We previously reported on an appeal taken by Blue Cross/Blue Shield of Michigan regarding an antitrust suit brought by the State of Michigan seeking to enjoin Blue Cross from the use of most favored nation clauses in contracts with Michigan hospitals.  We noted that Blue Cross had appealed the denial of its motion to dismiss, which prompted questions about whether the appeal would survive a challenge to appellate jurisdiction.  The Sixth Circuit apparently shared the concern, as it recently dismissed the appeal for lack of jurisdiction in a relatively brief order.

Although Blue Cross sought to salvage the appeal by relying on the collateral order doctrine, the Sixth Circuit had previously rejected an argument for the applicability of the collateral order doctrine based on the denial of a state action defense Huron Valley Hospital, Inc. v. City of Pontiac, 792 F2d 563 (6th Circuit 1986).  The Sixth Circuit concluded it was bound by Huron Valley and therefore dismissed the appeal.  It remains to be seen whether Blue Cross will seek rehearing en banc, which would be the only way to overturn the Huron Valley result.  Clearly the case is very significant to Blue Cross and other related insurers, so certainly an en banc petition is probable.  What will remain to be seen is how interested the Sixth Circuit is in this issue of appellate jurisdiction.