The filed rate doctrine is an affirmative defense. Counsel should argue it as such. Judges should treat it accordingly and require a fully developed record before they rule. In Harvey v. Centene Mgt. Co., 357 F. Supp. 3d 1073 (E.D. Wash. 2018), that is exactly what the judge did.
Even if a court is not completely convinced, one way or another whether the filed rate doctrine applies or not, the Court in Harvey v. Centene Management Company, LLC[1] rested its decision not to apply a filed rate doctrine at the pleadings stage on procedural grounds as well as substantive grounds at that stage. The Harvey Court's decision was based on a motion to dismiss and "the better practice" in any case, the Court stated, is to address the filed rate doctrine either on a motion or motions for summary judgment, or at trial.[2]
[1] Harvey v. Centene Mgmt. Co. LLC, 357 F. Supp. 3d 1073 (E.D. Wash. 2018).
[2] Harvey, 357 F. Supp. 3d at 1084.
Please read the disclaimer. The filed rate doctrine is discussed particularly in the context of insurance cases in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH §§ 11:26 - 11:26.50 (3d Edition West Publishing Co., 2023 Supplements in process). This blog article ©2023 Dennis J. Wall. All rights reserved.
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