So why does insurance sometimes get a free pass?
In 1945, Congress passed a law called The McCarran-Ferguson Act. Insurance, of course, has traditionally been regulated by the States. Territorial and jurisdictional disputes between the States and the Federal government are a grand tradition in this country. We call it Federalism. In 1945, it appears that the states won a battle over the feds.
As a result, in certain instances, business-of-insurance conduct can escape federal antitrust scrutiny.
The business of insurance isn’t the only type of exemption from the antitrust laws. There are a few. At The Antitrust Attorney Blog, we have discussed state-action immunity quite a bit (as suing state and local governments under the antitrust laws is a favorite topic of mine). And the US Supreme Court is presenting reviewing a state-action immunity case (NC Board of Dental Examiners v. FTC). The courts disfavor these exemptions and interpret them narrowly.
But back to the insurance-business exemption and The McCarran-Ferguson Act. Do you notice that I keep calling it the “business of insurance” exemption and not the insurance-company exemption? That is because the courts don’t just exempt insurance companies from antitrust scrutiny. No, the exemption only applies to the business of insurance and in certain circumstances.
Below are the basic elements a defendant must satisfy to invoke the McCarran-Ferguson Act:
- The conduct in question must be regulated by the state or states.
- The conduct must qualify as the business of insurance—the business of insurers is not sufficient.
- The conduct must not consist of a group boycott or related form of coercion.
Each of these elements, in turn, has its own requirements, case law, and doctrinal development. The most interesting of the three elements is how to define the business of insurance.