UPMC, Highmark antitrust suit to end

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The 4-year-old antitrust battle involving UPMC and Highmark, as well as its subsidiary West Penn Allegheny Health System, must stop by year's end per a judge's order Thursday -- but there are indications that more litigation is on the way.

U.S. District Judge Joy Flowers Conti compelled attorneys for the Pittsburgh health giants to draft a settlement order immediately and stipulations of dismissal by Dec. 30 in the cases in which they accuse each other of being monopolists. They are also barred from suing each other again over any alleged restraints of competition that may have occurred before Sept. 20, 2012.

"I don't want some new lawsuit to be filed that's reasserting these same claims," the judge said.

Highmark's attorneys, though, didn't rule out another lawsuit accusing UPMC of monopolistic behavior after that date.

"We have antitrust claims against UPMC," said Highmark attorney Margaret Zwisler.

"New ones?" the judge asked.

"Yes," said Ms. Zwisler.

That led UPMC attorney Paul "Mickey" Pohl to accuse Highmark of "laying in the weeds" with new accusations.

West Penn sued both Highmark and UPMC in 2009, accusing them of stifling competition. When insurer Highmark took control of West Penn, that complaint was recrafted to focus solely on UPMC, which filed counterclaims.

In May 2012, mediation between UPMC and Highmark, backed by Gov. Tom Corbett, led to an agreement which included requirements that the parties drop the lawsuit. UPMC promptly filed its own lawsuit accusing Highmark of squashing insurance rivals.

In October 2013, UPMC presented a draft settlement agreement ending the cases permanently. Highmark, though, sought the addition of a new clause that would bar the two nonprofits from accusing each other of monopolistic behavior in a separate, class-action case in which they are both defendants.

"I was very disappointed to see the addition that was added to the language," Judge Conti told Ms. Zwisler. It was not included in the settlement order. Ms. Zwisler said that UPMC's October proposal could have barred Highmark from filing new antitrust cases against UPMC based on things that have happened since May 2012.

"Let's not have the angels dancing on the head of a pin here," the judge said, ordering the attorneys to draft a settlement order. After an hour in a conference room, they emerged with the language. "I'll expect to have the notices of dismissals in on those cases no later than Dec. 30," Judge Conti said.

She said that Highmark must cause West Penn's board to agree to the cessation of litigation, or replace the board. "The litigations have to go away," she said.

Rich Lord: rlord@post-gazette.com, 412-263-1542 or Twitter @richelord.


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