Antitrust Law Daily Wrap Up, ANTITRUST—6th Cir.: Nurses’ intervention may have been timely in wage conspiracy suit, (Feb 11, 2016)

By Greg Hammond, J.D.

Two nurses may have timely moved to intervene in an action in which two hospitals allegedly conspired to depress wages for registered nurses, according to the U.S. Court of Appeals in Cincinnati. In reversing and remanding the action, the appellate court determined that the lower court erred by failing to recognize the Supreme Court’s United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) decision as binding and indistinguishable precedent (Clarke v. Baptist Memorial Healthcare Corp., February 10, 2016, Siler, E.).

Two nurses filed suit against Baptist Memorial Healthcare Corp. and Methodist Healthcare, alleging that the two hospitals violated the Sherman Act by conspiring with other Memphis-area hospitals to depress the wages of RNs below competitive market levels and to share compensation information. The lower court denied class certification on the basis of adequacy. After the two nurses reached a tentative settlement, a joint stipulation of dismissal was filed. Keith M. Ivy and Elizabeth Mason filed motions to intervene and a joint notice of appeal. The district court denied the motions as untimely, and Ivy and Mason appealed.

The appellate court determined that United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) controls the issue of timeliness in the instant case. Under McDonald, the relevant inquiry is whether the motion to intervene was made within a reasonable time after the proposed intervenor should have known that the class representative was not planning to appeal the denial of class certification.

The lower court attempted to distinguish McDonald on the grounds that the two nurse plaintiffs did not seek an interlocutory appeal of the denial of class certification. The appellate court, however, determined that the fact that the two nurse plaintiffs did not attempt an interlocutory appeal did not move the case outside of McDonald’s ambit. Consequently, the lower court abused its discretion by failing to recognize McDonald as binding and indistinguishable precedent, the appellate court concluded. The case was therefore remanded for the lower court to properly apply the general factors for considering timeliness and to examine the remainder of Federal Rule of Civil Procedure 24’s requirements.

The case is No. 14-5906.

Attorneys: Brian J. Murray (Jones Day) and James D. Wilson (Harris Shelton Hanover Walsh, PLLC) for Baptist Memorial Healthcare Corp. Corey William Roush (Akin Gump Strauss Hauer & Feld LLP) and Benjamin Holt (Hogan Lovells) for Methodist Healthcare.

Companies: Baptist Memorial Healthcare Corp.; Methodist Healthcare

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