On June 12, 2018, Judge David Proctor certified a “pure question of law” to the Eleventh Circuit in the Blue Cross Blue Shield Antitrust Litigation, which could “materially advance the ultimate termination of this litigation.”
The Blue Cross Blue Shield Antitrust Litigation MDL, pending since approximately 2013, involves “allegations by two separate putative class tracks that Defendants [Member Plans of the Blue Cross Blue Shield System that “facilitates health coverage for more than 100 million Americans”] have, among other things, violated the Sherman Act by agreeing to allocate exclusive geographic service areas, imposing output restrictions, fixing prices for certain products and services secured from health care providers, and boycotting health care providers who reside outside of a Plan’s allocated geographic service area.” Given the context, the stakes are huge, and the consequences of an adverse ruling could impact the way many Americans (one in every three) obtain health insurance coverage.
In early April 2018, Judge Proctor found that the “Defendants’ aggregation of a market allocation scheme together with certain other output restrictions is due to be analyzed under the per se standard of review,” and that “BlueCard and other alleged Section 1 violations are due to be analyzed under the Rule of Reason.” The defendants petitioned the court to allow for an interlocutory appeal (pre-final judgment) to the Eleventh Circuit pursuant to 28 U.S.C. § 1292(b).
In reaching its decision that an interlocutory appeal should be certified to the Eleventh Circuit, the court first found that “there is little doubt that the standard of review applicable to a Sherman Act claim is a controlling question of law which is determinative of the future course of this litigation.” The court then found that, based on the applicable case law, there was “a difference of opinion regarding application of the per se standard of review.” Moreover, the court found that in light of the very high stakes involved, it would be wise for the Eleventh Circuit to overrule the court’s finding “sooner (rather than later)” and avoid (potentially) the re-trial of bellwether cases based on the application of an incorrect legal standard. Finally, the court found that an appeal could materially advance the ultimate termination of the litigation because “[w]ithout … an appellate ruling on the standard of review, the parties and the court will be performing expensive, duplicative work” and certainty on the applicable standard of review could advance settlement.
Stay tuned: As this case develops, we will continue to provide updates.