UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

United States of America and 

State of Michigan, 

Plaintiffs, 

v. 

W.A. Foote Memorial Hospital, 

d/b/a Allegiance Health, 

Defendant. 

________________________________/

Case No. 15-cv-12311 

Judith E. Levy 

United States District Judge 

Mag. Judge David R. Grand 

OPINION REGARDING ONGOING JURISDICTION 

 On June 25, 2015, the United States of America and the State of 

Michigan brought a civil antitrust action to enjoin allegedly unlawful 

agreements by defendants Hillsdale Community Health Center 

(“Hillsdale”), W.A. Foote Memorial Hospital, d/b/a Allegiance Health 

(“Allegiance”), Community Health Center of Branch County (“Branch”), 

and ProMedica Health System, Inc. (“ProMedica”). (Dkt. 1.) Plaintiffs 

allege that the agreements are “naked restraints of trade that are per se

unlawful under Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 

2 of the Michigan Antitrust Reform Act, MCL 445.772.” (Id. at 3.) 
2 

On October 21, 2015, the Court entered an order dismissing 

defendants Hillsdale, Branch, and ProMedica after those parties 

(“Settling Defendants”) entered into a settlement agreement (“2015 

Agreement”). (Dkt. 37.) The 2015 Agreement required the Settling 

Defendants to “agree to undertake certain actions and refrain from 

certain conduct for the purpose of remedying the anticompetitive effects 

alleged in the Complaint.” (Dkt. 36 at 2.) In particular, the Settling 

Defendants were required to end any and all agreements with other 

providers that “prohibit[] or limit[] marketing” or “allocate[] any 

geographic market or territory between or among the Settling 

Defendant[s] and any other provider[s].” (Id. at 7.) Defendant Allegiance 

did not enter into the 2015 Agreement, and remains the only defendant 

in this case. 

I. Background 

In their complaint, plaintiffs request a declaratory judgment that 

“defendants’ agreements limiting competition constitute illegal 

restraints of interstate trade” (Dkt. 1 at 13), and prospective relief 

including an injunction precluding “defendants and their members, 

officers, agents, and employees from continuing or renewing in any 
3 

manner the conduct alleged herein or from engaging in any other 

conduct, agreement, or other arrangement having the same effect as the 

alleged violations” (Id. at 13–14). They also seek a requirement for 

defendants “to institute a comprehensive antitrust compliance program 

to ensure that defendants do not establish any similar agreements and 

that defendants’ members, officers, agents, and employees are fully 

informed of the application of the antitrust laws to hospital restrictions 

on competition.” (Id. at 14.) 

The complaint underlying the requested relief derives from 

allegations of an anti-competitive agreement between Allegiance and 

former co-defendant Hillsdale. Because the 2015 Settlement required 

Hillsdale to end any agreement to limit marketing, including any 

agreement with Allegiance, the Court was concerned that there may no 

longer be an ongoing controversy at issue in the case. On July 20, 2017, 

the Court ordered the parties to submit supplemental briefing on the 

question of whether there is a live case or controversy before the Court. 

(Dkt. 107.) 

In their supplemental brief, plaintiffs argue that (1) the fact that 

Hillsdale has ended its agreement with Allegiance does not deprive the 
4 

Court of jurisdiction, as it may still grant effective relief; and (2) 

extending the reach of the mootness doctrine to cases like this one would 

have negative policy consequences, including encouraging defendants to 

hold out from settling. (Dkt. 108 at 6.) 

 Defendant argues that “to the extent that the alleged unlawful 

conduct . . . ever occurred (which Allegiance denies), it has long since 

ceased, and is unlikely to occur in the future.” (Dkt. 109 at 1.) Defendant 

further argues that “[e]ven if the Court chooses to retain jurisdiction over 

the case at this time, the prospective relief requested by plaintiffs is 

unnecessary and unwarranted.” (Id. at 10.) 

The Court heard oral argument on the question on October 15, 

2017. For the reasons set forth below, the Court concludes that it retains 

jurisdiction in this case. 

II. Legal Standard 

Federal judicial power is restricted by the Constitution to actual 

cases or controversies. Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1547 

(2016). The mootness doctrine arises from this Article III requirement 

because an action that is moot cannot be considered a live case or 

controversy. “[A] case is moot when the issues presented are no longer 
5 

‘live’ or the parties lack a legally cognizable interest in the outcome.” Los 

Angeles County v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. 

McCormack, 395 U.S. 486, 496 (1969)). Courts “have a ‘continuing 

obligation’ to enquire [sic] whether there is a present controversy as to 

which effective relief can be granted.” Coal. for Gov’t Procurement v. Fed. 

Prison Indus., 365 F.3d 435, 458 (6th Cir. 2004) (quoting Southwest 

Williamson County Cmty. Assoc. v. Slater, 243 F.3d 270, 276 (6th Cir. 

2001)). 

 Federal courts have broad authority to order equitable relief in 

antitrust cases. Int’l Salt Co. v. United States, 332 U.S. 392, 400-01 

(1947) (District Courts “are invested with large discretion to model their 

judgments to fit the exigencies of the particular case.”). The goal of an 

equitable antitrust suit is neither to simply punish past behavior nor to 

merely end specific illegal practices. Id. at 401. The goal is to “effectively 

pry open to competition a market that has been closed by defendants’ 

illegal restraints.” Id. 

Courts have a wide range of means at their disposal to further this 

goal. Fed. Trade Comm’n v. Nat’l Lead Co., 352 U.S. 419, 430 (1957) 

(Courts are “obliged not only to suppress the unlawful practice but to take 
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such reasonable action as is calculated to preclude the revival of the 

illegal practices.”) Finally, “the mootness doctrine inquires into a court’s 

authority to order a remedy, not the likelihood or appropriateness of that 

remedy under particular circumstances. In re Androgel Antitrust 

Litigation, 2017 WL 2404941 at *4 (11th Cir. 2017). 

III. Analysis 

 Plaintiffs argue first that (a) Allegiance’s conduct is ongoing, but (b) 

even if it were not, cessation of unlawful conduct prior to final judgment 

does not moot a case. (Dkt. 108 at 6.) Plaintiffs concede that the 2015 

Settlement resulted in Hillsdale agreeing to “cease any conduct pursuant 

to the particular agreement with Allegiance alleged in the Complaint.” 

Id. They argue, however, that Allegiance has not altered its behavior as 

it relates to marketing in Hillsdale County. Id. Finally, plaintiffs assert 

that “even if Allegiance were to claim to have voluntarily ceased its 

anticompetitive conduct, this would not moot the case.” (Id.) 

 In the present case, plaintiffs’ complaint relates to the illegality of 

various agreements between hospitals to limit their marketing across 

geographic boundaries. After the 2015 Settlement, however, there is no 

longer an existing agreement between defendant Allegiance and any 
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other previous co-defendant to limit marketing activities in specific 

geographic regions. Without an underlying anti-competitive agreement, 

ongoing unilateral actions (i.e., unilateral marketing decisions) by 

Allegiance are not statutory violations. 

Plaintiffs argue that (a) Allegiance Health’s extensive history of 

executing its marketing plans based on agreements with local 

competitors, (b) its refusal to admit that any of its previous marketing 

activity was illegal anticompetitive behavior, and (c) its affirmations that 

it intends to continue with certain limited marketing strategies is 

sufficient to give the Court authority to issue injunctive relief “in order 

to cure the ill effects of the illegal conduct.” (Dkt. 108 at 6–7.) However, 

in the case plaintiffs cite, this proposition applies only “upon a finding of 

a conspiracy in restraint of trade.” United States v. U.S. Gypsum Co., 

340 U.S. 76, 88 (1950). The fact that the Court would have the authority 

upon a finding of conspiracy to order prospective relief aimed at curing 

the negative effects of earlier illegal behavior does not answer the 

question of whether the Court has jurisdiction to make the finding of 

conspiracy in the first place. 
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Plaintiffs’ stronger argument is that “th[e] Court may still grant 

effective relief.” (Dkt. 108 at 10.) “A case becomes moot only when it is 

impossible for a court to grant any effectual relief whatever to the 

prevailing party.” Decker v. Nw. Envtl. Def. Ctr, 568 U.S. 597 (2013) 

(quoting Knox v. Serv. Emps. Int’l, 567 U.S. 298, 307 (2012)). “As long as 

the parties have a concrete interest, however small, in the outcome of the 

litigation, the case is not moot.” Knox, 567 U.S. at 307-08 (quoting Ellis 

v. Railway Clerks, 466 U.S. 435, 442 (1984)). 

In this case, as is common in antitrust cases, plaintiffs have made 

clear that their interest in the case is broader than the “particular 

agreement between Allegiance and [Hillsdale].” (Dkt. 108 at 10.) 

Plaintiffs’ interest is ensuring a competitive market for health services 

in and around Hillsdale County. Plaintiffs identified four hospitals 

allegedly involved in anticompetitive agreements to limit marketing and 

outreach in a particular geographic region. Three of those hospitals 

voluntarily entered into a settlement agreement that imposes (a) broad 

limitations on future opportunities to enter into such agreements and (b) 

the appointment of an independent compliance monitor. 
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As plaintiffs argue, “the consent decree entered against [Hillsdale] 

does not provide critical components of the relief that Plaintiffs seek 

against Allegiance...[and] this Court has the power to grant an injunction 

that provides effective relief beyond what is already covered by the 

consent decree.” (Id. at 11.) If the Court finds an antitrust violation, it 

could (a) enter an injunction prohibiting Allegiance Health from entering 

into or maintaining any agreement to limit marketing in particular 

geographic areas, or (b) enter an order requiring the appointment of an 

independent antitrust compliance officer, or (c) authorize the U.S. 

Department of Justice to conduct intermittent compliance inspections. 

The fact that there remains “meaningful relief” for the court to fashion 

indicates that the court retains jurisdiction to decide whether or not it 

would be appropriate to do so. 

As defendant highlights in its supplemental brief, “[a] case might 

become moot if subsequent events made it absolutely clear that the 

allegedly wrongful behavior could not reasonably be expected to recur.” 

United States v. Concentrated Phosphate Exp. Ass’n, Inc., 393 U.S. 199, 

203–04 (1968) (emphasis added). In this case, defendant argues (1) that 

the allegedly unlawful conduct has ceased, and (2) there is no reasonable 
10 

expectation that an unlawful agreement will occur in the future. (Dkt. 

109 at 2 and 5.) 

“While a suit to enjoin future illegal action may be moot if it is 

certain that such violations cannot recur, it is likewise well-established 

that discontinuance of past illegal practices does not necessarily render 

moot a controversy over an injunction against similar future actions.” 

Rubbermaid, Inc. v. F.T.C., 575 F.2d 1169, 1172 (6th Cir. 1978). “The 

crucial question, of course, is to what degree one can be certain that the 

same or related practices will not recur.” Id. (emphasis added). 

With respect to defendant’s argument that the allegedly unlawful 

conduct has ceased, given the 2015 Agreement, defendant does not have 

and cannot enter into an anti-competitive agreement with Hillsdale or 

any of the other Settling Defendants. However, this is not sufficient to 

convince the Court that Allegiance is certain not to enter into any related

agreements in the future. 

Given this lack of certainty, the mootness doctrine is not applicable 

to this case at this time. The Court retains jurisdiction, and leaves 
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plaintiffs to their proofs at trial. 

IT IS SO ORDERED. 

Dated: December 20, 2017 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on December 20, 2017. 

s/Shawna Burns 

SHAWNA BURNS 

Case Manager