Can A Health Insurer Receive a Vaccine that Confers Lifelong Immunity from Antitrust Liability?

Imagine the following scenario: You are a medical provider and decide to sue WellPoint (now Anthem) for antitrust conspiracy violations stemming from usual, customary and reasonable (UCR) reimbursement levels or exclusive territorial allocations, or both, either individually or as part of a class of similarly situated providers.  But WellPoint argues that you can’t, because the settlement of another class action many years ago (and where the settlement agreement long expired) released those antitrust claims and – here’s the kicker – all antitrust claims you may have against WellPoint in perpetuity.  And this even though you didn’t have – and couldn’t have had – the same antitrust claims then as you have now and therefore couldn’t have brought them then.  Nor did you ever receive a class settlement notice that specified that your antitrust claims against WellPoint would be released forever.

Sounds unfair?  Sounds like an abuse of the class action procedure?  That precise issue is the subject of an extraordinary petition to the Supreme Court of the United States. In it, the Medical Association of Georgia, the California Medical Association, the Connecticut Medical Society, and three physicians ask the Supreme Court to reverse the Eleventh Circuit’s ruling that the antitrust claims are “new, overt acts within an ongoing conspiracy, rather than new claims in and of themselves.”

But that makes no sense, both factually and legally.  Factually, it wasn’t entirely an ongoing conspiracy; it was in part a new conspiracy based on new misconduct.  Legally, the Supreme Court long held that you cannot release antitrust conspiracy claims in perpetuity; to do so represents a violation of the antitrust laws because it gives a defendant antitrust immunity (which is what WellPoint is seeking for itself).  So even if it were an ongoing conspiracy it doesn’t matter.

But that’s what the Eleventh Circuit did, and if it is not vacated by the Supreme Court the decision will have drastic consequences not only in this case but in the future.  All class action settlements against health insurers will ostensibly release antitrust (and possibly other claims) forever.  So if there’s a settlement, say, in 2015 and you have antitrust damages in 2037 you’re out of luck.  You couldn’t have sued this year for your 2037 injury but it doesn’t matter – WellPoint (and if the case is upheld other insurers) get an antitrust vaccine that confers lifelong immunity.

Here’s the passage from the petition:
The significance of the Eleventh Circuit’s decision is not limited to this case.  Rather is strips nearly one million physicians of their federal rights to challenge the continuing anticompetitive practices of many of the nation’s largest health insurers in perpetuity, as many of those insurers have entered into settlements substantially similar to WellPoint’s. . . . Finally, the decision opens the door to a new abuse of the class action, in which absent class members find that they have given up the right to challenge ongoing conspiracies forever, without receiving compensation or notice that they are doing so.

You can read the petition here, WellPoint’s brief in opposition here, and the brief in reply here.
(Axelrod & Dean LLP Co-Authored the briefs on behalf of Petitioners.)

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