (id. ¶¶ 261-69) and Viant (id. ¶¶ 270-78); (2) intentional misrepresentation and fraudulent
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`inducement against Cigna and Viant (id. ¶¶ 279-94); (3) negligent misrepresentation against Cigna
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`and Viant (id. ¶¶ 295-301); (4) civil conspiracy against Cigna and Viant (id. ¶¶ 302-14): (5) breach
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`of oral and/or implied contract against Cigna (id. ¶¶ 315-35); (6) promissory estoppel against
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`Cigna and Viant (id. ¶¶ 336- 49); (7) violations of the Racketeer Influenced and Corrupt
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`Organizations Act (“RICO”) against Cigna and Viant (id. ¶¶ 350-95); and (8) violations of section
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`1 of the Sherman Act against Cigna and Viant (id. ¶396-415).
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`II.
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`STANDARDS
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`“If actions before the court involve a common question of law or fact, the court may . . .
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`consolidate the actions.” Fed. R. Civ. P. 42(a)(2). District courts have broad discretion under this
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`rule to consolidate cases pending in the same district. Investors Research Co. v. U.S. Dist. Court
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`for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989). In deciding whether consolidation is
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`appropriate under Rule 42(a), the court must “weigh[ ] the saving of time and effort consolidation
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`would produce against any inconvenience, delay, or expense that it would cause.” Huene v. United
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`States, 743 F.2d 703, 704 (9th Cir. 1984). The party seeking consolidation bears the burden to
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`show that consolidation is desirable. See DMF, Inc. v. AMP Plus, Inc., 2019 WL 9077477, at *6
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`(C.D. Cal. Dec. 13, 2019).
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`III. DISCUSSION
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`The two suits share a common issue, i.e., whether Cigna failed to abide by its agreement to
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`pay at the UCR rates. The existence of common issues, however, does not compel consolidation.
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`Dodaro v. Standard Pac. Corp., 2009 WL 10673229, at *3 (C.D. Cal. Nov. 16, 2009). Beyond this
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`common issue, the two cases involve significant differences in fact and law such that
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`consolidation of the cases would be unduly prejudicial to plaintiff in Summit. First, although both
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`typographical error.
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`cases involve a Summit entity3 and a Cigna-affiliated entity, Summit is an individual action and
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`Pacific Recovery is a putative class action suit. In Summit, a single plaintiff healthcare provider,
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`Summit, seeks compensation for services rendered to ten patients. In Pacific Recovery, a group of
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`four healthcare providers collectively seek compensation for services rendered to at least sixty
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`patients and propose to represent an unknown number of “similarly situated out-of-network
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`behavioral health providers” that provide IOP in the United States. Dkt. No. 6 at 4. Thus, the two
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`suits clearly involve different provider plaintiffs and different patients. Moreover, Viant is a
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`named defendant in Pacific Recovery, but not in Summit. These differences alone suggest that
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`Pacific Recovery is likely to be far more expansive, expensive, and time-consuming than Summit,
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`which weighs against consolidation.
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`Second, the two suits involve different treatment. The Summit insurance claims are mainly
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`for Residential and Partial Hospitalization treatment, with only a small percentage of Intensive
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`Outpatient claims remaining because Cigna has already investigated, litigated and negotiated
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`certain Intensive Outpatient claims with Summit. Opp’n at 3. In contrast, the Pacific Recovery
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`insurance claims are exclusively for IOT. The differences in the parties and the services at issue
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`will impact the nature and scope of discovery such that consolidation is likely to lead to
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`inconvenience and delay for the relatively smaller Summit case rather than promote efficiencies.
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`Third, the two suits involve different time frames. In Summit, the insurance claims are for
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`treatment provided between September of 2014 and August of 2017. The complaint in Pacific
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`Recovery does not define a class period. Thus, Summit is confined to a relatively manageable
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`period of three years, whereas Pacific Recovery has no time limitation at all. A different time
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`period alone may not necessarily weigh against consolidation. See Medina v. Mealing, 2006 WL
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`8443382, at *2 (N.D. Cal. Feb. 2, 2006) (consolidating two cases with common questions of law
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`3 In Summit, Summit Estate, Inc. is the plaintiff. In Pacific Recovery, Summit Estate Inc. d/b/a
`Summit Estate Outpatient is one of four plaintiffs. Summit Estate Inc. d/b/a Summit Estate
`Outpatient represents that the two entities “are, functionally, predecessor and successor entities
`and are distinct companies.” Opp’n at 2. The management and ownership of the successor is
`different from the predecessor. Id. at 4. Further, the predecessor entity is not accredited by the
`Joint Commission, where as the successor is. Id. at 2.
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`and fact, even though the lawsuits each covered a different time period). Here, however, the
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`different time period for each case is one of several other differences between Summit and Pacific
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`Recovery that weigh against consolidation.
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`Fourth, although the two cases involve a number of the same legal claims, Pacific
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`Recovery includes much more expansive claims for violations of RICO, the Sherman Act, and
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`civil conspiracy. These additional claims may increase the scope of discovery and motion practice
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`in Pacific Recovery far beyond what is required for Summit. Cigna argues that the differences in
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`claims does not matter because they all rely on the same factual predicates, and further asserts that
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`the Court need find only one issue of law or fact in common to permit consolidation, citing Power
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`Integrations, Inc. v. Chan-Woong Park, 2019 WL 119969, at *2 (N.D. Cal. Jan. 7, 2019). In
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`Power Integrations, however, the parties were identical and there was a substantial overlap of
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`underlying facts. Unlike Power Integrations, the two cases before this Court do not involve
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`identical parties or a substantial overlap of underlying facts mainly because Pacific Recovery
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`includes expansive claims against Viant that are not present in Summit. Cigna’s reliance on
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`Hutchens v. Alameda County Social Servs. Agency, 2008 WL 927899, at *2 (N.D. Cal. Apr. 4,
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`2008) is also misplaced. In Hutchens, the motion to consolidate was unopposed.
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`The different procedural posture of each case also weighs against consolidation, even
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`though the two cases are at the pleading stage. This is because the parties in Summit were involved
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`in an earlier filed suit, engaged in settlement discussions, and then discovery, followed by
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`mediation. Eventually the parties in Summit agreed to a dismissal without prejudice so that the
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`parties could attempt to negotiate a resolution. Previous versions of the Summit complaint have
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`already been subject to two motions to dismiss, and the operative Summit complaint now consists
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`of only those claims that survived. In contrast, the Pacific Recovery complaint is the subject
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`separate motions to dismiss by Cigna and Viant. Because Summit has progressed farther than
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`Pacific Recovery, consolidation is likely to produce inconvenience, delay and expense to plaintiff
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`in the Summit case.
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`The Court recognizes that there is a potential for inconsistent judgments, particularly as to
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`Case No.: 5:20-cv-02251-EJD
`ORDER DENYING MOTION TO CONSOLIDATE
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`Northern District of California
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`United States District Court
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`Case 5:20-cv-02251-EJD Document 80 Filed 02/16/21 Page 9 of 9
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`the Summit entities’ reimbursement claims for IOP treatment. Consolidation of Summit and
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`Pacific Recovery, however, is not the answer because the Summit entities’ reimbursement claims
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`for IOP treatment represent only a small fraction of the total claims at issue in the two cases.
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`Further, the insurance claims at issue in Summit are mainly for Residential and Partial
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`Hospitalization treatment and therefore, may raise factual issues not present in Pacific Recovery.
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`Thus, consolidation for all purposes is not appropriate. See Hughes v. Experian Info. Sols., Inc.,
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`2017 WL 975969, at *2 (N.D. Cal. Mar. 13, 2017) (declining to consolidate for all purposes where
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`the merits of each plaintiff’s case could potentially turn on case-specific facts).
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`IV. CONCLUSION
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`The Cigna entities have not carried their burden of showing that consolidation of Summit
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`and Pacific Recovery “will aid in the efficient and economic disposition of the case.” Klauber
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`Bros., Inc. v. Forever 21 Retail, Inc., 2015 WL 12720307, at *2 (C.D. Cal. Apr. 9, 2015). The
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`motion to consolidate the cases for all purposes is DENIED.
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`IT IS SO ORDERED.
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`Dated: February 16, 2021
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`______________________________________
`EDWARD J. DAVILA
`United States District Judge
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`
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`Case No.: 5:20-cv-02251-EJD
`ORDER DENYING MOTION TO CONSOLIDATE
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`Northern District of California
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`United States District Court
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