Royal Mile Co. v. UPMC & Highmark, Inc. (40 F. Supp. 3d 552, 2014)

United States District Court for the Western District of Pennsylvania 2014-08-21

Citations

Full opinion text

OPINION

CONTI, Chief Judge.

I. Introduction

Pending before the court in this antitrust action is a motion for leave to file a third amended complaint (ECF No. 249) filed by plaintiffs Royal Mile Company, Inc. (“Royal Mile”), Pamela Lang (“Lang”) and Cole’s Wexford Hotel, Inc. (“Cole’s Wexford” and collectively with Lang and Royal Mile, “plaintiffs”). Defendants UPMC and Highmark, Inc. (“Highmark”) oppose plaintiffs’ motion for leave arguing that permitting amendment based upon the allegations set forth in the proposed third amended complaint, which was attached to plaintiffs’ motion for leave, would be futile, and the class action allegations contained within the proposed third amended complaint are insufficient as a matter of law. (ECF Nos. 253, 254, 256, 266, 269, 271, 273, 277, 278, 283.)

Based upon the court’s review of the parties’ voluminous submissions and the hearing held with respect to those submissions on April 7, 2014, plaintiffs’ motion for leave will be granted in part and denied in part for the reasons set forth herein.

II. Procedural History

On December 2, 2010, plaintiffs initiated this case by filing a complaint alleging (1) UPMC and Highmark engaged in anticom-petitive conduct in violation of the Sherman Act, 15 U.S.C. §§ 1, 2, and (2) UPMC ' tortuously interfered with plaintiffs’ existing and prospective business relations in violation of Pennsylvania common law. (ECF No. 1.) On August 16, 2012, plaintiffs filed an amended complaint against UPMC and Highmark. (ECF No. 77.) On September 17, 2012, UPMC and Highmark each filed a motion to dismiss the amended complaint and a brief in support of their motions alleging plaintiffs failed to state a claim for relief. (ECF Nos. 77, 78, 80, 81.)

On October 4, 2012, plaintiffs filed a motion seeking preliminary approval of a settlement with Highmark, certification of class, and appointment of class counsel (the “motion for preliminary approval of class settlement”). (ECF No. 88.)

On October 9, 2012, plaintiffs filed the second amended complaint against UPMC and Highmark asserting the following counts:

-Count I: conspiracy in restraint of trade or commerce in violation of § 1 of the Sherman Act against Highmark and UPMC;

-Count II: conspiracy to monopolize in violation of § 2 of the Sherman Act against Highmark and UPMC;

-Count III: willful acquisition and maintenance of a monopoly in the relevant market for healthcare services in violation of § 2 of the Sherman Act against UPMC;

-Count IV: willful acquisition and maintenance of a monopoly in the relevant market for private health insurance in violation of § 2 of the Sherman Act against Highmark;

-Count V: willful attempted monopolization in violation of § 2 of the Sherman Act against UPMC;

-Count VI: willful attempted monopolization in violation of § 2 of the Sherman Act against Highmark; and

-Count VII: tortious interference under Pennsylvania law with existing and prospective business relations against UPMC.

(ECF No. 90 at 55-62.) On October 23, 2012, UPMC filed a motion to dismiss the second amended' complaint. - (ECF No. 95.) On October 26, 2012, Highmark filed a motion to dismiss the second amended complaint. (ECF No. 98.) On November 15, 2012, Highmark filed a motion to withdraw its motion to dismiss in light of the pending motion for preliminary approval of class settlement. (ECF No. 104.) On November 16, 2012, the court granted High-mark’s motion to withdraw its motion to dismiss. (ECF No. 105.)

On May 17, 2013, after a failed settlement attempt between plaintiffs and High-mark, and plaintiffs’ withdrawal of their motion for preliminary approval of class settlement and certification of the class, Highmark filed a renewed motion to dismiss the second amended complaint for failure to state a claim. (ECF No. 188.) On June 7, 2013, plaintiffs filed a response in opposition to Highmark’s motion to dismiss for failure to state a claim. (ECF No. 195.) On June 26, 2013, Highmark with leave of court filed a reply in support of its motion to dismiss. (ECF No. 207.)

On September 27, 2013, 2013 WL 5436925, after consideration of the parties’ submissions, which included supplemental' briefing, and the oral argument presented to the court at a hearing held on July 1, 2013, the court issued an opinion and order granting UPMC’s and Highmark’s motions to dismiss the second amended complaint. (ECF Nos. 240, 241.) The court held the second amended complaint must be dismissed because the measure of damages set forth in the second amended complaint implicated the filed rate doctrine, and plaintiffs’ claim for tortious interference with existing and prospective contractual relations was time barred. (ECF No. 240 at 1.) The second amended complaint was dismissed without prejudice to plaintiffs seeking leave to file a third amended complaint “to the extent they [were] able to plead, with respect to the antitrust claims, a measure of damages that does not require the court to interfere with the rate-making authority of the ... [Pennsylvania Insurance Department (the “PID”) ] and, with respect to the tortious interference claim against UPMC, a basis for fraudulent concealment.” (Id. at 80.)

On October 28, 2013, plaintiffs filed a motion for leave to file a third amended complaint, a brief in support of the motion, and the proposed third amended complaint attached to the motion. (ECF No. 249.) On October 29, 2013, plaintiffs filed an erratum with respect to the motion for leave to file a third amended complaint and a brief in support of the motion. (ECF Nos. 250, 251.) On November 4, 2013, Highmark filed a brief in opposition to the motion for leave to file a third amended complaint. (ECF No 253.) On November 21, 2013, UPMC filed a brief in opposition to the motion for leave to file a third amended complaint. (ECF No. 254.) On November 27, 2013, Highmark with leave of court filed a supplemental opposition to the motion for leave to file a third amended complaint. (ECF No. 256.) On January 14, 2014, plaintiffs filed a reply brief. (ECF No. 262.) On January 27, 2014, Highmark with leave of court filed a surreply brief in opposition to the motion for leave to file a third amended complaint. (ECF No. 266.) On February 10, 2014, UPMC with leave of court filed a sur-reply brief in opposition to the motion for leave to file a third amended complaint. (ECF No. 269.)

On April 7, 2014, the court heard oral argument on the pending motion for leave to file a third amended complaint. (H.T. 4/7/14 (ECF No. 270).) The court ordered supplemental briefing with respect to whether: (1) co-pays made to UPMC were part of the PID’s ratemaking process; and (2) members of the putative plaintiff class that would have stayed with Highmark but for the alleged UPMC-Highmark conspiracy are entitled to damages. (H.T. 4/7/14 (ECF No. 270) at 9-10, 55-56.)

On April 21, 2014, plaintiffs, Highmark, and UPMC each filed supplemental briefs. (ECF Nos. 271, 272, 273.) On May 5, 2014, Highmark and UPMC each filed a response to plaintiffs’ supplemental brief. (ECF Nos. 277, 278.) On May 13, 2014, plaintiffs filed a reply brief to Highmark’s and UPMC’s supplemental briefs. (ECF No. 280.) On May 27, 2014, UPMC with leave of court filed a sur-reply brief in support of its opposition to plaintiffs’ motion for leave to file a third amended complaint. (ECF No. 283.)

Plaintiffs’ motion for leave to file a third amended complaint having been fully briefed is now ripe to be decided by the court.

III. Factual Allegations in the Proposed Third Amended Complaint

The parties are familiar with the factual allegations contained in the second amended complaint, which were reviewed by the court in its opinion granting UPMC’s and Highmark’s motions to dismiss the second amended complaint. (ECF No. 240.) Plaintiffs repeat many of the allegations from the second amended complaint in the proposed third amended complaint. For that reason, the court in this opinion will not provide a detailed recitation of the repeated allegations set forth in the proposed third amended complaint. To the extent factual allegations contained in the proposed third amended complaint were not addressed in the second amended complaint or focused on by the court in its opinion with respect to the motions to dismiss, they will be addressed in this section.

A. Summary of the Allegations in the Proposed Third Amended Complaint

Plaintiffs are purchasers of health insurance coverage from Highmark, High-mark Health Insurance Company (“High-mark Health Insurance”), and “potentially other Highmark entities” (collectively, the “Highmark defendants”). (ECF No. 250-1 ¶ 1.) Plaintiffs allege they suffered damages as a result of a conspiracy entered into by UPMC and the Highmark defendants. (Id.) From 2002 until at least mid-2008, “with effects lasting to the present day,” UPMC and the Highmark defendants conspired “to control, divide and/or monopolize both the market for medical care and the market for health insurance in the Greater Pittsburgh area and to their exclusive benefit.” (Id. ¶ 1.) Plaintiffs allege the conspiracy “continued until at least Summer 2008, and likely through to the renegotiation of the UPMC-Highmark contract at the end of 2011.” (Id. at 78 ¶ 3.)

Pursuant to the conspiracy, “UPMC agreed to protect the dominant market position of the Highmark Defendants by curtailing the extent to which UPMC offered its own insurance coverage that would have competed with those High-mark defendants, and by refusing to make its complete network available to competing health insurers.” (Id.) UPMC agreed not to sell the UPMC Health Plan to High-mark’s actual or potential competitors, and refused to contract at competitive rates with non-Highmark health insurance plans. (ECF No. 250-1 ¶¶94, 95.) In exchange for UPMC’s promises, “the Highmark Defendants agreed to stop supporting the West Penn Allegheny hospital system, UPMC’s principal competitor for the provision of health care services in Allegheny County and surrounding counties, and to drop its ‘Community Blue’ insurance coverage, which offered lower cost insurance options that used West Penn Allegheny’s network.” (Id.)

Plaintiffs allege that as a result of the conspiracy:

• They “have been deprived of competitive alternatives in the form of other health insurers that would have entered the market but for Highmark and UPMC’s anticompetitive behavior.” (ECF No. 250-1 ¶ 126);

• They paid “inflated, above-market premiums to Highmark.” (Id.);

• They paid higher direct health care costs to UPMC than they would have paid but for the conspiracy. (ECF No. 250-1 ¶ 1);

• “[Pjotential competitors in the health insurance market were foreclosed from entering- the market in any meaningful sense, and were Prevented from offering competitive products to the Plaintiff class.” (Id. ¶¶ 1, 40); and

• Third-party administrators (“TPAs”), “who provide alternative self-insured health insurance products to employers,” were blocked from entry into ' the health insurance market. (Id. ¶ 98);

In other words, according to plaintiffs, but for the UPMC-Highmark conspiracy:

• There would have been “more choices for healthcare insurance providers,” and, therefore, plaintiffs would have “paid lower premiums to purchase equivalent levels of insurance.” (Id.); and

• There would have been “more viable alternatives to UPMC who would have offered equivalent care at lowers prices,” and, therefore, plaintiffs would have “paid lower amounts to health care providers.” (Id.);

B. Class Action Allegations

Plaintiffs assert this class action on behalf of: (1) “all persons, whether natural or fictitious, who purchased health insurance coverage from, or otherwise paid any premiums or portion thereof to, the High-mark Defendants, and whose policies were in effect at any time on or after January 1, 2002;” and (2) “all persons, whether natural or fictitious, who received health care services from Defendant UPMC and paid for those services in whole or in part by remitting payment directly to UPMC at any time on or after January 1, 2002.” (ECF No. 250-1 ¶¶ 17,18.)

With respect to each individual plaintiff, plaintiffs allege:

Plaintiff Royal Mile Company, Inc. is a member of the Plaintiff class. Royal Mile Company purchased health insurance coverage from Highmark, Inc., providing coverage for its employees, ■ during the Class Period. Royal Mile purchased PPO and PPO Blue Standard policies during the Class Period. Members of Royal Mile’s health plan paid UPMC-affiliated providers for at least a portion of the health care services they received from these providers.

Plaintiff Pamela Lang is a member of the Plaintiff class. Lang purchased PPO health insurance coverage from Highmark, Inc., providing coverage for herself and her family, during the Class Period. Ms. Lang paid UPMC-affiliated providers for at least a portion of the health care services received from these providers.

Plaintiff Cole’s is a member of the Plaintiff class. Plaintiff Cole’s, during the relevant period, purchased group health insurance coverage from Highmark Inc. and Highmark Health Insurance Co. for its employees. Defendant Highmark Inc. assigned both a group number and client number to Plaintiff Cole’s and said numbers are 08316412 and 036351, respectively. During the class period, Highmark Inc. shifted Cole’s to its for-profit subsidiary, Highmark Health Insurance Co. Plaintiff Cole’s purchased PPO Blue $1250 High Deductible Value group health insurance policy directly from Highmark, Inc., and later PPOBlue $1250 (or Smart PPOBlue $1250 09/70 Copays Plan) from Highmark Health Insurance Co., paying directly by check on a monthly basis for the health insurance premiums. Members of Cole’s health plan paid UPMC-affiliated providers for at least a portion of the health care they received from these providers.

Plaintiff William Jay Snyder, CPA is a member of the Plaintiff class. Plaintiff William Jay Snyder, CPA, during the relevant period, purchased group health insurance coverage from Highmark Inc. for its employees. William Jay Snyder, CPA purchased group health insurance policy directly from Highmark, Inc., and later Highmark Health Insurance Co., and paid for health insurance premiums by check on a monthly basis. William Jay Snyder, CPA was assigned Customer number 08000-3407 and Group number 08359816. William Jay Snyder, CPA paid UPMC-affiliated providers for at least a portion of the health care services received from these providers.

(ECF No. 250-1 at 20-23.) According to plaintiffs, “[t]here are questions of law and fact common to all members of the Plaintiff class.” (Id. ¶ 25.)

C. Rate Filing Requirements

Plaintiffs allege that at all relevant times, Highmark, which is registered with the PID as a hospital plan corporation and a professional health services plan corporation, was required “to file its ‘base rate’ for small groups with the PID under the previous version of the law.” (EOF No. 250-1 ¶ 239.) According to plaintiffs, “[u]nder Pennsylvania law in effect until March 21, 2012, entities other than hospital plan corporations, professional health services plan corporations, or HMOs were not required to file premiums for small group policies with the PID.” (Id. ¶ 238 (citing 40 Pa. Stat. § 3803(e) (1996), amended by 40 Pa. Stat. § 3801.303(e) (2012)).) With respect to the rate-filing requirements and High-mark’s potential competitors, i.e., other health insurers and TPAs, plaintiffs allege:

Many of Highmark, Inc.’s potential competitors (i.e., competitors that were excluded from the market due to the UPMC-Highmark conspiracy) were for-profit insurers, such as United Healthcare. TPAs were also excluded by the conspiracy. Had these excluded health care insurers not been excluded by the conspiracy, they would have conducted business in the Allegheny County area as commercial entities, and not as HMOs, professional health services plan corporations, or hospital plan corporations: they could not have been professional health services plan corporations or hospital plan corporations if they were for-profit commercial insurers, and they would have had a substantial incentive not to do business as an HMO because HMOs were subject to far more regulatory oversight, including the requirement of filing base rates for small groups. Thus, at least until March 21, 2012, the excluded alternative insurers would have had a strong incentive to conduct most if not all of their business in Western Pennsylvania in a way that did not subject them to rate filing. Indeed, some of these alternative insurers were already offering products not subject to rate filing, such as PPO plans, in the Philadelphia market. Had they not been excluded from the market in Allegheny County and surrounding counties, they would have offered Plaintiffs similar products, which would not have been subject to the rate filing requirement.

Because these for-profit insurers and TPAs would not have entered the market as hospital plan corporations, professional health services plan corporations, or HMOs, these entities would have been beyond the PID’s rate approval jurisdiction until March 21, 2012. But for the conspiracy, these competitors would have participated in the Allegheny County area health insurance market and would have been able to access UPMC’s facilities and complete provider network. As a natural economic consequence of increased competition, they would have charged Plaintiffs lower premiums than have been charged by High-mark since 2002.

(ECF No. 250-1 ¶¶ 241-42.)

D. Highmark Health Insurance Company (“HHIC”)

Highmark charged “some members of the Plaintiff class[, including. Cole’s Wex-ford] even higher premiums by shifting their plans to [HHIC].” (ECF No. 250-1 ¶ 113.) HHIC was not required to file its premiums with the PID until 2012.(Id.) Plaintiffs allege:

This discontinue-and-migrate strategy for small group plans harmed the plaintiff class. Cole’s and other purchasers of small group insurance coverage in the Plaintiff class paid artificially inflated, supracompetitive premiums to High-mark Health Insurance Co. (and possibly to other for-profit Highmark insurers), and these premiums were not filed with the PID and also were not located within a band around any base rate that was filed with the PID. But for the conspiracy, these purchasers of small group plans would have paid lower premiums either to (a) Highmark Health Insurance Co. or other Highmark entities whose small group premium •amounts were not subject to any rate filing requirement; or (b) one of the ' excluded or marginalized commercial insurers (whose small group plans would not have been subject to filing requirements).

(Id. ¶ 253.)

E. TPAs

Plaintiffs allege: “In Western Pennsylvania, access to UPMC facilities is essential for any TPA to launch a competitive product.” (ECF No. 250-1 ¶ 98.) According to plaintiffs, Managed Care of America, a TPA based in Pittsburgh, Pennsylvania, “has been repeatedly shut out of the market in Western Pennsylvania over the last fifteen years, although it competes effectively throughout the United States in other markets.” (ECF No. 250-1 ¶ 105.) UPMC, pursuant to the conspiracy and against its own self-interest, refused to contract with TPAs like Managed Care of America and health insurance providers other than Highmark. (Id. ¶ 105-06.) Managed Care of America, “[without UPMC facilities in its network, ... cannot assemble an attractive product to offer prospective employer customers.” (Id. ¶ 105.)

IV. Standard of Review

The court may grant a plaintiff leave to amend a complaint under Federal Rule of Civil Procedure 15, which provides: “The court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15. Rule 15, however, “does not permit amendment when it would be futile. Futility ‘means that the complaint, as amended, would fail to state a claim upon which relief could be granted.’ Kenny v. United States, 489 Fed.Appx. 628, 633 (3d Cir.2012) (citing Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231 (3d Cir.2011)). “The standard for deciding whether claims are futile for the purpose of granting leave to amend a complaint is the same as a motion to dismiss.” Markert v. PNC Fin. Servs. Group, Inc., 828 F.Supp.2d 765, 771 (E.D.Pa.2011). “[I]f the court determines that plaintiff has had multiple opportunities to state a claim but has failed to do so, leave to amend may be denied.” See 6 CHARLES A. WRIGHT, ARTHUR R. MlLLER & Mary Kay KaNE, Federal Praotioe and Prooedure § 1487 (2d ed.2010).

A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozak-iewicz, 1 F.3d 176, 183 (3d Cir.1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 667, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where 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.’ ” Iqbal, 556 U.S. at 667, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). ' Two working principles underlie Twombly. Iqbal, 556 U.S. at 667, 129 S.Ct. 1937. First, with respect to mere conclusory statements, a court need not accept as true all the allegations contained in a complaint. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Second, to survive a motion to dismiss, a claim must state a plausible claim for relief. Iqbal, 556 U.S. at 679,129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has. not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. (quoting Fed. R. Civ. P. 8(a)(2)). A court considering a motion to dismiss may begin by identifying pleadings that are not entitled to the assumption of truth because they are mere conclusions.

While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well—pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 664, 129 S.Ct. 1937.

V. Discussion

A. Individual Plaintiff, i.e., Pamela Lang

1. Damages measured by the difference between the rates Lang paid High-mark and the rates Lang would have paid Highmark absent the UPMC-Highmark conspiracy

The court in its opinion dated September 27, 2013, dismissed the second amended complaint because the measure of damages alleged by the plaintiffs, i.e., the difference between rates charged by Highmark that were approved by the PID and rates Highmark would have charged and which require the approval of the PID absent the UPMC-Highmark conspiracy, were barred by the filed rate doctrine. (ECF No. 240 at 31-32.) Plaintiffs in the proposed third amended complaint include the exact measure of damages that this court previously held was barred by the filed rate doctrine. The court at the hearing on April 7, 2014, denied plaintiffs’ motion for leave to file a third amended complaint to the extent plaintiffs allege in the proposed third amended complaint a measure of damages based upon rates charged by Highmark that were approved by the PID and rates Highmark would have charged and which require the approval of the PID absent the UPMC-Highmark conspiracy. (H.T. (ECF No. 270) at 10.) The court held that if plaintiffs are granted leave to file the proposed third amended complaint, claims based upon that measure of damages, as well as allegations made in support thereof, could not be included in the third amended complaint. (Id.) The court noted, however, that its holding does not bar plaintiffs from appealing the court’s September 27, 2013 opinion at the appropriate time, and UPMC and High-mark on the record recognized that they cannot argue plaintiffs waived their right to appeal the court’s decision. (Id.)

2. Damages measured by the difference between the payments Lang directly paid to UPMC and the payments Lang would have directly paid to UPMC absent the UPMC-High-mark conspiracy

Lang in the proposed third amended complaint, on behalf of the putative individual plaintiff class, asserts a measure of damages based upon the difference between the payments she made- directly to UPMC and payments she would have made directly to UPMC absent the UPMC-Highmark conspiracy. (ECF No. 249-2 at 78 ¶ 6.) Highmark argued in its submissions that pursuant to the court’s opinion dated September 27, 2013, the filed rate doctrine bars Lang’s measure of damages based upon her direct payments to UPMC because at all times relevant to this case, all insurance companies, i.e., nonprofit and for-profit entities, were required to “file all of the terms of their individual insurance plans with the PID, including amounts of co-pays, deductibles and coinsurance, and the PID approved all of those amounts.” (ECF No. 256 at 13 (citing 40 PA. STAT. §§ 3801.303(c), 3803(c).)) Plaintiffs in their supplemental brief addressing Highmark’s argument with respect to the measure of damages based upon Lang’s direct payments to UPMC being barred by the filed rate doctrine, assert:

[Biased upon Plaintiffs’ review of the publicly available information, it appears that counsel for Highmark accurately represented that copays and deductibles are filed with the PID. Given this, Plaintiffs recognize that, under the Court’s September 27, 2013 Opinion [D.E. 240], any argument that Highmark’s copays or deductibles would,have been different but for the anticompetitive conspiracy alléged in this case would likely be barred by this Court’s interpretation of the filed rate doctrine. Similarly, any argument that the individual plaintiffs in this case would have received more favorable copays or deductibles from excluded competitors but for the conspiracy would also presumably be barred by this Court’s interpretation of the filed rate doctrine as articulated in its September 27 Opinion.

(ECF No. 273 at 1-2.) Highmark and plaintiffs are correct; because at all relevant times to this case all insurance companies were required to file their individual insurance plans with the PID, including amounts of co-pays, deductibles and coinsurance, a measure of damages based upon the difference between the direct payments Lang made to UPMC prior to the UPMC-Highmark conspiracy and the direct payments Lang made to UPMC following the UPMC-Highmark conspiracy is barred by this court’s interpretation of the filed rate doctrine set forth in the court’s opinion dated September 27, 2013. Under those circumstances, plaintiffs’ motion for leave to file a third amended complaint is denied to the extent Lang asserts a measure of damages based upon the difference between the direct payments Lang made to UPMC prior to the UPMC-Highmark conspiracy and the direct payments Lang would have made to UPMC absent the UPMC-Highmark conspiracy.

Based upon the foregoing, plaintiffs failed to assert a measure of damages with respect to Lang and the individual subscribers she seeks to represent that is not barred by the filed rate doctrine. Plaintiffs’ motion for leave to file a third amended complaint with respect to Lang and the individual plaintiffs she seeks to represent will, therefore, be denied.

B. Small Group Plaintiffs, i.e., Royal Mile and Cole’s Wexford

1. Damages measured by the difference between the rates the small group plaintiffs paid Highmark and the rates the small group plaintiffs would have paid Highmark absent the UPMC-Highmark conspiracy

For the reasons set forth in the court’s opinion dated September 27, 2013, a measure of damages based upon between the rates the small group plaintiffs paid Highmark and the rates the small group plaintiffs would have paid Highmark absent the UPMC-Highmark' conspiracy is barred by the filed rate doctrine. As discussed infra: (1) plaintiffs’ request for reconsideration of the court’s September 27, 2013 opinion is denied because plaintiffs did not present the court a basis for reconsideration; and (2) plaintiffs’ argument that the court’s analysis of the filed rate doctrine in the opinion dated September 27, 2013 is erroneous is preserved for appeal. Plaintiffs’ motion for leave to file a third amended complaint is denied to the extent the proposed third amended complaint sets forth a measure of damages based upon the difference between the rates the small group plaintiffs paid High-mark and the rates the small group plaintiffs would have paid Highmark absent the UPMC-Highmark conspiracy.

2. Damages measured by the difference between the rates the small group plaintiffs paid Highmark during the alleged UPMC-Highmark conspiracy and the rates the small group plaintiffs would have paid High-mark’s insurance competitors not subject to the rate-filing requirements absent the conspiracy

a. Payments made to Highmark’s competitors after March 21, 2012

Plaintiffs in their submissions to the court concede that beginning on March 21, 2012, all insurers—non-profits and for-profits alike—were required to file their group rates with the PID. Under those circumstances, and as the court noted on the record at the hearing on April 7, 2014, plaintiffs’ claims are barred by the filed rate doctrine to the extent the measure of damages is based upon the difference between rates the small group plaintiffs paid to Highmark during the alleged UPMC-Highmark conspiracy and the rates the small group plaintiffs would have paid beginning on March 21, 2012 to Highmark’s competitors but for the UPMC-Highmark conspiracy. (H.T. 4/7/14 (ECF No. 270) at 20.)

b. Payments made to Highmark’s unregulated competitors prior to March 21, 2012

The court in its opinion dated September 27, 2013, determined UPMC’s and Highmark’s motions to dismiss the second amended complaint would be granted because the factual allegations contained in the second amended complaint.implicated the filed rate doctrine, and plaintiffs’ claim for tortious interference with existing and prospective contractual relations was time barred. (ECF No. 240 at 1.) With respect to the filed rate doctrine, the court explained:

Pursuant to [Keogh v. Chicago & Northwestern Ry. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922) ], a plaintiff cannot sustain a claim based upon hypothetical rates that require the approval of an administrative agency because the administrative agency determines the legality of the rates and will not assess the legality of a hypothetical rate. If plaintiffs seek to amend the second amended complaint to assert claims for damages based upon the rates Highmark’s lower-cost, rate-regulated competitors would have charged plaintiffs absent the UPMC-Highmark conspiracy, the court could not entertain those claims; this court under Keogh may not engage in the ratemaking process to determine the rates those lower-cost competitors’ would have charged. If Highmark’s lower-cost competitors, e.g., Aetna, United, CIGNA, and Coventry, are regulated entities required to obtain the PID’s approval for rates charged for individual and group policies, the court cannot consider plaintiffs’ claims without offending the non-justiciability principles set forth in Keogh. On the other hand, if Highmark’s competitors were exempt from the rate-approval requirements, the filed rate doctrine arguably may not be applicable. See 40 Pa. Stat. § 3803(d).

To the extent plaintiffs seek to amend the second amended complaint to include a measure of damages based upon the difference between the approved rates they paid to Highmark and approved rates of Highmark’s competitors, those claims may not be barred by the filed rate doctrine.

(ECF No. 240 at 48-49.) As discussed above, plaintiffs’ motion for leave to file a third amended complaint will be denied to the extent plaintiffs assert a measure of damages based upon the difference between the rates Highmark charged plain-, tiffs during the alleged UPMC-Highmark conspiracy and the rates Highmark would have charged plaintiffs but for the UPMC-Highmark conspiracy.

Plaintiffs in the proposed third amended complaint assert another measure of damages based upon the difference between the rates Highmark charged the small group plaintiffs during the alleged UPMC-Highmark conspiracy and the rates High-mark’s “excluded and marginalized competitors” who were not subject to the PID’s rate-filing requirements prior to March 21, 2012, would have charged the small group plaintiffs but for the UPMC-Highmark conspiracy. (ECF No. 250-1 IT 237.) This measure of damages would not require the court to interfere with the ratemaking authority of the PID by second-guessing the legally approved rates Highmark filed with the PID and charged to the small group plaintiffs during the alleged UPMC-Highmark conspiracy. Under those circumstances, the named small group plaintiffs’ motion for leave to file a third amended complaint will be granted because they asserted a measure of damages in the proposed third amended complaint that is not barred by Keogh.

i. Highmark’s argument in opposition to the measure of damages set forth in the proposed third amended complaint

Highmark argues, however, that “[t]he small group plaintiffs have not plausibly alleged they would have paid lower rates to commercial insurers than they paid to Highmark. In fact, the complaint’s own allegations make such a claim implausible.” (ECF No. 256 at 7 (emphasis in original).) Highmark’s implausibility argument is based upon Highmark being a nonprofit insurer and Highmark’s competitors referred to in the complaint, i.e., Aetna, United, Health America/Coventry, and CIGNA, being for-profit insurers. (Id.) According to Highmark, “plaintiffs do not allege any facts to make it plausible that, even absent the supposed conspiracy, for-profit entities would have charged less than non-profit Highmark.” (Id. at 7-8.) At the hearing on April 7, 2014, the court rejected Highmark’s implausibility argument with respect to the nonprofit and for-profit status of the insurers, explaining:

I don’t give [Highmark’s] argument as much credence as they would want me to give. You know, because if you are in an excluded market situation, the fact that a nonprofit is charging one thing is of no moment because there was no competition to have brought in something lower.

Now, I still would require you to prove what the lower rates would have been charged by a for-profit entity, but it doesn’t necessarily equate to that a for-profit, even when there’s antitrust activity occurring, would have charged still more than this rate that was being charged. So I don’t give that a lot of weight.

(H.T. 4/7/14 (ECF No. 270) at 14.) For the same reasons articulated by the court on the record at the hearing on April 7, 2014, Highmark’s argument that it is always implausible that in a market unencumbered by the alleged UPMC-Highmark conspiracy Highmark’s for-profit insurer—competitors would charge less than nonprofit Highmark, is not a basis for this court to deny the small group plaintiffs’ leave to file a third amended complaint.

ii. UPMC’s argument in opposition to the measure of damages set forth in the proposed third amended complaint

UPMC argues that plaintiffs in the third amended complaint set forth a “new theory” of recovery, i.e., “the alleged High-mark-UPMC conspiracy increased prices consumers paid to Highmark’s non-conspiring competitors, and absent these increased prices, Plaintiffs would have switched their insurance.” (ECF No. 254 at 6.) According to UPMC, “Plaintiffs ... lack antitrust standing to challenge this alleged conspiracy’s effect on market prices charged by a nondefendant.” (Id. (citing Mid-West Paper Prods. Co. v. Cont’l Grp., Inc., 596 F.2d 573, 581 (3d Cir.1979)).) UPMC argues that the Third Circuit Court of Appeals in Mid-West Paper “held that purchasers, such as Plaintiffs, lack antitrust standing to allege that a conspiracy caused the defendants’ competitors to inflate their prices.” (ECF No. 254 at 6 (citing Mid-West Paper, 596 F.2d at 583-87).)

The small group plaintiffs do not dispute UPMC’s interpretation of Mid-West Paper; rather, the small group plaintiffs dispute UPMC’s reading of the proposed third amended complaint. (ECF No. 262 at 9.) The small group plaintiffs assert that—contrary to UPMC’s arguments— they are not suing UPMC and Highmark based upon the alleged UPMC-Highmark conspiracy’s effect on market prices or Highmark’s excluded and marginalized insurance competitors implementing price increases in the relevant insurance market. (Id.) The small group plaintiffs argue that in the third amended complaint they seek damages based upon UPMC and High-mark conspiring to monopolize the relevant markets by, among other ways, marginalizing Highmark’s insurer competitors in and excluding Highmark’s competitors from the relevant insurance market. (Id.) According to the small group plaintiffs, “it is well established that consumers like Plaintiffs have standing when challenging exclusion of a defendant’s competitors from the relevant market.” (Id. (citing Blue Shield of Va. v. McCready, 457 U.S. 465, 478-79, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982); In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 1178 (3d Cir.1993)).)

UPMC’s interpretation of the proposed third amended complaint is not supported by the allegations within the proposed third amended complaint. The small group plaintiffs in the proposed third amended complaint do not allege that they were injured by the alleged UPMC-High-mark conspiracy’s effect on insurance market prices; rather, the small group plaintiffs allege they were injured because the alleged UPMC-Highmark conspiracy marginalized and excluded from the relevant insurance market Highmark’s competitors that were not subject to the PID’s rate-filing requirements prior to March 21, 2012. (ECF No. 250-1 ¶¶128, 233, 234, 236, 237, 241, 242, 243, 244.) In other words, the small group plaintiffs in the proposed third amended complaint allege that—but for the UPMC-Highmark conspiracy—Highmark’s insurance competitors that were not subject to the PID’s rate-filing requirements would have offered health insurance equivalent to the health insurance offered by Highmark at a lower rate than Highmark’s filed rate, and, under those circumstances, the small group plaintiffs would have purchased the lower-cost health insurance from High-mark’s competitors. (Id.) Accordingly, the small group plaintiffs seek damages from UPMC and Highmark measured by the difference between Highmark’s filed rate actually paid by the small group plaintiffs and the lower, unregulated rates the small group plaintiffs would have paid to High-mark’s marginalized and excluded competitors but for the allege UPMC-Highmark conspiracy. Based upon the allegations in the proposed third amended complaint, UPMC’s argument that the small group plaintiffs do not have antitrust standing to assert their claims lacks merit and is not a basis for the court to deny the small group plaintiffs leave to file a third amended complaint.

UPMC also argues that the small group plaintiffs failed to “plead facts to demonstrate that, but for the alleged conspiracy, they would have purchased comparable or superior health insurance from a High-mark competitor at a lower price than they paid to Highmark.” (ECF No. 254 at 10.) As detailed above, however, the small group plaintiffs in the proposed third amended complaint allege that but for the UPMC-Highmark conspiracy:

(1) UPMC would have entered into contracts with Highmark’s insurance competitors that were marginalized in or excluded from the relevant insurance market and not subject to the PID’s rate-filing requirements, i.e., Aetna, United, Health America/Coventry, and CIGNA;

(2) Highmark’s insurance competitors that were marginalized in or excluded from the relevant insurance market and not subject to the PID’s rate-filing requirements would have charged the small group plaintiffs a rate lower than the filed rate the small group plaintiffs actually paid to Highmark during the alleged UPMC-Highmark conspiracy;

(3) The health insurance offered by Highmark’s insurance competitors that were marginalized in or excluded from the relevant insurance market and not subject to the PID’s rate-filing requirements would have been equivalent to the health insurance the small group plaintiffs purchased from Highmark during the alleged UPMC-Highmark conspiracy; and

(4) The small group plaintiffs would have purchased the equivalent and lower-cost insurance from High-mark’s insurance competitors that were marginalized in or excluded from the relevant insurance market and not subject to the PID’s rate-filing requirements.

(ECF No. 250-1 ¶¶ 128, 233, 234, 236, 237, 241, 242, 243, 244.) Based upon the foregoing allegations asserted in the proposed third amended complaint, the small group plaintiffs plausibly alleged that “but for the alleged conspiracy, they would have purchased comparable or superior health insurance from a Highmark competitor at a lower price than they paid to Highmark.” (ECF No. 254 at 10.) UPMC’s argument that the small group plaintiffs “have failed to plead facts to support their new theory” is, therefore, unfounded and not a basis for the court to deny the named-small group plaintiffs leave to file a proposed third amended complaint.

3. Damages measured by the difference between the rates Cole’s Wexford paid HHIC and the rates Cole’s Wexford would have paid HHIC but for the allege UPMC-Highmark conspiracy.

a. Measure of damages

Cole’s Wexford in the proposed third amended complaint sets forth a measure of damages based upon the difference between the rates it paid to HHIC during the alleged UPMC-Highmark conspiracy—an entity not subject to the PID’s rate-filing requirements prior to March 21, 2012—and the rates it would have paid HHIC but for the UPMC-Highmark conspiracy. (ECF No. 250-1 ¶ 253.) To the extent Highmark switched Cole’s Wexford to HHIC prior to March 21, 2012, the measure of damages asserted by Cole’s Wexford in the proposed third amended complaint would not be barred by Keogh. Cole’s Wexford in the proposed third amended complaint, however, does not specify when, i.e., the date on which, High-mark shifted its business to HHIC. In other words Cole’s Wexford does not plausibly allege whether Highmark shifted Cole’s Wexford to HHIC before or after HHIC was required to file its rates with the PID. Cole’s Wexford’s motion for leave to file a third amended complaint will be granted to the extent Cole’s Wexford can plausibly allege that Highmark shifted Cole’s Wexford to HHIC prior to March 21, 2012, and Cole’s Wexford paid rates to HHIC that were not subject to approval by the PID. Cole’s Wexford will only be entitled to damages based upon a hypothetical rate that HHIC would have charged- Cole’s Wexford until March 21, 2012, the date on which HHIC was required to file its rates with the PID. Cole’s Wexford motion for leave to file a third amended complaint will be denied if High-mark did not shift Cole’s Wexford to HHIC until after March 21, 2012.

b. HHIC as a defendant

The small group plaintiffs in the proposed third amended complaint seek to add HHIC as a defendant in this case. As the court explained at the hearing on April 7, 2014, however, there are no allegations in the complaint that HHIC was a member of the alleged UPMC-Highmark conspiracy. (H.T. 4/7/14 (ECF No. 270) at 48-49.) If plaintiffs are successful on the claims asserted against Highmark, Highmark— and not HHIC—would be liable to pay damages to plaintiffs. Calculating damages based upon the difference between the rates the small group plaintiffs paid HHIC and the rates the small group plaintiffs would have paid to HHIC absent the UPMC-Highmark conspiracy does not change that result. Plaintiffs’ motion for leave to file a third amended complaint will be, therefore, denied to the extent plaintiffs seek to add HHIC as an additional defendant in this case.

C. Statute of Limitations

1. Relation Back

UPMC and Highmark argue that plaintiffs’ theory of recovery based upon UPMC and Highmark conspiring to exclude High-mark’s competitors from the relevant markets is barred by the statute of limitations. Highmark argues: “That exclusion theory of liability is completely different from the liability theory that appeared in all of plaintiffs’ prior complaints, i.e., that High-mark’s filed rates were unlawfully inflated. It therefore does not relate back to the filing of the original complaint.” (ECF No. 277 at 4 (citing Glover v. FDIC, 698 F.3d 139, 146 (3d Cir.2012)).)

Federal Rule of Civil Procedure 15(c)(1)(B) provides that an amendment relates back to the date of the' original pleading when, among other things, “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Relation back is applicable in situations where the amended claim shares a “ ‘common core of operative facts’ ” with the original pleading. USX Corp. v. Barnhart, 395 F.3d 161, 167 (3d Cir.2004) (quoting Bensel v. Allied Pilots Ass’n, 387 F.3d 298, 310 (3d Cir.2004)). In addition to an identity of transaction, courts also inquire into “whether the opposing party has been put on notice regarding the claim or defense raised by the amended pleading.” 6A ChaRles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice & Procedure § 1497 (3d ed.).

The insistence on notice does not mean that the courts will bar relation back simply because the amended pleading deviates markedly from the original.... The fact that an amendment changes the legal theory on which the action initially was brought is of no consequence if the factual situation upon which the action depends remains the same and has been brought to defendant’s attention by the original pleading.... Indeed, an amendment that states an entirely new claim for relief will relate back as long as it satisfies the test embodied in Rule 15(c)(1)(B).

Id.

Here, UPMC’s and Highmark’s arguments that relation back does not apply to plaintiffs’ new exclusionary theory of liability lack merit. The proposed third amended complaint is based upon the same set of operative facts as the original complaint, concerns the same “transaction” at issue in the original complaint, i.e., the alleged conspiracy of UPMC and High-mark, and UPMC and Highmark had notice of the factual allegations in the proposed third amended complaint when the original complaint was filed.

In the original complaint filed in this case on December 2, 2010, plaintiffs alleged UPMC and Highmark

conspired, agreed and acted in an organized, orchestrated and deliberate fashion to control, divide and/or monopolize the markets for medical care and health insurance in the Greater Pittsburgh area to their exclusive benefit, all in violation of the federal antitrust laws and other laws and all to the great and direct economic harm of Plaintiffs.

(ECF No. 1 ¶ 1.) The proposed third amended complaint is based upon the common core of operative facts set forth in the original complaint, i.e., UPMC and High-mark conspired to monopolize the health insurance and health care markets in the relevant geographic markets. Although in the original, first amended, and second amended complaints plaintiffs’ measure of damages was based upon UPMC and Highmark forcing plaintiffs “to pay excessive, above-market premiums” for health insurance, plaintiffs in the original, first amended, and second amended complaint alleged UPMC and Highmark pursuant to their conspiracy agreed to “exclude rival insurers from the Pittsburgh market.” (ECF No. 1 ¶ 100; ECF no. 74 ¶ 101; ECF No. 90 ¶ 101.) In the original, first amended, complaint, plaintiffs alleged:

UPMC and Highmark have entered into an illegal agreement to restrain trade by protecting and reinforcing one another’s market power. Under this agreement, UPMC has agreed to block the entry or expansion of rival health insurers for the benefit of Highmark, enabling High-mark to raise premiums charged to the members of the Plaintiff class, in exchange for Highmark’s agreement to favor UPMC with discriminatory reimbursement rates and grants—and no diminution in patient volume. UPMC agreed to protect Highmark from competition and to act to exclude potential competitors from the market. In turn, Highmark agreed to protect UPMC from competition and to raise the costs for operation of UPMC’s primary competitor, West Penn Allegheny.

[T]his agreement is unlawful under the rule of reason. It has raised prices and excluded competition in both of the relevant markets alleged above, including specifically the market for health insurance. There are no procompetitive justifications or benefits for Highmark and , UPMC’s collusion.

(ECF No. 1 ¶¶ 188, 191; ECF No. 74 ¶¶ 193, 196; ECF No. 90 ¶¶226, 229.) Based upon the foregoing allegations, UPMC and Highmark have been on notice since the original complaint was filed on December 12, 2012, that plaintiffs alleged UPMC and Highmark sought to exclude Highmark’s competitors from the relevant markets as part of their conspiracy. Relation back is appropriate under those circumstances. Plaintiffs, furthermore, seek to file the proposed third amended complaint in an attempt to cure the deficiencies in the second amended complaint with respect to the measure of damages. “Rule 15(c) also permits plaintiff to reassert a claim that was deficiently stated initially.” 6A ChaRles Alan Wright, Alrthur R. Miller, and Mary Kay Kane, Federal Practice & Procedure § 1497 (3d ed.2010). Under the foregoing circumstances, relation back is appropriate in this case, and plaintiffs are not barred by the statute of limitations from filing the proposed third amended complaint subject to the restrictions set forth in this opinion.

2. Fraudulent Concealment

a. Tortious Interference with Existing and Prospective Contractual Relations against UPMC

The court in its opinion dated September 27, 2013, dismissed plaintiffs’ claim for tortious interference with existing and prospective contractual relations against UPMC because it was time barred under the applicable two-year statute of limitations for tort claims in Pennsylvania. (ECF No. 240 at 79.) The court reasoned: (1) plaintiffs did not sufficiently allege that UPMC engaged in any conduct after the summer of 2008 that could form the basis for a claim of tortious interference with contractual relations within the applicable statute of limitations; and (2) plaintiffs did not set forth sufficient factual allegations to permit the tolling of the statute of limitations for conduct that occurred prior to the summer of 2008 based upon UPMC fraudulently concealing its conduct with respect to the UPMC-Highmark conspiracy, i.e., plaintiffs did not sufficiently allege UPMC affirmatively concealed its allegedly tortious conduct. (Id. at 75-79.)

Plaintiffs in the proposed third amended complaint set forth the same factual allegations that were set forth in the second amended complaint with respect to (1) plaintiffs’ tortious interference with existing and prospective contractual relations claim against UPMC, and (2) UPMC allegedly fraudulently concealing its tortious conduct, and do not set forth additional allegations in the proposed third amended complaint that would change the court’s analysis with respect to plaintiffs’ claim for tortious interference with existing and prospective contractual relations against UPMC. (ECF No. 90 ¶¶ 217-24; ECF No. 250-1 ¶¶ 254-61.) For the same reasons the court granted UPMC’s motion to dismiss the second amended complaint with respect to the tortious interference with existing and prospective contractual relations claim, i.e., it is barred by the applicable two-year statute of limitations, plaintiffs’ motion for leave to file a third amended complaint will be denied with respect to the tortious interference with existing and prospective contractual relations claim asserted against UPMC. Plaintiffs’ argument that UPMC fraudulently concealed the conduct forming the basis for their tortious interference with existing and prospective business relations claim is preserved for purposes of appeal, but plaintiffs’ motion for leave to file a third amended complaint is denied with respect to any allegation related to that claim, including the entirety of Count VII in the proposed third amended complaint,

b. Conspiracy Claims against UPMC and Highmark

“Antitrust actions are subject to a four-year statute of limitations, meaning of course, that suit must be brought within four years after the cause of action accrued.” In re Scrap Metal Antitrust Li-tig., 527 F.3d 517, 536 (6th Cir.2008) (citing 15 U.S.C. § 15b (“Any action to enforce any cause of action under section 15, 15a, or 15c of this title shall be forever barred unless commenced within four years after the cause of action accrued.”)). The complaint in this case was filed on December 2, 2010. (ECF No. 1.) Accordingly, if plaintiffs are successful on their claims, they may only recover for damages they suffered as a result of the UPMC-High-mark conspiracy beginning on December 2, 2006. Plaintiffs in the proposed third amended complaint, however, seek damages based upon UPMC’s and Highmark’s conduct that occurred prior to December 2, 2006, which is outside the applicable four-year statute of limitations. Plaintiffs argue they are entitled to damages based upon UPMC’s and Highmark’s anticompet-itive conduct that occurred prior to December 2, 2006, because UPMC and High-mark fraudulently concealed the UPMC-Highmark conspiracy.

The requirements for tolling the statute of limitations based upon a defendant’s fraudulent concealment are similar under federal and Pennsylvania law. Lower Lake Erie, 998 F.2d at 1178. In Lower Lake Erie, the court explained:

We have not specifically elucidated the standards for pleading fraudulent concealment in the antitrust context. However, in a case decided under Pennsylvania law, Bohus v. Beloff, 950 F.2d 919 (3d Cir.1991), we identified the three factors necessary to forestall the running of the limitations statute by way of a fraudulent concealment allegation: (1) an affirmative act of concealment; (2) which misleads or relaxes the plaintiffs inquiry, who (3) exercised due diligence in investigating his cause of action. Id. at 925-26.

Lower Lake Erie, 998 F.2d at 1178. The court held that with respect to federal antitrust claims, a plaintiff seeking to toll the statute of limitations based upon the defendant’s fraudulent concealment must also show the plaintiff exercised due diligence until the discovery of the facts forming the basis for the antitrust claim. Id. at 1179 (citing Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389 (6th Cir.1975)).

Plaintiffs in the proposed third amended complaint set forth the following allegations with respect to UPMC’s and High-mark’s alleged fraudulent concealment of the conspiracy:

255. Defendants have had numerous opportunities to disclose to the Plaintiff class and the public in general the conspiracy, but have failed to do so. By way of example:

a) In July 2010, a Senior Vice President of Defendant Highmark, testifying before Pennsylvania’s General Assembly, stated that health insurance rates have increased (“sometimes at unacceptable levels”) due to ever-rising medical costs and a fragile economy;

b) In an August 31, 2009 article, Defendant Highmark explained that health insurance rates increased because of increases in utilization; rising doctor, hospital and prescription costs; higher reimbursement demands from doctors and hospitals; and reduced federal payments to providers;

c) In a November 2011 article, Defendant Highmark blamed increased costs on an unusually high number ■ of medical scans, outpatient surgical procedures and lab services;

d) In a September 24, 2002 Pittsburgh Post Gazette article, Defendant Highmark cited inadequate federal reimbursements as the basis for increased rates;

e) In a March 24, 2005 Pittsburgh Post Gazette article, Defendant Highmark blamed rate increases on its 2003 claim experiences;

f) In an October 2, 2003 article in The Valley News Dispatch, Defendant Highmark again blamed its then-recent rate hikes on rising medical costs and flat reimbursement rates from the federal government;

g) In a November 13, 2007 Pittsburgh Post Gazette article, UPMC justified its first quarter profit jump of 43% and its $93 Million net income on accounting changes, though it noted that it had a “solid” quarter;

h) In 2005 and 2006, Defendant High-mark submitted requests to the Pennsylvania Insurance Department for rate increases but, while setting forth its rate structure in its filing, made no mention of the illegal conspiracy between the two Defendants here;

i) The Pittsburgh Post Gazette reported in August 2004, 2005, 2006 and 2007 record profits at UPMC.

256. In the articles, publications and statements above, Defendant Highmark repeatedly advanced explanations for the annual, significant rate increases, and UPMC acknowledged its significant profits, but at no time did either Defendant state that it had entered into an agreement with the other Defendant to monopolize the health insurance and delivery markets in Western Pennsylvania, or to reduce or eliminate competition in each other’s relevant markets.

(ECF No. 250-1 ¶¶ 255-56.) With respect to UPMC’s alleged fraudulent concealment set forth in paragraphs 255(g) and (i) of the complaint, this court already held that those allegations are not sufficient to constitute “an affirmative act of concealment.” (ECF No. 240 at 78.) Plaintiffs did not provide the court a basis to reconsider its decision.

With respect to plaintiffs’ allegations with respect to Highmark, allegations that Highmark communicated reasons for the rate increases other than the alleged conspiracy with UPMC are not sufficient to establish an affirmative independent act of concealment necessary to toll the statute of limitations for the conspiracy claims. Plaintiffs do not allege that the reasons for the rate increases allegedly c