DOJ Submits Statement of Interest in MultiPlan Provider MDL

On March 27, 2025, the Department of Justice (“DOJ”) submitted a Statement of Interest in the multidistrict litigation, In re MultiPlan Health Insurance Provider Litigation. The litigation asserts that MultiPlan (now known as Claritev) conspired with health insurers to underpay doctors and other out-of-network providers for medical and behavioral healthcare. DOJ’s Statement of Interest rejects the defendants’ assertions that competitors’ use of a common pricing algorithm is not illegal unless the competitors used the algorithm in the same way. The Statement of Interest also confirms DOJ’s position that competitors’ exchange of competitively sensitive information through an intermediary may violate antitrust laws. AGG Healthcare Litigation partner Matt Lavin serves on the executive committee for the direct action plaintiffs (“DAPs”) involved in this case and represents a number of providers involved in this action. DOJ’s early involvement in this action sends a strong message to providers on the merits of the case.

In this case, DOJ’s Statement of Interest argues two primary points:

1. Using a pricing algorithm to set benchmark or “starting point” prices can qualify as concerted action under Section 1 of the Sherman Act even if the competitors do not always use the algorithm in the same way.
2. Exchanging competitively sensitive information through an intermediary may violate Section 1 of the Sherman Act in the same way as direct information sharing.

First, DOJ argues that, even though competitors may not end up at exactly the same price, “there can be concerted action subject to Section 1 in setting the starting point of prices even if the conspirators have some discretion in choosing how often to follow them.” DOJ emphasizes that the Supreme Court of the United States has previously stated in Socony-Vacuum, that concerted action encompasses many types of joint conduct and is not limited to agreements among competitors to charge the same price. This includes an agreement to use a formula to fix benchmark, component, recommended, or starting point prices. DOJ further states that parallel behavior is the conduct to be evaluated by the Court, rather than simply looking at the final outcome, as defendants have argued in their briefing on the Motion to Dismiss.

Second, DOJ argues that, just as agreements among competitors to directly exchange competitively sensitive information may violate Section 1, using an intermediary, like MultiPlan, can form the basis of a Section 1 claim. DOJ states, “The fact that []defendants did not meet as a group but rather used an intermediary . . . does not preclude the existence of an agreement or change its unlawful nature.”

DOJ’s involvement indicates that the new administration is willing to investigate health plans and take a skeptical look at the bargaining power associated with these plans and the tools they use. Regulators and legislators have been vocal about the need to investigate these pricing algorithms, concerted actions, and conflicts of interests on the part of the payors with respect to out of network pricing.¹ Historically, DOJ has filed these statements of interest sparingly. Over the last five years, DOJ’s Antirust Division has submitted statements of interest in an average of seven cases per year.² This action is a positive first step for the new administration in this space.

For more information on this case or how to get involved, please contact AGG Healthcare attorneys Matt Lavin or Nicole Wemhoff.

[1] See Letter from the H. Comm. on Educ. and the Workforce to Assistant Sec’y of Employee Benefits Security Administration, 118th Cong. (2024), https://democrats-edworkforce.house.gov/imo/media/doc/scott_desaulnier_letter_to_dol_re_multiplan.pdf; Letter from Sen. Amy Klobuchar to Dept. of Justice (April 29, 2024), https://static01.nyt.com/newsgraphics/documenttools/1d00c48c7634f677/0d0d8490-full.pdf; See also Letter from Sen. Elizabeth Warren to Dept. of Gov. Efficiency at 11(Jan. 23, 2025), https://www.warren.senate.gov/imo/media/doc/letter_to_doge_rerecommendationstosave2trillionoverthenext10years.pdf.

[2] U.S. Dept. of Justice, Antitrust Division, Statements of Interest, https://www.justice.gov/atr/statements-interest.