IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

 

IN RE: GEISINGER HEALTH AND 

EVANGELICAL COMMUNITY 

HOSPITAL HEALTHCARE 

WORKERS ANTITRUST 

LITIGATION 

 No. 4:21-CV-00196 

 (Chief Judge Brann) 

MEMORANDUM OPINION 

NOVEMBER 16, 2021 

I. BACKGROUND 

On March 18, 2021, Plaintiffs Nichole Leib, Kevin Brokenshire, Diane Weigley, 

and Jessica Sauer filed their First Amended Complaint individually and on behalf of all 

others similarly situated. Plaintiffs allege that Defendants Geisinger Health and 

Evangelical Community Hospital agreed not to poach each other’s healthcare workers 

in violation of the Sherman Antitrust Act of 1890 and Pennsylvania’s Unfair Trade 

Practices and Consumer Protection Law. 

On May 17, 2021, Defendants filed a joint motion to dismiss for failure to state 

a claim and, alternatively, to strike class allegations. The motion is now ripe for 

disposition; for the reasons that follow, it is denied in part and granted in part. Further 

leave to amend is not granted. 

II. DISCUSSION 

A. Motion to Dismiss Standard 

Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a complaint, 

in whole or in part, if the plaintiff has failed to “state a claim upon which relief can be 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 1 of 13
- 2 -

granted.” A motion to dismiss “tests the legal sufficiency of a claim”1 and “streamlines 

litigation by dispensing with needless discovery and factfinding.”2 “Rule 12(b)(6) 

authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”3 This 

is true of any claim, “without regard to whether it is based on an outlandish legal theory 

or on a close but ultimately unavailing one.”4

Following the Roberts Court’s “civil procedure revival,”5

 the landmark decisions 

of Bell Atlantic Corporation v. Twombly6 and Ashcroft v. Iqbal7 tightened the standard 

that district courts must apply to 12(b)(6) motions.8 These cases “retired” the lenient 

“no-set-of-facts test” set forth in Conley v. Gibson and replaced it with a more exacting 

“plausibility” standard.9

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’”10 “A claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.”11 “Although the plausibility standard 

1

 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v. 

Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)). 

2

 Neitzke v. Williams, 490 U.S. 319, 326–27 (1989). 

3

 Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). 

4

 Id. at 327. 

5

 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig. 

313 (2012). 

6

 550 U.S. 544 (2007). 

7

 556 U.S. 662 (2009). 

8

 Id. at 670. 

9

 Id.

10 Id. at 678 (quoting Twombly, 550 U.S. at 570). 

11 Id.

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 2 of 13
- 3 -

does not impose a probability requirement, it does require a pleading to show more than 

a sheer possibility that a defendant has acted unlawfully.”12 Moreover, “[a]sking for 

plausible grounds . . . calls for enough facts to raise a reasonable expectation that 

discovery will reveal evidence of [wrongdoing].”13

The plausibility determination is “a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.”14 No matter the 

context, however, “[w]here a complaint pleads facts that are merely consistent with a 

defendant’s liability, it stops short of the line between possibility and plausibility of 

entitlement to relief.”15

When disposing of a motion to dismiss, the Court “accept[s] as true all factual 

allegations in the complaint and draw[s] all inferences from the facts alleged in the light 

most favorable to [the plaintiff].”16 However, “the tenet that a court must accept as true 

all of the allegations contained in a complaint is inapplicable to legal conclusions.”17 

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.”18 

As a matter of procedure, the United States Court of Appeals for the Third Circuit 

has instructed that: 

12 Connelly v. Lane Constr. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (cleaned up). 

13 Twombly, 550 U.S. at 556. 

14 Iqbal, 556 U.S. at 679. 

15 Id. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotation marks omitted)). 

16 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.). 

17 Iqbal, 556 U.S. at 678 (internal citations omitted). 

18 Id. See also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) 

(“After Iqbal, it is clear that conclusory or ‘bare-bones’ allegations will no longer survive a 

motion to dismiss.”). 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 3 of 13
- 4 -

Under the pleading regime established by Twombly and Iqbal, a court 

reviewing the sufficiency of a complaint must take three steps. First, it 

must tak[e] note of the elements [the] plaintiff must plead to state a claim. 

Second, it should identify allegations that, because they are no more than 

conclusions, are not entitled to the assumption of truth. Finally, [w]hen 

there are well-pleaded factual allegations, [the] court should assume their 

veracity and then determine whether they plausibly give rise to an 

entitlement to relief.19

B. Facts Alleged in the Amended Complaint 

The facts alleged in the Amended Complaint, which I must accept as true for the 

purposes of this motion, are as follows. 

Geisinger Health is the largest health system in Central Pennsylvania.20 And 

Evangelical Community Hospital is Central Pennsylvania’s largest independent 

community hospital.21 Together, these Defendants employ 70 to 75 percent of hospital 

healthcare workers in Central Pennsylvania.22

At least as early as 2010, Defendants agreed to not poach each other’s physicians, 

nurses, psychologists, therapists, and other healthcare professionals in Central 

Pennsylvania.23 Defendants’ senior executives periodically reaffirmed, monitored, and 

policed this no-poach agreement.24 For example, after learning that Geisinger had been 

recruiting Evangelical’s nurses, Evangelical’s CEO emailed Geisinger to “please ask 

that this stop.”25 The Geisinger executive then forwarded this email to Geisinger’s Vice 

19 Connelly, 809 F.3d at 787 (internal quotation marks and citations omitted). 

20 Doc. 46 at ¶ 19. 

21 Id. at ¶ 21.

22 Id. at ¶ 29. 

23 Id. at ¶¶ 1–6. 

24 Id. at ¶ 9. 

25 Id. 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 4 of 13
- 5 -

President of Talent Acquisition, instructing her to “ask your staff to stop this activity 

with Evangelical.”26

Defendants also concealed their no-poach agreement.27 Instead of placing this 

agreement in writing, Defendants trained new executives about it orally.28 And when 

one of the Defendants’ healthcare workers applied to work for the other Defendant, both 

Defendants communicated about the applicant without the applicant’s knowledge.29 

 Defendants intended that this no-poach agreement reduce competition for 

healthcare workers in Central Pennsylvania.30 Indeed, this agreement suppressed job 

ability and wages for Plaintiffs, whom Defendants employed.31 Without the no-poach 

agreement, Defendants would have competed for Plaintiffs’ labor, thus resulting in 

higher wages.32 

 C. Analysis 

 1. Sherman Act § 1 

 a. Article III Standing 

 First, Defendants argue that Plaintiffs lack Article III standing because they have 

not plausibly alleged an actual injury. For Article III standing, plaintiffs must plead an 

26 Id. 

27 Id. at ¶¶ 64–66. 

28 Id. at ¶ 65. 

29 Id. 

30 Id. at ¶ 3. 

31 Id. 32 Id. at ¶ 41. 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 5 of 13
- 6 -

“injury in fact” that is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”33 This 

injury must be “causally connected and traceable to an action of the defendant.”34

 Here, Plaintiffs allege that the no-poach agreement artificially reduced their 

wages.35 Plaintiffs also allege that absent the no-poach agreement, Defendants would 

compete for each other’s employees, thus increasing pay and job mobility.36 At the 

pleading stage, these allegations plausibly show an injury for Article III standing.37 

 Defendants counter that Plaintiffs cannot show injury because they do not allege 

that they sought work at other hospitals. Defendants analogize this to Finkelman v. 

National Football League.

38 The Finkelman plaintiffs claimed a conspiracy to raise 

Super Bowl ticket prices.39 Because one of these plaintiffs “chose not to purchase any 

tickets,” he “suffered no more injury than any of the possibly tens of thousands of 

people who thought about purchasing a ticket to the Super Bowl and chose not to.”40 

And “the amount of any damages . . . suffered due to the NFL’s alleged misconduct 

33 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citation omitted). 

34 The Pitt News v. Fisher, 215 F.3d 354, 359 (3d Cir. 2000). 

35 Doc. 46 at ¶ 87. 

36 Id. at ¶¶ 41–48, 80. 

37 See In re High-Tech Emp. Antitrust Litig., 856 F. Supp. 2d 1103, 1123 n. 11 (N.D. Cal. 2012) 

(“Plaintiffs meet the requirements for Article III standing” because they “allege that their 

salaries were artificially reduced as a result of Defendants’ alleged anticompetitive conduct 

and that their injury can be redressed through the payment of damages should Plaintiffs 

establish liability.”). 

38 810 F.3d 187 (3d Cir. 2016). 

39 Id. at 188. 

40 Id. at 195. 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 6 of 13
- 7 -

[was] completely indeterminate.”41 Thus, the Third Circuit held that the plaintiff did 

not allege an injury-in-fact and affirmed his claim’s dismissal.42 

 But Finkelman did not involve no-poach agreements. And unlike that Finkelman 

plaintiff, Plaintiffs here are not one of “tens of thousands of people who thought about” 

doing something. Rather, Plaintiffs are a more limited group of skilled healthcare 

professionals who worked for one of two Defendants. Thus, Finkelman does not require 

dismissal in the matter at hand. 

 Defendants further counter that Plaintiffs cannot claim lower wages as an injury 

because they have not plausibly alleged market power. But “no market analysis is 

required at this time” because Plaintiffs allege a per se violation of the Sherman Act.43 

Therefore, Plaintiffs have plausibly alleged an Article III injury at the pleading stage. 

 b. Antitrust Standing 

Defendants also argue that Plaintiffs lack antitrust standing because they have 

not shown an antitrust injury. An antitrust injury “is attributable to an anti-competitive 

aspect of the practice under scrutiny.”44 It “stems from a competition-reducing aspect 

or effect of the defendant’s behavior.”45 “If antitrust injury is not found, further inquiry 

is unnecessary.”46

41 Id. 

42 Id. at 196. 

43 High-Tech, 856 F. Supp. 2d at 1122. 

44 Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334 (1990). 

45 Id. at 344. 

46 City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 265 (3d Cir. 1998). 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 7 of 13
- 8 -

 Here, Plaintiffs allege that Defendants’ no-poach agreement was intended to and 

did suppress their wages and job mobility.47 Plaintiffs further allege that absent the nopoach agreement, Defendants would compete for each other’s employees, thereby 

increasing pay and job mobility.48 This adequately alleges an antitrust injury.49

 Defendants counter that Plaintiffs’ alleged injuries are too remote to confer 

antitrust standing. To support their argument, Defendants analogize this case to 

Associated General Contractors of California, Inc. v. California State Council of 

Carpenters (“AGC”).50 In AGC, two unions sued an association of construction 

contractors for diverting contracts to nonunion firms.51 But “the chain of causation 

between the Union’s injury and the alleged restraint in the market for construction 

subcontracts contain[ed] several somewhat vaguely defined links.”52 “It [was] obvious 

that any such injuries were only an indirect result of whatever harm may have been 

suffered by [union] construction contractors and subcontractors.”53 Thus, the Supreme 

Court of the United States held that the unions did not have antitrust standing.54

Unlike in AGC, Plaintiffs in this matter do not allege injuries resulting from harm 

to another party. Instead, Plaintiffs allege that they personally suffered lower wages as 

47 Doc. 46 at ¶ 3. 

48 Id. at ¶¶ 41–48, 80. 

49 See High-Tech, 856 F. Supp. 2d at 1123 (holding that “Plaintiffs have adequately pled antitrust 

injury” because they “have asserted that their salary and mobility were suppressed by 

Defendants’ agreements not to cold call, and that the alleged agreements were entered into to 

suppress competition for skilled labor”). 

50 459 U.S. 519 (1983). 

51 Id. at 520–21. 

52 Id. at 540. 

53 Id. 

54 Id. at 546. 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 8 of 13
- 9 -

a direct and proximate result of Defendants’ no-poach agreement.55 Because Plaintiffs 

allege that their injuries are a direct result of the no-poach agreement, they have 

adequately pled antitrust standing. 

 c. Conspiracy 

Next, Defendants argue that Plaintiffs do not plausibly allege a conspiracy under 

Section 1 of the Sherman Act.56 Pleading a § 1 claim “requires a complaint with enough 

factual matter (taken as true) to suggest that an agreement was made.”57 “An agreement 

exists when there is a unity of purpose, a common design and understanding, a meeting 

of the minds, or a conscious commitment to a common scheme.”58

Again, Plaintiffs allege that Defendants are competitors who agreed not to poach 

each other’s physicians, nurses, psychologists, therapists, and other healthcare 

professionals in Central Pennsylvania at least as early as 2010.59 Plaintiffs further 

allege that Defendants periodically monitored and policed this no-poaching 

agreement.60 

For example, Evangelical’s CEO allegedly emailed Geisinger after learning that 

Geisinger was recruiting Evangelical’s nurses.61 In this email, Evangelical’s CEO 

requested that Geisinger “please ask that this stop.”62 The Geisinger executive then 

55 Doc. 46 at ¶¶ 80, 82, 88. 

56 15 U.S.C. § 1. 

57 Twombly, 550 U.S. at 556. 

58 W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 99 (3d Cir. 2010). 

59 Doc. 46 at ¶¶ 1–6. 

60 Id. at ¶ 9. 

61 Id. 

62 Id. 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 9 of 13
- 10 -

forwarded this email to Geisinger’s Vice President of Talent Acquisition, instructing 

her to “ask [her] staff to stop this activity with Evangelical.”63 

At the very least, Evangelical’s email asking that Geisinger stop recruiting its 

nurses and Geisinger’s subsequent instructions that recruiting staff “stop this activity 

with Evangelical” permit an inference of a no-poaching agreement. Indeed, district 

courts have found that similar communications support Sherman Act § 1 conspiracy 

claims.64 Therefore, Plaintiffs have plausibly alleged a no-poaching agreement. 

 Defendants further argue that a civil enforcement action by the United States 

Department of Justice does not salvage Plaintiffs’ Complaint. But as I explain above, 

Plaintiffs’ specific allegations regarding a no-poach agreement and the efforts to police 

it are sufficient at this stage. So Plaintiffs’ Complaint does not need salvaging. 

Defendants’ motion to dismiss is denied as to Plaintiffs’ Sherman Act claim. 

d. Class Allegations 

Defendants also move to strike Plaintiffs’ class allegations because they do not 

meet predominance, ascertainability, and typicality requirements. “In this circuit, ‘class 

allegations [are] stricken prior to a motion for certification only when class certification 

63 Id. 

64 See United States v. eBay, Inc., 968 F. Supp. 2d 1030, 1036 (N.D. Cal. 2013) (“For instance, 

the allegation that Mr. Cook responded to Ms. Whitman’s complaints about Intuit’s continued 

solicitation of eBay employees by promising to investigate ‘how this slip up occurred again’ 

suggests not only that an agreement between the two companies had been established, but also 

that Intuit executives other than Mr. Cook generally abided by it.”); see also In re Pressure 

Sensitive Labelstock Antitrust Litig., 566 F. Supp. 2d 363, 375 (M.D. Pa. 2008) (“At a 

minimum, this email is sufficiently ambiguous to support an inference of an anti-competitive 

agreement.”). 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 10 of 13
- 11 -

is a clear impossibility.’”65 Indeed, the Third Circuit has held that “the complaint itself 

demonstrates that the requirements for maintaining a class action cannot be met” in only 

a “rare few” cases.66 

Beginning with predominance, Federal Rule of Civil Procedure 23(b)(3) requires 

that “the questions of law or fact common to class members predominate over any 

questions affecting only individual members.” Here, Plaintiffs allege that many 

questions of law and fact are common to the class, including whether the no-poach 

agreement violated Section 1 of the Sherman Act and the appropriate measure of 

damages.67 Plaintiffs further allege that the no-poach agreement had a common impact 

on the class members by similarly suppressing their wages.68 These allegations 

sufficiently indicate predominance at the pleading stage.69

Proceeding to ascertainability, Defendants argue that Plaintiffs’ proposed class 

lacks any objective criteria to determine who falls within it. But “ascertainability only 

requires the plaintiff to show that class members can be identified.”70 And Plaintiffs 

allege that Defendants exclusively control business records identifying healthcare 

65 Dieter v. Aldi, Inc., No. CV 2:18-00846, 2018 WL 6191586, at *6 (W.D. Pa. Nov. 28, 2018) 

(quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1383 

(3d ed. 2018)). 

66 Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72, 93 n. 30 (3d Cir. 2011), opinion 

reinstated in part, No. 09-3105, 2012 WL 2052685 (3d Cir. Apr. 17, 2012). 

67 Doc. 46 at ¶¶ 70–71. 

68 Id. at ¶ 47. 

69 See In re High-Tech Emp. Antitrust Litig., 985 F. Supp. 2d 1167, 1214 (N.D. Cal. 2013) (“First, 

the Court finds, as it did previously, that [Plaintiffs] . . . offer theories subject to common proof 

for how Defendants’ antisolicitation agreements suppressed compensation broadly.”). 

70 Carrera v. Bayer Corp., 727 F.3d 300, 308 n. 2 (3d Cir. 2013). 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 11 of 13
- 12 -

professionals in the class.71 These allegations plausibly indicate ascertainability at the 

pleading stage.72 

As for typicality, Defendants argue that Plaintiffs’ claims are not typical of the 

proposed class’s claims because the email from Evangelical’s CEO only concerns 

nurses. But “[v]arying fact patterns do not necessarily defeat typicality.”73 “[C]ases 

challenging the same unlawful conduct which affects both the named plaintiffs and the 

putative class usually satisfy the typicality requirement irrespective of the varying fact 

patterns underlying the individual claims.”74 And Plaintiffs challenge the same conduct 

here: Defendants’ no-poach agreement. Thus, the email regarding the nurses’ recruiting 

does not defeat typicality at this stage. 

In sum, this is not one of the rare cases in which the complaint demonstrates that 

class certification is impossible. When Plaintiffs move to certify a class, Defendants 

may challenge predominance, ascertainability, and typicality again. But at this point, 

Defendants’ motion to strike class allegations is denied. 

 2. Pennsylvania Unfair Trade Practices and Consumer 

Protection Law 

Finally, Defendants argue that Plaintiffs lack standing and otherwise fail to state 

a claim under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. 

71 Doc. 46 at ¶¶ 68–69. 

72 See Trunzo v. Citi Mortg., No. 2:11-CV-01124, 2018 WL 741422, at **7–8 (W.D. Pa. Feb. 7, 

2018) (holding that “Plaintiffs have met their burden of advancing a prima facie showing that 

discovery is likely to produce substantiation of the class allegations with respect to 

ascertainability” because Defendant “allegedly has business records and billing records that 

can alone identify who fits within the class description”). 

73 Id. at *10. 

74 Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994). 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 12 of 13
- 13 -

Indeed, Plaintiffs explicitly abandon this claim in their response brief.75 Plaintiffs’ state 

law claim is therefore dismissed. 

III. CONCLUSION 

Defendants’ motion to dismiss pursuant to Rule 12(b)(6) is denied as to 

Plaintiffs’ first claim for relief under the Sherman Act. This federal antitrust claim 

survives. Defendants’ motion to strike class allegations is also denied. 

Defendants’ motion to dismiss pursuant to Rule 12(b)(6) is granted with 

prejudice as to Plaintiffs’ second claim for relief, which alleges a violation of 

Pennsylvania law. Leave to amend is not granted. “Among the grounds that could 

justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, 

and futility.”76 A complaint is “futile” if it would fail to state a claim upon which relief 

could be granted even as amended.77 Amendment would be futile here because 

Plaintiffs’ response brief explicitly abandons their state law claim.78 

An appropriate Order follows.

BY THE COURT: 

s/ Matthew W. Brann 

 Matthew W. Brann 

 Chief United States District Judge 

75 Doc. 56 at 9. 

76 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) (quoting In re Burlington Coat Factory 

Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)). 

77 Id. 78 Doc. 56 at 9. 

Case 4:21-cv-00196-MWB Document 66 Filed 11/16/21 Page 13 of 13