DOJ Backs Oscar in Antitrust Suit Against Florida Blue

Florida Blue asserted that the exclusivity policy falls within the exemption from federal antitrust law created by the McCarran-Ferguson Act.

The McCarran-Ferguson Act exempts from the Sherman Act activities that constitute “the business of insurance,” are “regulated by State law,” and do not amount to “boycott, coercion, or intimidation.”

The DOJ’s Statement of Interest

In its statement of interest, the DOJ said the federal government is principally responsible for enforcing the federal antitrust laws, and that the federal government seeks to ensure that antitrust exemptions, including the McCarran-Ferguson Act exemption, are “not interpreted any more broadly than necessary to carry out their purposes.”

The DOJ asserted that McCarran-Ferguson does not apply to the Oscar case for two reasons.

First, the DOJ said, as alleged by Oscar, Florida Blue’s exclusivity policy was not the business of insurance because it did not transfer risk or figure as an integral part of the policy relationship between the insurer and the insured. The DOJ asserted that Florida Blue’s contention that its exclusivity policy spread risk because it “affect[ed its] ability to attract customers” was “overly broad.”

Moreover, the DOJ continued, as alleged by Oscar, Florida Blue’s exclusivity policy was not an “integral part of the policy relationship,” the exclusivity policy was not integral to Florida Blue’s relationships with its policyholders, and the “threat to withhold commissions” had “nothing to do with the relationship between the insurer and the insured.”

The DOJ asserted further that McCarran-Ferguson does not apply to the conduct described by Oscar because, according to Oscar’s allegations, Florida Blue’s exclusivity policy involved coercion. The Sherman Act does apply to insurance company conduct if the conduct involves an “act of boycott, coercion, or intimidation,” according to the DOJ.

The district court should not dismiss Oscar’s Sherman Act claims on the basis of Florida Blue’s “flawed interpretation of the McCarran-Ferguson Act’s antitrust exemption,” according to the DOJ.

The case is Oscar Ins. Co. of Florida v. Blue Cross and Blue Shield of Florida, Inc., No. 6:18-cv-1944-PGB-TBS (M.D. Fla.).

Resources

A copy of the DOJ statement of interest is available here.

— Read California Insurance Broker Did Not Have to Advise Life Insurance Beneficiary How to Protect Her Interest, on ThinkAdvisor.

Steven A. Meyerowitz, a Harvard Law School alumnus, is the director of the Insurance Coverage Law Center and the editor-in-chief of journals on insurance law, banking law, bankruptcy law, energy law, government contracting law, and privacy and cybersecurity law, among other subjects. He is also the founder and president of Meyerowitz Communications Inc.