The Implied Antitrust Immunity Analysis of Credit Suisse v. Billing A Framework Congress Should Apply to McCarran-Ferguson Act Repeal Efforts

Abstract

Since 1945 the McCarran-Ferguson Act has exempted the “business of insurance” from the federal antitrust laws to “the extent that such business is not regulated by State law.” This Note questions whether the ongoing attempts by members of Congress to repeal the antitrust exemption for the business of insurance is good policy. In assessing the implications of repeal, this Note analyzes whether the addition of federal antitrust enforcement would be compatible with the increasingly regulated health insurance industry. As a case study, this Note applies the implied antitrust immunity framework developed by the Supreme Court in Billing v. Credit Suisse to Massachusetts’ insurance regulations.

This Note argues that the implied immunity doctrine, in seeking to determine how Congress would have intended two regulatory systems to interact, can function as a prudential tool to aid Congress when it seeks to either alter the reach of the antitrust laws or create regulations that assume the function of the antitrust laws.