                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                            April 28, 2006 Session

      ZACHARY ROSENBERG ET AL. v. BLUECROSS BLUESHIELD OF
                    TENNESSEE, INC. ET AL.

                                  Chancery Court for Davidson County
                             No. 02-1237-III Ellen Hobbs Lyle, Chancellor


                    No. M2005-01070-COA-R9-CV - Filed on November 29, 2006



WILLIAM C. KOCH , JR., P.J., M.S., concurring.

        I concur with the court’s conclusion that the plaintiffs have not demonstrated that the
provision in the Commercial Provider Administration Manual requiring them to be responsible for
one-half of the fees and expenses directly related to conducting the arbitration renders arbitrating
their claims prohibitively expensive. The plaintiffs have the burden of proof on this point, Green
Tree Fin. Corp. - Ala. v. Randolph, 531 U.S. 79, 92, 121 S. Ct. 513, 522 (2000), and thus they must
demonstrate that it will be prohibitively expensive for them to pursue their claims in the arbitral
forum.

        The plaintiffs’ claims for relief in this case go far beyond disputes over specific charges to
particular patients.1 They have presented no evidence that it will be more expensive to arbitrate their
claims than it would be to litigate them. See Bradford v. Rockwell Semiconductor Sys., Inc., 238
F.3d 549, 556 (4th Cir. 2001); In re Currency Conversion Fee Antitrust Litig., 265 F. Supp.2d 385,
411 (S.D.N.Y. 2003). In the absence of this sort of evidence, the trial court properly declined to
invalidate the arbitration provision.



                                                                 ____________________________________
                                                                 WILLIAM C. KOCH, JR., P.J., M.S.



         1
           In light of the procedural posture of this case, we have not been called upon to address whether the Tennessee
Consumer Protection Act applies to the contractual relationship between the plaintiffs and BlueCross BlueShield of
Tennessee and Tennessee Health Care Network, Inc. or, if it does, whether the plaintiffs may seek class action relief
under the Tennessee Consumer Protection Act. Nothing in the court’s opinion should be construed as concluding that
the plaintiffs have stated a claim for relief, individually or as representatives of a class, under the Tennessee Consumer
Protection Act.
