On December 12, 2018, the U.S. Court of Appeals for the Eleventh Circuit issued a short order denying Blue Cross and Blue Shields’ (the Blues) interlocutory appeal of U.S. District Judge R. David Proctor’s ruling that certain business practices, including the use of exclusive territories by the 36 Blues plans, constitutes a per se violation of Section 1 of the Sherman Act (Section 1).

The class action antitrust lawsuit—the largest in the history of U.S. antitrust laws—against the Blues was brought over six years ago by a group of plaintiffs including employers, providers, and other healthcare professionals who alleged, among other things, that the Blues should not be considered a “single entity” under the antitrust laws and therefore are subject to Section 1, which prohibits certain conduct in restraint of trade.  A number of legal issues remain in the litigation before it will go to trial, including class certification.

With that said, this ruling is significant because once it is determined that alleged conduct is a per se violation of the antitrust laws, the plaintiffs no longer bear the burden of having to show the conduct—here arguably the Blues’ core business operations—has an anticompetitive effect.