Insurance Antitrust Handbook

Front Cover
American Bar Association, 2006 - Law - 155 pages
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Designed as an introduction and general guide to the federal (and, by extension, state) antitrust laws that govern the activities of the insurance industry, this handbook will help you properly advise insurance clients to whom the antitrust laws are new territory.
 

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Contents

INTRODUCTION
1
B Purpose and Scope of this Handbook
2
C Outline of Handbook and Explanation of Methodology
3
AN ANTITRUST OVERVIEW1 PRINCIPAL FEDERAL ANTITRUST STATUTES
5
2 The Clayton Act
6
B Enforcement of Federal Antitrust Laws and Penalties
7
C Conspiracies in Restraint of Trade
8
a Per Se Violations
10
2 Analysis of Competitive Effects
81
3 Ancillary Restraints
83
4 Spillover Collusion
85
2 State Action Doctrine
88
1 Lawfulness Absent Immunity
89
2 Availability of McCarran and State Action Immunity
90
PRODUCT MARKETING AND DISTRIBUTION
91
2 Agreements between Insurers
93

2 Market or Customer Allocation
11
b Agreements Assessed under the Rule of Reason
12
1 Joint Ventures
13
2 Other Horizontal Combinations or Agreements
14
a Agreements Subject to Rule of Reason
15
c Tying Arrangements
16
D Monopolization and Attempted Monopolization
17
b Anticompetitive Conduct
18
3 Conspiracy to Monopolize
19
b Regulated by State Law
25
C Boycott Coercion or Intimidation
28
2 State Action Exemption
31
a Clear Articulation
32
b Active Supervision
33
3 NoerrPennington Doctrine
34
G State Antitrust Laws
35
2 Civil and Criminal Remedies under State Antitrust Laws
36
3 Exemptions from State Antitrust Laws Relevant to Insurance
37
b Incorporation of Federal Exemptions
38
d Keogh Doctrine and Exclusive and Primary Jurisdiction
39
4 Legislative Repeal of Exemptions
40
RATEMAKING AND RATERELATED PRACTICES
43
A Rating and Advisory Organization Statistical Activities
44
2 Lawfulness of Rating Organization Practices Absent Immunity
45
3 Applicability ofMcCarran Act Antitrust
55
b The state regulation requirement
56
c The boycott exception
57
5 Applicability of Filed Rate Doctrine
59
B Dealings with Competitors on RateRelated Matters
61
b Obtaining Pricing Information from Other Sources
63
2 Applicability of McCarranFerguson Act and State Action Doctrine Outside the Rating Organization Context
64
POLICY FORM STANDARDIZATION
65
1 PriceRelated Effects
67
2 Limitations on Consumer Choice
69
3 Anticompetitive Manipulation of Standards Process
71
4 Enforcement of Standards
72
B Availability of Immunity
73
2 State Action Doctrine
74
JOINT UNDERWRITING AND EXCHANGE OF UNDERWRITING INFORMATION
77
B Antitrust Analysis
80
2 Other Vertical Arrangements between Companies and Agents
95
C Availability of McCarran Act Immunity for Marketing and Distribution Arrangements
98
D Tying Arrangements
100
2 Availability of McCarran Act and State Action Immunity
102
PROVIDER RELATIONSHIPS
105
1 Agreements on Provider Reimbursement Levels
106
2 Selective Contracting and Exclusion of Providers from Networks
110
3 Exclusive Dealing Arrangements with Providers
112
B Horizontal Arrangements among Insurers Dealing with Providers
113
2 Boycotts of Providers
114
C McCarran Act and Other Immunity Defenses
115
b Horizontal Arrangements among Competing Insurers in Dealing with Providers
116
2 Other Immunity Defenses
117
PARTICIPATION IN TRADE ASSOCIATIONS AND PROFESSIONAL SOCIETIES
119
1 Legislative Lobbying
124
2 Efforts to Influence Executive Action
125
3 Litigation
126
2 Discussion of Competitively Sensitive Topics
127
4 Ethical Codes
128
5 Denial of Access to Trade Association Services
129
APPLICABILITY OF FEDERAL ANTITRUST LAWS TO INSURANCE COMPANY MERGERS
133
B Insurance Mergers and the HSR Act
135
C Exposure of Insurance Companies to Antitrust Laws Applicable to Mergers
136
1 Relevant Product Market
137
2 Relevant Geographic Market
138
3 Firms Included in the Market
139
4 Market Shares and Their Significance
140
5 Effect of Acquisition on Competition
141
D State Regulation of Insurance Mergers
142
ANTITRUST COMPLIANCE PROGRAMS FOR INSURERS
145
B US Sentencing Guidelines as a Model
146
C Statements of Compliance Policy and Written Guidelines
149
D Employee Education and Counseling
150
2 New Legal Developments
151
3 Internal Reporting Channels
152
F Antitrust Audits
153
3 Conducting an Audit of an Insurance Company
154
G Conclusion
155
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