1DCA Division 3 Oral Argument - 2026/09/17 - Sep 17, 2026

argument

1DCA Division 3 Oral Argument - 2026/09/17

California First District Court of Appeal 2h 11m 8 chapters transcribed 2 days ago official recording ↗

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What is the purpose of the tentative opinions issued for the cases on the calendar?

Ansel Kinney 0:20

Good morning.

Unknown 0:23

You will have seen that with me on the bench this morning are my colleagues, Justice Karen Fujisaki and Justice Joanna Petru. There will be a panel change after the first three cases. In all five of the cases on today's calendar, we have issued tentative opinions. So that shows you, first of all, we are very familiar with the arguments you've made with the records in your cases. And we have at least tentative views about how the cases ought to turn out. That should help you focus your arguments. Without further ado, I'll call the first matter, VHS Liquidating Trust versus Multi-Plan Corporation. Council, when you make your appearances, please do step right to the microphone to do that. That picks up the audio for the people who are listening remotely.

Patrick M. Ryan 1:09

Good morning, Your Honors. Patrick M. Ryan for VHS Liquidating Trust.

Unknown 1:14

Good morning. Good morning.

Moe Keshavarzy 1:18

Good morning, your honors. Moe Keshavarzy for respondents.

Unknown 1:21

Good morning. All right, Mr. Ryan, the matter's down for 15 minutes, but you can reserve some of that for rebuttal. Would you like to do that?

Patrick M. Ryan 1:32

Yes, I would like to reserve eight minutes.

Unknown 1:35

All right. Thank you. The microphone is yours.

Patrick M. Ryan 1:49

Thank you very much for the thorough and thoughtful tentative. VHS endorses the outcome and the language of the tentative. We would only ask that the court consider a few clarifying pieces of language. And there's a couple of incidental fixes that we would suggest to the court. Firstly, if the court could look at page 25 of the tentative.

Patrick M. Ryan 2:28

The first full paragraph beginning with the words, in sum. The fifth line down. The sentence starting with, it is irrelevant. Let me know when you have that. It reads, it is, quote, irrelevant for any trust purposes, end quote, whether the transaction between the insurer and provider is framed as a purchase or as a reimbursement, citing cartel at 926. It goes on to read, either way, it is unlawful for insurers to fix. We would suggest that the two words, agree to, before fix, be added for clarification that we're talking about concerted action and not unlawful.

Unknown 3:14

So you're saying for insurers to agree to fix?

Patrick M. Ryan 3:17

for insurers to agree to fix. Yes, Your Honor. And then moving on, fix the price of OON reimbursements just as it. We'd like the word is before unlawful added. There's a verb missing. And then moving down, I think it would be helpful to clarify the opinion to include a quotation from the Mandeville Court that the court cites earlier in the opinion. We would suggest that the sentence to follow to do so would read, the Sherman Act, quote, does not confine its protection to consumers or to purchasers or to competitors or to sellers, period. Nor does it immunize the outlawed acts because they are done by any of these. And that's Mandeville at 235. And then the court cites Maricopa County. The pinpoint site is inaccurate.

Patrick M. Ryan 4:29

That is the first page of the decision. The pinpoint we think the court was looking for is pages...

Unknown 4:34

I'm sorry, what page are you on?

Patrick M. Ryan 4:36

I'm right after that.

Unknown 4:37

Oh, you're still there. You said the first page of the opinion. That's why I got confused. Go ahead. Yeah,

Patrick M. Ryan 4:41

the Maricopa County.

Unknown 4:42

Oh, I see.

Patrick M. Ryan 4:42

Yes. The pinpoint should be pages 342 to 348, and we would suggest for the court's consideration adding the bracketed parenthetical... agreements among competing physicians setting the maximum fees payable by insurers unlawful notwithstanding asserted cost containment justifications. The opinion's lengthy discussion regarding combination is extremely helpful and a key part of that can be found at the bottom of page 12 continuing on to page 13. and we believe it sets out a clear syllogism. The major premise drawn from Mayland and automobile antitrust cases is that mere dissemination of pricing data among competitors may be lawful, but concerted action taken on that data is not. The conclusion is that this complaint satisfies the combination requirement.

Patrick M. Ryan 5:49

The facts necessary for the minor premise, the number of insurers, the common hub, the insurer's awareness that their competitors were adhering to the same prices, and the adherence rate itself, already appear throughout the opinion.