11.01.2010 James M. Burns Comments on the Potential Competitive Effects of Most Favored Nation Clauses Jim Burns provided commentary for several national publications on a recent antitrust action filed by the Department of Justice against Blue Cross Blue Shield of Michigan. His comments about the matter are summarized below.
Jim Burns was one of several antitrust attorneys who commented for CompetitionLaw360 on the likely impact of the U.S. Department of Justice's new antitrust suit against Blue Cross Blue Shield of Michigan. He stated, “It is notable that none of the DOJ actions in the past ever went to an actual, final decision. There's never been a judicial determination that the use of these clauses is anti-competitive.”
“Anyone using a most favored nation clause will necessarily have to examine whether their particular market and their particular practices raise some antitrust risk,” Burns said. “I don't think that the mere filing of this action is going to signal that everyone using a most favored nation clause needs to be worried or change that practice. But it certainly makes it advisable to consider what the potential anti-competitive effects might be, if any.”
Entitled, "Antitrust Suit Puts Most Favored Nation Users On Notice," the article was published by Law360 on Oct. 29, 2010.
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The National Law Journal
The National Law Journal also turned to Mr. Burns for comment on the U.S. Department of Justice's new antitrust suit against Blue Cross Blue Shield of Michigan. In this article, Mr. Burns stated, "If the allegation that Blue Cross was able to force hospitals to charge its competitors significantly more is true, it looks like DOJ should have a very strong case." Entitled, "DOJ Steps Up Enforcement with Two Big Cases," the article was published on Nov. 1, 2010.
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American Medical Association
The American Medical Association published an article in amednews.com, American Medical News, on Nov. 1, 2010, also quoting Mr. Burns on the U.S. Department of Justice's new antitrust suit against Blue Cross Blue Shield of Michigan. In this article, Mr. Burns commented, "it's unlikely that a large number of other insurers will be sued in a ripple effect from the Michigan case. ... Though some court cases have settled in regulators' favor, no judge has ruled that most-favored-nation clauses are anti-competitive or illegal, Burns said.
He said previous cases that challenged them have ended with settlements, so a court decision that establishes legal precedent could affect how often health plans use most-favored-nation clauses, and how likely regulators are to go after insurers that do. "
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