In my latest blog, McCarran-Ferguson – Extended I talked a lot about how the McCarran-Ferguson Insurance Regulation Act declared that continued regulation and taxation of the insurance industry by the states was public. interest. In accordance with this policy, the law excludes insurance business from federal antitrust laws to the extent that state law regulates the insurance industry. 1 Section 3 (b) of the McCarran-Ferguson Act, however, provides an exemption from this exemption by exempting from the statutory protective acts and agreements amounting to boycott, intimidation or coercion. 2 This section was adopted to prevent a recurring anti-competitive practice characterized by United States v. South-East Underwriters Association ( South Eastern Underwriters ) court as "boycott , coercion and threats. "
As these terms are not described in the Charter, courts have looked at the methods condemned in Southeastern Insurers and at the history of the law for the law to define the correct scope of the boycott exemption. Section 1
Any agreement, combination in the form of trust or otherwise, or conspiracy, to restrict trade or trade between multiple states, or with foreign nations, is declared illegal.  Since virtually all agreements between the parties have the potential to be considered as a restriction of trade, antitrust law limits the range of restrictions within the scope of the Antitrust Act to those agreements that unreasonably restrict trade. 3
The term boycott is an exclusive practice of traders at a level that seeks to prevent entry at that level by depriving a competitor of either resources or customers. 4 A boycott is a concerted refusal to act or a group action aimed at forcing another party into doing something by withholding or engaging others to withhold protection or services from the target. It can be a method of closing a competitor out of a market or preventing a new company from entering a market. A boycott is condemned as a in itself violation of the Sherman Act because the boycott was definitively assumed to be an unreasonable restriction on trade due to the obvious and necessary effect on competition. Depending on the nature of the boycott, the courts may take into account the rule of reason, a quick analysis or consider that the boycott is illegal per se . There is a presumption for a rule of reasoning standard. 5
Chip Merlin has written about antitrust boycotts on this blog. I, Are real estate insurers subject to antitrust lawsuits through guidelines for pricing and boycotting contractors who properly and legally repair property? he noted:
Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits "[e] many contracts, combination in the form of trust or otherwise, or conspiracy, to restrict trade or commerce between the several states." Insurance companies have different incentives to price for lower repair prices and most of us in the property claim business have witnessed different patterns of claims processes that accomplish this. The question is whether these methods violate antitrust laws.
I noticed that a number of law firms involved in the defense of the insurance companies are also prominent actors and participants in the insurance industry organizations where it is alleged that the responding insurance companies shared information about claims in support of a conspiracy theory. PLRB and various industry organizations in the insurance industry emphasize these problems with criminal crime with simple warnings not to violate Sherman Anti-Trust laws. The "per se" rule
Restrictions analyzed under the per se rule are those that are almost always so inherently restrictive of competition and harmful to the market that they justify condemnation without further examining their effects on market or the existence of an objective restriction of competition. 6
Business practices that are in themselves considered illegal under antitrust law include: (a) horizontal agreements to set prices; b) overall market allocation agreements, (c) bidding rigging among competitors, d) certain horizontal group boycotts from competitors. and (e) sometimes coupling arrangements.
However, there is an exception to the application itself . When the parties form a joint venture or other pro-competitive structure and such restrictions are necessary for the existence of that investment or structure, there are cases where a court deems the suspected restrictions necessary and applies a lower standard, such as the justification rule.
2. The "Rule of Reason" method
A contract, combination or conspiracy that unreasonably restricts trade and does not fit into the category per se is usually analyzed under "Rule of Reason" -tested. This test requires; (i) a definition of the relevant product and geographic market; (ii) the defendant's (s) market power in the relevant market; and (iii) the existence of anti-competitive effects. Once this analysis has been achieved, the court will shift the burden to the respondents in order to demonstrate an objective restriction of competition.
Most antitrust claims are analyzed during this test. In applying this test, courts must evaluate whether they impose an unreasonable restriction on competition. Judges then consider a variety of factors, including: (i) the intent and purpose of adopting the restriction; (ii) the defendant's competitive position; (iii) the structure and conditions of competition in the relevant market; (iv) barriers to entry; and (v) the existence of an objective justification for the restriction. 7
None of these factors are decisive and the courts have to balance them to determine whether the restriction on trade in question is unreasonably competitive. 8  3. The review "Snabbblick"
During this summarized version of the reasoning analysis, the court does not need to make the above analysis. Instead, the plaintiff only needs to show some form of market damage. A court may apply this analysis when the defendant's conduct is not of the type amounting to per se illegal but seems likely to have anti – competitive effects which make it unnecessary for a court to go through the full analysis. 9
To learn more about antitrust laws and as a warning to all adjusters in this area, read the final judgment in a case successfully brought by the United States against the General Adjustment Bureau (GAB) for alleged violation of Section 1 and 3 of the Sherman Act. 10 The case involved over 170 different insurance companies accused of conspiring to violate antitrust laws and causing defendants' adaptations, boycotting other independent adjusters, and forcing and intimidating agents to channel claims. to the defendant. The complaint in the case alleged that the supplementary conspiracy resulted in the elimination of competition among insurance companies in the adjustment and settlement of receivables and denied the insured the benefits of such competition.
These issues are not often discussed in modern times. practices in which insurance protection lawyers, business leaders and claims organizers only share information for insurance industry officials to participate. Nor do they stand out on any of the insurance companies' consulting websites such as McKinsey and Company, whose partners really do not want to have revealed how they share claims practices and claims data with competing companies that are their customers.
________________________________________  1 Ohio AFL-CIO v. Insurance Rating Bd. 451 F.2d 1178 (6th Cir. 1971), cert. nekad, 409 U.S.C. 917 (1972).
2 15 U.S.C. § 1013 (b) (1970). The exemption for boycott provides: "Nothing in this chapter shall make the said Sherman Act applicable to any agreement on boycott, coercive intimidation or boycott, coercion or threat."
3 Food Lion, LLC v. Dean Foods Co. (In re Se Milk Antitrust Litig.) 739 F.3d 262 (6th Cir. 2014).
4 L. Sullivan, Antitrust § 83 (1977).
5 Craftsmen Limousine, Inc. v.Ford Motor Co. 363 F.3d 761, 772 (8 Cir. 2004) (“The Supreme Court of the United States has established three methods for analyzing the reasonableness of a trade restraint: the rule of resonance analysis, in itself analysis, and quick glance analysis. The rule of reason in the prevailing standard. ”)
6 USA v Socony-Vacuum Oil Co. 310 US 150 (1940); USA v Sealy, Inc. 388 U.S. Pat. 350 (1967); USA v Topco Associates, Inc. 405 U.S. Pat. 596 (1972); Craftsmen Limousine, Inc. v. Ford Motor Co. 363 F.3d 761 (8th Cir. 2004); United States Justice and the Federal Trade Command, Antitrust Guidelines for Competition between Competitors, of April 2000 (Section 3.2).
7 Business Electronics Corp. against Sharp Electronics Corp. 485 US 717 (1988); National Collegiate Athletic Ass’n v Board of Regents of University of Oklahoma 468 U.S.C. 85 (1984); State Oil v. Kahn 522 U.S. Pat. 3, 10 (1997); and California Dental Ass’n v. FTC 526 U.S. Pat. 756 (1999).
8 Leegin Creative Leather Products Inc. v PSKS Inc. 127 S. Ct. 28 (2006).
9 National Collegiate Athletic Ass & # 39; n v Board of Regents of University of Oklahoma 468 US 85 (1984).
10 United States v. General Adjustment Bureau, Inc. 357 F. Supp. 426 (S.D.N.Y. 1973).