Eleventh Circuit Rules BCBS Must Face Per Se Antitrust Test

BIRMINGHAM, Ala. – The 11th Circuit Court of Appeals has ruled that the antitrust litigation against Blue Cross Blue Shield insurers can proceed. The Eleventh Circuit confirmed that the Blues’ actions will be subject to the per se legal standard.

If proven, this means the Blues’ actions were inherently illegal. This means the defendants’ actions standing alone and without rebuttal were illegal and violated the Sherman Antitrust Act.

The court confirmed Judge Proctor’s ruling in April, which rejected the defendants’ argument that pro-competitive effects of their scheme would outweigh any harm and ordered that their conduct be analyzed under the antitrust per se standard of review. Defendant Blues appealed the decision.

The case involves 36 Blue Cross plans and at the heart of the case is whether an agreement among the different plans not to compete in various markets based on trademark licensing and other business activities is legal. Both the lower federal court and the appellate court agree that the combination of the agreement not to compete and the size of the territories will be enough to determine if the insurers broke the law.

The case was divided into two tracts, one for providers and one for subscribers. The attorneys at Shelby Roden represent the providers in the suit. Medical providers claim that Blue Cross is using its size and market power to drive out the competition and keep doctor and other medical organizations reimbursements low. Subscribers claim the arrangement could drive up premiums. It is the largest antitrust case in U.S. history.

Source(s): Law360