Academy of Allergy v. La. Health Serv. & Indem. Co.

384 F. Supp. 3d 644
CourtDistrict Court, E.D. Louisiana
DecidedOctober 2, 2018
DocketCIVIL ACTION No. 18-399
StatusPublished
Cited by5 cases

This text of 384 F. Supp. 3d 644 (Academy of Allergy v. La. Health Serv. & Indem. Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Academy of Allergy v. La. Health Serv. & Indem. Co., 384 F. Supp. 3d 644 (E.D. La. 2018).

Opinion

CARL J. BARBIER, UNITED STATES DISTRICT JUDGE

*648Before the Court is a Motion to Disqualify Counsel of Record (Rec. Doc. 57) filed by Plaintiff, United Biologics, L.L.C. d/b/a United Allergy Services. Defendants, Louisiana Health Service and Indemnity Company d/b/a Blue Cross Blue Shield of Louisiana and Allmed Healthcare Management, Inc., have jointly filed an opposition (Rec. Doc. 76), arguing against disqualification of their counsel, Baker Donelson Bearman Caldwell & Berkowitz, P.C. Movant responded with a reply (Rec. Doc. 87) to which Defendants responded in a supplemental opposition (Rec. Doc. 88). Having considered the Motion and legal memoranda, the record, the Parties' arguments at oral argument, and the applicable law, the Court finds that the Motion should be GRANTED .

FACTS AND PROCEDURAL BACKGROUND

According to Plaintiffs' complaint, this "case concerns a conspiracy and agreement among various health insurance company competitors ... to restrict competition in the relevant markets for allergy testing and allergen immunotherapy for seasonal and perennial allergies ... in local areas throughout Louisiana, Kansas, and other local markets serviced by Humana." (Rec Doc. 1 at 1-2). Plaintiffs are Academy of Allergy & Asthma in Primary Care (the "Academy") and United Allergy Services ("UAS").

The Academy describes itself as "a 504(c)(6) non-profit organization of over 250 member physicians" dedicated to fostering "the ability of primary care physicians to provide high quality, patient accessible diagnostic and therapeutic allergy and asthma care." (Rec. Doc. 1 at 4). One of its purposes is to promote the interests of primary care physicians who seek to practice in the allergy testing and immunotherapy markets. (Rec. Doc. 1 at 4). UAS is an LLC that provides "technician and support services for physicians practicing allergy testing and allergen immune therapy." (Rec. Doc. 1 at 5). In this way, "UAS and the primary care and other physicians UAS supports, compete directly with the businesses of board-certified allergists." (Rec. Doc. 1 at 5).

Plaintiffs allege that UAS's services allow primary care physicians to conduct cost-effective allergy skin testing and immunotherapies from these physicians' own offices or clinics. This allows these non-specialized physicians to enter the allergy market for themselves, and eliminates the need to refer patients to board-certified allergists or outsource blood allergy tests to reference laboratories. Plaintiffs allege UAS's entrance into the allergy market had two major consequences: it disrupted the system of referrals from primary care doctors to allergy specialists and it also required health insurance companies "to pay more upfront in preventative medicine by reaching far more patients than board-certified allergists could in their respective *649markets." (Rec. Doc. 1 at 10). Defendants are three health insurance companies-who pay the costs of these services for their customers-and a company that was hired as an independent review organization of appeals made to Blue Cross for denying reimbursement claims. The relevant defendants to this Motion are Blue Cross Blue Shield of Louisiana ("Blue Cross") and the independent review company, AllMed Healthcare Management ("AllMed"), who share the law firm of Baker Donelson Bearman Caldwell & Berkowitz, P.C. ("Baker Donelson") as their current counsel. According to Defendants, Blue Cross has been a client of Baker Donelson since 2010, though Baker Donelson only began acting as antitrust counsel in 2018.

UAS began doing business in Louisiana in January of 2010. (Rec. Doc. 57-2 at 2). About three years later, primary care physicians who had contracted with UAS began informing UAS that they had received communications from the Louisiana State Board of Medical Examiners (the "Board") concerning allergy testing and immunotherapy services these physicians had provided in late 2013 and early 2014. (Rec. Doc. 57-2 at 2). These physicians also informed UAS of similar communications received from Blue Cross. UAS sought Donna Fraiche, a partner specializing in health care law at Baker Donelson, to represent UAS and these physicians regarding these communications. Ms. Fraiche agreed to the representation on behalf of Baker Donelson and sent an engagement letter and a term sheet to UAS, which the then-CEO of UAS, Nicolas Hollis, signed on December 5, 2013. (Rec. Doc. 57-2 at 8-10). The engagement letter states that Baker Donelson has been engaged to represent UAS "with respect to advices regarding [UAS's] relationship with the [Board]." (Rec. Doc. 57-2 at 8).

In January of 2014, UAS met with the Board to discuss the UAS services that were being offered by primary care physicians. The Board was investigating the primary care physicians for "allegedly treating their allergy patients outside their professional scope of practice." (Rec. Doc. 76-2 at 3). According to Movant, a primary reason for this meeting was to discuss an anonymous complaint1 that had been made to the Board concerning UAS's allergy protocols and services. (Rec. Doc. 57-1 at 4). Before the meeting, Baker Donelson allegedly "review[ed] UAS's confidential information to respond" to the anonymous complainant's questions. (Rec. Do. 57-1 at 4). Ms. Fraiche avers that she passed the information given to her by UAS to the Board, per UAS's instructions. (Rec. Doc. 76-2 at 4).

Ms. Fraiche served as counsel for UAS and several primary care physicians at the meeting. Ms. Fraiche describes her and Baker Donelson's representation at the meeting as an effort to "convince the [Board] not to take these primary care physicians' licenses for treating their allergy patients as general primary care physicians." (Rec. Doc. 76-2 at 3). Ms. Fraiche describes the physicians as the "primary clients" for whom UAS simply paid the bills.

Around the same time, Blue Cross began to deny claims made for reimbursement for allergy testing and immunotherapy that used UAS's protocols. In or around February of 2014, UAS asked Ms. Fraiche to also represent UAS and the primary care physicians in appealing these *650denials by Blue Cross. (Rec. Doc. 76-2 at 5). Baker Donelson began meeting with Blue Cross to discuss Blue Cross's investigation and audits of UAS and its allergy protocols. For Example, on February 18, 2014, Baker Donelson met with Blue Cross's Chief Medical Officer, Dr. Carmouche, on UAS's behalf. (Rec. Doc. 57-1 at 4). Baker Donelson formally accepted this expanded representation in April. In an e-mail dated April 29, 2014, Donna Fraiche wrote to the then CEO of UAS, Nicolas Hollis: "[O]ur firm has now been specifically engaged and authorized to serve as your counsel to the certain physician customers of UAS who received denials from Blue Cross specifically related to the ordering and administration of allergy testing and or immunotherapy as provided through their UAS affiliation and protocols." (Rec. Doc. 57-2 at 12).

Mr. Hollis avers that, "both UAS and the contracting physicians trusted Baker Donelson with confidential information regarding the appeals ... including the basis for contesting [Blue Cross's] spurious claims of lack of medical necessity." (Rec. Doc. 57-2 at 4). Communications between Mr. Hollis and Baker Donelson were extensive; Mr. Hollis estimates that he exchanged over 500 e-mails with Baker Donelson that he regards as confidential. (Rec.

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384 F. Supp. 3d 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/academy-of-allergy-v-la-health-serv-indem-co-laed-2018.