UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FEDERAL TRADE COMMISSION,

Plaintiff, v. Civil Action No. 19-1080 (JDB) SURESCRIPTS, LLC,

Defendant.

MEMORANDUM OPINION

On April 17, 2019, the Federal Trade Commission filed this action against Surescripts,

LLC, seeking equitable relief, including a permanent injunction, and monetary relief under Section

13(b) of the FTC Act. See Compl. for Injunctive & Other Equitable Relief [ECF No. 1] at 1, 54.

Surescripts moved to dismiss the complaint, see Surescripts, LLC’s Mot. to Dismiss Compl.

(“Mot. to Dismiss”) [ECF No. 31], and on January 17, 2020, the Court denied the motion, see FTC

v. Surescripts, LLC,

, 94–95 (D.D.C. 2020). Surescripts now moves for the

Court to amend its previous decision and certify two aspects of that decision for interlocutory

review under

(b). See Surescripts’ Mot. to Amend the Court’s Order Denying

Surescripts’ Mot. to Dismiss in Order to Certify It for Interlocutory Appeal (“Mot. to Certify”)

[ECF No. 56] at 1. For the reasons explained herein, the Court concludes that this litigation does

not present exceptional circumstances justifying deviation from the standard rule postponing

appellate review until after entry of final judgment. The Court will therefore deny Surescripts’s

motion.

Background

The Court previously described in full the underlying facts in this case in its opinion

1 denying Surescripts’s motion to dismiss, see Surescripts, 424 F. Supp. 3d at 95–96, and will thus

reiterate only those facts most relevant to the present motion. Surescripts is a health information

technology company operating in two complementary markets, electronic prescription routing

(“routing”) and eligibility, collectively known as “e-prescribing.” Compl. ¶ 1. Routing involves

the transmission of prescription-related data from a prescriber to a pharmacy via the prescriber’s

electronic health record (“EHR”) system, while eligibility involves the transmission of a patient’s

formulary and benefit information from a payer (normally the patient’s pharmacy benefit manager

(“PBM”)) to a prescriber’s EHR.

According to the FTC, Surescripts employs various

anticompetitive measures to maintain its at least 95% share (by transaction volume) in each market.

¶¶ 2–3.

Around 2009, Surescripts began offering loyalty bonuses to customers in both markets who

exclusively used its information systems.

Pharmacies and PBMs would pay a reduced fee if

they dealt exclusively with Surescripts, meaning that they routed “100% of [their] transactions

through and only through the Surescripts network.”

¶¶ 66–67. And EHR providers received

gradated incentive payments based on exclusivity in one or both markets. Id. ¶ 77.

The FTC contends that these loyalty programs have had the effect of foreclosing “at least

70% of each market, eliminating multiple competitive attempts from other companies . . . that

offered lower prices and greater innovation.” Id. ¶ 3. In particular, the FTC claims that

Surescripts’s dominant position in the market makes these loyalty contracts especially effective at

excluding competition because almost all market entrants must compete for customers who already

use Surescripts. Id. ¶ 32. The FTC also alleges that Surescripts has used other anticompetitive

tactics, like “threats and other non-merits based competition,” to keep its customers from working

with its competitors. Id. ¶ 4.

2 Based on these allegations, the FTC sued Surescripts under Section 13(b) of the FTC Act,

alleging that Surescripts’s loyalty program, in combination with other anticompetitive measures,

violated Section 2 of the Sherman Act. Id. ¶¶ 222–31. FTC accordingly sought equitable relief,

including monetary relief and a permanent injunction preventing such practices in the future. Id.

at 54.

Surescripts moved to dismiss the FTC’s complaint on two grounds. Mot. to Dismiss ¶¶ 1–

3. First, Surescripts argued that the Court lacked subject matter jurisdiction over the request for a

permanent injunction because the FTC could not establish that this case is “proper” under Section

13(b) of the FTC Act. Id. ¶ 1; see

(b) (providing that “in proper cases the

Commission may seek, and after proper proof, the court may issue, a permanent injunction”

(emphasis added)). Second, Surescripts argued that the FTC’s complaint failed to state a claim

under Section 2 of the Sherman Act because it did not allege that the prices offered by Surescripts

were predatory and failed under the rule of reason. See Mot. to Dismiss ¶¶ 2–3.

The Court denied Surescripts’s motion. In terms of Section 13(b), the Court concluded

that the statutory reference to a “proper case” was not a jurisdictional requirement, but that even if

it was, the FTC had pled sufficient facts to demonstrate that their lawsuit is “proper.” Surescripts,

424 F. Supp. 3d at 96–98. The Court explained that, although Surescripts is likely correct “that

‘proper cases’ is not synonymous with ‘all cases’” within the FTC’s administrative purview, “this

case is proper” because its theory is grounded in D.C. Circuit precedent “and does not seek to rely

on [the FTC’s] expertise to develop the law.”

. As for the merits, the Court determined

that, under the D.C. Circuit’s decision in United States v. Microsoft Corp.,

(D.C. Cir.

2001) (en banc), “Surescripts’s alleged practice of charging loyal pharmacies and PBMs less, and

paying loyal EHRs greater incentives, do not need to constitute predatory pricing for Surescripts’s

3 exclusionary practices to constitute illegal maintenance of a monopoly.” Surescripts, 424 F. Supp.

3d at 102. In alleging that Surescripts’s loyalty program and other anticompetitive practices

foreclosed at least 70% of each market, the FTC made out a plausible violation of Section 2 of the

Sherman Act. Id. at 102–04.

Surescripts now asks the Court to amend its previous decision, for interlocutory appellate

review under § 1292(b), to certify two questions for interlocutory appellate review: “(1) whether

the language and structure of Section 13(b) of the FTC Act preclude the FTC’s lawsuit, and (2)

whether Supreme Court precedent forecloses the FTC’s argument that Surescripts’[s] low, but not

‘predatory,’ pricing is anticompetitive.” Mot. to Certify at 1. Both parties have briefed the matter,

and it is now ripe for resolution.

Legal Standard

Section 1291 of Title 28 of the U.S. Code grants the courts of appeals “jurisdiction of

appeals from all final decisions of the district courts.” This finality requirement “embodies a strong

congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing

judicial proceeding by interlocutory appeals.” United States v. Nixon,

(1974).

The narrow exception to this finality requirement in

(b) permits an interlocutory

appeal when the district court “shall be of the opinion [(1)] that [a nonfinal] order involves a

controlling question of law as to which there is substantial ground for difference of opinion and

[(2)] that an immediate appeal from the order may materially advance the ultimate termination of

the litigation.”

(b). If the district court certifies a question for interlocutory

review, the relevant court of appeals retains the “discretion” to determine whether to permit the

appeal or not.

Courts of appeals construe such statutory grants of interlocutory review

narrowly, “applying them only when a district court’s challenged ruling might be of ‘serious,

4 perhaps irreparable, consequence’ to a litigant and therefore merit immediate review.” Banks v.

Office of Senate Sergeant-At-Arms & Doorkeeper of U.S. Senate,

(D.C. Cir.

2006) (quoting Cobell v. Kempthorne,

(D.C. Cir. 2006)). Absent a certification

by the district court, however, the court of appeals is without jurisdiction to consider the matter.

See Kahl v. Bureau of Nat’l Affairs,

, 118 n.2 (D.C. Cir. 2017).

Collateral review under § 1292(b) “is meant to be applied in relatively few situations,”

Tolson v. United States,

(D.C. Cir. 1984) (quotation omitted), and it is the

movant’s burden to demonstrate that such review is necessary, see Vantage Commodities Fin.

Servs. I, LLC v. Assured Risk Transfer PCC, No. 1:17-cv-01451 (TNM),

, at *2

(D.D.C. Jan. 17, 2019).

“A controlling question of law is one that would require reversal if decided incorrectly or

that could materially affect the course of litigation with resulting savings of the court’s or the

parties’ resources.” Doe 1 v. Howard Univ., Civil Action No. 17-cv-870 (TSC),

, at *3 (D.D.C. Oct. 1, 2019) (internal quotation marks omitted). “[A] question is

controlling, even though its decision might not lead to reversal on appeal, if interlocutory reversal

might save time for the district court, and time and expense for the litigants.” Johnson v. Burken,

(7th Cir. 1991).

“The threshold for establishing the ‘substantial ground for difference of opinion’ with

respect to a ‘controlling question of law’ required for certification pursuant to § 1292(b) is a high

one.” Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Grp.,

(D.D.C.

2002). A party’s “[m]ere disagreement, even if vehement, with a court’s ruling on a motion to

dismiss does not” clear that threshold.

(internal quotation marks omitted). Instead, “[a]

substantial ground for difference of opinion is often established by a dearth of precedent within

5 the controlling jurisdiction and conflicting decisions in other circuits.” APCC Servs., Inc. v. Sprint

Commc’ns Co.,

(D.D.C. 2003); see also Gov’t of Guam v. United States,

(D.C. Cir. 2020) (granting the certified request for interlocutory review where

“the courts of appeals [had] diverge[d]” over “at least one controlling issue of law,” the resolution

of which “could materially advance [the] litigation” (quotation omitted)). But an apparent tension

among authorities is not sufficient: “a court must analyze the strength of the arguments in

opposition to the challenged ruling to decide whether the issue is truly one on which there is a

substantial ground for dispute.” Molock v. Whole Foods Mkt. Grp.,

(D.D.C.

2018) (internal quotation marks omitted). “[A] district judge has ‘unfettered discretion to deny

certification of an order for interlocutory appeal even when a party has demonstrated that the

criteria of

(b) are met.’” Picard v. Katz,

(S.D.N.Y. 2012)

(some internal quotation marks omitted) (quoting Gulino v. Bd. of Educ.,

(S.D.N.Y. 2002)).

Analysis

Surescripts moves the Court to certify two questions of law for interlocutory appellate

review: “(1) whether the language and structure of Section 13(b) of the FTC Act preclude the

FTC’s lawsuit, and (2) whether Supreme Court precedent forecloses the FTC’s argument that

Surescripts’[s] low, but not ‘predatory,’ pricing is anticompetitive.” Mot. to Certify at 1. In neither

instance, however, has Surescripts met its burden to demonstrate “a controlling question of law as

to which there is substantial ground for difference of opinion,”

(b).

I. Whether Section 13(b) of the FTC Act Precludes This Lawsuit

Turning first to Section 13(b), all parties appear to agree that whether this lawsuit is a

“proper case” under Section 13(b) of the FTC Act is a controlling question of law, because if the

6 present lawsuit fails that test, then the FTC is powerless to bring it. See Mem. in Supp. of

Surescripts’ Mot. to Amend the Court’s Order (“Def.’s Mem.”) [ECF No. 56-1] at 5–6; FTC’s

Opp’n to Surescripts’s Mot. for Interlocutory Appeal (“FTC’s Opp’n”) [ECF No. 59] at 2–10. The

key consideration is thus whether “there is substantial ground for difference of opinion,”

(b), as to whether this lawsuit is a “proper case” under Section 13(b).

Surescripts argues that there is substantial ground for disagreement because, in its view,

Section 13(b) is open to various plausible interpretations. Def.’s Mem. 6–10. Surescripts points

to the Court’s acknowledgement that there is “considerable weight to Surescripts’s argument that

‘proper cases’ is not synonymous with ‘all cases’” (as the FTC had argued at the motion-to-dismiss

phase) to show the difficulty of interpreting Section 13(b). Id. at 6. Surescripts also highlights a

comment by the Court during oral argument suggesting that Section 13(b) could plausibly be read

as setting forth a “parallel-proceeding” framework, where simultaneous proceedings are required

at the Commission and in court. Id. at 7–8; see also Tr. of Mot. Hr’g [ECF No. 41] at 21:6–22:7.

Although Surescripts demonstrates the difficulty in defining exactly the metes and bounds

of Section 13(b) overall, it fails to show that there is substantial ground for difference of opinion

on the controlling question of law here, namely, whether the present lawsuit is a “proper case.”

As the Court previously noted, its “task is not to define the term ‘proper cases’ for all scenarios,

but to determine whether this case is proper.” Surescripts, 424 F. Supp. 3d at 98. On that point,

the Court found no significant grounds for difference of opinion. Despite Surescripts’s argument

that “proper cases” were limited to straightforward violations of the FTC’s substantive statutes,

see id., various other courts had previously concluded that “proper cases” encompassed more than

just “routine” violations, see id. at 99 (gathering cases). And the two authorities that Surescripts

cited for its position were both readily distinguishable. Id.; see FTC v. World Travel Vacation

7 Brokers, Inc.,

(7th Cir. 1988); FTC v. Abbott Labs., Civ. A. No. 92-1364,

(D.D.C. Oct. 13, 1993). “In agreement with the clear weight of relevant cases,” the Court

concluded that the present case, which rests on legal precedent rather than the FTC’s unique agency

expertise, is a “proper case.” Surescripts, 424 F. Supp. 3d at 98, 100.

Surescripts fails to demonstrate that the specific question of whether this lawsuit is a

“proper case”—and the Court’s prior conclusion that it is—presents substantial ground for

difference of opinion. Its motion includes no new authorities supporting its view that only routine

or straightforward cases are “proper cases,” see Def.’s Mem. at 6–10, and as noted above, the cases

it previously cited either supported the Court’s conclusion or were inapposite. Nor can Surescripts

point to a total lack of precedent on the issue. Cf. Nat’l Veterans Legal Servs. Program v. United

States,

(D.D.C. 2018) (certifying an order where there was “a complete

absence of any precedent from any jurisdiction” on the controlling question of law). The Court

benefitted from prior decisions by two circuit courts and various districts courts, including two

decisions from this District, see Surescripts, 424 F. Supp. 3d at 99–100, and thus did not write on

a blank slate when interpreting Section 13(b). Under these circumstances, the Court concludes

that “the arguments in opposition to the challenged ruling,” as presented in Surescripts’s motion

to dismiss, do not establish “a substantial ground for dispute.” APCC Servs.,

.

Surescripts does attempt to raise a new argument by highlighting another interpretation of

Section 13(b), floated by the Court during oral argument, that reads the statute as requiring the

existence of a parallel administrative proceeding by the FTC before the agency can pursue a

permanent injunction. Def.’s Mem. at 7–10. This reading would impose the recognized

prerequisites for pursuing a temporary restraining order under Section 13(b)—(1) that there is a

8 present or imminent violation of a substantive law enforced by the FTC, and (2) that there is a

parallel pending administrative proceeding—on the permanent injunction provision. Id. at 8; see

also FTC v. Shire ViroPharma, Inc.,

(3d Cir. 2019) (explaining the two

prerequisites for pursuing a temporary restraining order under Section 13(b)). Surescripts notes

that at least one court has read Section 13(b) to require that there be a present or imminent violation

before the FTC can pursue a permanent injunction, see Shire ViroPharma,

, just as

there must be before the FTC can pursue temporary injunctive relief, see FTC v. Merch. Servs.

Direct, LLC, No. 13-CV-0279-TOR,

, at *3 (E.D. Wash. Aug. 13, 2013).

Surescripts thus argues that the second prerequisite to a temporary injunction, a parallel

administrative proceeding, should apply in the permanent injunction context as well. See Def.’s

Mem. at 8–9 (citing Shire ViroPharma,

).

This argument for interlocutory appellate review under § 1292(b) is unavailing, however,

because Surescripts not only did not advance this interpretation at the pleadings stage, but

specifically disavowed it and directed the Court’s attention to the separate question of what

constitutes a “proper case.” See Mot. to Dismiss at 17 (“[T]he statute also provides that in ‘proper

cases,’ the FTC may also seek a permanent injunction in federal court, without first proceeding

through its administrative court.”); see also Tr. of Mot. Hr’g at 18:19–19:23 (suggesting “that the

FTC does not need to be undertaking a simultaneous . . . proceeding while it seeks a permanent

injunction.”). Inserting new, let alone previously disavowed, arguments into a § 1292(b) motion

is “a dubious practice at best,” Picard,

, because it undermines the settled principle

that courts of appeals should not consider arguments that parties failed to make below, see Shedd

v. Wells Fargo Bank, N.A., Civil Action 14-0275-WS-M,

, at *4 n.6 (S.D. Ala.

Aug. 31, 2016) (collecting cases). “Section 1292(b) is not a vehicle for raising new arguments on

9 appeal,” In re Bank of Am. Corp. Sec., Derivative, & Emp. Ret. Income Sec. Act (ERISA) Litig.,

No. 09 MD 2058 (PKC),

, at *3 (S.D.N.Y. Oct. 8, 2010), as numerous courts

have recognized. See, e.g., Smith v. Leis,

(6th Cir. 2011) (refusing to

consider an argument not asserted before the district court); Broad v. Hitts, No. 5:08-CV-366

(CAR),

, at *2 (M.D. Ga. Nov. 14, 2011) (“[Defendant] cannot now raise new

arguments for summary judgment in a motion for interlocutory appeal.”); Lindley v. Life Inv’rs

Ins. Co. of Am., No. 08-CV-0379-CVE-PJC,

, at *4 (N.D. Okla. June 11, 2010)

(refusing to consider a new argument as a ground to certify an interlocutory appeal where movant

failed to raise the argument previously); Official Comm. of Equity Sec. Holders of Spectrum

Jungle Labs Corp. v. Spectrum Jungle Labs Corp., Civ. No. SA:09-CV-576-XR,

, at *5 (W.D. Tex. Aug. 5, 2009) (refusing to certify “issues on which the Court itself has

not made any definitive rulings based on full briefing and a full record”). In short, an argument

not presented by Surescripts and not relied on by this Court cannot serve as the basis for § 1292(b)

certification. Nor can Surescripts argue that it was unaware of the holding in Shire ViroPharma,

which came out over four months before Surescripts filed its motion to dismiss; indeed, the

company cited the case for other points in its reply brief. See Reply Mem. in Supp. of Surescripts,

LLC’s Mot. to Dismiss Compl. [ECF No. 39] at 5 n.3, 8.

The Court will thus reject this late attempt to change Surescripts’s approach and, as noted

above, deny the motion to certify its January 17 decision for interlocutory review on the question

whether this lawsuit is a “proper case” under Section 13(b).

II. Whether Non-Predatory Low Pricing Is Anticompetitive

Surescripts next argues that the Court should certify for interlocutory review whether

“Surescripts’[s] optional low pricing plan could give rise to antitrust liability even though the FTC

10 does not allege those prices are below cost.” Def.’s Mem. at 11. This argument, however, is

largely a rehashing of the point that Surescripts made in its motion to dismiss: “[o]ptional low

pricing such as that offered by Surescripts is only illegal if predatory,” which the FTC did not

allege. Mot. to Dismiss at 29–30. The Court rejected that argument because it fails to account for

the specific nature of Surescripts’s monopolistic position that makes its loyalty program effectively

exclusionary and, therefore, an impediment to competitors entering the market. Surescripts, 424

F. Supp. 3d at 100–101. The Court also distinguished each of the cases that Surescripts cites in its

motion and explained why “none of the authorities Surescripts cites stands for the proposition that

a plaintiff must allege predatory pricing to succeed on a Section 2 claim.” Id. at 101.

Surescripts also argues that the Court relied on a minority view of predatory pricing law

announced in some Third Circuit cases. Def.’s Mem. at 12. But while the Court’s previous opinion

did cite ZF Meritor, LLC v. Eaton Corp.,

(3d Cir. 2012), it based its ruling

primarily on the D.C. Circuit’s decision in Microsoft. See Surescripts, 424 F. Supp. 3d at 101–

102 (“Like the behavior at issue in Microsoft, Surescripts’s alleged practice of charging loyal

pharmacies and PBMs less, and paying loyal EHRs greater incentives, do not need to constitute

predatory pricing for Surescripts’s exclusionary practices to constitute illegal maintenance of a

monopoly.”).

Surescripts’s argument thus boils down to a disagreement with the Court’s interpretation

of Microsoft. Surescripts concedes that “Microsoft is fully consistent” with the cases that

Surescripts cites regarding predatory pricing and exclusionary dealing, Reply in Supp. of

Surescripts’ Mot. to Amend [ECF No. 60] at 11, but contends that “there is . . . substantial ground

for a difference of opinion with regard to this Court’s application of Microsoft,” Def.’s Mem. at

13. This line of argument is unpersuasive. Surescripts cites no new authority demonstrating that

11 the Court’s reading of Microsoft is incorrect, and reviewing the authorities once more, the Court

concludes that interlocutory appellate review is not appropriate on this issue.

As the Court noted in its prior opinion, the FTC alleges that Surescripts’s loyalty program,

in combination with the company’s dominant monopoly in both routing and eligibility, “clearly

ha[d] a significant effect in preserving its monopoly” and kept usage of any competing information

system “below the critical level necessary for [it] . . . to pose a real threat” to Surescripts’s

monopoly. Surescripts, 424 F. Supp. 3d at 102 (quoting Microsoft,

). This

conclusion follows straightforwardly from the D.C. Circuit’s opinion in Microsoft, and

Surescripts’s mere disapproval of the Court’s prior ruling does not establish the substantial ground

for disagreement necessary under § 1292(b). See Nat’l Energy Policy Dev. Grp.,

(“Mere disagreement, even if vehement, with a court’s ruling on a motion to dismiss does

not establish a ‘substantial ground for difference of opinion’ sufficient to satisfy the statutory

requirements for an interlocutory appeal.” (quotation omitted)). The Court thus will not certify its

previous decision for interlocutory review on this question.

Conclusion

For all the foregoing reasons, the Court will deny [56] Surescripts’s request for certification

under § 1292(b). A separate order will be issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: May 21, 2020

12