Blue Cross Blue Shield Antitrust Settlement

Carter Beck – cbeck@stall-legal.com
June 8, 2021

More than eight years ago multiple actions were filed again the Blue Cross and Blue Shield Association (“BCBSA”) and its 37-member Blue plans (collectively the “defendants”).  The plaintiffs, which include Blue plan members, groups, and self-funded plans, asserted that BCBSA and the Blue plans violated various sections of the Sherman Antitrust Act by entering into an unlawful agreement that restrained competition between the plans in the markets for health insurance and administration.  The various lawsuits were consolidated in the US District Court for the Northern District of Alabama, Southern Division.  And, in late November last year, the cases were settled.[1]  Since that time, a Proposed Order of Distribution[2] has been filed with the Court.

The settlement provides for the payment by the defendants of $2.67 billion dollars, along with other non-monetary relief.  The settlement classes include a nationwide injunctive relief class, a nationwide damages class, and a nationwide self-funded sub-class.  The nationwide damages class includes individual members, fully insured group plans and their covered employees, and self-funded accounts and their covered employees.  None of the damages classes include dependents or non-employees.  The settlement class period is February 7, 2008 through October 16, 2020; however, the class period for self-funded accounts is September 1, 2015 through October 16, 2020.  The allocation of the settlement fund is divided between the fully insured classes (individual and group) and the self-funded class as follows:  93.5% ($1.776 B) and 6.5% ($123.5 M), respectively.  Although the gross settlement fund is $2.67 B, the allocation of attorney fees ($667.7 M) and notice and administration expenses ($100.0 M) reduces the net funds available to class members to $1.9 B.

The plan of distribution of the funds is complex in that there are multiple variables and contingencies. Groups can elect various methods to determine their share of the settlement.  For example, a group may supply information that demonstrates the amount of premium it paid during the settlement period or a group may elect to accept a “default” allocation for the settlement period.  And to further complicate the settlement, both groups (fully insured and self-funded) on behalf of themselves and their employees and individuals (individual policy holders and employees of group plans) are able to file claims.  So it is very likely that a group will file its claim and employees of the same group may file their own claims.  This will make the distribution calculation extremely complex.

In addition to the monetary settlement, there are several other provisions to be aware of.  First, the so-called “National Best Efforts” rule will be eliminated.  This rule requires Blue plans to produce at least 66% of its revenue from Blue business.  It was asserted that this rule restrains Blue plan affiliates from competing with a parent Blue plan for non-Blue business.  Second, certain national accounts[3] will be granted the right to seek a second Blue bid.  Under the current regime, a national account would only be entitled to request 1 Blue bid.  Third, there will be significant limitations on use of “most favored nations (“MFN”)” differentials when contracting with providers.  If a Blue plan has greater than 40% market share in a geography, it may not use an MFN clause in its contracts.  And, finally, the settlement eliminates certain restrictions on Blue plan acquisition by other Blue plans, and permits self-funded accounts who have contracted with a Blue plan to directly contract with other service providers that are non-Blue.  For example, a self-funded account may in the future contract directly with vendors for provider analytic services, drug screening services, account benchmarking services, and providers who provide radiology, vision or dental services.

For additional information about the settlement and the requirements, please visit the Settlement Website at https://bcbssettlement.com/.  Here you can find court documents, deadlines, and additional information about claim submissions.  Here is a list of the important deadlines for class members to be aware of and satisfy. 

If you have any questions about the settlement or need assistance in preparing and filing a claim, please do not hesitate to reach out to the lawyers at Stall Legal, www.stall-legal.com.

[1] The Memorandum Opinion and Order Preliminarily Approving Settlement, Plan of Distribution, and Notice Plan, and Directing Notice to the Class was filed with the Court on November 30, 2020 for MDL 2406, Master File No 2:13-CV-20000-RDP.

[2] [Proposed] Plan of Distribution filed on March 12,2021.

[3] The national accounts permitted to seek a second Blue bid must satisfy certain requirements, including: (a) the account must have more than 5,000 employees, and (b) meet the specified D&B analysis.  Currently, there are 1,042 entities on the D&B analysis list.  Accounts not on the list may appeal to the Monitoring Committee established in the settlement for inclusion.