2024 Update on Delta Dental Antitrust Litigation
After several years of stagnation, an important decision in the Delta Dental antitrust litigation is around the corner. In 2019, numerous lawsuits were filed across the country by dental providers against Delta Dental, including a class action lawsuit filed by the ADA. The lawsuits allege that Delta Dental has conspired to engage in anticompetitive agreements and conduct to stifle competition in the dental insurance market, including that Delta Dental has:
- suppressed reimbursement rates through territorial restrictions, price-fixing for specific dental goods and services, and competition restrictions;
- divided the U.S. market into exclusive territories for its state insurers, effectively eliminating competition within those territories; and
- unlawfully set reimbursement rates for dental services at artificially low levels, forcing dentists to accept below-market rates.
In 2020, these cases were sent to a multi-district litigation court in Illinois, where the cases were consolidated into a single complaint. Shortly thereafter, Delta Dental filed a motion to dismiss the consolidated complaint, which motion was denied by the judge in September 2020. Since 2020, the parties have engaged in several years of discovery, exchanging volumes of documents and taking nearly 200 depositions.
On February 6, 2024, some of the plaintiff dental providers moved to certify the case as a class action. This effort would identify the class of providers who would be considered plaintiffs in the lawsuit and potentially eligible for damages if the plaintiffs prevail. The plaintiffs have proposed a nationwide class of roughly 240,000 class members, which would include Texas dentists. The proposed class is defined as follows:
All Dental Providers not owned, employed by, or involved in the management or directorship of the Defendants, who provided dental goods or services to a Delta Dental insured and were reimbursed directly by a Defendant, and who were subject to a Delta Dental participating provider agreement (excluding HMO and public entitlement plans) in the United States from October 11, 2015, to December 31, 2022.
The plaintiffs seek money damages (to the tune of $13 billion) and an injunction to force Delta to change its practices. If the plaintiffs ultimately prevail, dentists and dental practices included within the class could receive a monetary award. Perhaps more impactful is the potential that Delta Dental is required to dismantle its structure and change its practices, sending a signal to other dental insurers and potentially leading to a more competitive dental insurance market.
The judge’s decision on whether to certify this class will be a significant milestone in the litigation. The certification of a class often affects whether or how the litigation moves forward. Delta's response to the motion to certify the class is due June 18, 2024. Additional discovery and briefing will be conducted until December 19, 2024. Thus, a decision likely won’t be made until the first quarter of 2025, at the earliest.