DAVIS v. HCA HEALTHCARE, INC., 2023 NCBC 32

Davis v. HCA Healthcare, Inc., 2023 NCBC 32.
STATE OF NORTH CAROLINA
BUNCOMBE COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
21 CVS 3276
WILLIAM ALAN DAVIS;
LORRAINE NASH, as Administrator
of the Estate of RICHARD NASH;
JONATHAN POWELL; FAITH C.
COOK, Psy.D.; and
KATHERINE BUTTON, on their own
behalf and on behalf of all others
similarly situated,
Plaintiffs,
v.
HCA HEALTHCARE, INC.; HCA
MANAGEMENT SERVICES, LP;
HCA, INC.; MH MASTER
HOLDINGS, LLLP; MH HOSPITAL
MANAGER, LLC; MH MISSION
HOSPITAL, LLLP; ANC
HEALTHCARE, INC. F/K/A
MISSION HEALTH SYSTEM, INC.;
and MISSION HOSPITAL, INC.,
Defendants.
ORDER AND OPINION ON
DEFENDANTS’ MOTION TO DISMISS
FIRST AMENDED CLASS ACTION
COMPLAINT
THIS MATTER comes before the Court on Defendants’ Motion to Dismiss
First Amended Class Action Complaint (“Motion to Dismiss” or “Motion,” ECF No.
64).
THE COURT, having considered the Motion, the briefs of the parties, the
relevant pleadings, and the arguments of counsel, CONCLUDES, for the reasons set
forth below, that the Motion should be GRANTED, in part, and DENIED, in part.
Wallace and Graham, P.A., by Mona Lisa Wallace, John Hughes, and
Olivia B. Smith, and Fairmark Partners LLP, by Jamie Crooks and
Rucha A. Desai, for Plaintiffs William Alan Davis, Lorraine Nash, as
Administrator of the Estate of Richard Nash, Jonathan Powell, Faith C.
Cook, Psy.D., and Katherine Button, on their own behalf and on behalf
of all others similarly situated.

Roberts & Stevens, P.A., by Phillip T. Jackson, John Noor, and David
Hawisher, and Simpson Thacher & Bartlett LLP, by Sara Razi, Abram
Ellis, Laurel E. Fresquez, and John A. Robinson, for Defendants HCA
Healthcare, Inc., HCA Management Services, LP, HCA, Inc., MH Master
Holdings, LLLP, MH Hospital Manager, LLC, and MH Mission
Hospital, LLLP.
Bradley Arant Boult Cummings LLP, by Dana C. Lumsden, Anna-Bryce
Hobson, and Hanna E. Eickmeier, and Faegre Drinker Biddle & Reath
LLP, by Kenneth M. Vorrasi, Jonathan H. Todt, Alison M. Agnew, and
Paul H. Saint-Antoine, for Defendants ANC Healthcare, Inc. f/k/a
Mission Health System Inc. and Mission Hospital, Inc.
Davis, Judge.
INTRODUCTION
1. In this antitrust action involving the market for healthcare services,
Plaintiffs’ initial Complaint alleged that Defendants possessed a monopoly with
regard to the provision of inpatient medical services in certain counties within
western North Carolina through its flagship hospital—Mission Hospital-Asheville.
Plaintiffs further asserted that by virtue of their negotiating power to insist upon the
inclusion of certain anticompetitive contractual restraints in their contracts with
commercial health insurers, Defendants were able to extend their monopoly to other
markets within western North Carolina in violation of applicable antitrust law. In
its 19 September 2022 Order and Opinion (“September 19 Opinion,” ECF No. 55) on
Defendants’ motion to dismiss Plaintiffs’ original Complaint, the Court dismissed
without prejudice Plaintiffs’ monopoly claims but ruled that Plaintiffs had stated a
valid claim for relief on their accompanying claim for restraint of trade.
2. Following the Court’s ruling, Plaintiffs filed a First Amended Complaint
containing additional allegations in an attempt to remedy the defects identified by

the Court with regard to their monopoly claims as originally pled. Defendants have
now filed a new motion to dismiss in which they contend that Plaintiffs’ amended
monopoly claims are still subject to dismissal as a matter of law. Therefore, the issue
presently before the Court is whether Plaintiffs’ new allegations are sufficient to state
valid claims for relief on a monopolization theory.
FACTUAL AND PROCEDURAL BACKGROUND
3. The Court does not make findings of fact on a motion to dismiss under
Rule 12(b)(6) of the North Carolina Rules of Civil Procedure and instead recites those
facts contained in the complaint (and in documents attached to, referred to, or
incorporated by reference in the complaint) that are relevant to the Court’s
determination of the motion. See, e.g., Concrete Serv. Corp. v. Inv’rs Grp., Inc., 79
N.C. App. 678, 681 (1986); Window World of Baton Rouge, LLC v. Window World,
Inc., 2017 NCBC LEXIS 60, at *11 (N.C. Super. Ct. July 12, 2017).
4. A complete summary of the factual history of this case is unnecessary,
as this Court has previously provided a detailed factual background in its September
19 Opinion, and the factual underpinnings of this case have not changed. Instead,
the Court has set out below a brief overview of the most pertinent factual allegations.
5. Plaintiffs in this case are citizens of western North Carolina who claim
they have been forced to pay higher premiums for their health insurance due to
Defendants’ alleged anticompetitive acts. (First Am. Class Action Compl. [“Am.
Compl.”], ECF No. 61, ¶¶ 15–20.)

6. Defendants HCA Healthcare, Inc.; HCA Management Services, LP;
HCA, Inc.; MH Master Holdings, LLLP; MH Hospital Manager, LLC; and MH
Mission Hospital, LLLP (collectively, the “HCA Defendants” or “HCA”) operate as a
for-profit hospital chain. (Am. Compl. ¶¶ 21–41.) HCA currently operates a hospital
system in the Asheville area and surrounding western North Carolina region (the
“Mission Health System” or the “System”). (Am. Compl. ¶¶ 21–41.)
7. HCA purchased the Mission Health System from Defendants ANC
Healthcare, Inc. f/k/a Mission Health System, Inc. and Mission Hospital, Inc. (the
“ANC Defendants”) following the execution of an Asset Purchase Agreement on 30
August 2018. (Am. Compl. ¶¶ 48, 86.)1
8. Prior to HCA’s purchase of the Mission Health System, the ANC
Defendants operated the System with the benefit of a Certificate of Public Advantage
(“COPA”) law that provided Mission’s hospitals legislative protection from antitrust
scrutiny in exchange for their agreement to be subject to certain types of
governmental oversight. (Am. Compl. ¶ 59.) Plaintiffs allege that the ANC
Defendants abused the protection afforded by the COPA by acquiring and eliminating
healthcare practice groups in the area, pressuring smaller hospitals to become part
of the System, and buying up other hospitals—resulting in huge growth for the
Mission Health System. (Am. Compl. ¶¶ 70–75.) After several subsequent
amendments to the COPA law, the ANC Defendants successfully lobbied for the law’s
ultimate repeal, which formally terminated state oversight of the Mission Health
1 For ease of reading, throughout this Opinion all of the entities Plaintiffs have sued in this
action are often referred to collectively as “Defendants.”

System. (Am. Compl. ¶ 59–81.) At the time of the COPA’s repeal, Mission had a 93%
market share for inpatient general acute care in Buncombe and Madison Counties,
where Defendants served patients through Mission Hospital-Asheville. (Am. Compl.
¶¶ 69–71.) Thus, Plaintiffs allege that the COPA law enabled Defendants to obtain
a monopoly with regard to inpatient healthcare services in Buncombe and Madison
Counties. Plaintiffs contend in this lawsuit that Defendants have misused this
monopoly power in violation of applicable law.
9. In the Amended Complaint, Plaintiffs allege that Defendants used their
market power to coerce commercial health insurers to include provisions in their
health insurance contracts favorable to Defendants. Plaintiffs contend that
Defendants then used these contractual restraints to extend their monopoly power to
additional healthcare markets in western North Carolina as well as to maintain their
monopoly regarding inpatient services in Buncombe and Madison Counties.
10. Plaintiffs first allege that Defendants engaged in an unlawful “tying
scheme.” Plaintiffs assert that Defendants exploited the fact that no insurance plan
in western North Carolina would be viable if Mission Hospital-Asheville was not
included in-network. Defendants did so, Plaintiffs contend, by forcing insurers to also
include in-network other less desirable Mission Health System facilities along with
Mission Hospital-Asheville—regardless of whether the insurer actually wanted to
include those other facilities in-network. (Am. Compl. ¶¶ 222–25.) Plaintiffs allege
that Defendants used this tying scheme to gain monopoly-level power in the markets
for outpatient services in the Asheville region (which is comprised of Buncombe and

Madison Counties), as well as in the markets for both inpatient services and
outpatient services in the “Outlying Regions,” which consist of Macon, McDowell,
Mitchell, Transylvania, and Yancey Counties. (Am. Compl. ¶¶ 130, 222–44.)
11. Second, Plaintiffs assert that Defendants have insisted on “anti-
steering” language in their contracts with health insurers as a result of which
insurers were contractually barred from steering patients away from Defendants’
facilities and toward competitor facilities offering lower prices and/or higher quality
of care. Plaintiffs similarly contend that these contractual provisions also contained
“anti-tiering” language, which prevented insurers from creating cost-saving “tiers” in
their health insurance plans. (Am. Compl. ¶¶ 245–53.) Finally, Plaintiffs allege that
Defendants insisted on other contractual provisions such as “gag clauses” that
prevented insurers from revealing the terms of their contracts with Defendants,
thereby inhibiting competition. (Am. Compl. ¶ 254–57.)
12. Plaintiffs argue that as a result of these contractual restraints, residents
of western North Carolina pay significantly more for health insurance than residents
in other parts of the State. (Am. Compl. ¶¶ 258–64.)
13. Plaintiffs initiated this lawsuit on 10 August 2021 by filing a Complaint
in Buncombe County Superior Court containing claims under North Carolina law
based on theories of monopoly acquisition, monopoly maintenance, monopoly
leveraging, attempted monopolization, and restraint of trade. (ECF No. 3.)
14. Defendants moved to dismiss Plaintiffs’ original Complaint on 13
October 2021. (ECF No. 27.) In its September 19 Opinion, the Court granted, in part,

and denied, in part, Defendants’ Motion to Dismiss. (September 19 Opinion, ECF No.
55, at pp. 42–43.) Specifically, as noted above, the Court concluded that Plaintiffs
had alleged a valid restraint of trade claim but dismissed Plaintiffs’ claims for
monopolization and attempted monopolization.2 (September 19 Opinion, at pp. 42–
43.)
15. On 31 October 2022, Plaintiffs filed their Amended Complaint in which
they reasserted all of the claims contained in their original Complaint except for the
monopolization claim under the North Carolina Constitution. (Am. Compl ¶¶ 323–
63.) As in the original Complaint, all claims asserted in the Amended Complaint are
based exclusively upon North Carolina law, and the markets defined to support their
monopoly-based claims are the same as in the original Complaint: (1) the market for
inpatient services in the Asheville Region; (2) the market for outpatient services in
the Asheville Region; (3) the market for inpatient services in the Outlying Regions;
and (4) the market for outpatient services in the Outlying Regions. (Am. Compl. ¶¶
114–35.)
16. On 5 December 2022, Defendants filed the present Motion to Dismiss.
(ECF No. 64.) In the Motion, Defendants seek dismissal of all of the monopolization
and attempted monopolization claims contained in the Amended Complaint. (ECF
No. 64.)
2 The Court dismissed all of the monopolization and attempted monopolization claims
without prejudice except for a claim under the North Carolina Constitution, which Plaintiffs
conceded was not viable. (September 19 Opinion, at pp. 42–43.)

17. This matter came before the Court for a hearing on 27 March 2023. The
Motion is now ripe for decision.
LEGAL STANDARD
18. “It is well-established that dismissal pursuant to Rule 12(b)(6) is proper
when ‘(1) the complaint on its face reveals that no law supports the plaintiff’s claim;
(2) the complaint on its face reveals the absence of facts sufficient to make a good
claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s
claim.’ ” Corwin v. British Am. Tobacco PLC, 371 N.C. 605, 615 (2018) (quoting Wood
v. Guilford Cty., 355 N.C. 161, 166 (2002)). The Court may also “reject allegations
that are contradicted by the documents attached, specifically referred to, or
incorporated by reference in the complaint.” Laster v. Francis, 199 N.C. App. 572,
577 (2009) (cleaned up).
19. This Court has previously noted that
“[t]he general standard for civil pleadings in North Carolina is notice
pleading.” Murdock v. Chatham Cty., 198 N.C. App. 309, 316, 679
S.E.2d 850, 855 (2009) (citing N.C. Gen. Stat. § 1A-1, Rule 8(a)(1)).
“Under this ‘notice pleading’ standard, ‘a statement of claim is adequate
if it gives sufficient notice of the claim asserted to enable the adverse
party to answer and prepare for trial, to allow for the application of the
doctrine of res judicata, and to show the type of case brought.’ ” Tillery
Envtl. LLC v. A&D Holdings, Inc., No. 17 CVS 6525, 2018 NCBC LEXIS
13, at *78 (N.C. Super. Ct. Feb. 9, 2018) (quoting Wake Cty. v.
Hotels.com, L.P., 235 N.C. App. 633, 646, 762 S.E.2d 477, 486 (2014)).
However, even if a pleading provides proper notice of “the nature and
basis” of a claim sufficient to formulate an answer, the Court must still,
under a Rule 12(b)(6) motion, “address the legal sufficiency” of each
pleaded claim. Kingsdown, Inc. v. Hinshaw, No. 14 CVS 1701, 2015
NCBC LEXIS 30, at *14, *15 (N.C. Super. Ct. Mar. 25, 2015). A pleading
that satisfies Rule 8’s notice requirement may still be subject to Rule
12(b)(6) dismissal. Id. at *13–45 (holding that a counterclaim-plaintiff’s

claims did not violate Rule 8 and then dismissing with prejudice many
of those claims under Rule 12(b)(6)).
Sykes v. Health Network Sols., Inc., 2018 NCBC LEXIS 29, at **9–10 (N.C. Super Ct.
April 5, 2018).
20. In evaluating the validity of antitrust claims asserted under North
Carolina law at the pleadings stage, this Court has stated the following:
The Motion [to Dismiss] must be decided as a matter of state law;
however, it is proper for the Court to consult federal case law. See Rose
v. Vulcan Materials Co., 282 N.C. 643, 656-57, 194 S.E.2d 521, 530-31
(1973) (consulting federal decisions to inform the court’s restraint-of-
trade analysis). The Court is fully cognizant that the Motion [to
Dismiss] must be resolved under North Carolina’s lenient Rule 12(b)(6)
standard rather than the more exacting federal plausibility standard
that governs the federal antitrust precedents that the parties cite in
their briefs.
Sitelink Software, LLC v. Red Nova Labs, Inc., 2016 NCBC LEXIS 45, at **17 (N.C.
Super Ct. June 14, 2016); see also Dicesare v. Charlotte-Mecklenburg Hosp. Auth., 376
N.C. 63, 70 (2020) (applying North Carolina’s Rule 12 standard in reviewing antitrust
claims brought under North Carolina law).
21. “Dismissal of an antitrust claim ‘at the pre-discovery, pleading stage
[is] . . . generally limited to certain types of glaring deficiencies.’ ” Se. Anesthesiology
Consultants, PLLC v. Rose, 2019 NCBC LEXIS 63, at *25 (N.C. Super. Ct. Oct. 10,
2019) (quoting Dicesare v. Charlotte-Mecklenburg Hosp. Auth., 2017 NCBC LEXIS
33, at *46 (N.C. Super Ct. April 11, 2017)). Nevertheless, “even North Carolina’s
lenient pleading standard does not allow for an antitrust claim to continue when
there are insufficient or conclusory allegations of market power.” Id. (citing Sitelink,
2016 NCBC LEXIS 45, at *29–30).

ANALYSIS
22. Defendants contend that dismissal of each of the monopolization and
attempted monopolization claims contained in the Amended Complaint is
appropriate because none of the various theories relied upon by Plaintiffs are
adequately supported by their allegations.
23. Our General Statutes provide that
[i]t is unlawful for any person to monopolize, or attempt to monopolize,
or combine or conspire with any other person or persons to monopolize,
any part of trade or commerce in the State of North Carolina.
N.C.G.S. § 75-2.1 (2021).
24. As an initial matter, the Court notes that Plaintiffs were originally
advancing a claim that Defendants had acquired their alleged monopoly on inpatient
services in the Asheville Region unlawfully. In its September 19 Opinion, the Court
dismissed Plaintiffs’ monopoly acquisition claim without prejudice. In their brief in
opposition to Defendants’ present Motion, Plaintiffs acknowledged that they have
abandoned this theory. Accordingly, the monopoly acquisition claim is DISMISSED
with prejudice.
25. Although each of Plaintiffs’ remaining monopolization theories are
distinct, they all require the following elements: “(1) the possession of monopoly
power in the relevant market and (2) willful acquisition or maintenance of that power
as distinguished from growth or development as a consequence of a superior product,
business acumen, or historic accident.” See Sykes v. Health Network Sols., Inc., 2017
NCBC LEXIS 73, at *60 (N.C. Super. Ct. Aug. 18, 2017) (cleaned up).

26. Our Supreme Court has articulated the following principles regarding
monopolies under North Carolina law:
A monopoly results from ownership or control of so large a portion of the
market for a certain commodity that competition is stifled, freedom of
commerce is restricted, and control of prices ensues. It denotes an
organization or entity so magnified that it suppresses competition and
acquires a dominance in the market. The result is public harm through
the control of prices of a given commodity. State v. Atlantic Ice & Coal
Co., 210 N.C. 742, 747-48, 188 S.E. 412, 415 (1936) . . . .
The distinctive characteristics of a monopoly are, then, (1) control of so
large a portion of the market of a certain commodity that (2) competition
is stifled, (3) freedom of commerce is restricted and (4) the monopolist
controls prices . . . .
. . .
In order to monopolize, one must control a consumer’s access to new
goods by being the only reasonably available source of those goods. A
consumer must be without reasonable recourse to elude the
monopolizer’s reach. Logically, then, the market encompasses
geographically at least all areas within reasonable proximity of potential
customers.
. . .
More than a mere adverse effect on competition must arise before a
restraint of trade becomes monopolistic.
American Motors Sales Corp. v. Peters, 311 N.C. 311, 315–17 (1984).
27. This Court has previously discussed how to properly assess monopoly
power for purposes of Chapter 75.
“Monopoly power is the power to control prices or exclude competition.
A defendant possesses monopoly power in the relevant market if it is
truly predominant in the market.” Kolon Indus. Inc. v. E.I. Dupont de
Nemours & Co., 748 F.3d 160, 173-74 (4th Cir. 2014) (citations omitted)
(internal quotation marks omitted). In determining whether monopoly
power exists, courts look at defendant’s market share, the durability of
defendant’s market power, and whether there are significant barriers to

entry. Id. at 174; Bepco, Inc., 106 F. Supp. 2d at 830. Market share,
while highly relevant to monopoly power, is not conclusive. Kolon Indus.
Inc., 748 F.3d at 174 (“[T]here is no fixed percentage market share that
conclusively resolves whether monopoly power exists . . . .”); Broadway
Delivery Corp. v. United Parcel Serv., Inc., 651 F.2d 122, 128 (2d Cir.
1981) (“The trend of guidance from the Supreme Court and the practice
of most courts endeavoring to follow that guidance has been to give only
weight and not conclusiveness to market share evidence.”); see also
Sitelink Software, LLC, 2016 NCBC LEXIS 45, at *29-31 (stating that
courts often apply certain presumptions for measuring market power,
but a determination of market power turns on a fact-specific inquiry and
an antitrust plaintiff must “demonstrate some minimal set of well-
grounded factual allegations to support an assertion of market power”).
Dicesare, 2017 NCBC LEXIS 33, at *54–55.
28. Plaintiffs’ monopolization claims here are best framed as claims for
monopoly maintenance and monopoly leveraging and can be summarized as follows:
First, Plaintiffs argue that Defendants have used anticompetitive means (namely,
the above-described contractual restraints) to maintain the monopoly they possess on
inpatient services in the Asheville Region. Second, they contend that Defendants
have used these same anticompetitive acts to leverage their existing monopoly
regarding inpatient services in the Asheville Region into new monopolies for
outpatient services in the Asheville Region as well as for both inpatient and
outpatient services in the Outlying Regions.
29. Our Supreme Court has not yet had occasion to fully address claims for
monopoly maintenance or monopoly leveraging. Therefore, as noted above, although
Plaintiffs’ claims are based solely on North Carolina law, it is appropriate for this
Court to consider relevant case law from other jurisdictions for guidance. See
Sitelink, 2016 NCBC LEXIS 45, at **17.

30. The Court will address each of Plaintiffs’ theories in turn.
A. Monopoly Maintenance
31. A monopoly maintenance claim “has two elements: (1) the possession of
monopoly power in the relevant market and (2) the willful . . . maintenance of that
power as distinguished from growth or development as a consequence of a superior
product, business acumen, or historic accident.” New York v. Facebook, Inc., 549 F.
Supp. 3d. 6, 23–24 (D.D.C. 2021) (quoting United States v. Microsoft Corp., 253 F.3d
34, 50 (D.C. Cir. 2001)).
32. In support of this claim, Plaintiffs assert that even assuming
Defendants obtained their monopoly over the inpatient services market in the
Asheville Region lawfully (largely, due to the COPA), they have unlawfully used the
above-described contractual restraints to maintain that monopoly. (Am. Compl. ¶
169.)
33. The Court previously dismissed Plaintiffs’ monopoly maintenance claim
based on its conclusion that “all, or virtually all, of Plaintiffs’ allegations concerning
the contractual restrictions utilized by Defendants relate to markets other than the
Asheville Region Inpatient Services market.” (September 19 Opinion ¶ 80.) In other
words, the Court determined that Plaintiffs’ allegations in the original Complaint
focused solely on Defendants’ attempt to leverage their existing Asheville-based
monopoly for inpatient services into other markets as opposed to any attempt to
preserve that existing monopoly.

34. The Amended Complaint attempts to bolster Plaintiffs’ monopoly
maintenance theory by adding new allegations directly relating to this claim. In
particular, Plaintiffs assert that a specific purpose of the anticompetitive contractual
provisions—primarily, the anti-steering provision—that Defendants have coerced
commercial health insurers into including has been to maintain Defendants’
monopoly in the Asheville Region Inpatient Services Market. Plaintiffs allege that
absent these anti-steering provisions, the insurers would be able to steer patients
within the service area of Mission Hospital-Asheville to nearby competitor hospitals
such as AdventHealth Hendersonville and Pardee UNC Healthcare, who could offer
higher quality care at a lower cost. (See, e,g., Am. Compl. ¶¶ 169–72.)
35. Despite Defendants’ arguments to the contrary, the Court is satisfied
that these new allegations in the Amended Complaint are sufficient to state a valid
claim for monopolization on a theory of monopoly maintenance. Simply put, Plaintiffs
have now alleged that one purpose of the same contractual restraints that the Court
has already held to be potentially anticompetitive was to enable Defendants to
maintain their current monopoly as to the Asheville Region Inpatient Services
Market. As with all of Plaintiffs’ claims in this action that the Court is allowing to
go forward, it remains to be seen whether Plaintiffs will be able to move past the
summary judgment stage on this claim (much less ultimately prevail at trial). But
based on the Court’s application of North Carolina’s standard for evaluating claims
at the Rule 12 stage, the Court concludes that the Amended Complaint adequately
pleads a monopoly maintenance claim under North Carolina law.

36. Therefore, the Court DENIES Defendants’ Motion to Dismiss Plaintiffs’
monopoly maintenance claim.
B. Monopoly Leveraging
37. Plaintiffs also attempt to reassert their monopoly claims based on a
theory of monopoly leveraging.
38. “A monopoly leveraging claim is a . . . monopolization claim or
attempted monopolization claim involving conduct in more than one market. To
succeed, a plaintiff must demonstrate ‘that a party has a monopoly in one area, uses
unlawful acts to leverage that monopoly into another area, and achieves or is likely
to achieve that second monopoly.’ ” Simon & Simon, PC v. Align Tech., Inc., No. 19-
506 (LPS), 2020 U.S. Dist. LEXIS 72499, at *23 (D. Del. Apr. 24, 2020) (quoting
IQVIA Inc. v. Veeva Systems, Inc., 2018 U.S. Dist. LEXIS 171456, at *4 (D.N.J. Oct.
3, 2018)).
39. Thus, a plaintiff asserting a claim under this theory must allege either
that the defendant actually possesses monopoly power in the secondary market or
that the monopolist has a “dangerous probability of success” of monopolization of the
secondary market. Unigestion Holding, S.A. v. UPM Tech., Inc., 305 F. Supp. 3d.
1134, 1150 (D. Ore. 2018) (quoting Verizon Commc’ns, Inc. v. Law Offices of Curtis V.
Trinko, 540 U.S. 398, 415 n.4 (2004)).
40. Here, Plaintiffs allege that Defendants have used their preexisting
monopoly in the Asheville Region Inpatient Services Market to acquire additional
monopolies in the Asheville Region Outpatient Services Market and the Outlying

Regions Inpatient and Outpatient Services Markets. In its September 19 Opinion,
the Court dismissed Plaintiffs’ monopoly leveraging claims as pled in their original
Complaint because Plaintiffs had failed to adequately allege monopoly power in these
additional regions—either through allegations based on market share data or
through allegations of their ability to control prices.
41. Although Defendants do not challenge the validity of Plaintiffs’
allegations that Defendants possess existing monopoly power in the primary
market—that is, the Asheville Region Inpatient Services Market—Defendants argue
that the new allegations in the Amended Complaint do not cure the pleading
deficiencies previously identified by the Court on Plaintiffs’ monopoly leveraging
claims. The Court must therefore analyze the adequacy of these new allegations as
to each of the relevant markets with regard to Plaintiffs’ monopoly leveraging theory.
i. Outlying Regions Inpatient Services Market
42. As noted above, the Outlying Regions Inpatient Services Market
consists of inpatient healthcare services offered to patients in Macon, McDowell,
Mitchell, Transylvania, and Yancey Counties. In its September 19 Opinion, the Court
ruled that Plaintiffs’ allegations as to Defendants’ market share for inpatient services
in these regions were impermissibly based on Medicare data, which the Court
concluded was legally insufficient given that this lawsuit concerns the private
insurance market rather than the sale of services to government payors. (September
19 Opinion ¶¶ 87–92.)

43. Plaintiffs’ Amended Complaint has cured this deficiency by listing
Defendants’ “total inpatient market share—including all commercial discharges—as
calculated by four different sources of data[.]” (Am. Comp. ¶ 178.) For each of the
counties that make up the Outlying Regions, Plaintiffs allege that Defendants
possess a market share well in excess of 70%. See Se. Anesthesiology, 2019 NCBC
LEXIS 63, at *33 (“Generally, seventy percent (70%) to seventy-five percent (75%)
market share is necessary to sustain a monopolization claim[.]”) (citations omitted).
44. Moreover, Plaintiffs have alleged that Defendants were able to obtain
monopolies in these counties by “requir[ing commercial health] insurers to include all
of their hospitals in-network through their all-or-nothing contracting” and that
Defendants “prevented insurers from steering patients to competitors in the Outlying
Regions through the use of anti-steering provisions.” (Am. Compl. ¶ 177.) The
Amended Complaint further asserts that “[a]bsent these restraints, Defendants
would not have monopolized these markets.” (Am. Compl. ¶ 177.)
45. Defendants do not seriously challenge Plaintiffs’ new market share
allegations for inpatient services in the Outlying Regions. Instead, they contend, the
Amended Complaint concedes that these high market shares are attributable not to
monopolistic conduct on Defendants’ part, but rather to the fact that these counties
are rural in nature such that Defendants’ facilities are in some places “the only viable
option within driving distance.” (Mem. of Law in Support of Mot. to Dismiss First
Am. Class Action Compl. [“Defs.’ Brief in Support], ECF No. 65, p. 23.)

46. It is true that the Amended Complaint alludes to this phenomenon. (See
Am. Compl. ¶ 180.) Nevertheless, a contextual reading of the allegations as a whole
in the light most favorable to Plaintiffs reveals that a sufficient causal nexus has been
alleged between Defendants’ anticompetitive acts and their ability to leverage their
existing Asheville-based monopoly for inpatient services into a new monopoly for
inpatient services in the Outlying Regions. As a result, while Defendants will no
doubt renew this argument at the summary judgment stage (at which time the Court
will have the benefit of a fully developed factual record), the Court declines to accept
the argument as a basis to dismiss this claim at the present time.
47. Accordingly, because Plaintiffs have properly alleged a monopoly
leveraging claim as to the Outlying Regions Inpatient Services Market under North
Carolina law, the Court DENIES Defendants’ Motion to Dismiss as to this claim.
ii. Outpatient Services Markets in Asheville Region and Outlying
Regions
48. The Court reaches a different result, however, with regard to Plaintiffs’
monopoly leveraging claims based on outpatient services—both in the Asheville
Region and in the Outlying Regions.
49. In its September 19 Opinion, the Court dismissed Plaintiffs’ monopoly
leveraging claims regarding outpatient services in all regions for two reasons. First,
Plaintiffs did not make any allegations in the original Complaint as to Defendants’
market share in any relevant region regarding the provision of such services. Second,
the allegations Plaintiffs made as to Defendants’ ability to control prices for such
outpatient services were too conclusory. (September 19 Opinion ¶¶ 92, 94.)

50. In their Amended Complaint, Plaintiffs have once again failed to allege
any market share held by Defendants in any of the regions at issue regarding the
provision of outpatient services. Instead, Plaintiffs’ new allegations primarily allege
that Defendants have obtained monopoly power over outpatient services in these
regions through their “control” over various medical practices, facilities, and
equipment in these areas. The Court agrees with Defendants that these allegations
are simply not enough to state a valid claim for monopolization of these markets as
to outpatient services as a whole.
51. Plaintiffs correctly contend that monopoly power may be properly
alleged through facts that show an antitrust defendant has the ability to control
prices or exclude competition in the relevant antitrust market—meaning that
allegations of a defendant’s market share are not necessarily required. See, e.g., Tops
Mkt., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 97–98 (2nd Cir. 1998) (“[Monopoly
power] may be proven directly by evidence of the control of prices or the exclusion of
competition, or it may be inferred from one firm’s large percentage share of the
relevant market.”) (emphasis added). The Court observes, however, that neither the
parties’ briefs nor the Court’s own research has disclosed any case in which our
Supreme Court has allowed a monopolization claim to survive the pleadings stage
where the complaint lacked any allegations regarding the defendant’s market share
in the relevant antitrust market.
52. That is not to say that such a scenario could never occur. The Court
finds our Supreme Court’s decision in Dicesare to be instructive. In that case, the

plaintiffs alleged that the defendant hospital authority had an approximate market
share in the relevant market of 50%. The Supreme Court stated that it was “skeptical
of monopoly claims that, like plaintiffs[’], assert that a monopoly exists when an
entity, like the Hospital Authority, has a market share of fifty percent or less.”
Dicesare, 376 N.C. at 98. The Supreme Court held that, as a result, the
“monopolization claim cannot survive unless the other allegations in
the . . . complaint show that the Hospital Authority has the ability to control prices
in the Charlotte market in spite of the fact that it only has a fifty percent market
share.” Id. Based on its analysis of the complaint in that case, the Supreme Court
concluded that it was “unable to agree with the trial court’s determination that
plaintiffs adequately pleaded that the Hospital Authority controlled ‘so large a
portion of the market’ that it not only stifled competition and restricted freedom of
commerce, but also controlled prices.” Id. at 97.
53. In the new allegations in their Amended Complaint, Plaintiffs largely
assert that Defendants control certain types of physician practices and facilities in
both Asheville and the Outlying Regions and that Defendants’ facilities offer highly
sought equipment and medical devices that Defendants’ competitors lack.
54. However, Plaintiffs’ allegations as to both the Asheville Region and the
Outlying Regions fail to sufficiently allege in a non-conclusory fashion that
Defendants control prices in the relevant product market, which Plaintiffs have
defined to include all outpatient services in both their original Complaint and their
Amended Complaint. As Defendants note in their briefs, physician services and

outpatient services constitute “different antitrust product markets . . . . Plaintiffs
have not alleged that Defendants monopolized or attempted to monopolize any
markets for physician services.” (Defs.’ Brief in Support p. 18.) Nor do Plaintiffs
attempt to differentiate between the inpatient services and the outpatient services
provided by the physician groups that are the subject of their allegations. Moreover,
assertions as to Defendants’ mere ownership of certain types of medical equipment
or devices at their facilities is likewise insufficient to allege monopoly power.
55. Finally, Plaintiffs’ arguments regarding Defendants’ alleged ability to
control prices for outpatient services essentially rehash contentions that the Court
previously rejected in its September 19 Opinion. For all of these reasons, the Court
concludes, as in Dicesare, that these claims fail as a matter of law. See Dicesare, 376
N.C. at 97.
56. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss as to
Plaintiffs’ monopoly leveraging claims based on outpatient services in the Asheville
Region and in the Outlying Regions, and those claims are DISMISSED with
prejudice.
C. Attempted Monopolization
57. Finally, Plaintiffs contend that their attempted monopolization claims
pass muster based on the new allegations in their Amended Complaint. The Court
concludes that these claims should be GRANTED, in part, and DENIED, in part, as
set out below.

58. “To demonstrate attempted monopolization a plaintiff must prove (1)
that the defendant has engaged in predatory or anticompetitive conduct with (2) a
specific intent to monopolize and (3) a dangerous probability of achieving monopoly
power.” Doctors Making Housecalls-Internal Med., P.A. v. Onsite Care, PLLC, 2019
NCBC LEXIS 6, at *13 (N.C. Super. Ct. Jan. 16, 2019) (cleaned up). This Court has
stated that “[g]enerally . . . thirty percent (30%) to fifty (50%) [market share] is
presumed necessary to sustain a claim for attempted monopolization.” Se
Anesthesiology, 2019 NCBC LEXIS 63, at *32 (citations omitted).
59. Plaintiffs have asserted attempted monopolization claims as to the
Outlying Regions Inpatient Services Market, the Outlying Regions Outpatient
Services Market, and the Asheville Region Outpatient Services Market.
60. With regard to Plaintiffs’ attempted monopolization claim for the
Outlying Regions Inpatient Services Market, the Court concludes that Defendants’
Motion to Dismiss should be DENIED for the same reasons that the Court has denied
the actual monopolization claim for that market. See Kolon, 637 F.3d at 453 (“Given
that we held above that [plaintiff] adequately pled actual monopolization, we can
reach no conclusion other than that [plaintiff] adequately pled a dangerous
probability of success as to [defendant’s] attempted monopolization.”).
61. However, as to the outpatient services markets in the Asheville Region
and in the Outlying Regions, the same deficiencies underlying the monopolization
claims for those markets subject their attempted monopolization claims to dismissal.
For the reasons set out above, just as Plaintiffs have not adequately alleged that

Defendants possess monopoly power in those markets, they have likewise failed to
sufficiently allege that there is a dangerous probability of Defendants actually
achieving monopoly power.
62. The Court therefore GRANTS Defendants’ Motion to Dismiss Plaintiffs’
attempted monopolization claims as to the Asheville Region Outpatient Services
Market and the Outlying Regions Outpatient Services Market, and these claims are
DISMISSED with prejudice.
CONCLUSION
THEREFORE, IT IS ORDERED that Defendants’ Motion to Dismiss is
GRANTED, in part, and DENIED, in part, as follows:
1. Defendants’ Motion to Dismiss Plaintiffs’ monopoly acquisition claim is
GRANTED, and that claim is DISMISSED with prejudice.
2. Defendants’ Motion to Dismiss Plaintiffs’ monopoly maintenance claim is
DENIED.
3. Defendants’ Motion to Dismiss Plaintiffs’ monopoly leveraging claim as to the
Outlying Regions Inpatient Services Market is DENIED.
4. Defendants’ Motion to Dismiss Plaintiffs’ monopoly leveraging claim as to the
Asheville Region Outpatient Services Market and the Outlying Regions
Outpatient Services Market is GRANTED, and those claims are DISMISSED
with prejudice.
5. Defendants’ Motion to Dismiss Plaintiffs’ attempted monopolization claim as
to the Outlying Regions Inpatient Services Market is DENIED.

6. Defendants’ Motion to Dismiss Plaintiffs’ attempted monopolization claims as
to the Asheville Region Outpatient Services Market and as to the Outlying
Regions Outpatient Services Market is GRANTED, and those claims are
DISMISSED with prejudice.
SO ORDERED, this the 27th day of April, 2023.
/s/ Mark A. Davis
Mark A. Davis
Special Superior Court Judge for
Complex Business Cases