By: James M. Burns
Williams Mullen (North Carolina and Virginia, USA)
On February 23, the 6th Circuit denied Blue Cross of Michigan’s attempt to gain immediate appeal review of an adverse ruling from the District Court in United States v. Blue Cross of Michigan,
the DOJ’s high-profile antitrust challenge to Blue Cross’s use of “most favored nation” clauses in its provider contracts. The court’s unwillingness to reconsider the District Court’s denial of Blue Cross’s “state action doctrine” defense at this time – a defense that would have potentially ended the case if the court ruled in favor of Blue Cross – virtually ensures that the issue will not be revisited prior to the completion of discovery and trial. Accordingly, the court’s ruling constitutes a significant lost opportunity for Blue Cross. More importantly (at least for everyone other than Blue Cross), the court’s decision not to hear the matter constitutes a lost opportunity for further guidance on the most favored nation clause issue generally, at a time where such guidance would have been incredibly beneficial, given the DOJ’s acknowledgement that it is currently investigating the use of such clauses by other health insurers as well. In short, had the court ruled that Blue Cross’s conduct was protected state action, such guidance could, conceivably, have led to the termination of the investigations, or at a minimum provided some additional clarification on the issue. As such, the 6th Circuit’s decision not to hear the matter is quite unfortunate, but, as the 6th Circuit’s decision makes clear, jurisdictional principles precluded them from hearing the appeal at this time. Click here to read entire article.
