Reading the Tea Leaves: Blue Cross Blue Shield Antitrust Litigation

U.S. District Court Judge R. David Proctor's summary judgment ruling on the applicable standard of review for plaintiffs' Sherman Section One claims on territorial allocation between and among the Blues is worth a read.  Defendant Blues are being sued under Sherman for aggregation of a market allocation scheme as well as output restrictions that Judge Proctor determined should be subject to "per se" analysis under Sherman One.  This means that the court does not plan to  evaluate pro-competitive justifications for the market allocation and output restrictions referenced in the ruling.

There are so many interesting angles to this opinion but today I wlll note just one: Judge Proctor's strong statement that the court sits not to anticipate where antitrust law might go or be going on certain kinds of restraints and restrictions but to apply the law as it is.  That trying to get out ahead of the law is actually inimical to what antitrust law is about, despite its being a continuously evolving field of law.  "The Supreme Court jealously guards the precedential effect of its opinions."  Reading the tea leaves to identify now-disfavored precedent is to be discouraged.

This is a very thoughtful opinion. But, such an approach, does fly in the face of one strand of antitrust analysis that prides itself on advancing economic analysis first and arguing legal precedent inconsistent with new economic thinking now be considered disfavored as a result.