MSP RECOVERY CLAIMS, SERIES LLC v. ACE AMERICAN INSURANCE COMPANY
No. 18-12139
United States Court of Appeals, Eleventh Circuit
September 4, 2020
D.C. Docket No. 1:17-cv-23749-PAS
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 18-12139
D.C. Docket No. 1:17-cv-23749-PAS
MSP RECOVERY CLAIMS, SERIES LLC,
Plaintiff - Appellant,
versus
ACE AMERICAN INSURANCE COMPANY,
Defendant - Appellee.
No. 18-12149
D.C. Docket No. 1:17-cv-23841-PAS
1:17-cv-23841-PAS
MSP RECOVERY CLAIMS, SERIES LLC, a Delaware entity,
Plaintiff - Appellant,
versus
AUTO-OWNERS INSURANCE COMPANY, a foreign profit corporation,
Defendants - Appellees,
1:17-cv-24066-PAS
MSP RECOVERY CLAIMS, SERIES LLC, a Delaware entity,
Plaintiff - Appellant,
versus
OWNERS INSURANCE COMPANY, a foreign profit corporation,
Defendant - Appellee.
1:17-CV-24068-PAS
MSP RECOVERY CLAIMS, SERIES LLC, a Delaware entity,
Plaintiff - Appellant,
versus
SOUTHERN-OWNERS INSURANCE COMPANY, a foreign profit corporation,
Defendant - Appellee.
1:17-cv-24069-PAS
MSP RECOVERY CLAIMS, SERIES LLC,
a Delaware entity,
Plaintiff - Appellant,
versus
AUTO-OWNERS INSURANCE COMPANY, a foreign profit corporation,
Defendant - Appellee.
No. 18-13049
D.C. Docket No. 1:17-cv-23628-KMW
MSP RECOVERY CLAIMS, SERIES LLC, a Delaware entity,
Plaintiff - Appellant,
versus
TRAVELERS CASUALTY AND SURETY COMPANY, a foreign profit corporation,
Defendant - Appellee.
No. 18-13312
D.C. Docket No. 1:17-cv-22539-KMW
MSPA CLAIMS 1, LLC, a Florida profit corporation,
Plaintiff - Appellant,
versus
LIBERTY MUTUAL FIRE INSURANCE COMPANY, a Foreign profit corporation,
Defendant - Appellee.
Appeals from the United States District Court for the Southern District of Florida
(September 4, 2020)
Before JORDAN, JILL PRYOR, and WALKER,1 Circuit Judges.
MSP Recovery Claims, Series LLC (MSPRC), and MSPA Claims 1, LLC (MSPA), collection agencies and Plaintiffs here, appeal from dismissals with prejudice of their claims against ACE American Insurance Company, Auto-Owners Insurance Company, Southern-Owners Insurance Company, Owners Insurance Company, Travelers Casualty and Surety Company, and Liberty Mutual Fire Insurance Company (collectively, Defendants). Plaintiffs sought double damages against Defendants under the Medicare Secondary Payer Act. Plaintiffs alleged that actors within the Medicare Advantage system, including Medicare Advantage
Organizations (MAOs) and various “downstream actors” that contracted with MAOs, had assigned their Medicare Secondary Payer Act claims to Plaintiffs for collection. The district court dismissed Plaintiffs’ cases, now consolidated on appeal, after finding that (1) some of Plaintiffs’ alleged assignments, including those from MAOs, were invalid and (2) Plaintiffs’ downstream-actor assignors fell outside the ambit of the Medicare Secondary Payer Act‘s private right of action and thus could not confer statutory standing on Plaintiffs through an assignment. On appeal, Plaintiffs primarily argue that their downstream-actor assignors could access the private right of action and had rights to assign under the Medicare Secondary Payer Act. MSPRC individually argues that the district court erred in dismissing its claims based on an alleged assignment from an MAO with prejudice because dismissals based on defects in an assignment are not decisions on the merits and must be entered without prejudice. And MSPA argues that all of its assignments were valid. We agree with Plaintiffs on all issues.
Accordingly, we VACATE the dismissals of Plaintiffs’ claims based on assignments from downstream actors, REMAND those claims for further proceedings consistent with this opinion, and MODIFY the dismissals of MSPRC‘s claims based on its alleged assignment from an MAO to be without prejudice.
I
Plaintiffs are collection agencies that specialize in recovering funds on behalf of various actors in the Medicare Advantage system. By way of background, the Medicare Advantage system is a public-private health insurance system that runs parallel to Medicare. The Medicare Advantage system allows Medicare beneficiaries tо opt into private health insurance plans offered by Medicare Advantage Organizations (MAOs) that provide coverage in excess of the coverage provided by Medicare. To operate more nimbly and to better compete with Medicare, some MAOs contract with smaller organizations, like independent physician associations, that have closer connections to local healthcare providers. These smaller organizations, or “downstream” actors, are also a part of the Medicare Advantage system and are central to the present case.
Plaintiffs’ primary tool for recovering funds is the Medicare Secondary Payer Act. Generally speaking, the Act established that Medicare—and, as an extension of Medicаre, the Medicare Advantage system—should not bear the costs of medical procedures that are already covered by a “primary payer,” or other insurer such as a provider of workers’ compensation insurance or automobile insurance. (Plaintiffs allege that Defendants are all primary payers.) Under the Act, Medicare and MAOs still can, as a stopgap measure, make a “conditional payment” to cover their beneficiaries’ medical bills when the primary payer “cannot reasonably be expected
to make payment with respect to
Here, Plaintiff MSPRC alleged that it held an assignment of Medicare Secondary Payer Act claims against sevеral of the defendants from an MAO. And both Plaintiffs alleged that they held assignments of claims against others of the defendants from various contractors of MAOs. Plaintiffs alleged that these
downstream assignors had contracted with MAOs to fully cover beneficiaries’ costs in exchange for a set capitation fee. Pursuant to these contracts, Plaintiffs’ downstream actors allegedly directly made conditional payments for MAOs or reimbursed MAOs for their conditional payments.
The following took place before the district court:
A. ACE Claims
As is relevant to this appeal, MSPRC presented two representative claims in its case for reimbursement against ACE American Insurance Company (ACE). These claims were for medical expenses that MSPRC alleged were directly charged to and paid by Hygea and Health Care Advisor Services, management services organizatiоns that contract with MAOs to assist in providing healthcare and administrative services to beneficiaries. MSPRC‘s third amended complaint alleged that these downstream actors, pursuant to their contracts with MAOs, “made conditional payments on behalf of [beneficiaries] to cover accident-related expenses” that should have been covered by ACE as the primary payer. ACE D.E. 36 at 2.
The district court (Patricia A. Seitz, J.) dismissed MSPRC‘s claims against ACE after concluding that non-MAO downstream actors, like Hygea and Health Care Advisor Services, cannot access the Medicare Secondary Payer Act‘s private right of action that allows MAOs to seek double damages. MSP Recovery Claims, Series LLC v. ACE Am. Ins. Co., No. 17-cv-23749, 2018 WL 1547600, at *8 (S.D. Fla. Mar. 9, 2018). Having allowed MSPRC to amend its complaint numerous times,
the district court entered its dismissal with prejudice.
B. Auto-Owners Claims
MSPRC presented five representative claims for reimbursеment in its case against Auto-Owners Insurance Company, Southern-Owners Insurance Company, and Owners Insurance Company (collectively, Auto-Owners). These claims were for medical expenses allegedly paid by Health First Administrative Plans, Inc. (HFAP) and Verimed IPA, LLC (Verimed).
MSPRC alleged that HFAP is an MAO, even though Health First Health Plans,
which shows that the two companies have the same parent company, that HFAP “shall act as the general, administrative and financial manager” of Health First, that HFAP shall engage in “oversight with respect to the management of the assets of” Health First, that HFAP has the authority to deposit Health First funds and make payments on behalf of Health First, and that HFAP shall provide Health First with “[c]onsultation and assistance with . . . legal affairs” and with “risk management and compliance” services, as reasonably required. Id. at 4-5.
Verimed is an independent physician association that serves as an intermediary between an MAO and medical service providers. MSPRC alleged that Verimed, under its contract with its MAO, “is required to completely pay for whatever accident-related medical expenses are incurred” by a beneficiary. Auto-Owners D.E. 48 at 11. As described, Verimed reimbursed its MAO for conditional payments. Id. at 22 (“[The MAO] paid $155.68 for the accident-related expenses and, pursuant to their arrangement, required Verimed to fully reimburse and pay for those medical expenses.“).
The district court (Patricia A. Seitz, J.) dismissed MSPRC‘s claims against Auto-Owners after determining that HFAP was not an MAO, that MSPRC did not hold any assignments from an MAO, and that non-MAOs like HFAP and Verimed cannot access or assign a claim under the Medicare Secondary Payer Act‘s private right of action. MSP Recovery Claims, Series LLC v. Auto-Owners Ins. Co., Nos.
17-cv-23841, 17-cv-24069, 17-cv-24066, & 17-cv-24068, 2018 WL 1953861, at *6 (S.D. Fla. Apr. 25, 2018). Having allowed MSPRC to amend its complaint numerous times, the district court entered its dismissal with prejudice.
C. Travelers Claims
MSPRC did not present any representative claims in its case for reimbursement against Travelers Casualty and Surety Company (Travelers). Instead, it alleged that it “holds, and otherwise owns the rights and interests to, claims that have been processed for items and/or services pertaining to Medicare Beneficiaries for which the Defendant is the primary payer.” Travelers D.E. 20 at 12. MSPRC made this allegation on the basis that Travelers had “reported some or all of [its] cases to [an agency within the Department of Health and Human Services] admitting it has primary payer responsibility.” Id. MSPRC asserted that, pursuant to the Health Insurance Portability and Accountability Act (HIPAA), the names of the beneficiaries and their corresponding MAOs could be provided to Travelers “upon еxecution of a qualified protective order.” Id. at 11 n.8.
MSPRC later indicated that its claims regarded medical expenses paid by HFAP, which it alleged was an MAO. See MSP Recovery Claims, Series LLC v. Travelers Cas. and Sur. Co., No. 17-23628, 2018 WL 3599360, at *3 (S.D. Fla. June 21, 2018). MSPRC submitted the same Keeler affidavit that was submitted in the Auto-Owners case. Citing the opinion dismissing MSPRC‘s claim against
Auto-Owners, the district court (Kathleen M. Williams, J.) found that HFAP was not an MAO, that MSPRC did not hold any assignments from an MAO, and that HFAP categorically could not access the Medicare Secondary Payer Act‘s private right of action. Id. at *4. Here, too, the district court dismissed MSPRC‘s claims against Travelers with prejudice.
D. Liberty Claims
As is relevant on appeal, MSPA presented two representative claims in its case against Liberty Mutual Fire Insurance Company (Liberty). These claims regarded medical expenses allegedly paid by Florida Healthcare Plus (FHCP) and the Interamerican Medical Center Group, LLC (IMC).
In its third amended complaint, MSPA alleged that FHCP “made conditional payments” that should have been reimbursed by Liberty. Liberty D.E. 49 at 5. MSPA dropped its allegation that FHCP was an MAO, instead arguing that, “[i]n addition to MAOs, first-tier and downstream entities also suffer damages.” Id. at 21. On April 15, 2014, FHCP executed a contract with La Ley Recovery that conveyed to the latter FHCP‘s right “to recover costs already paid” for beneficiaries from the appropriate primary payers. Liberty D.E. 49-8 at 2. In exchange, La Ley Recovery would provide FHCP with 50% of the claims collected. The term of the contract was for one year, with an automatic renewal for an additional year. The contract empowered La Ley Recovery to “assign the Agreement in whole or in part
but the assignee must be approved by [FHCP].” Id. at 3. La Ley Recovery then assigned the rights it had acquired to MSPA. In its third amended complaint, MSPA alleged that FHCP approved the assignment. Liberty D.E. 49 at 11. On December 10, 2014, the Florida Department of Financial Services was appointed FHCP‘s receiver. As FHCP‘s receiver, the Department of Financial Services wrote to La Ley Recovery to cancel its contract and subsequently filed a petition to enjoin La Ley Recovery and MSPA from pursuing their recovery rights. After MSPA had filed the present litigation, however, the Department of Financial Services recognized the validity of FHCP‘s contract with La Ley Recovery pursuant to a settlement agreement.
MSPA also alleged that IMC, a management services organization, contracted with MAOs “to manage and рrovide healthcare services and absorb the risk of [financial] loss” for a defined population of beneficiaries. Liberty D.E. 58-2 at 3. IMC “irrevocably assign[ed] all of [its] rights” to seek double damages from primary payers to MSPRC, Liberty D.E. 49-14 at 9, which in turn assigned those rights to MSPA, id. at 2. In its third amended complaint, MSPA alleged that MSPRC‘s assignment to MSPA was “ministerial in nature” and thus did not require IMC‘s approval under the terms of IMC‘s contract with MSPRC, id. at 12, and that, in any event, IMC “consented to any subsequent assignment from [MSPRC] to any then-existing or future MSP Company, which include[d] MSPA,” Liberty D.E. 49 at 14.
The district court (Kathleen M. Williams, J.) dismissed MSPA‘s claims. The district court determined that MSPA‘s claim derived from the FHCP assignment was legally deficient because the contract on which it was predicated was invalid at the time of filing, in the period between when the Department of Financial Services canceled FHCP‘s assignment to La Ley Recovery and when the Department concluded the settlement agreement. MSPA Claims 1, LLC v. Liberty Mut. Fire Ins. Co., 322 F. Supp. 3d 1273, 1280-81 (S.D. Fla. 2018). The district court also found that the FHCP and IMC assignments were legally deficient because MSPA had failed to allege that FHCP and IMC consented to the assignments. Id. at 1280, 1282. Additionally, the district court concluded that, even if the assignments were valid, MSPA‘s non-MAO assignors were categorically unable to access the Medicare Secondary Payer Act‘s private right of action. Id. at 1283. Having allowed MSPA to amend its complaint numerous times, the district court entered its dismissal with prejudice.
***
On appeal, we must address a series of issues raised by the following arguments: Plaintiffs argue (1) that the district court misapprehended the scope of the Medicare Secondary Payer Act‘s private right of action and thereforе erroneously dismissed their claims on the basis that the assignments supporting those claims were not from MAOs but were from downstream actors. MSPRC
additionally argues (2) that the district court erred in ordering that the dismissals of its HFAP claims be with prejudice. And MSPA argues (3) that the district court erred in dismissing its claims after incorrectly concluding that the assignments to MSPA were invalid. In response, Defendants present (4) a bevy of alternative bases for affirmance, including that (a) Plaintiffs’ contracts with the downstream actors were “mere contingency agreements” rather than assignments; (b) Plaintiffs failed to comply with their supposed pre-suit notice requirements; and (c) there were defects with MSPRC‘s chain of assignments. We consider each of these arguments in turn, reviewing the district court‘s dismissals de novo and accepting Plaintiffs’ well-pled factual allegations as true. See MSPA Claims 1, LLC v. Tenet Fla., Inc., 918 F.3d 1312, 1317 (11th Cir. 2019).
IIA
Because Plaintiffs’ claims (setting aside the HFAP claims) involve assignments from non-MAOs in the Medicare Advantage system, they would be properly dismissed if such non-MAOs are categorically barred from seeking damages under the Medicare Secondary Payer Act. In dismissing each of Plaintiffs’ claims, the district court so interpreted the Act, concluding that only MAOs, not downstream actors in the Medicare Advantage system, may access its private right of action at
claims on the basis that their assignors were non-MAOs. We agree with Plaintiffs’ interpretation of
The language establishing the private right of action reads:
There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A).
[Medicare Secondary Payer Act], it was introduced as the President‘s ‘health care cost reduction proposals.‘“).
Consistent with the breadth of
implied that providers would repay Medicare with the damages from the primary payer, thereby advancing Congress‘s intent to “curb skyrocketing health costs and preserve the fiscal integrity of the Medicare system.” Id. at 793. We endorsed that holding in Humana, 832 F.3d at 1234-35.
More recently, both the Third Circuit and this circuit interpreted
The only limitation that circuit courts have placed on
517 F.3d 911, 919 (6th Cir. 2008), has foreclosed qui tam suits because plaintiffs with no connection to a conditional payment
The central issue in оur case is whether actors downstream from MAOs, who directly make conditional payments or fully reimburse MAOs for their conditional payments, may themselves seek double damages from primary payers under
The language of
The Department of Health and Human Services‘s interpretation of
In response to Plaintiffs and HHS, Defendants advance two main arguments to counter the textual and purposive arguments in favor of affording MAOs access to
Second, Defendants assert that downstream actors cannot suffer injuriеs under the Medicare Secondary Payer Act because they make conditional payments or reimburse MAOs’ conditional payments pursuant to their contractual obligations, rather than “mak[ing] statutory conditional payments on behalf of Medicare or the MAO.” Auto-Owners br. at 20 (emphasis added). Defendants reason that downstream actors “accepted [MAOs‘] risk under private subcontracts” and are trying to “push that risk on to insurers,” who are primary payers. ACE br. at 35.
Defendants’ argument is a sleight of hand; the primary payers already have that risk. The downstream actors’ alleged injury—the payment of medical expenses that should have been covered by a primary payer—is precisely the kind of injury that the Medicare Secondary Payer Act was meant to remove from the Medicare and Medicare Advantage systems. Under the Act, the risk that Defendants assert downstream actors accept from MAOs is in fact borne by primary payers and covered by the insurance policies they issue, not by MAOs or any party with which they contract.
In an attempt to bolster their argument that downstream actors’ status as contractors of MAOs precludes their access to
Defendants have presented no persuasive rationale for limiting downstream actors’ access to
IIB
MSPRC also appeals the district court‘s dismissals of its HFAP claims, insofar as those dismissals were entered with prejudice. MSPRC br. at 27. The district court dismissed with prejudice MSPRC‘s HFAP claims against Auto-Owners and Travelers on the basis that HFAP lacked an assignment from Health First—a recognized MAO that is tightly bound up and shares corporate executives with HFAP. Explaining that “HFAP is not an MAO” and has “not been assigned any rights by Health First Health Plans, Inc.,” the district court held that HFAP, and therefore its assignee MSPRC, “lacks standing under
As the Seventh Circuit explained in MAO-MSO Recovery II v. State Farm Mutual Automobile Insurance Co., a case analogous to this one, if an assignment from HFAP “conveyed nothing” from Health First, “plaintiffs had no rights to enforce” at all. 935 F.3d 573, 581 (7th Cir. 2019). If MSPRC had no rights to enforce because the HFAP assignment conveyed nothing, MSPRC had no injury in fact and thus no Article III standing. See Sprint Commc‘ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 289 (2008) (treating the presence or absence of a valid assignment as an issue of Article III standing). In the absence of Article III standing, the district court lacked jurisdiction to resolve MSPRC‘s claims on the merits. See MAO-MSO Recovery II, 935 F.3d at 581. The district court therefore could not have dismissed MSPRC‘s claims with prejudice. See id.; see also MSP Recovery Claims, Series LLC v. QBE Holdings, 965 F.3d 1210 (11th Cir. 2020) (vacating district court order dismissing similar claim with prejudice and directing that the dismissal be entered without prejudice).
As the Seventh Circuit noted in MAO-MSO Recovery II, the “corporatе arrangement [between HFAP and Health First] was not just complex, but . . . freighted with overlapping names and functions.” 935 F.3d at 585. In support of its claims here, MSPRC submitted a contract between HFAP and Health First showing that HFAP “manage[d]” the MAO‘s general, administrative, and financial affairs. The same contract shows that HFAP was tasked, in particular, with handling the MAO‘s “legal affairs.” Michael Keeler, the Chief Operating Officer of both HFAP and Health First, signed the assignment between HFAP and MSPRC and stated in an affidavit that he intended for “HFAP, on behalf of Health First Health Plans, Inc., . . . [to] assign[] to MSP Recovery all right, title, interest in and ownership of” any claims against primary payers. Auto-Owners D.E. 60-1 at 1. As MSPRC argues on appeal, it was eminently reasonable for MSPRC to plead that it had a valid assignment of claims from an MAO. Moreover, if MSPRC in fact had a defective assignment, MSPRC was well positioned to cure the technical defect and refile its case with the same claims. Like the Seventh Circuit, because we find that the district court erred insofar as it dismissed MSPRC‘s HFAP claims with prejudice, we order that the district court‘s dismissal be without prejudice.
III
In addition to dismissing MSPA‘s claims because MSPA‘s assignors were non-MAOs, the district court dismissed the claims after finding that MSPA‘s assignments were invalid. Specifically, the district court found that (1) FHCP‘s assignment was canceled when FHCP went into receivership and (2) MSPA failed to allege, with respect to both its FHCP and IMC claims, that FHCP and IMC approved the assignment of their rights to MSPA. On appeal, MSPA argues that the district court erred because (1) the purported cancellation of FHCP‘s assignment did not extinguish MSPA‘s vested rights and (2) MSPA‘s third amended complaint did in fact allege that FHCP and IMC had approved the assignment of their rights to MSPA. We agree with MSPA.
With respect to the purported cancellation of FHCP‘s assignment, FHCP executed a contract “assign[ing] all of [its] rights” under the Medicare Secondary Payer Act to La Ley Recovery on April 15, 2014. Liberty D.E. 49-8 at 2. Because nothing in this contract suggested that FHCP would retain an interest in its rights with respect to these claims that were assigned under the contract or that its rights with respect to these claims would revert to FHCP, the contract fully divested FHCP of such rights. On February 20, 2015, La Ley Recovery executed a contract “irrevocably assign[ing]” to MSPA “any and all” of La Ley Recovery‘s “claims, rights and
The district court‘s finding that MSPA failed to allege that it had received consent from FHCP and IMC for its assignments is belied by the record. MSPA‘s third amended complaint plainly alleged that FHCP had approved La Ley Recovery‘s assignment to MSPA. Liberty D.E. 49 at 11. The complaint also plainly alleged that IMC had “accepted, acknowledged, approved, and consented to” MSPRC‘s assignment to MSPA. Id. at 14. Moreover, MSPA submitted an affidavit from a manager of IMC stating that “IMC was aware of the subsequent assignment from [MSPRC] to MSPA” and that “[n]o prior written consent was needed to effectuate that subsequent assignment because it was ministerial in nature” under the terms of IMC‘s contract with MSPRC. Liberty D.E. 58-2 at 3. Accordingly, we find that the district court erred in dismissing MSPA‘s FHCP and IMC claims based on the purported cancellation and validity of MSPA‘s assignments.
IV
Defendants advance several alternative bases for affirmance. Across claims, Defendants argue that (1) Plaintiffs’ contracts are “mere contingency agreements” rather than assignments; (2) Plaintiffs failed to comply with their supposed pre-suit notice requirements; and (3) there exist potential defects with MSPRC‘s chain of assignments. These arguments are without merit.
With respect to their first argument, Defendants, despite claiming to do so, see, e.g., Liberty br. at 29–30, point to no cases in which a court characterized Plaintiffs’ contracts as contingency arrangements or collection-only agreements rather than assignments. The one district court to consider this question was “not persuaded” that Plaintiffs’ contracts were anything other than assignments. MSP Recovery Claims, Series LLC v. Farmers Ins. Exchange, Nos. 17-cv-02522 & 17-cv-02559, 2018 WL 5086623, at *12 (C.D. Cal. Aug. 13, 2018). Defendants contend that Plaintiffs must have contingency arrangements or collection-only agreements rather than assignments because their contracts grant the supрosed assignors a contingency interest, and because the clear purpose of the contracts is to provide the supposed assignors with recovered payments. But the Supreme Court has held that contracts that include recovery-sharing provisions, even if they require the assignee to “remit all litigation proceeds” to the assignor, are still properly construed as assignments. Sprint Commc‘ns, 554 U.S. at 273–85 (outlining the history of “assignees for collection“). Defendants also argue that the fact that Plaintiffs’ contracts have
With respect to their second argument, that Plaintiffs failed to comply with alleged pre-suit notice requirements, Defendants point to no law that obligated Plaintiffs to submit “recovery demand letters” or otherwise provide advance notice of their intent to bring a claim. The regulation that Defendants cite to support their argument contemplates that primary payers’ liability arises not only after the primary payer receives a recovery demand letter but also in cases in which “the demonstration of primary payer responsibilities is other than receipt of a recovery demand letter.”
Plaintiffs alleged that they chose which claims to bring by comparing their assignors’ claims data against two sets of documents: Defendants’ filings with HHS under
Third and finally, Defendants argue that MSPRC “asserts defective (or incomplete) assignment chains” because its proffered contracts are between purported assignors and “series LLCs” that аre affiliated with but are not themselves MSPRC. ACE br. at 39–40. Defendants liken MSPRC to a parent corporation with subsidiaries and note that parent corporations cannot sue on behalf of their subsidiaries. But Delaware law, under which MSPRC is incorporated, uses permissive language that provides that “series may have“—but are not required to have—“separate rights, powers or duties with respect to specified property or obligations of [its affiliated] limited liability company.”
V
We have considered Defendants’ remaining arguments for affirmance and find them to be without merit. For the reasons stated above, in case numbers 18-12139 (ACE) and 18-13312 (Liberty), we VACATE the dismissals of Plaintiffs’ claims based on assignments from downstream actors and REMAND those cases for further proceedings consistent with this opinion. In case number 18-12149 (Auto-Owners), we AFFIRM IN PART the dismissal of the Plaintiffs’ claims in this action to the extent that they involve claims for medical expenses allegedly paid by Health First Administrative Plans, Inc. (HFAP). We MODIFY the dismissal of these claims to be without prejudice. We VACATE the dismissal of the plaintiffs’ remaining claims in case number 18-12149. In case number 18-13049 (Travelers), we AFFIRM the dismissal of the Plaintiffs’ claims but MODIFY the dismissal of these claims to be without prejudice.