Today, Federal District Court Judge R. David Proctor issued a Memorandum Opinion and Order granting in part and denying in part the BCBS Defendants’ Motion Regarding the Antitrust Standard of Review Applicable to Provider Plaintiffs’ Section 1 Claims in the In re Blue Cross and Blue Shield Antitrust Litigation.
Significantly, the Court ruled in favor of Healthcare Providers in denying the Defendants request to retroactively apply the “rule of reason” standard of review instead of the more stringent “per se” standard of review. The Court found that Providers’ Section 1 Market Allocation Conspiracy claims involving the aggregation of Exclusive Service Areas and National Best Efforts (“NBE”) remain subject to the per se standard of review. Today’s ruling is consistent with the Court’s standard of review decision made prior to the elimination of NBE. The practical effect of today’s ruling is that the jury must now consider Providers’ entire damage claims from 2008 until at least the start of the COVID pandemic in 2020 under the more favorable per se standard. The Court also ruled that the elimination of NBE, as a part of the 2.67-billion-dollar settlement with the Subscriber Plaintiffs, means that the market allocation scheme, after the April 2021 elimination of NBE, would be subject to the rule of reason standard going forward. In a separate Order, the Court ruled that on the current record, the Court could not find that Provider Plaintiffs’ Blue Card “group boycott” claims were appropriate for per se treatment.