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`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 1 of 55
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`UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`COMPLAINT
`
`
`
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`METROPOLITAN TRANSPORTATION
`AUTHORITY, NEW YORK CITY TRANSIT
`AUTHORITY, MANHATTAN AND BRONX
`SURFACE TRANSIT OPERATING AUTHORITY,
`TRIBOROUGH BRIDGE AND TUNNEL
`AUTHORITY, THE LONG ISLAND RAIL ROAD
`COMPANY, METRO-NORTH COMMUTER
`RAILROAD COMPANY, MTA BUS COMPANY,
`MTA CONSTRUCTION AND DEVELOPMENT
`COMPANY, STATEN ISLAND RAPID TRANSIT
`OPERATING AUTHORITY,
`
`
`
`v.
`
`
`
`Plaintiffs,
`
`
`
`BLUE CROSS AND BLUE SHIELD OF
`ALABAMA; PREMERA and PREMERA BLUE
`CROSS, also d/b/a PREMERA BLUE CROSS BLUE
`SHIELD OF ALASKA; BLUE CROSS AND BLUE
`SHIELD OF ARIZONA, INC.; USABLE MUTUAL
`INSURANCE COMPANY d/b/a ARKANSAS BLUE
`CROSS AND BLUE SHIELD; ANTHEM, INC. f/k/a
`WELLPOINT, INC. d/b/a ANTHEM BLUE CROSS
`LIFE AND HEALTH INSURANCE COMPANY,
`BLUE CROSS OF CALIFORNIA, BLUE CROSS OF
`SOUTHERN CALIFORNIA, BLUE CROSS OF
`NORTHERN CALIFORNIA, and BLUE CROSS
`BLUE SHIELD OF GEORGIA, and also doing
`business through its subsidiaries or divisions,
`including, ANTHEM HEALTH PLANS, INC. d/b/a
`ANTHEM BLUE CROSS BLUE SHIELD OF
`CONNECTICUT, ROCKY MOUNTAIN HOSPITAL
`& MEDICAL SERVICE INC. d/b/a ANTHEM BLUE
`CROSS BLUE SHIELD OF COLORADO and
`ANTHEM BLUE CROSS BLUE SHIELD OF
`NEVADA, ANTHEM INSURANCE COMPANIES,
`INC. d/b/a ANTHEM BLUE CROSS BLUE SHIELD
`OF INDIANA, ANTHEM HEALTH PLANS OF
`KENTUCKY, INC. d/b/a ANTHEM BLUE CROSS
`BLUE SHIELD OF KENTUCKY, ANTHEM
`HEALTH PLANS OF MAINE, INC. d/b/a ANTHEM
`
`
`
`1
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`

`

`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 2 of 55
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`BLUE CROSS BLUE SHIELD OF MAINE,
`ANTHEM BLUE CROSS BLUE SHIELD OF
`MISSOURI, RIGHTCHOICE MANAGED CARE,
`INC., HEALTHY ALLIANCE LIFE INSURANCE
`COMPANY, HMO MISSOURI INC., ANTHEM
`HEALTH PLANS OF NEW HAMPSHIRE, INC.
`d/b/a ANTHEM BLUE CROSS BLUE SHIELD OF
`NEW HAMPSHIRE, EMPIRE HEALTHCHOICE
`ASSURANCE, INC. d/b/a EMPIRE BLUE CROSS
`BLUE SHIELD, COMMUNITY INSURANCE
`COMPANY d/b/a ANTHEM BLUE CROSS BLUE
`SHIELD OF OHIO, ANTHEM HEALTH PLANS OF
`VIRGINIA, INC., d/b/a ANTHEM BLUE CROSS
`AND BLUE SHIELD OF VIRGINIA, ANTHEM
`BLUE CROSS BLUE SHIELD OF WISCONSIN, and
`COMPCARE HEALTH SERVICES INSURANCE
`CORPORATION; CALIFORNIA PHYSICIANS’
`SERVICE d/b/a BLUE SHIELD OF CALIFORNIA;
`HIGHMARK HEALTH, and HIGHMARK INC. d/b/a
`HIGHMARK BLUE SHIELD and HIGHMARK
`BLUE CROSS BLUE SHIELD and including
`HIGHMARK INC. predecessor HOSPITAL
`SERVICE ASSOCIATION OF NORTHEASTERN
`PENNSYLVANIA f/d/b/a BLUE CROSS OF
`NORTHEASTERN PENNSYLVANIA (“BC-
`
`NORTHEASTERN PA”) (together, “HIGHMARK
`BCBS”); HIGHMARK BLUE CROSS BLUE
`SHIELD DELAWARE INC. d/b/a HIGHMARK
`BLUE CROSS BLUE SHIELD DELAWARE;
`HIGHMARK WEST VIRGINIA INC. d/b/a
`HIGHMARK BLUE CROSS BLUE SHIELD WEST
`VIRGINIA; CAREFIRST, INC. and its subsidiaries or
`affiliates GROUP HOSPITALIZATION AND
`MEDICAL SERVICES, INC., CAREFIRST OF
`MARYLAND, INC., and CAREFIRST
`BLUECHOICE, INC., which collectively d/b/a
`CAREFIRST BLUECROSS BLUESHIELD;
`GUIDEWELL MUTUAL HOLDING
`CORPORATION; BLUE CROSS AND BLUE
`SHIELD OF FLORIDA, INC.; HAWAII MEDICAL
`SERVICE ASSOCIATION d/b/a BLUE CROSS
`AND BLUE SHIELD OF HAWAII; REGENCE
`BLUESHIELD OF IDAHO and BLUE CROSS OF
`IDAHO HEALTH SERVICE, INC. d/b/a BLUE
`CROSS OF IDAHO; CAMBIA HEALTH
`SOLUTIONS, INC. d/b/a REGENCE BLUESHIELD
`
`2
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`

`

`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 3 of 55
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`OF IDAHO, REGENCE BLUE CROSS BLUE
`SHIELD OF OREGON, REGENCE BLUE CROSS
`BLUE SHIELD OF UTAH, and REGENCE BLUE
`SHIELD (WASHINGTON); HEALTH CARE
`SERVICE CORPORATION, A MUTUAL LEGAL
`RESERVE COMPANY, d/b/a BLUE CROSS AND
`BLUE SHIELD OF ILLINOIS, BLUE CROSS AND
`BLUE SHIELD OF MONTANA, including its
`predecessor, CARING FOR MONTANANS, INC.,
`BLUE CROSS AND BLUE SHIELD OF NEW
`MEXICO, BLUE CROSS AND BLUE SHIELD OF
`OKLAHOMA, and BLUE CROSS AND BLUE
`SHIELD OF TEXAS; WELLMARK, INC., including
`its subsidiaries and/or divisions, WELLMARK BLUE
`CROSS AND BLUE SHIELD OF IOWA,
`WELLMARK OF SOUTH DAKOTA, INC. d/b/a
`WELLMARK BLUE CROSS AND BLUE SHIELD
`OF SOUTH DAKOTA; BLUE CROSS AND BLUE
`SHIELD OF KANSAS, INC.; LOUISIANA
`HEALTH SERVICE & INDEMNITY COMPANY
`d/b/a BLUE CROSS AND BLUE SHIELD OF
`LOUISIANA; BLUE CROSS AND BLUE SHIELD
`OF MASSACHUSETTS, INC.; BLUE CROSS BLUE
`SHIELD OF MICHIGAN MUTUAL INSURANCE
`COMPANY; AWARE INTEGRATED, INC. and
`BCBSM, INC. d/b/a BLUE CROSS AND BLUE
`SHIELD OF MINNESOTA; BLUE CROSS & BLUE
`SHIELD OF MISSISSIPPI, A MUTUAL
`INSURANCE COMPANY; BLUE CROSS AND
`BLUE SHIELD OF KANSAS CITY; GOODLIFE
`PARTNERS, INC.; BLUE CROSS AND BLUE
`SHIELD OF NEBRASKA; HORIZON
`HEALTHCARE SERVICES, INC. d/b/a HORIZON
`BLUE CROSS BLUE SHIELD OF NEW JERSEY;
`HEALTHNOW SYSTEMS, INC.; HEALTHNOW
`NEW YORK, INC. d/b/a BLUECROSS
`BLUESHIELD OF WESTERN NEW YORK and
`BLUESHIELD OF NORTHEASTERN NEW YORK;
`LIFETIME HEALTHCARE, INC. and EXCELLUS
`HEALTH PLAN, INC. d/b/a EXCELLUS
`BLUECROSS BLUESHIELD; BLUE CROSS AND
`BLUE SHIELD OF NORTH CAROLINA;
`NORIDIAN MUTUAL INSURANCE COMPANY
`and HEALTHYDAKOTA MUTUAL HOLDINGS
`d/b/a BLUE CROSS BLUE SHIELD OF NORTH
`DAKOTA; CAPITAL BLUE CROSS;
`
`3
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`

`

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`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 4 of 55
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`INDEPENDENCE HEALTH GROUP, INC. and
`INDEPENDENCE HOSPITAL INDEMNITY PLAN,
`INC. f/k/a INDEPENDENCE BLUE CROSS;
`TRIPLE- S MANAGEMENT CORPORATION and
`TRIPLE S-SALUD, INC.; BLUE CROSS & BLUE
`SHIELD OF RHODE ISLAND; BLUE CROSS AND
`BLUE SHIELD OF SOUTH CAROLINA;
`BLUECROSS BLUESHIELD OF TENNESSEE,
`INC.; BLUE CROSS AND BLUE SHIELD OF
`VERMONT; BLUE CROSS AND BLUE SHIELD
`OF WYOMING; and THE BLUE CROSS AND
`BLUE SHIELD ASSOCIATION,
`
`
`
`
`
`
`
`I.
`
`INTRODUCTION
`
`Defendants.
`
`
`1.
`
`Plaintiffs, Metropolitan Transportation Authority (the “MTA”) a public benefit
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`corporation created pursuant to Article 5 of Title II of the Public Authorities Law of the State of
`
`New York, on behalf of its subsidiaries and affiliates, including: New York City Transit Authority
`
`(“NYCTA”) and its subsidiary Manhattan and Bronx Surface Transit Operating Authority
`
`(“MaBSTOA”); Triborough Bridge and Tunnel Authority (“MTA Bridges and Tunnels”); The
`
`Long Island Rail Road Company (“LIRR”); Metro-North Commuter Railroad Company (“Metro-
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`North”); MTA Bus Company (“MTA Bus”); MTA Construction and Development Company
`
`(“MTA Construction and Development”); and Staten Island Rapid Transit Operating Authority
`
`(“SIRTOA”) (collectively, “Plaintiffs”), bring this action (the “Action”) against Defendants Blue
`
`Cross and Blue Shield of Alabama (“BCBS-AL”); PREMERA and Premera Blue Cross (“BC-
`
`WA”), which also does business as Premera Blue Cross Blue Shield of Alaska (“BCBS-AK”);
`
`Blue Cross and Blue Shield of Arizona, Inc. (“BCBS-AZ”); USAble Mutual Insurance Company
`
`d/b/a Arkansas Blue Cross and Blue Shield (“BCBS-AR”); Anthem, Inc., f/k/a WellPoint, Inc.
`
`d/b/a Anthem Blue Cross Life and Health Insurance Company, Blue Cross of California, Blue
`
`
`
`4
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`

`

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`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 5 of 55
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`Cross of Southern California, Blue Cross of Northern California (Blue Cross of California, Blue
`
`Cross of Southern California and Blue Cross of Northern California are referred to herein, together,
`
`as “BC-CA”), and Blue Cross Blue Shield of Georgia (“BCBS-GA”), and also does business
`
`through its subsidiaries or divisions, including, Anthem Health Plans, Inc. d/b/a Anthem Blue
`
`Cross Blue Shield of Connecticut (“BCBS-CT”), Rocky Mountain Hospital & Medical Service,
`
`Inc. d/b/a Anthem Blue Cross Blue Shield of Colorado (“BCBS-CO”) and Anthem Blue Cross
`
`Blue Shield of Nevada (“BCBS-NV”), Anthem Insurance Companies, Inc. d/b/a Anthem Blue
`
`Cross Blue Shield of Indiana (“BCBS-IN”), Anthem Health Plans of Kentucky, Inc. d/b/a Anthem
`
`Blue Cross Blue Shield of Kentucky (“BCBS-KY”), Anthem Health Plans of Maine, Inc. d/b/a
`
`Anthem Blue Cross Blue Shield of Maine (“BCBS-ME”), Anthem Blue Cross Blue Shield of
`
`Missouri, RightCHOICE Managed Care, Inc., Healthy Alliance Life Insurance Company; HMO
`
`Missouri Inc. (together, “BCBS-MO”), Anthem Health Plans of New Hampshire, Inc. d/b/a
`
`Anthem Blue Cross Blue Shield of New Hampshire (“BCBS-NH”), Empire HealthChoice
`
`Assurance, Inc. d/b/a Empire Blue Cross Blue Shield (“Empire BCBS”), Community Insurance
`
`Company d/b/a Anthem Blue Cross Blue Shield of Ohio (“BCBS-OH”), Anthem Health Plans of
`
`Virginia, Inc. d/b/a Anthem Blue Cross and Blue Shield of Virginia, (“BCBS-VA”), Anthem Blue
`
`Cross Blue Shield of Wisconsin, and Compcare Health Services Insurance Corporation (together,
`
`“BCBS-WI”); California Physicians’ Service, d/b/a Blue Shield of California (“BS-CA”);
`
`Highmark Health, and Highmark Inc. d/b/a Highmark Blue Shield and Highmark Blue Cross Blue
`
`Shield and including Highmark Inc. predecessor Hospital Service Association of Northeastern
`
`Pennsylvania f/d/b/a Blue Cross of Northeastern Pennsylvania (“BC-Northeastern PA”) (together,
`
`“Highmark BCBS”); Highmark Blue Cross Blue Shield Delaware Inc. d/b/a Highmark Blue Cross
`
`Blue Shield Delaware (“BCBS-DE”), Highmark West Virginia Inc. d/b/a Highmark Blue Cross
`
`
`
`5
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`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 6 of 55
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`Blue Shield West Virginia (“BCBS-WV”); CareFirst, Inc. and its subsidiaries or affiliates Group
`
`Hospitalization and Medical Services, Inc., CareFirst of Maryland, Inc., and CareFirst BlueChoice,
`
`Inc., which collectively d/b/a CareFirst BlueCross BlueShield (CareFirst, Inc., CareFirst of
`
`Maryland, Inc. and CareFirst BlueChoice, Inc. are referred to herein, together, as “BCBS-MD”,
`
`and CareFirst, Inc., Group Hospitalization and Medical Services, Inc. and CareFirst BlueChoice,
`
`Inc. are referred to herein, together, as “BCBS-DC”); GuideWell Mutual Holding Corporation and
`
`Blue Cross and Blue Shield of Florida, Inc. d/b/a Florida Blue (“BCBS-FL”); Hawaii Medical
`
`Service Association d/b/a Blue Cross and Blue Shield of Hawaii (“BCBS-HI”); Blue Cross of Idaho
`
`Health Service, Inc. d/b/a Blue Cross of Idaho (“BC-ID”); Cambia Health Solutions, Inc., f/d/b/a
`
`Regence BlueShield of Idaho (“BS-ID”), Regence Blue Cross Blue Shield of Oregon (“BCBS-
`
`OR”), Regence Blue Cross Blue Shield of Utah (“BCBS-UT”), and Regence Blue Shield (in
`
`Washington) (“BS-WA”); Health Care Service Corporation, a Mutual Legal Reserve Company,
`
`d/b/a Blue Cross and Blue Shield of Illinois (“BCBS-IL”), Blue Cross and Blue Shield of Montana,
`
`(“BCBS- MT”, including its predecessor Caring for Montanans, Inc.), Blue Cross and Blue Shield
`
`of New Mexico (“BCBS-NM”), Blue Cross and Blue Shield of Oklahoma (“BCBS-OK”), and Blue
`
`Cross and Blue Shield of Texas (“BCBS-TX”); Wellmark, Inc., including its subsidiaries and/or
`
`divisions, Wellmark Blue Cross and Blue Shield of Iowa, Wellmark of South Dakota, Inc. d/b/a
`
`Wellmark Blue Cross and Blue Shield of South Dakota (together, “Wellmark”); Blue Cross and
`
`Blue Shield of Kansas, Inc., also d/b/a BlueCross Blue Shield of Kansas (“BCBS-KS”); Louisiana
`
`Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana (“BCBS-
`
`LA”); Blue Cross and Blue Shield of Massachusetts, Inc. (“BCBS-MA”); Blue Cross Blue Shield
`
`of Michigan Mutual Insurance Company (together, “BCBS-MI”); Aware Integrated, Inc. and
`
`BCBSM, Inc., d/b/a Blue Cross and Blue Shield of Minnesota (“BCBS-MN”); Blue Cross & Blue
`
`
`
`6
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`

`

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`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 7 of 55
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`Shield of Mississippi, a Mutual Insurance Company (“BCBS-MS”); Blue Cross and Blue Shield
`
`of Kansas City (“BCBS-KC”); GoodLife Partners, Inc. and Blue Cross and Blue Shield of
`
`Nebraska (together, “BCBS-NE”); Horizon Healthcare Services, Inc., d/b/a Horizon Blue Cross
`
`Blue Shield of New Jersey (“BCBS-NJ”); HealthNow Systems, Inc. and HealthNow New York,
`
`Inc., together d/b/a BlueCross BlueShield of Western New York (“BCBS-Western NY”) and
`
`BlueShield of Northeastern New York (“BS-Northeastern NY”); Lifetime Healthcare, Inc. and
`
`Excellus Health Plan, Inc., d/b/a Excellus BlueCross BlueShield (together, “Excellus BCBS”);
`
`Blue Cross and Blue Shield of North Carolina (“BCBS-NC”); HealthyDakota Mutual Holdings
`
`and Noridian Mutual Insurance Company d/b/a Blue Cross Blue Shield of North Dakota (together,
`
`“BCBS-ND”); Capital Blue Cross (“Capital BC”); Independence Health Group, Inc. and
`
`Independence Hospital Indemnity Plan, Inc., and its subsidiary or division Independence Blue
`
`Cross (together, “Independence BC”); Triple-S Management Corporation and Triple S-Salud, Inc.
`
`(together, “BCBS-Puerto Rico”); Blue Cross & Blue Shield of Rhode Island (“BCBS-RI”); Blue
`
`Cross and Blue Shield of South Carolina (“BCBS-SC”); BlueCross BlueShield of Tennessee, Inc.
`
`(“BCBS-TN”); Blue Cross and Blue Shield of Vermont (“BCBS-VT”); and Blue Cross Blue
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`Shield of Wyoming (“BCBS-WY”) (collectively, the “Individual Blue Plans”); and the Blue Cross
`
`and Blue Shield Association (“BCBSA”), Defendants have, and continue to, manage, coordinate,
`
`and govern a combination in restraint of trade within the meaning of the Sherman Antitrust Act,
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`15 U.S.C. § 1. The combinations’ members include the Blue Cross and Blue Shield health
`
`insurance plans in the United States (hereinafter the “Blue Plans”), as well as the Blue Cross Blue
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`Shield Association (“BCBSA”), a nationwide conglomeration of the Blue Plans that inter alia, sets
`
`a series of rules and procedures applicable to use of the Blue Cross and/or Blue Shield brand names
`
`(the “Blue Brands”).
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`7
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`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 8 of 55
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`2.
`
`In this case, the Blue Plans and BCBSA – who would otherwise be potential
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`competitors on both a Blue Plan branded or non-Blue Plan branded basis – devised and agreed to
`
`a system of Exclusive Service Areas (“ESAs”) which delineated the United States into geographic
`
`regions where Blue Plans other than the Blue Plan designated as the servicer for a particular
`
`region could not service that region, or otherwise engage in competition with a geographically
`
`designated Blue Plan. This had a severely limiting effect upon competition within ESAs. Such
`
`restraints on competition included, inter alia, competition for a nationwide or multistate account
`
`headquartered within an ESA and, a National Best Efforts policy which limited the Blue Plans
`
`ability to engage in non-Blue Brands business (hereinafter referred to generally as, the
`
`“Competitive Restraints”).
`
`3.
`
`Products offered by the Blue Plans include standard health insurance products,
`
`wherein a plan pays for or reimburses members in exchange for premiums, and administrative
`
`services only (“ASO”) products, in which a plan provides services that include claims
`
`administration or access to a network of medical providers at negotiated rates in exchange for
`
`various fees charged to a self-funded account (“ASO fees”). Regarding ASO products, self-funded
`
`accounts rather than a plan, pays for or reimburses the cost of medical care.
`
`4.
`
`The Blue Plans collect funds from subscribers, enrollees and self-funded
`
`accounts in the form of premiums and administrative services fees.
`
`5.
`
`At all times during the Relevant Period as defined below, Plaintiffs were self-
`
`funded accounts that paid premiums, which included ASO fees, to the New York State Health
`
`Insurance Program (“NYSHIP”) for employee healthcare administered by one of the Blue Plans,
`
`Anthem, Inc., formerly known as Wellpoint, Inc., and doing business in this District as Empire
`
`Blue Cross Blue Shield. ‘Through
`
`the payments made
`
`to NYSHIP, Plaintiffs paid
`
`
`
`8
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`

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`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 9 of 55
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`supracompetitive ASO fees because of the Competitive Restraints alleged herein.
`
`6.
`
`The Antitrust Division of the United States Department of Justice defines per se
`
`illegal market division as follows: “Market division or allocation schemes are agreements in which
`
`competitors divide markets among themselves. In such schemes, competing firms allocate specific
`
`customers or types of customers, products, or territories among themselves. For example, one
`
`competitor will be allowed to sell to, or bid on contracts let by, certain customers or types of
`
`customers. In return, it will not sell to, or bid on contracts let by, customers allocated to the other
`
`competitors. In other schemes, competitors agree to sell only to customers in certain geographic
`
`areas and refuse to sell to, or quote intentionally high prices to, customers in geographic areas
`
`allocated to conspirator companies.”1
`
`7.
`
`In connection with the multidistrict litigation from which Plaintiffs have opted
`
`out of as a litigant, the U.S. District Court for the Northern District of Alabama considered
`
`summary judgment motions pertaining to the behavior of Defendants as alleged herein and, in so
`
`doing, directed that the applicable standard of review with regard to this behavior is a per se
`
`standard of review. See In re Blue Cross Blue Shield Antitrust Litig., 308 F.Supp.3d 1241, 1279
`
`(N.D. Ala. 2018), petition to appeal denied, No. 18-90020-E, 2018 WL 7152887 (11th Cir. Dec.
`
`12, 2018) (“Defendants’ aggregation of a market allocation scheme together with certain other
`
`output restrictions is due to be analyzed under the per se standard of review”).
`
`8.
`
`Collectively, Defendants have engaged and continue to engage in per se illegal
`
`market division. Agreements to divide national markets are reached and effected in part by the
`
`Blue Cross and Blue Shield licensing agreements between each of the Blue Plans and the umbrella
`
`BCBSA organization, which is owned and controlled by the Blue Plans. This scheme is furthered
`
`
`1 Price Fixing, Bid Rigging, and Market Allocation Schemes: What They Are and What to Look For, U.S. Dep’t of
`Justice, https://www.justice.gov/sites/default/files/atr/legacy/2007/10/24/211578.pdf (last visited Aug. 11, 2021).
`
`
`
`9
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`

`

`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 10 of 55
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`
`
`
`
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`through the BCBSA Membership Standards and Guidelines. Defendants have utilized their
`
`ownership and complete control of BCBSA, as well as other avenues to engage in illegal market
`
`allocation via their per se illegal agreements to: (1) prohibit Blue Plans from competing against
`
`one another when using the Blue Cross and/or Blue Shield brands by allocating geographical
`
`territories among the separate Blue Plans; (2) curtail the ability of the Blue Plans from competing
`
`against one another in all aspects – even when not using the Blue Cross and/or Blue Shield brands
`
`– by requiring that each Blue Plan do a certain amount of business under a Blue Cross and/or Blue
`
`Shield brand name, inside or outside of their geographic territory; and, (3) prohibit the sale of any
`
`Blue Plan to a company that is not a member of BCBSA – and thereby itself a Blue Plan – the
`
`result of which is to stop new market entrants into a Blue Plan’s market.
`
`9.
`
`Any Blue Plan that violates the above per se illegal agreements is subject to
`
`penalties, including the revocation of its Blue Cross Blue Shield license and membership in
`
`BCBSA. These penalties mean the loss of use of the Blue Cross and/or Blue Shield brand names
`
`through which each Blue Plan makes the vast majority of its income, as well as the payment of a
`
`large fee to BCBSA to assist in funding the establishment of a competing health insurer.
`
`10.
`
`Many of the Blue Plan Defendants have established non-Blue Plan branded
`
`products that could otherwise compete with other Blue Plans, but for their per se illegal agreements
`
`not to compete with one another. In absence of their illegal agreements, Blue Plan Defendants
`
`could and would use their Blue brands and non-Blue brands to compete with each other throughout
`
`respective geographical territories – without limiting business to their ESAs. These activities
`
`would result in greater competition and competitively priced ASO fees as paid by self-funded
`
`accounts, such as those of Plaintiffs.
`
`11.
`
`Across the nation, each of the Blue Plans often has a high degree of market power
`
`
`
`10
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`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 11 of 55
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`
`
`
`
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`within its ESAs. The Competitive Restraints articulated above serve to illegally enhance this
`
`market power within each ESA by curtailing competition from other Blue Plans in each individual
`
`market. This Competitive Restraint is the result of the Defendants’ unlawful agreement to divvy
`
`up geographic territories nationwide between the individual Blue Plan Defendants, with the
`
`intended – and resultant – effect of limiting competition within the United States for commercial
`
`health insurance products and services.
`
`12.
`
`The Blue Plan Defendants’ illegal agreement and requisite anticompetitive
`
`activity, which stifled or outright removed competition from the marketplace for commercial
`
`health insurance products has prevented self-funded accounts from being offered competitive ASO
`
`fees.
`
`13.
`
`These inflated ASO fees are only possible because the market for commercial
`
`health insurance products in the Blue Plan Defendants’ ESAs were subject to the Competitive
`
`Restraints outlined above. Competition in the commercial health insurance market remains
`
`impossible while the Blue Plan Defendants and Defendant BCBSA are able to enter into the
`
`aforementioned agreements which have the intention and result of restricting competition between
`
`the Blue Plans, whether by marketing Blue Plan branded or non-Blue Plan branded product
`
`offerings.
`
`JURISDICTION AND VENUE
`
`II.
`
`
`14.
`
`This Court has federal question jurisdiction under 28 U.S.C. § 1331 and 28
`
`U.S.C. § 1337(a), as this action arises under Sections 4 and 16 of the Clayton Act (15 U.S.C. §§
`
`15 and 26) and Sections 1 and 3 of the Sherman Act (15 U.S.C. §§ 1 and 3).
`
`15.
`
`This Court has personal jurisdiction over Defendants pursuant to Section 12 of
`
`the Clayton Act and/or pursuant to relevant states’ long-arm statutes under one or more of the
`
`
`
`11
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`Case 1:21-cv-09101 Document 1 Filed 11/03/21 Page 12 of 55
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`
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`
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`following theories: (1) Each Defendant has purposefully availed itself of the privilege of
`
`conducting business activities within the United States and has the requisite minimum contacts
`
`therein because each Defendant participated in a conspiracy which injured or threatened injury to
`
`self-funded account subscribers in the United States and overt acts in furtherance of the conspiracy
`
`were committed within the United States (herein defined to include the District of Columbia and
`
`Puerto Rico); and/or (2) each Defendant has purposefully availed itself of the privilege of
`
`conducting business activities within the United States and has the requisite minimum contacts
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`therein because each Defendant committed intentional acts that were intended to cause and did
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`cause injury within the United States; and/or (3) each Defendant has purposefully availed itself of
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`the privilege of conducting business activities within the United States and has the requisite
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`contacts therein because each Defendant committed intentional acts that defendants knew were
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`likely to cause injury within the United States; and/or (4) each Defendant has purposefully availed
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`itself of the privilege of conducting business activities within the United States and has the
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`requisite minimum contacts therein because each Defendant is a party to an anticompetitive
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`agreement with a resident of the United States, which agreement is performed in whole or in part
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`within the United States; and/or (5) each Defendant has purposefully availed itself of the privilege
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`of conducting business activities within the United States and has the requisite minimum contacts
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`therein because each Defendant has committed a tort within the relevant state, which has caused
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`injury within the state; and/or, (6) each Defendant has purposefully availed itself of the privilege
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`of conducting business activities within the United States and has the requisite minimum contacts
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`therein because each Defendant either has members within the United States or transacts business
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`within the relevant state.
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`16.
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`Venue is proper in this Court, as provided in 28 U.S.C. § 1391(b) and (c) and in
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`Sections 4, 12 and 16 of the Clayton Act (15 U.S.C. §§ 15, 22 and 26), because Plaintiffs are
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`located in this District and because Defendants either transacted and/or impacted business in this
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`District, giving rise to Plaintiffs’ claims.
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`III.
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`THE PARTIES
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`17.
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`Plaintiff MTA is North America’s largest corporation transportation network,
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`serving a population of 15.3 million people across a 5,000-square-mile travel area surrounding
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`New York City through Long Island, southeastern New York State, and Connecticut. The MTA
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`network comprises the nation’s largest bus fleet and more subway commuter rail cars than all other
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`U.S. transit systems combined.
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`18.
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`Plaintiff NYCTA is one of the largest transportation agencies in the world.
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`NYCTA operates subways in the New York City boroughs of Brooklyn, the Bronx, Manhattan, and Queens.
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`19.
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`20.
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`New York City.
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`Plaintiff MaBSTOA operates buses in upper Manhattan and the Bronx.
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`Plaintiff MTA Bridges and Tunnels operates seven bridges and two tunnels in
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`21.
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`Plaintiff LIRR is the largest commuter railroad in America that services
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`commuters between New York City and Long Island.
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`22.
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`Plaintiff Metro-North is the second largest commuter railroad in the nation
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`serving commuters between New York City and certain suburban counties of New York and
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`Connecticut.
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`23.
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`Plaintiff MTA Bus operates local routes in the Bronx, Brooklyn, and Queens,
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`and express bus routes between Manhattan and the Bronx, Brooklyn, and Queens.
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`24.
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`Plaintiff MTA Construction and Development rebuilds, improves, and
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`expands the MTA’s extensive network of subway, bus, commuter rail, bridge, and tunnel
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`infrastructure.
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`25.
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`Plaintiff SIRTOA operates the Staten Island Railway a rapid transit line in the
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`New York City borough of Staten Island.
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`26.
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`Plaintiffs are employers who offer health insurance coverage and/or benefits to
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`their employees, including the Empire Plan, also referred to as NYSHIP, the hospitalization plan
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`portion of which is administered by Defendant Empire Blue Cross Blue Shield.
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`27.
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`From 1994, Plaintiffs paid ASO fees related to their participation in the Blue
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`Plans, including the Empire Plan.
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`28.
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`Presently, Plaintiffs are self-funded accounts as defined by the Rule 23(b)(3)
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`Damages Class in In re: Blue Cross Blue Shield Antitrust Litig., MDL 2406, N.D. Ala., Master
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`File No. 2:13-cv-20000-RDP.
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`29.
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`The Relevant Period applicable to the claims in this Complaint runs from 1994,
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`when Plaintiffs first procured commercial health insurance services from Defendant Empire Blue
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`Cross Blue Shield to present.
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`30.
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`On July 27, 2021, Plaintiffs timely submitted an exclusion request and became
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`opt-outs from the Rule 23(b)(3) Damages Class in In re: Blue Cross Blue Shield Antitrust Litig.,
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`MDL 2406, N.D. Ala., Master File No. 2:13-cv-20000-RDP.
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`Defendants
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`31.
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`Defendant BCBSA is a corporation organized under the state of Illinois and
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`headquartered in Chicago, Illinois. It is owned and controlled by thirty-six (36) health insurance
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`plans that operate under the Blue Cross and Blue Shield trademarks and trade names. BCBSA was
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`created by these plans and operates as a licensor for these plans. Health insurance plans operating
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`under the Blue Cross and Blue Shield trademarks and trade names provide health insurance
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`coverage for approximately 100 million – or one in three – Americans. A BCBS licensee is the
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`largest health insurer, as measured by number of subscribers, in forty-four (44) states.
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`32.
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`The principal headquarters for BCBSA is located at 225 North Michigan
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`Avenue, Chicago, IL 60601.
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`33.
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`BCBSA has contacts with all 50 States, the District of Columbia, and Puerto Rico
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`by virtue of its agreements and contacts with the Individual Blue Plans. In particular, BCBSA has
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`entered into a series of license agreements with the Individual Blue Plans that control the
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`geographic areas in which the Individual Blue Plans can operate on either a Blue-branded or non-
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`Blue-branded basis. These agreements are a subject of this Complaint.
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`34.
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`Defendant Empire BCBS is the health insurance plan operating under the Blue
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`Cross and Blue Shield trademarks and trade names in Eastern and Southeastern New York. Like
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`other Blue Cross and Blue Shield plans nationwide, Empire BCBS is the largest health insurer, as
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`measured by number of subscribers or enrollees within its Service Area, which is defined as the
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`28 counties of Eastern and Southeastern New York state. Empire BCBS likewise provides ASO
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`services to self-funded accounts throughout its Service Area.
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`35.
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`The principal headquarters for Empire BCBS is located at One Liberty Plaza,
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`New York, NY 10006. Empire BCBS does business in each county in New York.
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`36.
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`Defendant BCBS-Western New York is the health insurance plan operating
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`under the Blue Cross and Blue Shield trademarks and trade names in Western New York. Like
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`other B l u e Cross and Blue Shield plans nationwide, BCBS-Western New York is one of the
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`largest health insurers, as measured by number of subscribers or enrollees within its Service Area,
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`which is defined as Western New York state. BCBS-Western New York likewise provides ASO
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`services to self-funded accounts throughout its Service Area.
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`37.
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`The principal headquarters for BCBS-Western New York is located at 257 West
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`Genesee Street, Buffalo, NY 14202. BCBS-Western New York does business in a number of
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`counties in Western New York.
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`38.
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`Defendant BS-Northeastern New York is the health insurance plan operating
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`under the Blue Shield trademark and trade name in Northeastern New York. Like other Blue Cross
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`and Blue Shield plans nationwide, BS-Northeastern New York is one of the largest health insurers,
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`as measured by number of subscribers or enrollees within its Service Area, which is defined as 13
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`counties in Northeastern New York. BS-Northeastern New York likewise provides ASO services
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`to self-funded accounts throughout its Service Area.
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`39.
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`The principal headquarters for BS-Northeastern New York is located at 257 West
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`Genesee Street, Buffalo, NY 14202. BS-Northeastern New York does business in 13 counties in
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`Northeastern New York.
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`40.
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`Defendant Excellus BCBS is the health insurance plan operating under the Blue
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`Cross and Blue Shield trademarks and trade names in central New York. Like other Blue Cross
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`and Blue Shield plans nationwide, Excellus BCBS is one of the largest health insurers, as measured
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`by number of subscribers or enrollees within its Service Area, which is defined as 31 counties in
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`central New York. Excellus BCBS likewise provides ASO services to self-funded accounts
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`throughout its Service Area.
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`41.
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`The principal headquarters for Excellus BCBS is located at 165 Court Street,
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`Rochester, NY 14647. Excellus BCBS does business in each county in the 31 counties of central
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`New York.
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`42.
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`Empire BCBS, BCBS-Western New York, BS-Northeastern New York, and
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`Excellus BCBS currently exercise market power in the commercial health insurance market
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`throughout their respective service areas of New York. As of 2010, at least 67 percent of the New
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`York residents who subscribe to or are enrolled in full-service commercial health insurance are
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`subscribers or enrollees of these New York Individual Blue Plans.
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`43.
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`Empire BCBS, BCBS-Western New York, BS-Northeastern New York, and
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`Excellus BCBS have led the way in increasing premiums in their respective Service Areas.
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`44.
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`Defendant BCBS-AL is the health insurance plan operating under the Blue
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`Cross and Blue Shield trademarks and trade names in the state of Alabama. Like many other Blue
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`Cross and Blue Shield plans nationwide,