We recently reported on the Sixth Circuit’s decision to dismiss an antitrust appeal for lack of jurisdiction. The appeal had been taken by Blue Cross/Blue Shield of Michigan in connection with an antitrust suit brought by the State of Michigan which sought to enjoin Blue Cross from using most favored nation clauses in its contracts with Michigan hospitals. Blue Cross appealed the district court’s denial of its motion to dismiss which relied on a state action immunity defense.
At the time, we speculated that Blue Cross might seek rehearing en banc because of the significance of the case “to Blue Cross and other related insurers . . . .” That has now come to pass. This past Wednesday, Blue Cross filed a petition for rehearing en banc (Blue Cross Petition.pdf). In the petition, Blue Cross’ asserts the fact that the federal circuit courts are split regarding whether a district court ruling denying a state action immunity defense in an antitrust case is immediately appealable. The crux of Blue Cross’ argument is that the Sixth Circuit’s ruling which relied on the Sixth Circuit’s Huron Valley Hospital Inc. v. City of Pontiac decision issued in 1986 is inconsistent with subsequent rulings from other circuit courts which have held that such denials are immediately appealable.
We will continue to provide you with updates on this case as more details continue to emerge.