Judge orders Highmark, UPMC to drop lawsuits by Dec. 30

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An exasperated federal judge today ordered UPMC and Highmark to end the four-year-old antitrust battle between them by Dec. 30.

Even as both sides agreed in principle, there were hints that new lawsuits could follow the withdrawal of the old.

After an hour-long status conference, U.S. District Judge Joy Flowers Conti sent four UPMC attorneys and three for Highmark into a courthouse conference room with orders to draft terms of an order that would end their claims and counterclaims against each other, with prejudice.

"Let's not have the angels dancing on the head of a pin here," Judge Conti told the assembled attorneys, after they quibbled over dates that may appear in the proposed order.

They emerged about an hour later with a proposed order eliminating all antitrust claims by UPMC against Highmark, and vice versa, related to conduct before Sept. 20, 2012.

"I'll expect to have the notices of dismissals in on those cases no later than Dec. 30," Judge Conti said.

In May 2012, the Pittsburgh region's dominant insurer and hospital system agreed to drop their cases against each other. In October 2013, UPMC presented a draft settlement agreement.

Highmark sought the addition of a new sentence that would bar the two nonprofits from accusing each other of monopolist 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 Highmark attorney Margaret Zwisler.

Ms. Zwisler said UPMC's proposed release could have barred Highmark from filing new antitrust cases against UPMC based on things that have happened since May 2012.

"We have antitrust claims against UPMC," said Ms. Zwisler.

"New ones?" the judge asked.

"Yes," said Ms. Zwisler.

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

The judge said she would not enforce the UPMC-crafted settlement agreement, but would enforce the May 2012 legal peace pact reached after negotiations mediated by a representative of Pennsylvania Gov. Tom Corbett.

The judge said that means Highmark must force West Penn Allegheny Health System, which it controls, to drop a 2009 lawsuit accusing UPMC of stifling competition. UPMC must drop a 2012 case making the same accusation against Highmark.

"The litigations have to go away," the judge said.

The hearing is expected to continue this afternoon. The judge said both sides would have to secure any needed board approvals by Dec. 30.

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

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