Court to Apply Per Se Antitrust Standard to Certain BCBS Rules Limiting Competition

A federal district court judge in Alabama yesterday ruled that the Blue Cross Blue Shield organizations named in multi-district antitrust litigation in that court must defend under a strict per se standard of review the geographic and output restrictions in the “exclusive service area” and “national best efforts” rules limiting where and how their plans compete for business. For per se antitrust violations, no defense or justification is allowed. The judge also ruled that there are “genuine issues of material facts” as to whether the BCBS organizations operate as a single entity when they enforce their Blue Mark restrictions, a finding that would strip them of immunity for these restrictions and subject them to the same strict scrutiny competitors face for potentially anticompetitive agreements. For details, see the judge’s April 5 opinion and order.