This story is reprinted with permission from the Insurance Coverage Law Center, an ALM digital resource for legal professionals. Visit the website to subscribe.
The U.S. Department of Justice (DOJ) has filed a statement of interest in an antitrust lawsuit involving Oscar Insurance Company of Florida — a health insurer co-founded by Joshua Kushner. Joshua Kushner is the brother of Jared Kushner, who is a senior advisor to President Donald Trump.
Oscar has filed the lawsuit against Blue Cross and Blue Shield of Florida, Inc., Health Options Inc., and Florida Health Care Plan Inc. Those three entities are known, collectively, as Florida Blue.
In its statement, the DOJ asserted that the McCarran-Ferguson Act does not provide a basis for dismissing Oscar’s Sherman Act antitrust claims against Florida Blue.
The Oscar v. Florida Blue Case
Oscar has challenged Florida Blue’s exclusivity policy. That policy prohibits a broker selling certain Blue Cross plans from selling plans offered by competing insurers.
Given Florida Blue’s dominant market share in Florida, the exclusivity policy has foreclosed competitors such as Oscar from working with brokers responsible for selling the vast majority of individual health plans in the Orlando area, Oscar alleged in its complaint.
Oscar also alleged that Florida Blue’s conduct has caused consumers to pay more for health insurance, limited consumer choice, and impeded innovation. Oscar claimed that Florida Blue has violated Sections 1 and 2 of the Sherman Act.
Oscar also alleged that Florida Blue has enforced its exclusivity policy through “coercion and intimidation.”
Oscar asserted that Florida Blue had threatened to terminate permanently any broker appointed by Oscar, meaning that “brokers face losing the right to sell Florida Blue plans in all product lines throughout the entire State of Florida if they decide to sell Oscar plans in a single county in the state.”
After Oscar entered the Orlando market, Florida Blue updated its exclusivity policy, directing its brokers to sign new exclusivity forms, Oscar asserted. According to Oscar, Florida Blue threatened to withhold commission payments from brokers who violated the exclusivity policy.