On Nov. 7, 2009, the U.S. House of Representatives passed the Affordable Health Care for America Act.1 Included in the legislation is a provision that would amend the McCarran-Ferguson Act of 1945 (“McCarran”) which exempts the “business of insurance” from the antitrust laws to the extent that such business is “regulated by State law.”2 With limited exceptions, the amendment would eliminate the exemptions from “the operation of any of the antitrust laws with respect to price fixing, market allocation, or monopolization (or attempting to monopolize)” for persons engaged in the business of health insurance or medical malpractice insurance.3
However, if the McCarran repealer becomes law, insurers may still be immunized from the federal antitrust laws through application of the state action doctrine. This court-created antitrust immunity tolerates anticompetitive conduct if such conduct is in furtherance of a state regulatory policy. The question remains, however, assuming McCarran’s demise, to what extent would the state action doctrine protect insurers from federal antitrust laws?
Origins and Development
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