SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0621- 22 BRAINBUILDERS, LLC, Plaintiff-Appellant,

v. OPTUM, INC., OPTUM SERVICES, INC., OPTUMHEALTH HOLDINGS, LLC, OPTUMHEALTH FINANCIAL SERVICES, INC., OPTUMHEALTH CARE SOLUTIONS, LLC, OPTUMHEALTH CARE SOLUTIONS, INC., OXFORD HEALTH INSURANCE, INC., OXFORD HEALTH PLANS (NY), INC., OXFORD HEALTH PLANS (NJ), INC., OXFORD HEALTH PLANS LLC , UNITEDHEALTHCARE SERVICES, LLC, UNITEDHEALTH GROUP, INC., UNITEDHEALTHCARE SERVICES, INC., UHIC HOLDINGS, INC., UNITED BEHAVIORAL HEALTH, and UNITEDHEALTHCARE INSURANCE COMPANY, NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0621

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Defendants-Respondents.

_______________________________

Argued April 9, 2024

– Decided April 19, 2024 Before Judges Mayer, Enright and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L

- 8088

- 17. Vafa Sarmasti argued the cause for appellant (Sarma sti PLLC, attorneys ; Vafa Sarmasti, on the briefs). Robert J. Norcia argued the cause for respondents (Stradley Ronon Stevens & Young, LLP, attorneys ; Francis X. Manning, of counsel ; Robert J. Norcia, on the brief).
PER CURIAM Plaintiff BrainBuilders, LLC appeals from a Septem ber 12, 2022 order granting summary judgment in favor of defendants Op tum, Inc., Optum Services, Inc., OptumHealth Holdings, LLC, OptumHea lth Financial Services, Inc., OptumHealthcare Solutions, LLC, OptumH ea lth Care So lutions, Inc. (Optum entities), Oxford Health Insurance, Inc., Ox ford Health Plans (NY), Inc., Oxford Health Plans (NJ), Inc., Oxford Health Plans LLC (Oxford entities), UnitedHealthcare Services, LLC, UnitedHealth Group, Inc., UnitedHealthcare Services, Inc., UHIC Holdings, Inc., United Behavio ral Health, and3 A- 0621

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UnitedHealthcare Insurance Company (UHC entities) ( collectively, defendants). We affirm. This matter concerns letters dated July 25, 2017 an d August 2017 sent by the Optum entities to BrainBuilders' patients following an investigation into purported fraud by individuals associated with Brai nBuilders. BrainBuilders provides healthcare services to child ren on the autism spectrum. As an out

- of -network or non-participating healthcare provider , BrainBuilders received reimbursement for claims onl y if a patient's health insurance plan allowed "out- of -network benefits" or the insurer made a "single case agreement" for the patient's care. The Optum entities are the health claims administra tor for health plans issued or administered by the Oxford entities and U HC entities. The Optum entities do not sell or issue health insurance poli cies. Rather, they provide support for defendants who issu ed health insurance policies to individual insureds. The Optum entities also evaluate insurance claims s ubmitted by providers

to its affiliated insurers, including BrainBuilders. The Optum entities often investigate whether a provider has request ed reimbursement beyond the provider's entitlement, such as by misrepresenting or inflating the services4 A- 0621

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provided. In January 2017 through approximately Ma y 2017, the Optum entities reviewed BrainBuilders' claims submitted for reimbu rsement, due to the significant number of claims and the amounts charge d in comparison to BrainBuilders' peers. In June 2017, four individuals related to the manag ement of BrainBuilders were arrested and charged with conspiracy to defrau d Medicaid. A criminal complaint, alleging misappropriation of funds, was filed against several individuals affiliated with BrainBuilders. The arrests were reported in the news media and the Optum entities learned of the arrests on July 14, 2017

. On July 25, 2017, the Optum entities sent letters t o BrainBuilders' patients insured by the Oxford and UHC entities (July 2017 l etters). The July 2017 letters explained the Optum entities were suspendin g payment for services provided by BrainBuilders "due to potential insuran ce fraud and other violations of state and federal law. " The letters, advis ing patients insured under healthcare plans issued by the Oxford and UHC entities, stated :

Optum is responsible for making benefit coverage determinations for mental health and substance abus e services that are provided to Optum members. The availability of benefit coverage for a service is determined by the terms of your benefit plan. This letter is to notify you that, effective [thirt y] days from [insert termination date], [insert provider na me]5 A- 0621

- 22 will no longer be reimbursed for services provided to you and/or your child/ren due to potential insuranc e fraud and other violations of state and federal law

. Services provided by [insert provider name] after t his date may not be covered under your benefit plan. If you are in active, ongoing treatment with this practitioner, you may continue to receive services from this practitioner until [thirty] days after [insert termination date], subject to medical record review or other benefit plan requirements. Optum is able to assist you in making arrangements for your continued treatment with a participating practitioner. Please contact us at your earliest convenience at 866- xxx - xxxx so we can assist you in locating a new provider. Our goal is to make any needed transition in your treatment as smooth as possible. Again, if you choose to continue to see your curren t practitioner beyond [thirty] days after [insert termination date], you may be financially responsib le for the cost of those services and have no coverage available under your benefit plan. In August 2017, the Optum entities sent letters to BrainBuilders' patients. (August 2017 letters). The letters stated:

Dear [name redacted]: United Behavioral Health (UBH) is responsible for making benefit coverage determinations for mental health and substance abuse services that are provid ed to Oxford Health Insurance, Inc. NY-PPO members. The availability of benefit coverage for a service is determined by the terms of your benefit plan. To6 A- 0621

- 22 review information about your specific plan coverag e, please refer to the benefit information provided by your health plan. I have reviewed your treatment plan that was submitt ed by Brain [B] uilders[,] LLC, and I have determined that coverage is not available under your benefit plan f or the requested services of Applied Behavior Analysis. As described in the section of your Certificate of Coverage: Based on current information available t o the plan, authorization is not available due to qua lity of care or member safety concerns and is excluded unde r your plan as Non-Professional Care which is an expr ess exclusion from coverage under your plan. This determination does not mean that you do not require additional health care, or that you need to be discharged. Decisions about continuation of treatm ent should be made by you and your provider. The purpo se of this letter is to inform you that coverage is no t available under your benefit plan for the requested service. On 8/8/2017 1:23 PM CDT we notified your provider of this determination by telephone. Under federal law, you have a right to request the diagnosis and diagnosis code provided to us by your provider. Alternately, you may request this inform ation from your provider. Please refer to the enclosed form(s) for informatio n about your available options to appeal or dispute t his determination. Based on the July and August 2017 letters, BrainBuilders filed a lawsuit against defendants. BrainBuilders asserted the following causes of acti on: conspiracy; tortious interference with business rel ations; tortious interference7 A- 0621

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with prospective economic advantage; negligence, tr ade libel; defamation, libel, and slander; and unjust enrichment and quantum meru it. BrainBuilders alleged the statements in the July and August 2017 letters were false and defamatory. Defendants moved for summary judgment and BrainBuilder s opposed the motion. In support of summary judgment, defendants argued t he July and August 2017 letters were subject to a qualified pri vilege because the Optum entities had a legal obligation to inform members o f the true reason for
suspen ding BrainBuilders' services and, eventually, denying au thorizations. Additionally, defendants asserted the July and August 2017 letters were not reasonably susceptible of defamatory meaning, were true or expressions of opinion, and BrainBuilders failed to demonstrate the statements in the letters were actuated by malice or that it suffered damages

. On August 26, 2022, the motion judge heard the par ties' arguments on defendants' motion for summary judgment. In a Sept ember 12, 2022 order and written statement of reasons, the judge granted def endants' motion and dismissed BrainBuilders' claims with prejudice. The judge found the statements in the July and Aug ust 2017 letters sent by the Optum entities were subject to qualified imm unity. The judge explained the healthcare industry in New Jersey is heavily regul ated and healthcare service8 A- 0621

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providers "are contractually required by health ben efits plans to communicate with members and, therefore, deal with them in good faith regarding all things that implicate the availability of benefits under a plan." Thus, the judge concluded, "[t]he statements communicated to [Brain Builders] and its patients in the July 2017 and August 2017 [l]etters [were] p lainly subject to and protected by a qualified privilege." Additionally, the judge found the Optum entities commenced an investigation into BrainBuilders' claims for reimbu rsement prior to the arrests of individuals associated with the company. The ju dge stated the Optum entities were suspicious of BrainBuilders' claims for reimbu rsement based on its recent increase in patients treated and the volume of claims it submitted when compared to similar service providers. The judge noted the Optum entities commenced a formal fraud investigation into BrainBu ilders' activities upon learning of the arrests of individuals associated w ith BrainBuilders. As the judge found, the results of the investigation led the Op tum entities to suspect BrainBuilders "potentially committed insurance frau d" and "raised questions as to the legitimacy of the services rendered by [Brai nBuilders] and the bills submitted to [d]efendants."9 A- 0621

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The judge rejected BrainBuilders' defamation claim

. He found "[a] reasonable person would not interpret Optum's July 2017 and August 2017 [l]etters as defamatory." Because the July 2017 le tters used the word "potential" preceding the word "fraud," the judge found the "us e of the word 'potential ' remove[d] any suggestion that BrainBuilders actuall y committed fraud and other violations of state and federal law." The judge co ncluded "the July 2017 [l]etters communicated the reason for the suspension and mere ly indicated that insurance fraud by BrainBuilders was 'capable of coming into being; possible if the necessary conditions exist.'" Regarding the August 2017 letters, the judge determined th ose letters "merely communicated Optum's 'concerns' ab out 'quality of care or member safety' in making a deci sion regarding the availability of coverage for BrainBuilders' services." The judge specifically highlighted the context in which the Optum entities sent the July and August 2017 letters. He explaine d that shortly before the letters were sent to BrainBuilders' patients, "several indi viduals at the highest ranks of BrainBuilders, as well as several other parents of BrainBuilders' patients, had been arrested for conspiracy to commit Medicaid fra ud (i.e., insurance fraud), and news of their arrests was widespread in the med ia." Further, around the same time period, the judge noted the Optum entitie s "separately uncovered10 A- 0621

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evidence suggesting BrainBuilders was engaged in fr aud, waste, or abuse." Thus, the judge concluded, "[w]hen read with contex t, no reasonable person" could interpret the July or August 2017 letters "as fallacious or injurious." The judge expressly rejected BrainBuilders' claim that the statements in the July and August 2017 letters were defamatory. The judge explained truth was an absolute defense to a defamation claim and f ound the statements in the July and August 2017 letters "were true." Even before the arrests of individuals associated w ith BrainBuilders, the judge noted "Optum had already begun reviewing [Bra inBuilders'] claims to investigate its high utilization." After the arres ts were reported in the news media, the judge explained the Optum entities opene d a formal fraud investigation. Based on that formal fraud investig ation, the judge stated forensic accountants for the Optum entities "uncovered evide nce suggesting the existence of potential insurance fraud not only by [BrainBuilders]" but by individuals "who had obtained health benefits plans from Oxford Health Plans (NJ), Inc. and used those plans almost exclusively for reimbursement of [BrainBuilders'] services." Thus, the judge determined the July 2017 letters conveyed the Optum entities' true reason for suspen ding authorization for BrainBuilders' services.11 A- 0621

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Similarly, the judge found the August 2017 letters conveyed the true reason for the denial of authorizations for BrainBuilders' services. As the judge noted, "[a]llegations of potential health insurance fraud necessarily implicate[d] the value and quality of the services rendered." The judge concluded "the statement[s] in the July 2017 and August 2017 letters [were] not defamatory" because the statements were true. Additionally, the judge found BrainBuilders failed to demonstrate i t suffered actual damages to prevail on its defamatio n claim. After months of discovery, the judge concluded BrainBuilders failed to "suppl[y] any documentation or other evidence of actual harm to i ts reputation, nor ha[d] it provided proof that it lost any patients or otherwi se suffered a general diminution in business value that was the natural a nd direct result of Optum's allegedly defamatory statements." The judge also rejected BrainBuilders' claim that defendants' statements in the July and August 2017 letters were made with actual malice to prevail on its defamation claim. The judge found BrainBuilder s was required "to present 'clear and convincing evidence' that could 'support a reasonable jury finding' that Optum's statements in the July 2017 and August 2017 [l]etters were motivated by 'actual malice'" by showing the statements were knowingly false or made12 A- 0621

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with reckless disregard for the truth. The judge c oncluded BrainBuilders was "unable to make such a showing." Further, because the Optum entities undertook a forensic analysis of BrainBuilders' act ivities, which revealed "dubious billing and treatment issues," the judge d etermined "Optum's conduct was not motivated by actual malice, but by a detail ed investigation which resulted in the discovery of concerning information ." Because the judge found the statements in the July and August 2017 letters were "not defamatory," he dismissed BrainBuilders' conspiracy and tortious interference claims, as those claims were predicated on the same conduct a nd statements as the defamation claims. The judge also dismissed BrainBuilders' negligence claim, finding such a theory must be asserted as a claim for defamation o r trade libel. Because the judge re jected the defamation and trade libel claims agains t defendants, he explained BrainBuilders' negligence claim necessari ly failed. Similarly, the judge dismissed BrainBuilders' quas i-contract claims for unjust enrichment and quantum meruit "because an in surer derives no benefit from the provision of services on an insured." Rel ying on a federal case, the judge noted that the benefit, if any, "is not the p rovision of the healthcare services per se, but rather the discharge of the obligation t he insurer owes to the13 A- 0621

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insured." Plastic Surgery Ctr., P.A. v. Aetna Life Ins. Co., 967 F.3d 218, 240 (3d Cir. 2020). The judge determined BrainBuilders' quasi-contract claims required demonstration that it conferred a benefit on defendants. Because BrainBuilders failed to present evidence of any ben efit it conferred on defendants, the judge dismissed those claims. On appeal, BrainBuilders argues the judge erred in granting summary judgment to defendants. Specifically, BrainBuilder s contends the Optum entities were not entitled to a qualified privilege and the issue should have been presented to a jury. BrainBuilders also asserts it presented evidence in support of its defamation claim, including evidence that defendan ts' statements were made with actual malice and it suffered specific da mages. Additionally, BrainBuilders argues the judge erred in dismissing its other tort claims and quasi-contract claims. We review a judge's decision on a motion for summa ry judgment de novo, applying the same standard as the trial court. Sam olyk v. Berthe, 251 N.J. 73, 78 (2022). We must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resol ve the alleged disputed issue in favor of the non-moving party." Ibid. (quoting Bri ll v. Guardian Life Ins. Co.14 A- 0621

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of Am., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "decide whether the trial court correc tly interpreted the law." Massachi v. AHL Servs., Inc. , 396 N.J. Super. 486, 494 (App. Div. 2007). We accord no deference to a trial court's legal conclu sions and review issues of law de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2 013). We first consider whether the statements in the Ju ly and August 2017 letters were either true or constituted opinions to establish a defense to BrainBuilders' defamation claim. "Our law of defamation is grounded on the principle that people should be free 'to enjoy their reputations unimpaired by fals e and defamatory attacks.'" Fees v. Trow, 105 N.J. 330, 336 (1987) (quoting Swe de v. Passaic Daily News , 30 N.J. 320, 331 (1959)). "A defamatory statement, generally, is one that subjects an individual to contempt or ridicule, one that harms a person's reputation by lowering the community's estimation o f [them] or by deterring others from wanting to associate or deal with [them .]" Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 253 (2018) (q uoting Durando v. Nutley Sun, 209 N.J. 235, 248-29 (2012)). To prevail on a defamation claim, a party must demonstrate: "(1) the assertion of a false an d defamatory statement concerning another; (2) the unprivileged publicatio n of that statement to a third15 A- 0621

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party; and (3) fault amounting at least to negligen ce by the publisher." Leang v. Jersey City Bd. of Ed., 198 N.J. 557, 585 (2009)

. "Whether the meaning of a statement is susceptible of a defamatory meaning is a question of law for the court." Ward v. Zelikovsky, 136 N.J. 516, 529 (1994). Under the first element necessary to prevail on a de famation claim,

a plaintiff must demonstrate the publisher "made a fa lse and defamatory statement." G.D. v. Kenny, 205 N.J. 275, 292

- 93 (2011). "If a statement is not legally defamatory, summary judgment is appropriate ." G.D. v. Kenny, 411 N.J. Super. 176, 188 (App. Div. 2009), aff'd, 205 N.J. 27 5 (2011). True statements are "not actionable as defamation." Hart v. City of Jersey City, 308 N.J. Super. 487, 492 (App. Div. 1998). O ur courts have stated that true statements are "absolutely protected under the First Amendment" from liability for defamation. G.D., 205 N.J. at 293 (q uoting Ward, 136 N.J. at 530 ). True statements may provide a defense even when the statement contains "minor inaccuracies." Id . at 294. The hallmark of the defense is "substant ial truth." Ibid. (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516 (1991)). Here, the allegedly defamatory statements in the J uly and August 2017 letters related to BrainBuilders' "potential fraud ," potential "violations of state16 A- 0621

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and federal law ," and concerns for "quality of care or member safety ." It is uncontroverted that several of BrainBuilders' offic ers were arrested for conspiracy to defraud Medicaid in association with "income they received from BrainBuilders." These individuals were arrested because they potent ially committed fraud. Additionally, the arrests raised legitimate concerns regarding the quality of care rendered by BrainBuilders. While BrainBuilders disputed the Optum entities' m otivation for undertaking a formal investigation, it is undispute d that the Optum entities investigated the claims submitted by BrainBuilders after the reported arrest of several of BrainBuilders' officers. Given the fact that several of BrainBuilders' officers were arrested for defrauding Medicaid in c onnection with BrainBuilders' business operations , the Optum entities' statements in the July and August 2017 letters were true and presented a c omplete defense to the defamation claim. We reject BrainBuilders' argument that the stateme nts in the July and August 2017 letters were false. Contrary to BrainB uilders' assertions, the Optum entities never stated BrainBuilders committed insurance fraud or violated criminal laws. Rather, the letters advise d patients of "potential insurance fraud and other violations of state and federal law." The judge relied17 A- 0621

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on the dictionary definition of the word "potential" as "[ c]apable of coming into being; possible if the necessary conditions exist." See also Black's Law Dictionary 1413 (11th ed. 2019). Applying this definition, the use of the term "potential" is not an affirmative statement that Br ainBuilders violated the law or committed insurance fraud. The July 2017 letters n ever stated BrainBuilders engaged in "widespread illegal conduct. " Nothing about the Optum entities ' use of the word "potential" rendered the July 2017 lett ers misleading. Nor did the July 21017 letters inform patients that BrainBuilde rs committed fraud or other illegal acts to support its defamation clai m. Similarly, the fact that BrainBuilders was not char ged with any crime, separate from its officers who were charged with fr aud, do es no t render the statements in the July and August 2017 letters untru thful. We see no distinction for purposes of a defamation claim between BrainBui lders as a company and the individuals associated with BrainBuilders who were charged with a crime . T he veil of suspicion regarding potential fraud fell on BrainBuilders as well as its officers, even if the company was not named in the criminal complaint. We similarly reject BrainBuilders' argument that de fendants bore the burden of demonstrating substandard, unsafe, or unp rofessional patient care. To prevail on its defamation claims, BrainBuilders had to demonstrate the18 A- 0621

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statements in the July and August 2017 letters were false. G.D., 205 N.J. at 292- 93. BrainBuilders failed to do so. Further, BrainBuilders' reliance on the Optum entit ies' September 14, 2017 report to demonstrate the statements in the Ju ly and August 2017 letters were defamatory is misplaced. The September 2017 r eport was issued after the Optum entities sent the alleged defamatory letters to BrainBuilders' patients. Because we are satisfied the July and August 2017 l etters failed to satisfy the first element to sustain a claim for de famation

– that the letters contained a false and defamatory statement

– we need not address BrainBuilders' arguments related to the judge's determinations regarding qua lified privilege, actual malice, and actual damages. We next consider BrainBuilders' claim that the ju dge erred in dismissing its claims for tortious interference with current b usiness relations, tortious interference with prospective economic advantage, a nd negligence. We disagree. "[I]f an intentional tort count . . . is predicate d upon the same conduct on which the defamation count is predicated, the defam ation cause completely comprehends" the intentional tort claims. LoBiondo v. Schwartz, 323 N.J. Super. 391, 417 (App. Div. 1999); see also Binkewit z v. Allstate Ins. Co. , 22219 A- 0621

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N.J. Super. 501, 516 (App. Div. 1988) ( holding "words which are absolutely privileged against an action for defamation are als o absolutely privileged against an action for tortious interference with contract o r economic advantage."). Additionally, "a party who claims that its reputation has been damaged by a false statement cannot circumvent the strictures of the l aw of defamation . . . by labeling its action as one for negligence." Dairy Stores, Inc. v. Sentinel Pub. Co., Inc., 191 N.J. Super. 202, 217 (Law Div. 1983), aff'd, 104 N.J. 125 (1986). Here, the judge found BrainBuilders' other tort cla ims were "predicated on the same conduct and statements" as its defamati on claim. Thus, the judge properly dismissed BrainBuilders' other tort claims as duplicative of the defamation claim.
We next consider BrainBuilders' argument that the jud ge erred in dismissing its quasi-contract claims for unjust enr ichment and quantum meruit. Again, we disagree. "To prove a claim for unjust enrichment, a party m ust demonstrate that the opposing party 'received a benefit and that ret ention of that benefit without payment would be unjust.'" Thieme v. Aucoin-Thieme , 227 N.J. 269, 288 (2016) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007)). The party must also "show that it expected remuneration from the defendant at the time it20 A- 0621

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performed or conferred a benefit on [the] defendant and that the failure of remuneration enriched [the] defendant beyond its co ntractual rights." Ibid. (quoting Iliadis, 191 N.J. at 110). "Quantum meruit is a form of quasi-contractual recovery and 'rests on the equitable principle that a person shall not be allo wed to enrich [themselves] unjustly at the expense of another. '" Starkey, Kelly, Blaney & White v. Est. of Nicolaysen, 172 N.J. 60, 68 (2002) (internal quotat ion marks omitted) (quoting Weichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1 992)). To prevail, the plaintiff must establish "(1) the performance of se rvices in good faith, (2) the acceptance of the services by the person to whom th ey are rendered, (3) an expectation of compensation therefor, and (4) the r easonable value of the services." Ibid. (quoting Longo v. Shore & Reich, Ltd., 25 F.3d 94, 98 (2d Cir. 1994)); see also F. Bender, Inc. v. Jos. L. Muscarelle, Inc., 304 N.J. Super. 282, 285 (App. Div. 1997) (noting quantum meruit require s unjust enrichment). Here, the record is devoid of evidence showing Bra inBuilders conferred any benefit on defendants to prevail on its unjust enrichment claim. BrainBuilders alleged it conferred a benefit on def endants by way of "services that were provided by BrainBuilders and for which t here has been no compensation or with respect to which there has bee n substantial21 A- 0621

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underpayment." BrainBuilders further alleged it "e xpected to be paid for the services it provided to patients that were or are i nsured by. . . [d]efendants. " To succeed on its quasi-contract claims, BrainBuil ders was required to demonstrate it performed or conferred a benefit upo n defendants and expected

re muneration. In the July and August 2017 letters, t he Optum entities advised BrainBuilders it would no longer receive reimbursem ent for submitted claims. In light of the statements in the July and August 2 017 letters, BrainBuilders failed to explain why it continued to expect compen sation or identify services provided to specific patients for which it expected to be paid. Moreover, BrainBuilders conferred only benefits to the insure d members and not defendants. Under the se circumstances, we are satisfied BrainBuilders faile d to proffer any support for its unjust enrichment and q uantum meruit claims. To the extent we have not addressed any remaining arguments, those arguments lack sufficient merit to warrant discussi on in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.