US: DOJ backs Oscar in antitrust case against Florida BCBS

The Department of Justice is siding with health insurer Oscar in its antitrust lawsuit against Florida Blue Cross Blue Shield and its use of an exclusive broker policy. DOJ is asking a federal judge not to toss Oscar’s antitrust claims against Florida Blue, according to DOJ’s statement of interest filing in the case.

Oscar filed the lawsuit in November, after it began selling health plans in the Orlando area. It said Florida Blue’s exclusivity policies prohibiting insurance brokers from selling other insurers’ plans had thwarted its business.

Oscar said more than 190 brokers agreed to sell its plans before reneging after Florida Blue reminded them of the exclusivity arrangements and noted it could revoke the right for brokers to sell any Florida Blue plans if they sold an Oscar product.

DOJ argued in a statement filed April 24 that Florida Blue improperly applied the McCarran-Ferguson Act, a law that creates a limited exemption from federal antitrust law for the business of insurance, in seeking to get the US District Court in Orlando to dismiss the case.

The federal government said Florida Blue’s exclusivity policy for brokers “does not constitute the ‘business of insurance’” in terms of transferring risk from a policyholder to an insurer.

“The court should not dismiss Oscar’s Sherman Act claims on the basis of Florida Blue’s flawed interpretation of the McCarran-Ferguson Act’s antitrust exemption,” wrote Patrick Kuhlmann, an attorney in the DOJ’s antitrust division.

Florida Blue disagreed with the DOJ’s interpretation in its response to the government’s statement of interest filed on Wednesday.