UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 20-cv-61007-SINGHAL/VALLE

PLAINTIFF’S MOTION TO OVERRULE OBJECTIONS AND COMPEL ANSWERS 

FROM DEFENDANTS TO PLAINTIFF’S SECOND SET OF INTERROGATORIES

SOUTH BROWARD HOSPITAL DISTRICT,

D/B/A MEMORIAL HEALTHCARE SYSTEM,

on its own behalf and on behalf of other similarly 

situated healthcare facilities,

Plaintiff,

v.

ELAP SERVICES, LLC, a Pennsylvania limited 

liability company, and GROUP & PENSION 

ADMINISTRATORS, INC., a Texas corporation,

Defendants.

__________________________________/

Case 0:20-cv-61007-AHS Document 75 Entered on FLSD Docket 07/15/2021 Page 1 of 10
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INTRODUCTION

Defendants ELAP Services, LLC (“ELAP”) and Group & Pension Administrators, Inc. 

(“GPA”) (collectively, “Defendants”) tout their business practices as responsibly managing 

healthcare costs by fighting excessive hospital bills. Yet Defendants are actually compensated 

based on a percentage of the very hospital bills they claim are excessive. And, remarkably, 

discovery has already revealed instances where ELAP made more money for auditing a bill than 

the providers who rendered the healthcare services. For example, Defendants produced a 

spreadsheet that contains a column of financial data titled “Final ELAP Fee” and the Final ELAP 

Fee is greater than the amount paid to the hospital for over 600 transactions. (ELAP0005484).

Evidence of such excessive fees is devastating to Defendants under any theory of liability. 

Plaintiff South Broward Hospital District, d/b/a Memorial Healthcare System 

(“Memorial”), thus propounded its Second Set of Interrogatories (“Interrogatories”) on Defendants 

to discover the frequency of this inequitable practice and the extent of Defendants’ ill-gotten gains.

Specifically, the Interrogatories ask Defendants to identify (i) the revenue they earned in 

connection with each Claim1on a per-Claim basis during the class period and (ii) any available 

reports reflecting that revenue as well as the systems or databases used to retrieve such reports. 

Defendants refused to answer based on two objections. Both are meritless. 

Defendants primarily object to answering the Interrogatories based on relevance. 

Defendants claim that the Court’s order denying their Motion to Dismiss and to Strike Memorial’s 

Class Allegations, South Broward Hospital District v. ELAP Services, LLC, 2020 WL 7074645 

(S.D. Fla. Dec. 3, 2020) (D.E. 37) (the “MTD Order”), implicitly granted judgment in their favor 

1 Memorial defines the term “Claim” or “Claims” as “any facility claim that [ELAP or GPA] 

repriced, processed or reprocessed, and/or administered using Reference Based Pricing.” Ex. A 

at 4 ¶ 2.

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on Memorial’s prayer for disgorgement damages pursuant to its unjust enrichment claim. The

MTD Order did no such thing. It simply addressed the arguments raised by Defendants; 

Memorial’s entitlement to disgorgement was not one of them. And disgorgement damages aside, 

the revenue information is relevant to whether Defendants’ business practices are unfair (in 

violation of FDUTPA) and inequitable (constituting unjust enrichment).

Defendants also persist in their efforts to deny Memorial class discovery. Defendants assert 

the Interrogatories are overbroad and disproportionate to the needs of the case because they seek 

revenue-related information for non-Memorial Claims. But this is a nationwide class action. And 

the Court has already determined that the “shape and form” of this class action will evolve through 

the discovery process. ELAP Servs., 2020 WL 7074645, at *11 (D.E. 37 at 23). 

Defendants’ objections must be overruled, and Memorial’s Motion to Compel should be 

granted.

PROCEDURAL HISTORY

Memorial served Defendants with the Interrogatories on May 17, 2021.2 Defendants 

refused to provide any answers:

Interrogatory No. 13: Please identify the amounts of any fees and/or revenues 

received by You, including the source of such fees and/or revenues, in connection 

with each Claim. Identify the fees and/or revenues on a per-Claim basis beginning 

January 1, 2016.

Response: Defendant objects to this Request because it is vague and ambiguous. 

First, it is unclear what, if any, difference there are in “fees” and “revenues” in this 

context. Accordingly, Defendant interprets those words to mean the same thing in 

2 Although Memorial served separate Interrogatories on ELAP and GPA, the Interrogatories

and Defendants’ Responses are substantially identical. Unless otherwise noted, when Memorial 

references a particular Interrogatory or Response by number, Memorial is referring to both the 

Interrogatories served on ELAP and the Interrogatories served on GPA, or to both Responses 

served by Defendants. Memorial’s Interrogatories to ELAP and GPA are attached as Exhibit A

and Exhibit B, respectively. And ELAP’s and GPA’s Responses are attached as Exhibit C and 

Exhibit D, respectively.

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the context of this Request. Second, it is unclear whether the Request seeks to 

discover any fees received by Defendant or only incremental or variable fees 

received because a Claim was incurred. Defendant interprets this Request to seek 

only information about incremental or variable fees received because a Claim was 

incurred. In other words, flat fees or per employee per month (PEPM) fees are not 

included in this Request. Defendant objects because the Request is overly broad, 

seeks information that is not relevant to any party’s claims or defenses, and is 

disproportionate to the needs of the case at this juncture, when no proposed class 

has been certified, in that it seeks fees received in connection with all Claims, rather 

than only Claims incurred at [Memorial] facilities and a reasonable sample of 

Claims incurred at non-[Memorial] facilities. Defendant objects to identifying all 

claim-specific information for all Claims, let alone fees received in connection with 

all Claims. Defendant objects to this Request because it seeks information that is 

not relevant to any party’s claims or defenses and is disproportionate to the needs 

of the case. Specifically, according to the Court, the benefits Plaintiff allegedly 

conferred on Defendants was “providing ELAP plan members with medical 

services at a discounted rate pursuant to the MultiPlan contract” and “providing 

treatments to patients with ELAP plans for which Defendants are legally obligated 

to provide and pay.” (Doc. 37, at p. 17.) While those allegations are factually 

inaccurate, that is the unjust enrichment claim that the Court permitted to go 

forward, and it has nothing to do with fees paid to Defendant by its clients. Plaintiff 

has no legal right to recover any amounts paid to Defendant by its clients, and the 

amounts Defendant was paid by its clients are not relevant to any party’s claims or 

defenses. Because information about the amounts Defendant was paid by its clients 

is not relevant or discoverable, no response will be provided to this Request.

Interrogatory No. 14: Please identify any reports available to determine the fees 

and/or revenues received by You, including the source of such fees and revenues, in 

connection with each Claim. Please also identify the systems or databases available 

to You to retrieve such reports.

Response: Defendant objects to this Request because it is vague and ambiguous. 

First, it is unclear what, if any, difference there are in “fees” and “revenues” in this 

context. Accordingly, Defendant interprets those words to mean the same thing in 

the context of this Request. Second, it is unclear whether the Request seeks to 

discover any fees received by Defendant or only incremental or variable fees 

received because a Claim was incurred. Defendant interprets this Request to seek 

only information about incremental or variable fees received because a Claim was 

incurred. In other words, flat fees or per employee per month (PEPM) fees are not 

included in this Request. Defendant objects because the Request is overly broad, 

seeks information that is not relevant to any party’s claims or defenses, and is 

disproportionate to the needs of the case at this juncture, when no proposed class 

has been certified, in that it seeks fees received in connection with all Claims, rather 

than only Claims incurred at [Memorial] facilities and a reasonable sample of 

Claims incurred at non-[Memorial] facilities. Defendant objects to identifying all 

claim-specific information for all Claims, let alone fees received in connection with 

all Claims. Defendant objects to this Request because it seeks information that is 

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not relevant to any party’s claims or defenses, and is disproportionate to the needs 

of the case. Specifically, according to the Court, the benefits Plaintiff allegedly 

conferred on Defendants was “providing ELAP plan members with medical 

services at a discounted rate pursuant to the MultiPlan contract” and “providing 

treatments to patients with ELAP plans for which Defendants are legally obligated 

to provide and pay.” (Doc. 37, at p. 17.) While those allegations are factually 

inaccurate, that is the unjust enrichment claim that the Court permitted to go 

forward, and it has nothing to do with fees paid to Defendant by its clients. Plaintiff 

has no legal right to recover any amounts paid to Defendant by its clients, and the 

amounts Defendant was paid by its clients are not relevant to any party’s claims or 

defenses. To the extent that this Request is aimed at determining the systems and 

system capabilities to generate reports that yield the information sought in 

Interrogatory No. 13, the systems capabilities of Defendant are irrelevant because 

Defendant does not object based on impossibility or undue burden. Instead, 

information about fees Defendant has been paid by its clients is simply not relevant; 

therefore, information about what reports may be generated concerning such fees 

is irrelevant.

On June 28, 2021, the parties engaged in a telephonic meet and confer to resolve 

Defendants’ objections. The meet and confer quickly revealed that the objections turn on a 

fundamental disagreement over how to interpret the MTD Order. Defendants maintained their 

objection that the MTD Order limited the scope of, and remedies available for, Memorial’s unjust 

enrichment claim. Memorial disagreed. The parties are thus at an impasse and require the Court’s

intervention. 

ARGUMENT

A. Defendants’ Revenue-Related Information Is Relevant to the Issues Framed 

by the Pleadings. 

The Amended Class Action Complaint asserts two claims against Defendants: violations 

of FDUTPA and unjust enrichment. In support of those claims, Memorial alleges, in relevant part:

65. Ironically, ELAP claims that the amounts billed by providers are 

excessive and inflated despite the fact that ELAP is paid based on those amounts. 

That is to say, ELAP charges its clients 12% of the provider’s total billed charges 

for any claim. So, as providers’ billed charges go up, the more ELAP gets paid by 

its clients.

66. GPA is paid in various ways, including a fixed fee based on the 

number of enrolled employees, access fees, a percentage of the plan’s savings, or a 

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fee for administering the claims. Defendants accordingly profit exponentially as 

more members are enrolled and providers like Plaintiff are paid less. 

67. Defendants have no incentive to reduce the billed charges they claim

are “unconscionable,” because that would hurt their bottom line. 

68. To the contrary, their scheme is designed to underpay providers, 

take high fees from their clients (e.g., 12% of billed charges), and stick patients 

with the remaining balance of billed charges, leaving patients exposed to collection 

efforts and lawsuits, and unable to access providers for non-emergent care. 

(D.E. 24 ¶¶ 65-68). Because of the unfair and inequitable nature of Defendants’ business practices, 

Memorial seeks a judgment declaring that “Defendants must disgorge . . . all or part of the illgotten gains they received from their misconduct.” (Id. at 39).

“‘Disgorgement is an equitable remedy intended to prevent unjust enrichment.’” Duty Free 

World, Inc. v. Miami Perfume Junction, Inc., 253 So. 3d 689, 698 (Fla. 3d DCA 2018) (quoting 

S.E.C. v. Monterosso, 756 F.3d 1326, 1337 (11th Cir. 2014)). “The equitable remedy of 

disgorgement is measured by the defendant’s ill-gotten profits or gains rather than the plaintiff’s 

losses.” Id. Discovering the amount of revenue Defendants gained from their improper Claims 

auditing process is therefore directly relevant to establishing the amount of damages they must 

disgorge pursuant to Memorial’s unjust enrichment claim.

Ignoring Memorial’s well-pleaded allegations and Florida law, Defendants argue that the 

Court limited the scope of the unjust enrichment claim in the MTD Order. They rely on the MTD 

Order’s language that the benefits conferred on Defendants were “providing ELAP plan members 

with medical services at a discounted rate pursuant to the MultiPlan contract” and “providing 

treatments to patients with ELAP plans for which Defendants are legally obligated to provide and 

pay.” (D.E. 37 at 17). In moving to dismiss, however, Defendants never argued that the unjust 

enrichment claim should be dismissed to the extent it sought disgorgement of Defendants’ illgotten gains. (See D.E. 29 & D.E. 31). The quoted language instead merely reflects the Court’s 

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rejection of Defendants’ argument that Memorial “did not confer any direct benefit on Defendants 

for which it would be inequitable.” ELAP Servs., 2020 WL 7074645, at *11 (D.E. 37 at 23).

Defendants have cited no authority, and Memorial is aware of none, supporting the sweeping 

proposition that discovery is permitted only on allegations referenced in an order denying a motion 

to dismiss. Thus, Defendants cannot rely on the MTD Order’s silence on disgorgement to avoid 

answering Memorial’s Interrogatories. 

Defendants also ignore that their revenue-related information is relevant to establishing 

their liability for violations of FDUTPA and for unjust enrichment. “A practice is unfair under the 

FDUTPA if it ‘offends established public policy or is immoral, unethical, oppressive, 

unscrupulous, or substantially injurious to consumers.’” State Farm Mut. Auto. Ins. Co. v. 

Performance Orthopaedics & Neurosurgery, LLC, 278 F. Supp. 3d 1307, 1326 (S.D. Fla. 2017)

(quoting PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003)). “[T]he use of 

the term ‘equitable’ in reference to an unjust enrichment claim denotes fairness.” Duty Free World, 

253 So. 3d at 694. A reasonable juror could find that Defendants being compensated based on a 

percentage of the very hospital bills they claim are excessive, including being compensated more 

than the providers delivering the healthcare services, fits within the foregoing definitions. And the 

Court has concluded that Memorial’s “extensive and detailed argument” as to how Defendants’

scheme is unfair is “compelling” and raises “‘question[s] of fact for the jury to determine.’” ELAP 

Servs., 2020 WL 7074645, at *6 (D.E. 37 at 14).

Based on the foregoing, Defendants’ objection to the relevance of information reflecting 

their revenue on a per-Claim basis should be overruled, and the Court should compel Defendants 

to provide complete answers. 

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B. Memorial Is Entitled to Answers for Class-wide Claims.

Defendants further object to answering the Interrogatories with respect to non-Memorial 

claims. Defendants’ artificial limitation on discovery is improper and unwarranted. Memorial’s 

allegations are not limited to Defendants’ unfair practices toward Memorial. Rather, Memorial 

alleges an unfair scheme of nationwide reach that is ideally suited for class treatment. 

At bottom, Defendants are endeavoring to bifurcate class discovery from merits discovery 

without a formal motion or court order. But as the Court recognized when it denied Defendants’ 

attempt to “premature[ly]” dismiss Memorial’s class allegations, “‘the shape and form of a class 

action evolves only through the process of discovery.’” ELAP Servs., 2020 WL 7074645, at *11 

(D.E. 37 at 23). Further, permitting Defendants to limit discovery as they propose would create 

perverse incentives. “[I]f district courts as neutral arbiters of the law find the distinction between 

merits and class issues to be murky at best, and impossible to discern at worst,” it is difficult to 

“imagine how parties with an incentive to hold back damaging evidence[] can properly draw the 

line between these categories of evidence during ‘phased’ discovery.” Lakeland Reg’l Med. Ctr., 

Inc. v. Astellas US, LLC, 2011 WL 486123, at *2 (M.D. Fla. Feb. 7, 2011). This is particularly true 

with respect to the damning evidence that Defendants have been compensated more on Claims 

than the providers delivering the healthcare services.

Defendants cannot ignore the Court and unilaterally impose their own limitations on class 

discovery. This Court should therefore compel Defendants to answer the Interrogatories without 

limiting Defendants’ answers to Memorial Claims only.

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C. The Requested Information Is Readily Accessible and Defendants Waived 

Their Objections by Partially Producing the Requested Information.

Documents already produced by Defendants demonstrate that the requested information is 

readily accessible and can be easily compiled in an Excel spreadsheet. For example, Defendants 

produced a spreadsheet that contains over 14,000 transactions, the majority of which are not for 

Memorial, but rather other members of the putative class. (ELAP0005484).

By partially producing the information requested by Memorial, Defendants have waived 

their objection to the current Interrogatories. Not only have Defendants produced the requested fee 

information, but they also produced this information for other members of the putative class. Their 

current objections to both the subject of the requests and providing the information for all members 

of the putative class should be deemed waived.

CONCLUSION

For the foregoing reasons, the Court should grant this Motion to Compel, overrule 

Defendants’ objections, and direct Defendants to answer the Interrogatories described above.

Request for Hearing

Plaintiff believes a hearing is warranted on this Motion due to the importance of the issues 

presented to healthcare providers nationwide, and because this case presents a complex 

multilayered healthcare scheme. A hearing will assist the Court in resolving the issues raised in 

this Motion. Plaintiff estimates that the Parties will require approximately thirty minutes of

argument. 

Case 0:20-cv-61007-AHS Document 75 Entered on FLSD Docket 07/15/2021 Page 9 of 10
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S.D. Fla. L.R. 7.1(a)(3) Certification of Good Faith Conference

Pursuant to S.D. Fla. L.R. 7.1(a)(3), counsel for Plaintiff certifies that they conferred with 

counsel for Defendants by telephone on June 28, 2021, in a good faith effort to resolve the issues 

raised in this Motion. The Parties were unable to reach a resolution.

Dated: July 15, 2021

/s/Benjamin J. Widlanski

Gail McQuilkin, Esq.

gam@kttlaw.com

Fla. Bar No. 969338

Benjamin J. Widlanski, Esq.

bwidlanski@kttlaw.com 

Florida Bar No. 1010644

Tal J. Lifshitz, Esq. 

tjl@kttlaw.com

Fla. Bar No. 99519

Michael R. Lorigas, Esq.

mlorigas@kttlaw.com

Fla. Bar No. 123597

Eric S. Kay, Esq.

ekay@kttlaw.com

Fla. Bar No. 1011803

KOZYAK TROPIN &

THROCKMORTON LLP

2525 Ponce de Leon Blvd., 9th Floor

Coral Gables, FL 33134

(305) 372-1800 

Respectfully submitted,

/s/ Douglas A. Wolfe

Douglas A. Wolfe, Esq.

doug@wolfepincavage.com

Fla. Bar No. 28671

Danya J. Pincavage, Esq.

danya@wolfepincavage.com

Fla. Bar No. 14616

Omar Ali-Shamaa, Esq.

omar@wolfepincavage.com

Fla. Bar No. 121461

WOLFE | PINCAVAGE

2937 SW 27th Ave., Suite 302

Miami, FL 33133

(786) 409-0800

Counsel for Plaintiff

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