UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

SOUTH BROWARD HOSPITAL 

DISTRICT, D/B/A/ MEMORIAL 

HEALTHCARE SYSTEM, 

on its own behalf and on behalf of other 

similarly situated healthcare facilities, 

Plaintiff, 

ELAP SERVICES, LLC and GROUP & 

PENSION ADMINISTRATORS, INC., 

 Defendants.

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Case No. 0:20-cv-61007-AHS

______________________________________________________________________________ 

DEFENDANTS’ JOINT REPLY SUPPORTING MOTION TO DISMISS PLAINTIFF’S 

AMENDED COMPLAINT [D.E. 24], OR, ALTERNATIVELY, TO DISMISS OR 

STRIKE THE CLASS ALLEGATIONS 

______________________________________________________________________________ 

FISHERBROYLES, LLP 

Robert T. Wright, Jr., Esq. 

FL Bar No. 185525 

Irene Oria, Esq. 

FL Bar No. 484570 

199 E. Flagler St. #550 

Miami, FL 33131 

Tel.: (305) 536-2838 

Fax: (305) 536-2838 

robert.wright@fisherbroyles.com 

irene.oria@fisherbroyles.com 

Patrick M. Emery, Esq. (pro hac vice) 

GA Bar No. 821303; PA Bar No. 306672 

Kris Alderman, Esq. (pro hac vice) 

GA Bar No. 179645 

945 East Paces Ferry Rd NE, Suite 2000 

Atlanta, GA 30326 

Tel.: (404) 793-0652 

patrick.emery@fisherbroyles.com 

kris.alderman@fisherbroyles.com 

AKERMAN LLP 

Irene Bassel Frick, Esq. 

FL Bar No. 0158739 

Gera R. Peoples, Esq. 

FL Bar No. 450022 

401 E. Jackson Street, Suite 1700 

Tampa, FL 33602-5250 

Phone: (813) 223-7333 

Fax: (813) 223-2837 

irene.basselfrick@akerman.com 

gera.peoples@akerman.com 

Counsel for Defendants ELAP Services, LLC and Group & Pension Administrators, Inc. 

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TABLE OF CONTENTS 

INTRODUCTION .................................................................................................................................. 1 

ARGUMENT .......................................................................................................................................... 3 

I. The Amended Complaint Fails To State A FDUTPA Claim As A Matter Of Law ........... 3 

A. Defendants Were Not Engaged In Trade Or Commerce With Plaintiff. ................. 3 

B. Plaintiff Fails To Allege Any Deceit That Actually Caused It Harm. ....................  4 

C. Plaintiff’s Theory That It Can Bring A FDUTPA Claim As A Non-Consumer 

Fails Because Defendants Did Not Engage In Any Unfair Or Deceitful Conduct 

In Trade Or Commerce That Harmed Any Consumers ............................................ 6 

II. The Unjust Enrichment Claim Fails As A Matter Of Law. ................................................... 7 

III. Plaintiff’s Claims Are Conflict Preempted Under ERISA. ................................................... 9 

IV. The Amended Complaint On Its Face Shows That It Would Be Impossible To Litigate 

Plaintiff’s Claims, Which Require Highly Individualized Inquiries, In A Class Action.....9 

CONCLUSION ..................................................................................................................................... 10 

 

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TABLE OF AUTHORITIES 

Cases: 

Baker v. Baptist Hospital, Inc., 

115 So. 3d 1123 (Fla. App. 2013) ............................................................................................. 4 

Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach County, Inc., 

169 So. 3d 164 (Fla. App. 2015) ........................................................................................... 6-7 

Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 

5491 F.3d 1337 (11th Cir. 2009) ................................................................................................ 9 

CWELT-2008 Series 1045 LLC v. PHH Corp., 

No. 1:20-cv-20334, 2020 U.S. Dist. LEXIS 91899 (S.D. Fla. May 27, 2020) ................... 6 

Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 

1 So. 3d 400 (Fla. 2d DCA 2009) ............................................................................................. 7 

Hughes Supply, Inc. v. Cont’l Recovery Servs. Corp., 

Case No. 6:07-cv-1009-Orl-31KRS, 2007 U.S. Dist. LEXIS 52916 

(M.D. Fla. July 23, 2007) ........................................................................................................... 3 

In re Managed Care Litig., 

595 F. Supp. 2d 1349 (S.D. Fla. 2009) ..................................................................................... 9 

James D. Hinson Electric Contracting Co., Inc. v. BellSouth Telecommunications, 

642 F. Supp. 2d 1318 (M.D. Fla. 2009) ................................................................................... 4 

Lordmann Enters., Inc. v. Equicor, Inc., 

32 F.3d 1529 (11th Cir. 1994) ................................................................................................... 9 

Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 

904 F.2d 236 (5th Cir. 1990) ..................................................................................................... 9 

Rodriguez v. Health Options, Inc., 

No. 03-20429-CIV, 2003 WL 27391269 (S.D. Fla. Aug. 27, 2003) .................................... 9 

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Shands Teaching Hospital & Clinics, Inc. v. Beech St. Corp., 

899 So. 2d 1222 (Fla. 1st DCA 2005) ...................................................................................... 8 

State Farm Mutual Auto Insurance Co. v. Performance Orthopedics & Neurosurgery, LLC, 

278 F. Supp. 3d 1307 (S.D. Fla. 2017) ..................................................................................... 3 

Surgery Ctr. Of Viera, LLC v. UnitedHealthcare, Inc., 

Case No. 6:19-cv-2110-Orl-22DCI, 2020 U.S. Dist. LEXIS 25647 

(M.D. Fla. Feb. 11, 2020) ...................................................................................................... 7-8 

Williams v. Nationwide Credit, Inc., 

890 F. Supp. 2d 1319 (S.D. Fla. 2012) ..................................................................................... 3 

Wilson v. Everbank, N.A., 

77 F. Supp. 3d 1202 (S.D. Fla. 2015) ....................................................................................... 8 

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INTRODUCTION

Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint, or, Alternatively, To 

Dismiss or Strike the Class Allegations demonstrates that the Amended Complaint fails to state a 

claim and should be dismissed with prejudice.1 FDUTPA prohibits unfair and deceptive acts or 

practices in the conduct of trade or commerce. Plaintiff cannot state a FDUTPA claim because 

Defendants did not offer or sell any good or service to Plaintiff. The Amended Complaint also fails 

to satisfy FDUTPA’s deception and causation requirements. None of the alleged conduct vis-à-vis 

Plaintiff was deceptive or actually caused it any harm. Plaintiff’s conclusory allegations of 

“deceitful omissions” during the patient admission process are refuted by the facts and records that 

are expressly incorporated into the Amended Complaint: the ID Cards, the websites referenced on 

the ID Cards, and the recorded calls between Plaintiff and GPA. Plaintiff concedes it was not 

actually duped in the only two instances it has ever cited. Indeed, no reasonable hospital would 

have been “deceived” into thinking that it was going to be reimbursed at pre-negotiated rates when 

the ID Cards (1) plainly stated that the patient’s healthcare plan was part of a “practitioner only” 

network, and (2) disclosed that information about the limits of the patient’s plan could be found 

on the “planlimit” website, that information about in-network physicians could be found on the 

Mulitplan website, and that a summary of benefits could be obtained by calling GPA. Plaintiff 

admits that it called GPA for every patient visit, yet does not identify a single instance in which 

GPA did not tell it everything it supposedly wanted to know. Plaintiff’s conclusory allegation that 

some other “reasonable hospital” may have been “deceived” by the ID Cards cannot be credited. 

Plaintiff does not allege any facts showing deceit or harm in support of its failed FDUTPA claim. 

Recognizing these gaping holes in its FDUTPA claim, Plaintiff’s Opposition argues that it 

1

 Capitalized terms used herein retain the meanings ascribed to them in the Motion [D.E. 29], 

which is cited herein as “Mot.” Plaintiff’s Opposition [D.E. 31] is cited herein as “Opp.” 

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can pursue a FDUTPA claim as long as someone else was deceived and was damaged. While some 

courts have held that non-consumers may have standing to bring a FDUTPA claim, non-consumers 

still must allege each element of a FDUTPA claim as to consumers. Plaintiff does not allege facts 

showing that Defendants engaged in any unfair or deceptive acts in trade or commerce that 

deceived and harmed consumers. The actual consumers of Defendants’ services, as Plaintiff 

admits, are healthcare Plans. Defendants’ contractually obligated administration and auditing of 

Plaintiff’s reimbursement claims was reactive and obligatory, and thus did not involve trade or 

commerce. Moreover, the Amended Complaint merely alleges that Defendants do exactly what 

they say they will do under their contracts with the Plans: they process, calculate, and remit 

reimbursements based on the Plan limits. Plaintiff may not like the terms of the Plans, the Plans’ 

hiring of Defendants, or the Plans’ contracts with Multiplan/PHCS, but Plaintiff cannot base a 

FDUTPA claim on alleged conduct that is consistent with the terms of the Plans. Plaintiff also may 

believe that outcomes for the Plans are not as good as advertised, but that is not deceit or an actual 

damage, nor does it give rise to a cause of action for Plaintiff. Plaintiff’s real gripe is how the 

Plans’ contractual reimbursement limits impact its own bottom line. Plaintiff’s disagreement with 

how the Plans determine the reasonable value of its services is not sufficient to state a FDUTPA 

claim. The FDUTPA claim fails under any theory, and should be dismissed with prejudice. 

The unjust enrichment claim fails because (1) contrary to its conclusory allegations, 

Plaintiff did not confer a direct benefit on Defendants, and (2) Plaintiff cannot eschew contractual 

limits on its reimbursement rights under the Plans to seek relief from Defendants, who are Plan 

fiduciaries, through a quasi-contact claim. This claim, too, should be dismissed with prejudice. 

Even then, Plaintiff’s claims are conflict preempted by ERISA and should be dismissed. 

Were this case to proceed, the facially defective class claims must be eliminated to avoid 

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wasting time and resources. No class will ever be certified because individualized inquiries 

abound. The entire action, and at a minimum the class claims, should be dismissed with prejudice. 

ARGUMENT

I. The Amended Complaint Fails To State A FDUTPA Claim As A Matter Of Law. 

A. Defendants Were Not Engaged In Trade Or Commerce With Plaintiff. 

The FDUTPA claim fails because Plaintiff does not and cannot allege that Defendants 

advertised, solicited, provided, offered, or distributed a good or service to Plaintiff. See Mot. at 9-

11. In conclusory fashion, Plaintiff argues that Defendants “provide a service to the facility in the 

form of coordinating payment for the treatment.” Opp. at 7. But that was not a service performed 

for the Plaintiff. As Plaintiff admits, it has no contract with Defendants and did not pay them 

anything. Id. at 13. The claim processing and auditing services Defendants provided to the Plans 

were solely for the benefit of the Plans with whom they have contracts and the Plans’ members. 

Because Defendants were not engaged in trade and commerce as to Plaintiff, the FDUTPA claim 

should be dismissed. See Williams v. Nationwide Credit, Inc., 890 F. Supp. 2d 1319, 1322 (S.D. 

Fla. 2012) (dismissing FDUTPA claim because “[n]o goods or services were offered to her” when 

the collection company made calls to the plaintiff); Hughes Supply, Inc. v. Cont’l Recovery Servs. 

Corp., Case No. 6:07-cv-1009-Orl-31KRS, 2007 U.S. Dist. LEXIS 52916, at *7 (M.D. Fla. July 

23, 2007) (dismissing supplier’s FDUTPA claim against its buyer because it was not a consumer). 

Plaintiff cites three inapposite cases in support of its tortured argument that Defendants 

provided it a service. See Opp. at 7. First, State Farm Mutual Auto Insurance Co. v. Performance 

Orthopedics & Neurosurgery, LLC, 278 F. Supp. 3d 1307 (S.D. Fla. 2017), is cited for the 

noncontroversial, but irrelevant proposition that rendering health care services involves trade or 

commerce. Plaintiff’s own treatment of patients does not support its argument that Defendants 

engage in trade or commerce with Plaintiff when Defendants provided services to their health plan 

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clients. Even less helpful to Plaintiff is Baker v. Baptist Hospital, Inc., 115 So. 3d 1123, 1125-26 

(Fla. App. 2013), which actually held that pursuing legal remedies by filing a hospital lien does 

not constitute trade or commerce. Finally, James D. Hinson Electric Contracting Co., Inc. v. 

BellSouth Telecommunications, 642 F. Supp. 2d 1318 (M.D. Fla. 2009), held that sending a bill 

for services rendered may constitute trade or commerce, but that is the exact opposite situation. 

Plaintiff fails to cite a single case to support its FDUTPA claim, which should be dismissed. 

B. Plaintiff Fails To Allege Any Deceit That Actually Caused It Harm. 

Using the records cited in the Amended Complaint, the Motion demonstrated that all of the 

information Plaintiff alleges was omitted at the time of admission actually was disclosed or was 

readily available to Plaintiff such that there was no deceit. See Mot. 11-13. Contrary to Plaintiff’s 

false allegation that it would never knowingly treat a patient who had a Plan with this kind of 

reimbursement limits, Plaintiff did exactly that on the only two occasions it has ever identified. 

See id. Ignoring reality, Plaintiff argues that a “reasonable healthcare provider could not reasonably 

avoid being duped by Defendants’ scheme.” Opp. at 2, 10. However, the records cited in the 

Amended Complaint disprove the fiction Plaintiff is trying to perpetrate. See Mot. at 11-13. 

Plaintiff argues that because its contracts with MultiPlan do not allow MultiPlan to carve 

out facilities from its networks, the inclusion of a MultiPlan logo on an ID card would lead a 

“reasonable” provider to believe that its facilities were in-network. Opp. at 10. But Multiplan and 

PHCS are network administrators, and not networks. See Mot. at 12. And it is undisputed that 

MultiPlan has networks that carve out facilities. Id. Mere references to Multiplan or PHCS thus 

would not lead a reasonable provider to leap to the conclusion that its facility is in network. A 

reasonable provider would look at the ID Card to see what network was involved. The ID Card 

does not state that facilities are in-network; instead, it clearly states that the Multiplan or PHCS 

network is for physicians or practitioners only. See Mot. at 12-13. Plaintiff’s assertion that a 

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hypothetical provider might believe its facilities were in-network is patently unreasonable. 

Plaintiff next argues that a provider would see the PHCS or MultiPlan logo, yet somehow 

miss the phrase “Practitioner Only” or “Practitioner & Ancillary Only” that is part of (or right 

under) the logo. See Opp. at 10. That the word “PHCS” is in ALL CAPS makes no difference 

because it is an acronym, not an emphasis. And that “PHCS” is in gray font makes no difference 

because the phrase “Practitioner Only” is in gray font too. The network’s title is plain as day. 

As if that were not enough, the ID Card discloses the patient’s benefits and network 

information in several more ways. See Mot. at 12-13. It explains immediately below the PHCS 

logo that “Physicians” (not hospitals or facilities) can be found on the Multiplan website. Under 

the notices to “Providers,” the ID Card provides a link to the planlimit.com website that, as the 

name indicates, provides “Additional Information” about the limits of the Plan and its network. It 

also lists a phone number providers can call—which Plaintiff admits it did—to ask GPA about the 

“Summary of Benefits.” Everything Plaintiff allegedly wanted to know was right under its nose. 

Despite arguing that such logos are confusing or insufficient, Plaintiff complains that 

Defendants did not put ELAP’s logo on the ID Card. Opp. at 7. More importantly, however, the 

ID Card lists the name and contact information of GPA, and Plaintiff acknowledges its awareness 

that GPA is one of the “leaders and co-founders of metric based pricing.” Id. at 4. When Plaintiff 

called GPA, it was informed exactly how the claim would be audited by ELAP and paid. See Mot. 

at 13. Far from omitting anything, the ID Card furnished all of the material information Plaintiff 

alleges was not disclosed. This is not a matter of drawing “inferences,” as Plaintiff argues. Opp. at 

11-12. Common sense dictates that no reasonable provider would have been deceived.2

2

 Plaintiff does not dispute these facts or provide any contrary records; it just argues about 

admissibility. See Opp. at 11-12 and n.2 and 3. Yet, the Court may consider all of the records 

submitted with the Motion because each is referenced in and integral to the Amended Complaint. 

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C. Plaintiff’s Theory That It Can Bring A FDUTPA Claim As A Non-Consumer 

Fails Because Defendants Did Not Engage In Any Unfair Or Deceitful Conduct 

In Trade Or Commerce That Harmed Any Consumers. 

Assuming arguendo that a non-consumer may even sue under FDUTPA, a non-consumer 

still must satisfy all of the requirements of a FDUTPA claim. See CWELT-2008 Series 1045 LLC 

v. PHH Corp., No. 1:20-cv-20334, 2020 U.S. Dist. LEXIS 91899, at *14-21 (S.D. Fla. May 27, 

2020) (dismissing non-consumer’s FDUTPA claim because allegations about collection activities 

did not satisfy the causation and trade or commerce requirements). For starters, a non-consumer 

must allege unfair or deceptive acts in trade or commerce with consumers, which Plaintiff did not 

do. See id. Plaintiff argues without citing any facts that Defendants’ administration and auditing 

of Plaintiff’s claims for reimbursement from the Plans could harm consumers. See Opp. at 8-9. 

However, Defendant’s “obligatory and reactive” conduct in response to Plaintiff’s reimbursement 

claims, consistent with their contracts with the Plans, does not qualify as trade or commerce. Cf. 

CWELT-2008 Series 1045 LLC, 2020 U.S. Dist. LEXIS 91899, at *20-21 (collection company’s 

provision of letter pursuant to its legal obligations did not qualify as trade or commerce). The 

FDUTPA claim should be dismissed because it fails to satisfy the trade or commerce requirement. 

Additionally, when the plaintiff asserting a FDUTPA claim is a non-consumer, it must 

plead either (1) an unfair practice, which is defined as “‘one that offends established public policy 

and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to 

See Mot. at 4 n.2. The Multiplan and planlimit.com websites are referenced on the ID Card in 

paragraph 96 of Amended Complaint. Plaintiff even drew red circles around the website addresses 

to draw the Court’s attention to these websites and their contents, and argues at length in the 

Amended Complaint about the impact of those websites. See Am. Compl. ¶¶ 13, 84-86, 96, 110 

n.16. Plaintiff does not dispute the authenticity of the planlimit.com website, and incorrectly 

surmises that the printouts of the Multiplan websites are not authentic. See Opp. at 11 n.2. 

Paragraphs 114 and 115 of the Amended Complaint refer to the call recordings that were submitted 

with the prior motion to dismiss and were incorporated into this Motion. The authenticity of those 

call recordings and the transcripts thereof is undisputed. The Court, therefore, may consider all of 

these records in deciding this Motion. 

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consumers,’” or (2) a deceptive act, which is defined as “‘a representation, omission, or practice 

that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s 

detriment.’” Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach County, Inc., 169 

So. 3d 164, 169 (Fla. App. 2015) (emphasis original) (citations omitted). A non-consumer plaintiff 

also must “prove that there was an injury or detriment to consumers in order to satisfy all of the 

elements of a FDUTPA claim.” Id. at 169 (emphasis original). Plaintiff’s FDUTPA claim fails 

because the alleged conduct is not unfair or deceptive (as discussed above) and, separately, did not 

deceive or injure consumers. The material allegations of the Amended Complaint and Plaintiff’s 

arguments in its Opposition concern the purported deception of Plaintiff and other healthcare 

providers—none of which are consumers of Defendants’ services. As Plaintiff admits, Defendants’ 

“clients” and the actual consumers of its services are the Plans. See Opp. at 1 Aside from 

conclusory statements without any supporting factual allegations that the alleged conduct is “likely 

to cause consumer harm,” Opp. at 8, Plaintiff makes no effort to satisfy this essential element of 

its FDUTPA claim. Because Plaintiff fails to allege any facts to support its claim that consumers 

were deceived or harmed, its FDUTPA claim should be dismissed with prejudice. 

II. The Unjust Enrichment Claim Fails As A Matter Of Law. 

An essential element of an unjust enrichment claim is proof the plaintiff conferred a direct 

benefit on the defendant. Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So. 3d 400, 

404 (Fla. 2d DCA 2009). Plaintiff does not allege any facts showing that it directly conferred a 

benefit on Defendants, who are two steps removed from the provider-patient relationship and did 

not receive any services or payments from Plaintiff. The unjust enrichment claim thus fails. 

The inapposite cases cited in the Opposition (at 12-13) do not support Plaintiff’s argument. 

In the outlier decision in Surgery Ctr. Of Viera, LLC v. UnitedHealthcare, Inc., the provider 

alleged that it was not reimbursed at pre-negotiated rates—which is not the situation here—and in 

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allowing the unjust enrichment claims against the insurer to proceed, the court ignored “several 

district court opinions” holding that “a healthcare provider who provides services to an insured 

does not benefit the insurer.” Case No. 6:19-cv-2110-Orl-22DCI, 2020 U.S. Dist. LEXIS 25647, 

at *20 (M.D. Fla. Feb. 11, 2020). See Mot. at 14 (citing contrary authority). In Shands Teaching 

Hospital & Clinics, Inc. v. Beech St. Corp., the provider stated an unjust enrichment claim against 

a benefits administrator because it subcontracted into a PPO access agreement with the provider 

in order to secure and retain its Plan client with in-network contracted rates, but then failed to 

reimburse the provider’s services at those discounted rates. 899 So. 2d 1222, 1224-28 (Fla. 1st 

DCA 2005). Here, by contrast, Defendants did not contract for in-network PPO access to Plaintiff’s 

facilities and thus did not derive the alleged benefit of any discounted rates. And in Wilson v. 

Everbank, N.A., the insurer allegedly accrued a benefit in form of unpaid insurance premiums in a 

force-placed insurance scheme—which is not the case here. 77 F. Supp. 3d 1202, 1237 (S.D. Fla. 

2015). Plaintiff does not cite any cases that allowed a similar unjust enrichment claim to proceed. 

Plaintiff’s unjust enrichment claim also fails because written contracts control its rights 

and remedies. Plaintiff’s right to obtain reimbursement for its services from a Plan depends on the 

Plan Document. Plaintiff cannot utilize quasi-contractual remedies to seek additional payment 

from the Plan or its fiduciaries, including its claims administrator (GPA) and designated 

decisionmaker (ELAP), that is greater than what the Plan ACL permits. Because Plaintiff does not 

allege that any Plan ever failed to pay the full amounts authorized by the Plan ACL, it cannot seek 

additional amounts from the Defendants merely based on their roles with the Plans. 

III. Plaintiff’s Claims Are Conflict Preempted Under ERISA. 

ERISA preempts state law causes of action that “relate to” ERISA plans, like the ones at 

issue here, and it provides more limited remedies than state law causes of action. See In re 

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Managed Care Litig., 595 F. Supp. 2d 1349, 1354-55 (S.D. Fla. 2016). Plaintiff’s reliance on cases 

involving alleged misrepresentations that certain medical services would either be covered or paid 

at a particular rate is unavailing. See Opp. at 14-16 (citing Mem’l Hosp. Sys. v. Northbrook Life 

Ins. Co., 904 F.2d 236, 238 (5th Cir. 1990) (claim predicated on ERISA plan’s false statements 

that a patient was covered and eligible for benefits was not preempted); Lordmann Enters., Inc. v. 

Equicor, Inc., 32 F.3d 1529, 1530-33 (11th Cir. 1994) (claim alleging false representation that the 

ERISA plan would pay 80% to 100% of charges was not preempted)). As other courts in this 

District have recognized, such cases are readily distinguishable because Plaintiff does not allege 

that Defendants made any misstatements about any ERISA Plan’s coverage or reimbursement 

limits. See In re Managed Care Litig., 595 F. Supp. 2d 1349, 1352 (S.D. Fla. 2009); Rodriguez v. 

Health Options, Inc., No. 03-20429-CIV, 2003 WL 27391269, at *4 (S.D. Fla. Aug. 27, 2003). In 

fact, the Amended Complaint deleted all of Plaintiff’s prior allegations about misrepresentations 

in connection with the two patient visits identified in the original Complaint because those 

allegations were refuted by the call recordings and transcripts. See D.E. 15 at 7; Mot. Ex. A at 

78-80. This case really is about Plaintiff’s dissatisfaction with the particular benefit design, which 

Plaintiff refers to as reference-based pricing, adopted by the Plans at issue. Such claims directly 

relate to ERISA plans such that they are preempted and should be dismissed with prejudice.3

 

IV. The Amended Complaint On Its Face Shows That It Would Be Impossible To Litigate 

Plaintiff’s Claims, Which Require Highly Individualized Inquiries, In A Class Action. 

Contrary to Plaintiff’s argument (Opp. at 17-20), this is one of those unique cases in which 

3

 Plaintiff also argues ERISA does not preempt its claims since Plaintiff does not have standing to 

bring ERISA claims. See Opp. at 16-17. Plaintiff’s dubious assertion that it lacks standing is both 

wrong and irrelevant. Plaintiff confuses the broad doctrine of conflict preemption (which is at issue 

here) with the narrower, jurisdictional doctrine of complete preemption (which is not at issue). See 

Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 5491 F.3d 1337, 1350 (11th Cir. 2009). 

Standing is only relevant to complete preemption, not conflict preemption. Id.

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eliminating the class claims at the start would be appropriate – if this action is not dismissed in its 

entirety – because it is obvious that no class will ever be certified. Plaintiff’s claims alone will 

necessitate highly individualized factual inquiries into every good and service it has ever provided 

to a Plan member patient across its medical system in the past several years to adjudicate, inter 

alia: whether there was deceitful conduct, the reasonable value of each good and service, and 

whether Plaintiff was “underpaid” for each good and service. See Mot. at 16-20. The fact that 

Plaintiff’s allegations of deceit have already been disproved for the only transactions Plaintiff has 

ever cited illustrates that every patient admission will need to be litigated individually. And had 

Plaintiff actually pleaded facts showing that consumers were deceived and harmed—which it did 

not do as required by FDUTPA—such a claim would compound the individualized inquires 

because the parties would have to litigate Defendants’ interactions with each of their Plan clients. 

Imagine litigating the minutiae of all of those transactions for hundreds or thousands of medical 

facilities—it boggles the mind. The necessity for individualized inquiries permeates every element 

of class certification such that class-wide relief of any kind is impracticable. See Mot. at 16-20. 

Plaintiff’s failure to address how it proposes to litigate collectively such pervasive 

individualized inquiries shows that class-treatment of its claims is impossible. See Opp. at 17-20. 

Accordingly, if this case proceeds, the class claims should be eliminated so that the parties do not 

waste tremendous time and resources on a motion for class certification that will never be granted. 

CONCLUSION 

The Amended Complaint should be dismissed in its entirety (or, at a minimum, the class 

claims should be eliminated). Plaintiff’s inability to state a claim in its Amended Complaint, which 

was filed in response to a prior motion to dismiss that raised similar issues, shows that further 

amendment would be futile. The Amended Complaint thus should be dismissed with prejudice. 

Case 0:20-cv-61007-AHS Document 32 Entered on FLSD Docket 09/25/2020 Page 14 of 16
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Respectfully submitted this 25th day of September, 2020. 

FISHERBROYLES, LLP 

/s/ Irene Oria 

Robert T. Wright, Jr., Esq. 

FL Bar No. 185525 

Irene Oria, Esq. 

FL Bar No. 484570 

FisherBroyles, LLP 

199 E. Flagler St. #550 

Miami, FL 33131 

Tel.: (786) 536-2838 

Fax: (305) 536-2838 

robert.wright@fisherbroyles.com 

irene.oria@fisherbroyles.com 

Patrick M. Emery, Esq. (pro hac vice) 

GA Bar No. 821303 

PA Bar No. 306672 

Kris Alderman, Esq. (pro hac vice) 

GA Bar No. 179645 

FisherBroyles, LLP 

945 East Paces Ferry Rd NE, Suite 2000 

Atlanta, GA 30326 

(404) 793-0652 

patrick.emery@fisherbroyles.com 

kris.alderman@fisherbroyles.com 

AKERMAN LLP

Irene Bassel Frick, Esq. 

FL Bar No. 0158739 

Gera R. Peoples, Esq. 

FL Bar No. 450022 

401 E. Jackson Street, Suite 1700 

Tampa, FL 33602-5250 

Phone: (813) 223-7333 

Fax: (813) 223-2837 

irene.basselfrick@akerman.com 

gera.peoples@akerman.com 

Counsel for Defendants ELAP Services, LLC and Group & Pension Administrators, Inc.

 

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CERTIFICATE OF SERVICE

I hereby certify that on September 25, 2020, I electronically filed the foregoing with the 

Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to 

the counsel of record identified on the Service List below. 

 /s/ Irene Oria 

 Irene Oria, Esq. 

 

SERVICE LIST 

KOZYAK TROPIN & 

THROCKMORTON LLP

Gail McQuilkin, Esq. 

Tal J. Lifshitz, Esq. 

Benjamin Jacobs Widlanski, Esq. 

Eric S. Kay, Esq. 

2525 Ponce de Leon Blvd., 9th Floor 

Coral Gables, FL 33134 

Telephone: (305) 372-1800 

Facsimile: (305) 372-3508 

gam@kttlaw.com 

tjl@kttlaw.com 

bwidlanski@kttlaw.com 

ekay@kttlaw.com 

WOLFE | PINCAVAGE 

Douglas A. Wolfe, Esq. 

Danya J. Pincavage, Esq. 

Omar Ali-Shamaa, Esq. 

2937 SW 27th Ave., Suite 302 

Miami, FL 33133 

Telephone: (786) 409-0800 

doug@wolfepincavage.com 

danya@wolfepincavage.com 

omar@wolfepincavage.com 

Counsel for Plaintiff

Case 0:20-cv-61007-AHS Document 32 Entered on FLSD Docket 09/25/2020 Page 16 of 16