United States v. Delta Dental of Rhode Island

ORDER AND MEMORANDUM

The Report and Recommendation of United States Magistrate Judge, Robert W. Lo-vegreen filed on July 12, 1996 in the above-captioned matter is hereby accepted pursuant to 28 U.S.C. § 636(b)(1).

Delta Dental of Rhode Island (“Delta”) objects to the Magistrate Judge’s (“Magistrate”) Report and Recommendation, which recommended a denial of Delta’s Fed. R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Accordingly, I must make a de novo “determination of those portions of the report ... to which objection is made.” 28 U.S.C. § 636(b)(1)(B). After carefully considering the Magistrate’s Report and Recommendation, Delta’s objections, and the United States of America’s (“Government”)’s Opposition to Defendant’s Objections to the Magistrate’s Report and Recommendation, for the following reasons, I fully accept the Magistrate Judge’s Report and Recommendation. In so doing, I incorporate in whole, and without discussion, the Magistrate’s statement of facts as well as the Magistrate’s discussion of Fed.R.Civ.Proc. 12(b)(6) standards, and, for reasons of clarity, I attach in full the Magistrate’s Report and Recommendation.

DISCUSSION

1. Sherman Antitrust Act, § 1 and § %: General Principles

To fully understand Delta’s objections to the Magistrate’s Report and Recommendation, it is important to understand §§ 1 and 2 of the Sherman Act.

According to § 1 of the Sherman Act (“§ 1”), “[e]very contract, combination .. or conspiracy in restraint of trade or commerce among the several States, or with foreign nations, is declared illegal.” 15 U.S.C. § 1. § 1 plaintiffs must prove the existence of two elements: (1) a contract, combination, or conspiracy among two or more parties, that (2) unreasonably restrains trade. 1 Standard Oil Co. v. United States, 221 U.S. 1, 59-60, 31 S.Ct. 502, 515-16, 55 L.Ed. 619 (1911). The second element, unreasonable restraint of trade, can be further divided into two categories of cases. Courts consider whether a restraint on trade is either: (1) a per se violation; 2 or (2) a restraint subject to the “rule of reason” analysis. “Under this rule, the fact finder weighs all the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Continental T.V., Inc. v. Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). Thus, the rule of reason analysis *174 requires courts to conduct a highly fact-specific inquiry. 3 ■

In the case at hand, the Government does not allege that Delta’s Prudent Buyer clause (also referred to as “Most Favored Nation” or “MFN” clause) is a per se violation of § 1. Therefore, I must apply the “rule of reason” analysis. According to this analysis, the Government has the burden of showing “that the anti-competitive effects of the agreement outweigh their legitimate business justifications.” Monahan’s Marine Inc. v. Boston Whaler Inc., 866 F.2d 525, 526-27 (1st Cir.1989).

Whereas § 1 requires the existence of a “contract, combination ... or conspiracy” and thus requires the involvement of two or more entities, § 2 of the Sherman Act, (“§ 2”) regulates the unilateral conduct of a single entity “when it threatens actual monopolization.” Copperweld Corporation v. Independence Tube Corporation, 467 U.S. 752, 767, 104 S.Ct. 2731, 2739, 81 L.Ed.2d 628 (1984). A § 2 plaintiff establishes a violation by showing two elements: “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superi- or product, business acumen, or historical accident.” Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 480, 112 S.Ct. 2072, 2089, 119 L.Ed.2d 265 (1992), quoting, United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966). Plaintiffs generally have more difficulty establishing the second element. “The second element of a § 2 claim is the use of monopoly power ‘to foreclose competition, or to destroy a competitor.’ ” Eastman Kodak, supra, 504 U.S. at 482, 112 S.Ct. at 2090, quoting, United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948). In other words, the second element involves proving “a scheme of willful acquisition or maintenance of monopoly power.” Eastman Kodak, supra, 504 U.S. at 483,112 S.Ct. at 2091.

In sum, § 1 primarily regulates anticom-petitive agreements between two or more entities, while § 2 typically regulates the unilateral action of a single entity. Further, the relevant inquiries under § 1 and § 2 are distinct.

2. Discussion Of Delia’s Objections To The Magistrate’s Report and Recommendation

Delta raises a number of objections to the Magistrate’s Report and Recommendation. I will discuss these objections in the context of § l’s two required elements. '

a. The Magistrate Properly Concluded That Delta’s Prudent Buyer Clause Is Sufficient to Satisfy the “Concerted Action” Requirement of § 1

In its Motion to Dismiss, Delta argued that the Government’s “complaint challenges a contractual provision which is automatically included in all contracts between Delta Dental and its participating dentists as a matter of a unilateral policy, and thus fails to allege conspiratorial action sufficient to state a claim under § 1 of the Sherman Act.” Defendant Delta Dental of Rhode Island’s Motion to Dismiss [emphasis added]. The Magistrate, in his Report and Recommendation, rejected this argument stating:

Although the Supreme Court has recognized that § 1 does not reach conduct that is “wholly unilateral,” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, *175 767-68, 104 S.Ct. 2731, 2739-40, 81 L.Ed.2d 628 (1984), concerted action may be amply demonstrated by an express agreement. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 213-218, 20 S.Ct. 96, 97-99, 44 L.Ed. 136 (1899). Here, there is no dispute that each participating dentist agrees explicitly to comply with Delta’s Participating Dentist’s Agreement, which incorporates by reference Delta’s Rules and Regulations, including the MFN clause at issue. Thus, every contract between Delta and a participating dentist contains the MFN clause at issue. As a result, the requisite concerted action has been alleged.

Magistrate’s Report and Recommendation, at 9-10. Delta objects to the Magistrate’s reasoning, arguing that “since the United States Supreme Court’s decision in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984), the threshold for vertical restraint cases under Section 1 has become considerably higher than the Report and Recommendation would suggest.” Memorandum of Defendant Delta Dental of Rhode Island in Support of Its Objections to Magistrate’s Report and Recommendation, at 58. According to Delta, under Monsanto, a § 1 conspiracy requires a “meeting of the minds” between the supplier and purchaser. Delta contends that the Prudent Buyer clause does not manifest this required “meeting of the minds,” but rather merely constitutes a unilateral policy on the part of Delta and unilateral acceptance of the policy by participating dentists.

With this objection, Delta is merely reiterating its position that the Prudent Buyer clause is nothing more than a unilateral policy. Accordingly, because the Magistrate adequately responded to this argument in his Report and Recommendation, and because Delta raises no additional arguments in its objection, I must reject Delta’s objection.

Moreover, Delta’s argument is disingenuous. The Government has averred that it is clear to all dentists participating in Delta that they must comply with the Prudent Buyer policy, and it is just as clear that if they receive fees lower than Delta’s set fee schedule, they run the risk of Delta lowering their reimbursement fees. To highlight this allegation, the Government cites a January 1994 letter Delta allegedly wrote to participating dentists to discourage them from participating in Dental PPO of Rhode Island. The letter states in relevant part:

[Y]our profile reflects certain adjustments necessitated by our reimbursement policy. We understand that you have agreed to accept these fees from the Dental Blue PPO. ,As a result, your Delta Dental of Rhode Island reimbursement has been limited to these levels.

Complaint, ¶ 23. Through this letter, Delta makes it abundantly clear to participating dentists that the only way to avoid the risk of lower Delta fees is to refuse to accept any fees lower than Delta’s fee schedule. Thus, despite Delta’s contentions otherwise, its Prudent Buyer clause is not merely a unilateral policy on the part of Delta. Rather, it is a contractual clause to which Delta dentists expressly agree to comply. Further, pursuant to this contractual clause, Delta dentists are well aware that charging lower fees may result in Delta lowering their reimbursement rate.

Delta also argues that the Government did not allege that Delta Dental “coerced” the participating dentists. Memorandum of Defendant Delta Dental of Rhode Island in Support of Its Objections To Magistrate’s Report and Recommendation, at 64. According to Delta, “eases which have inferred ‘concerted action,’ have done so only where there were threats of termination or other forms of retaliation,” Id., at 65. But the cases upon which Delta relies constitute a narrow line of case law, all involving resale agreements wherein suppliers control the resale price of goods sold to resalers. This resale relationship is substantially different from Delta’s relationship with participating dentists.

Further, the cases cited by Delta do not hold that coercion is a required element of a § 1 violation. Rather, these cases hold that coercion is just one factor in the § 1 inquiry, and other factors may be relevant to finding a § 1 violation. In fact, in FTC v. BeechNut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922), cited by Delta, the Supreme Court relied on a number of factors in *176 determining that Beech-Nut’s pricing policy amounted to an illegal conspiracy, including Beech-Nut’s practice of actively surveying prices resalers charged for Beech-Nut products. Id. at 454, 42 S.Ct. at 154; see also, Yentsch v. Texaco, Inc., 680 F.2d 46, 54 (2d Cir.1980) (“The coercive atmosphere may have been enhanced by a policy of price surveillance.”). The Government alleges, and Delta does not deny, that Delta monitors the fees participating dentists receive. “Rule 7 of Delta’s Rules and Regulations further allows Delta to audit the records of any participating dentist.” Complaint, ¶ 14. 4 Thus, Delta’s careful monitoring of its participating dentists’s .fees may suggest that Delta’s Prudent Buyer clause is anticompetitive.

In sum, for the reasons set forth' in the Magistrate’s Report and Recommendation, and for the reasons I have given, I find that the Government’s complaint sets forth facts sufficient to withstand a motion for dismissal ■with regard to “concerted action” under § 1 of the Sherman Act.

b. The Magistrate Properly Concluded That The First Circuit Cases, Kartell and Ocean State, Do Not Establish A Pule That Prudent Buyer Clauses Are Competitive As A Matter Of Law Absent Pricing That is Predatory Or Below Incremental Costs

The gravamen of Delta’s objections to the Magistrate’s Report and Recommendation is that the Magistrate failed to follow the rule of law set down in the First Circuit cases, Kartell v. Blue Shield of Massachusetts, Inc., 749 F.2d 922 (1st Cir.1984), cert. den., 471 U.S. 1029, 105 S.Ct. 2040, 85 L.Ed.2d 322 and Ocean State Physicians Health Plan v. Blue Cross and Blue Shield of Rhode Island, 883 F.2d 1101 (1st Cir.1989), ce rt. den., 494 U.S. 1027, 110 S.Ct. 1473, 108 L.Ed.2d 610 (1990). However, I find that the Magistrate properly concluded that:

[djespite Kartell and Ocean State’s broad language, these decisions, properly construed, fail to establish a per se validation of the MFN clauses in all cases where pricing is not predatory or below incremental costs. Such a blanket condonation of MFN clauses would ignore the context Kartell and Ocean State were decided in, run counter to the Sherman Act’s preference for fact-specific inquiries, implausibly reject the premise that MFN clauses produce substantial anticompetitive effects in particular circumstances and contradict the Sherman Act’s animating concern for low consumer prices.

Magistrate’s Report and Recommendation, at 20. Key to the Magistrate’s conclusion that courts must not read Kartell and Ocean State as establishing a per se rule regarding Prudent Buyer clauses are the facts that: (1) both Kartell and Ocean State arose in contexts different from the one here; and (2) Kartell and Ocean State both involved low consumer prices, while here -the Government alleges higher consumer prices. I fully agree with the Magistrate that these two distinctions militate against reading Kartell and Ocean State as resolving the case at hand, and I add the following points to the Magistrate’s Report and Recommendation.

Delta argues that Kartell and Ocean State establish that Prudent Buyer clauses, absent predatory pricing or incremental costs, are competitive as a matter of law. The Government concedes that these cases validate the clause on its face, but asserts that this Court must look behind the face of the clause to its effects. According to the Government, the clause has anticompetitive effects, which Kartell and Ocean State do not validate. A careful examination of the the two First Circuit decisions reveals that the Government has the better position.

The First Circuit in Kartell upheld Blue Shield’s “ban on balanced billing” policy against a § 1 of the Sherman Act challenge. The court found that Blue Shield’s policy *177 could not be anticompetitive unless Blue Shield was viewed as a “ ‘third force,’ intervening in the marketplace in a manner that prevents willing buyers and sellers from independently coming together to strike price/quality agreements.” Id. at 924. The court found, however, that Blue Shield must be viewed:

not as an inhibitory ‘third force,’ but as itself the purchaser of the doctors’ services ... Antitrust law rarely stops the buyer of a service from trying to determine the price or characteristics of the product that will be sold. Thus, the more closely Blue Shield’s activities resemble, in essence, those of the purchaser, the less likely that they are unlawful.

Id. at 924-25. The First Circuit went on to emphasis Blue Shield’s role as purchaser on behalf of its enrollees. “Once one accepts the fact that, from a commercial perspective, Blue Shield in essence ‘buys’ medical services for the account of others [it becomes apparent] that the ban on balance billing is permissible.” Id. at 925 [emphasis added]. The court illustrated the point with examples:

Suppose a father buys toys for his son— toys the son picks out. Or suppose a landlord hires a painter to paint his tenant’s apartment, to the tenant’s specifications. Is it not obviously lawful for the father (the landlord) to make clear to the seller that the father (the landlord) is in charge and will pay the bill? Why can he not then forbid the seller to charge the child (the tenant) anything over and above what the father (the landlord) pays — at least if the seller wants the buyer’s business? ... In each of these instances, to refuse to allow the condition would disable the buyer from holding the seller to the price of the contract. Yet, if it is láwful for the buyer to buy for the third party in the first place, how can it be unlawful to bargain for a price term that will stick?

Id. These examples highlight the First Circuit’s reliance on the concept that Blue Shield was acting as a purchaser when it purchased, on behalf of its enrollees, services from doctors at the lowest possible prices.

On its face, Delta’s Prudent Buyer clause is indistinguishable from Blue Shield’s ban on balanced billing. Delta’s Prudent Buyer clause appears to guarantee that Delta purchases dental services for its enrollees for the lowest fee that the dentists are willing to receive. However, as stated earlier, the Government contends that it is important to look at the effects of Delta’s Prudent Buyer clause, and not merely the clause as written. According to the Government, the Prudent Buyer clause has the effect of “exclud[ing] potential rivals, retard[ing] expansion by existing competitors, and substantially increasing] the costs to Rhode Island consumers of dental insurance and dental services.” Complaint, at 1. Viewed in this light, Delta looks less like the ideal purchaser that the Kartell court portrayed. 5 Kartell is distinguishable from this case because the ban on balanced billing at issue in Kartell resulted in low prices for Blue Shield’s enrollees, while the Government alleges that Delta’s Prudent Buyer policy at issue here ultimately results in higher prices for Rhode Island dental service consumers.

The Kartell court itself underscored the importance of this low consumer price versus high consumer price distinction:

[T]he Congress that enacted the Sherman Act saw it as a way of protecting consumers against prices that were too high, not too low ... And, the relevant economic considerations may be very different when low prices, rather than high prices, are at issue. These facts suggest that courts at least should be cautious — reluctant’ to condemn too speedily — an arrangement that, *178 on its face, appears to bring low price benefits to the consumer.

Id. at 931.

Similarly, Ocean State does not resolve the issue presented here, not only because Ocean State, like Kartell, involved lower consumer prices, but also because the context of Ocean State is different from the context here. Ocean State plaintiffs, Ocean State Physicians Health Plan (“Ocean State”), sued Blue Cross/Blue Shield of Rhode Island (“Blue Cross”) under § 2 of the Sherman Act, alleging that Blue Cross “had acted unlawfully to exclude Ocean State from the health care insurance marketplace.” Id. at 1102. Among other claims, Ocean State alleged that Blue Cross adopted its “Prudent Buyer policy not in order to save money, but rather to induce physicians to resign from- Ocean State.” Id. at 1104. The jury found that Blue Cross had violated § 2 of the Sherman Act, but the District Court granted Blue Cross’ motion for a judgment notwithstanding the verdict. On appeal, the First Circuit agreed “with the district court ... that the Prudent Buyer policy — through which Blue Cross ensured that it would not pay a provider physician any more for any particular service than she was accepting from Ocean State or any other health care purchaser — is, as a matter of law, not violative of section 2 of the Sherman Act.” Id. at 1110.

As stated above, allegations of a § 2 violation invoke consideration of two elements: (1) existence of monopoly power; and (2) “the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” Eastman Kodak Co., supra, 504 U.S. at 480, 112 S.Ct. at 2089. On appeal, Blue Cross conceded the first prong, and did not dispute its monopoly power; Ocean State conceded that Blue Cross legitimately acquired its market power. Id. at 1110. Thus, the very narrow issue before the First Circuit was “whether Blue Cross maintained its monopoly power through improper means.” Id. In fact, the First Circuit described its inquiry as follows:

[W]e must ask whether Blue Cross’ conduct “went beyond the needs of ordinary business dealings, beyond the ambit of ordinary business skill, and ‘unnecessarily excluded competition’” from the health care insurance market. Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 230 (1st Cir.1983).

Ocean State, supra, at 1110.

In contrast, the issue presented here is an alleged violation of § 1 of the Sherman Act, which requires a showing of: 1) concerted activity which 2) unreasonably restrains trade. Standard Oil Co. v. United States, 221 U.S. 1, 59-60, 31 S.Ct. 502, 515-16, 55 L.Ed. 619 (1911). As discussed earlier, the Government’s allegations, if true, establish the first element. Moreover, the Government has not alleged a per se violation. Accordingly, the rule of reason analysis applies to the second element. Continental T.V., Inc. v. Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). As stated above, under the “rule of reason” analysis, the Government must establish “that the anticompetitive effects of [Delta’s Prudent Buyer clause] outweigh [the] legitimate business justifications.” Monahan’s Marine, Inc. v. Boston Whaler Inc., 866 F.2d 525, 526-27 (1st Cir.1989). This analysis is fact-specific, requiring an examination of the anti-competitive effects of Delta’s Prudent Buyer clause as compared to the clause’s legitimate business benefits. This inquiry is more fact-intensive than the inquiry the First Circuit conducted in Ocean State. Because of the different inquiries involved, the First Circuit’s decision in Ocean State does not necessarily control the decision here.

Moreover, here the Government has alleged that the effects of Delta’s Prudent Buyer clause are anticompetitive. As the Magistrate noted in his Report and Recommendation, the Ocean State court may have canvassed the effects of Blue Cross’ Prudent Buyer clause, but the “court did not undertake a searching inquiry into their severity, as would be appropriate under a § 1 rule of reason analysis, as such a claim was simply not before it.” Magistrate’s Report and Recommendation, at 21-22.

For example, in touching upon one alleged “effect” of Blue Cross’ Prudent Buyer clause, the First Circuit noted Ocean State’s asser *179 tion that evidence on the record showed that Blue Cross’ Prudent Buyer clause would have the effect of weakening or eliminating Ocean State. Ocean State pointed to evidence that Blue Cross directors expressed hopes of “emasculating Ocean State.” Ocean State, supra, at 1113. The First Circuit responded that “the desire to crush a competitor, standing alone, is insufficient to make out a violation of antitrust laws.” Id. at 1113.

Here, however, the Government alleges that Delta’s Prudent Buyer policy adversely affects not just one existing competitor, but numerous existing and potential competitors. The Government further alleges that Delta’s Prudent Buyer clause prevents many Rhode Island dentists from participating in lower cost programs, which pay dentists lower fees than Delta, because dentists fear that accepting lower fees from these programs will result in Delta reimbursing them at a lower rate. According to the Government:

Faced with enforcement of Delta’s MFN clause and the prospect of substantially lower payments for all of their Delta patients if they participate in a lower-cost plan, Delta participating dentists have either withdrawn from — or refused to join— lower-cost dental plans, or insisted as a condition of their participation that payments be increased to Delta’s levels.

Memorandum of the United States in Opposition to Defendant’s Objections to Report and Recommendation, at 8. The Government alleges that the ultimate effects of Delta’s Prudent Buyer clause are threefold: (1) exclusion of potential competitors from the dental insurance market; (2) prevention of existing competitors from expanding their insurance programs; and (3) substantial increase in the costs of dental insurance and services to all Rhode Island consumers. Complaint ¶35. The Government, in its complaint, lists examples of these alleged negative effects. Complaint ¶¶ 19-29. .

From this it is clear that the Government is not merely alleging that the effect of the Delta’s Prudent Buyer clause is to eliminate one competitor, as was the ease in Ocean State. Rather, the Government alleges that Delta’s Prudent Buyer clause has a negative impact on all existing and potential eompet-ing plans, and ultimately, the consumer. Because Ocean State was decided pursuant to § 2 of the Sherman Act, and not § 1, the Ocean State court simply was not presented with, nor did the court assess, any allegations or evidence that Blue Cross’ Prudent Buyer policy had the same anticompetitive effects as those alleged here.

Ocean State is distinguishable from the case here for another reason. In upholding Blue Cross’ Prudent Buyer clause, the First Circuit noted that Blue Cross would save an estimated $1,900,000 through its policy. These estimated savings supported Blue Cross’ contention that the Prudent Buyer policy was exactly what it was called — a policy prudently designed to save Blue Cross money by reducing the price it paid dentists for their services. Blue Cross’s estimated savings from the Prudent Buyer clause suggested that the clause was procompetitive and not anticompetitive. Moreover, these estimated savings undermined Ocean States’ claim that the Prudent Buyer policy was willfully employed by Blue Cross to maintain its monopoly power.

In the case at hand, however, the Government has alleged that:

the MFN clause, by Delta’s own admissions, has not generated any meaningful savings or other procompetitive benefits. Delta has not considered the MFN clause a cost-savings device, has not sought to calculate any savings from its application, and has not factored any such savings into determining the premiums it charges customers.

Complaint, ¶ 32. The lack of savings associated with Delta’s Prudent Buyer clause suggests that it is not procompetitive. Further, the lack of savings suggests Delta’s inability to assert any “legitimate business justifications” to outweigh any findings that the clause has “anti-competitive effects,” as required under a “rule of reason” analysis. Monahan’s Marine, Inc. v. Boston Whaler Inc., 866 F.2d 525, 526-27 (1st Cir.1989).

In sum, for the reasons set forth in the Magistrate’s Report and Recommendation, as well as the reasons stated above, I find that the Government has alleged facts suffi- *180 eient to overcome a Rule 12(b)(6) motion to dismiss regarding the “unreasonable restraint” on trade arising from Delta’s Prudent Buyer clause.

c. Delta’s Remaining Objections To The Magistrate’s Report And Recommendation Have No Merit

As stated above, the gravamen of Delta’s objections to the Magistrate’s Report and Recommendation concern the applicability of the First Circuit decisions Kartell and Ocean State. Having discussed these objections fully, I need address Delta’s remaining objections only briefly.

Delta argues that the Magistrate’s Report and Recommendation “erroneously concludes that Delta Dental’s alleged ‘market power’ permits the Government to avoid dismissal under Rule 12(b)(6),” contrary to the First Circuit’s opinion in Kartell. True, the First Circuit in Kartell found that Blue Cross’ alleged market power did not make a “significant difference” to the outcome of the case. Kartell, supra, at 926. But in Kartell, the court found that market power was irrelevant because Blue Shield was doing nothing more than using its market power to obtain a low price for its enrollees. Id. at 928.

In this case, however, Delta’s alleged market power is one important factor is assessing the ejfects of Delta’s Prudent Buyer clause. As the Magistrate correctly noted in his Report and Recommendation, “the relevant focus in the present case turns precisely on the severity of the alleged anticompetitive effects flowing from the application of Delta’s MFN clause juxtaposed against any competitive benefits.” Magistrate’s Report and Recommendation, at 22. The Magistrate also correctly concluded that a “generous reading of the government’s Complaint reveals a plausible allegation that Delta possesses significant market power. Armed with this power, Delta applies its MFN clause selectively to block alternative reduced-fee plans from the dental insurance market, but has gained no discernible cost savings.” Magistrate’s Report and Recommendation, at 23. In sum, unlike the situation in Kartell, the extent of Delta’s market power is relevant here in discerning the effects that Delta’s Prudent Buyer clause has on the dental insurance market.

Delta also objects to the Magistrate’s Report and Recommendation on the grounds that the Magistrate “fails to disclose that its conclusions are inconsistent with the unanimous weight of authority on this issue elsewhere.” Defendant Delta Dental of Rhode Island’s Objections to the Magistrate’s Report and Recommendation, at 3. Certainly, some of the cases Delta cites lend support to its argument. But for purposes of a Rule 12(b)(6) motion to dismiss, Delta’s cases simply do not resolve the issue at hand.

For example, Delta cites Blue Cross & Blue Shield of Michigan v. Michigan Association of Psychotherapy Clinics, et al., 1980 WL 1848 (E.D.Mich.1980) to support their position. In Michigan Association, defendants brought a Sherman Act counterclaim against plaintiffs alleging that plaintiffs’ “non-discrimination clause” 6 constituted a per se violation of § 1 of the Sherman. Act. The court held that the clause did not amount to illegal price fixing, noting that:

[practices that are not. per se violative of the Sherman Act may be struck down under the rule of reason standard if they unduly restrain commerce ... However, the only antitrust violation alleged in the counterclaim is that the contracts between plaintiff and participating [providers] constituted price-fixing agreements; defendants assert no other effect on price formation, or other type of restraint of trade, independent of what the contractual terms discussed above require.

Id. at *3. Here, the Government has not alleged a per se violation of the Sherman Act. More importantly, the Government has alleged that Delta’s Prudent Buyer clause has significant other effects on “price formation,” and that the clause has the effect of restraining trade. Michigan Association defendants simply did not make the same allegations *181 that the Government has made here. Therefore, Michigan Association is not directly on point, and simply does not resolve the issue presented here.

Delta also cites E.I. Du Pont de Nemours & Co. v. FTC, 729 F.2d 128, 139-140 (2d Cir.1984) as standing for the proposition that “use of MFN clauses is a legitimate business practice.” Defendant Delta Dental of Rhode Island’s Memorandum in Support of Its Objections to Magistrate’s Report and Recommendation, at 52. In Du Pont, petitioners DuPont and Ethyl challenged the Federal Trade Commission’s finding that DuPont’s and Ethyl’s business practices, including their respective MFN policies, were anticom-petitive. Again, however, the Du Pont court resolved an issue different from the one presented here. According to the Du Pont court, “[t]he essential question is whether, given the characteristics of the [specific] industry, the Commission erred in holding that the challenged business practices constitute ‘unfair methods of competition’ in violation of § 5 [of the Federal Trade Commission Act] simply because they ‘facilitate’ consciously parallel pricing at identical levels.” Id. at 135-36. Further, before rendering its decision, the court thoroughly reviewed the Commission’s findings and the evidence upon which the Commission relied, concluding that, “we do not find substantial evidence on this record, as a whole that the challenged practices significantly lessened competition ... or that the elimination of the those practices would improve competition.” Id. at 141. Thus, the court did not find that, as a matter of law, that the use of MFN clauses is a legitimate business practice. In fact, its decision suggests that a motion to dismiss in the case at hand would be improper, as courts must conduct a fact-specific inquiry to assess any anticompetitive effects of challenged business practices. Thus, Du Pont, like Michigan Association, simply does not resolve the issue presented here.

Similarly, while Kitsap Physicians Service v. Washington Dental Service, 671 F.Supp. 1267 (W.D.Wash.1987), also cited by Delta, lends support to Delta’s position, it is not controlling. In Kitsap, the court held that plaintiffs were not entitled to •preliminary injunctive relief — finding that plaintiff did not “have a ‘fair chance’ of prevailing on the merits.” Id.