Antitrust Law Daily Wrap Up, ANTITRUST—D. Colo.: Six-year-long Vail rehab dispute ends with summary judgment for defendant, (Sep 11, 2025)

By Justin Marcus Smith, J.D.

Plaintiff Sports Rehab did not show evidence of exclusionary conduct or effect and otherwise failed to mount a well-organized response to defendant Vail Clinic’s motion for summary judgment.

Putative negotiations not to compete were inchoate and therefore never led to real world effects, held the federal district court in Denver, Colorado, in granting summary judgment to a defendant provider of physical therapy (PT) services. The plaintiff did not show evidence of exclusionary conduct or effect. The plaintiff therefore did not show antitrust injury for antitrust standing. The evidence apparently pointed to defamation, as may or may not have been adjudicated in facially contradictory dispositions in parallel state court proceedings; however, the plaintiff PT provider did not respond to the defendant’s Noerr-Pennington and other defenses that various alleged conduct was non-actionable for violation of the Sherman Act. The plaintiff did not address arguments that a lease non-compete provision and non-solicitation agreements had legitimate, non-predatory business justifications. The plaintiffs accordingly failed to show exclusionary conduct supporting monopolization and attempted monopolization claims. The court entered final judgment for the defendant and awarded costs (Sports Rehab Consulting LLC v. Vail Clinic, Inc., No. 1:19-cv-02075-WJM-SBP (D. Colo. Sept. 10, 2025)).

Background. In this long-pending matter, Sports Rehab Consulting LLC (Sports Rehab) and its owner (collectively, Sports Rehab), complained that Vail Clinic, Inc. (Vail), a nonprofit community health system, violated Section 2 of the Sherman Act by monopolizing or attempting to monopolize the physical therapy (PT) market in the region of Vail Valley, Colorado between 2012 and 2020.

In 2020, the court declined to dismiss or stay pursuant to the Colorado River doctrine even though tort claims based on the same statements and brought by the same plaintiffs were pending in state court. Sports Rehab’s owner claimed Vail attempted to drive Sports Rehab out of business by falsely alleging that she stole patient records while she was a Vail employee. She brought defamation and tort claims against Vail in state court and then sued Vail in the instant federal court matter. The instant federal court declined dismissal because the parties were not litigating substantially the same claims in the two forums.

According to the federal court, the state trial court granted summary judgment for Vail because it found the statements about misappropriation of PHI were “substantially true and therefore not defamatory.” Even so, Sports Rehab prevailed on all counterclaims after a jury trial found, among other things, that its owner did not misappropriate. The Colorado Court of Appeals then affirmed both the trial court’s summary judgment for Vail and the jury verdict for Sports Rehab and its owner.

As for the instant federal matter, earlier this year, the court declined to compel the production of text messages that Vail executives did not have in their custody or control. The court had appointed a special master to supervise the parties’ numerous discovery disputes in June 2021. Fact discovery closed on December 20, 2021.

Vail presently moved for summary judgment arguing there was no evidence of monopoly power, exclusionary conduct, or antitrust standing. The court granted the Vail motion for summary judgment in its entirety.

Detailed allegations. Vail’s health business relationships with The Steadman Clinic (TSC), the Steadman Philppon Research Institute (SPRI), and Vail Summit Orthopedics (VSO) were all the primary subject of the summary judgment dispute. Among other details, the Sports Rehab complaint variously alleged:

1. TSC leased clinical space in the Vail Health Hospital with restrictions against TSC providing any PT services in that space;

2. Vail saw Sports Rehab as a threat and tried to shore up its relationships with TSC and SPRI by striking up a 10-year partnership with them, ostensibly valued at $173 million, involving five written agreements;

3. Among the five written agreements, a letter of intent (LOI) allegedly set forth Vail’s intent to form a new Colorado LLC for PT services involving a non-compete clause;

4. Vail otherwise sent cease and desist letters to Sports Rehab accusing a former Howard Head employee of breaching the non-solicitation provision of employment contract and later threatened to sue Sports Rehab for alleged misappropriation of patient files.

Analysis. The court noted Vail made detailed and specific arguments that none of the alleged conduct could support the Sports Rehab monopolization and attempted monopolization claims.

First, Vail argued petitions to government agencies and related statements to the public and competitors were all immune from antitrust liability under the Noerr-Pennington doctrine. Vail separately argued that statements about a competitor have a de minimis effect on competition and Sports Rehab would not be able to show that disparaging statements were “clearly false” in light of the state trial court summary judgment ruling for Vail based on a finding the disputed statements were “substantially true.”

Second, Vail also argued Sports Rehab could not show that consideration and negotiation of an unconsummated joint venture involved anticompetitive behavior.

Third, Vail argued its non-solicitation provisions had many “legitimate business justifications,” for example, the interest in protecting the special training of employees, as recognized in the Tenth Circuit, and necessarily defeating the Sports Rehab Section 2 claims.

Fourth, Vail argued its leases were not anticompetitive because they did not restrict TSC from competing outside the leased premises.

The court perceived that Vail organized its motion for summary judgment in a way that generally tracked with how Sports Rehab ordered its theories of liability in the amended complaint. The motion also tracked Tenth Circuit case law requiring disaggregation of allegedly exclusionary conduct into its component parts before the application of relevant law.

In contrast, the court said Sports Rehab did not structure their opposition to the motion cogently. Instead, they primarily focused on a theory of liability without any basis in the amended complaint, i.e., that Vail engaged in exclusionary conduct by committing $173 million in financial benefits to TSC and its nonprofit research affiliate, SPRI, in exchange for an agreement not to compete. Sports Rehab ignored or failed to develop responses to most of Vail’s arguments “seemingly as a result of their jumbled briefing structure.” For example, Sports Rehab did not address Noerr-Pennington or even use the word “immunity.” The court accordingly decided that Sports Rehab had abandoned or waived any objection to most of Vail’s arguments.

As for the Sports Rehab theory that Vail paid TSC and SPRI $173 million not to compete, it lacked any evidentiary support. The documents Vail, TSC, and SPRI signed pursuant to their ten-year partnership did not purport to bind them to terms of non-competition. The only document that spoke of such an agreement was the LOI, but it did not bind anyone. It only referred to prospective execution of “definitive” binding agreements, which might have contained noncompete provisions if execution had ever occurred, but it did not. Sports Rehab even conceded the final LOI expired in September 2016.

Moreover, despite the LOI, TSC behaved as though it could contract with other PT providers. Vail seemed to share this understanding, and it became a reality as early as August 2016 when TSC and SPRI signed consulting agreements with Sports Rehab in connection with orthopedic surgery referrals to Sports Rehab.

In all, the court found the uncontroverted evidence established that Vail did not pay TSC and SPRI $173 million in exchange for an agreement not to compete in the PT market. The 10-year partnership otherwise styled as a “reset” could not sustain the Sports Rehab monopolization and attempted monopolization claims.

The lack of evidence of exclusionary conduct led the court to further conclude Sports Rehab failed to establish antitrust standing. There was no requisite injury for standing in connection with the $173 million partnership. Moreover, by 2019, nearly a dozen other PT service providers began operating in the Vail Valley market.

The court acknowledged evidence of Vail intent to strengthen its position in the PT market at the expense of Sports Rehab, relevant only if it had an exclusionary effect, but there was no evidence of that.

The Case is No. 1:19-cv-02075-WJM-SBP.

Judge: Martínez, W.

Attorneys: Alan L. Kildow (Kildow & Braunschweig LLC) for Sports Rehab Consulting LLC. Colin Michael O'Brien (Arnold & Porter Kaye Scholer LLP) for Vail Clinic, Inc.

Companies: Sports Rehab Consulting LLC; Vail Clinic, Inc.

MainStory: TopStory Antitrust ColoradoNews GCNNews