MANSFIELD, Justice.
Wellmark, Inc. is an Iowa-based health insurer that belongs to the national Blue Cross and Blue Shield (BCBS) network. Wellmark has contracted with health care providers in Iowa to provide services at certain reimbursement rates. By agreement, Wellmark makes those rates available both to self-insured Iowa plans that it administers and to out-of-state BCBS affiliates when those entities provide coverage for services provided in Iowa.
This case comes before us for the second time. See Mueller v. Wellmark, Inc., 818 N.W.2d 244 (Iowa 2012).
Approximately seven years ago, a number of Iowa chiropractors sued Wellmark, the largest health insurer in Iowa, in the Polk County District Court. The suit challenged Wellmark's reimbursement rates and practices for chiropractic services and asked for class action certification. One count of the plaintiffs' petition sought relief under a variety of Iowa insurance statutes. Mueller, 818 N.W.2d at 249 (noting plaintiffs sought relief based upon allegations Wellmark engaged in discriminatory practices in violation of Iowa Code sections 509.3(6), 514.7, 514.23(2), 514B.1(5)(c), 514F.2 (2007)). Another count pled that Wellmark had entered into a contract, combination, or conspiracy in violation of section 553.4 of the Iowa Competition Law, the counterpart to section 1 of the Federal Sherman Antitrust Act. Id.; see also 15 U.S.C. § 1 (2006). A third count alleged that Wellmark had abused monopoly power in violation of section 553.5 of the Iowa Competition Law, the counterpart to section 2 of the Sherman Act. Mueller, 818 N.W.2d at 249; see also 15 U.S.C. § 2.
On Wellmark's motion, the district court dismissed the claims based on the insurance statutes. Mueller, 818 N.W.2d at 250. It found no private cause of action was available under those laws. Id. The district court later granted summary judgment to Wellmark on the antitrust claims. Id. at 252. This ruling was primarily based on the "state action" exemption in the Iowa Competition Law. Id.; see also Iowa Code § 553.6(4) (providing that the Iowa Competition Law "shall not be construed to prohibit ... activities or arrangements expressly approved or regulated by any regulatory body or officer acting under authority of this state"). Plaintiffs appealed. Mueller, 818 N.W.2d at 253.
On appeal, we affirmed the dismissal of the claims under Iowa insurance law. As we explained,
Id. at 258.
However, we found that the state action exemption did not insulate Wellmark's reimbursement rates from antitrust review. We noted,
Id. at 262 (footnote omitted). Yet, we affirmed the dismissal of some of the chiropractors' antitrust claims, including the Iowa Code section 553.5 monopolization claim, on alternate grounds that had been raised by Wellmark. Id. at 264-66. Still, with respect to the section 553.4 conspiracy claim, "we reverse[d] the district court's summary judgment granting Wellmark a blanket exemption under section 553.6(4) from charges that it engaged in anticompetitive price-fixing or term-fixing schemes." Id. at 264.
On remand, the plaintiffs stipulated that their only remaining antitrust claims — alleging conspiracies between Wellmark and out-of-state BCBS affiliates and between Wellmark and self-funding employers that hired Wellmark to administer their plans — were being asserted on a per se theory. As the plaintiffs stated,
Thereafter, Wellmark moved for summary judgment again, this time on the ground that neither of these alleged conspiracies was subject to per se treatment. As Wellmark put it, "Sharing a provider network does not amount to naked price fixing and is not subject to the per se rule." Wellmark urged that plaintiffs' claims were potentially viable, if at all, only under the rule of reason.
The summary judgment record revealed that employers wanting to provide group health insurance to their employees can contract with Wellmark in one of two ways. Either way, Wellmark makes its provider network available at established reimbursement rates and handles claims administration. However, if the employer self-insures, then the employer is financially responsible for claims. On the other hand, when Wellmark acts as an insurer in addition to a claims administrator, then the employer pays premiums to Wellmark, and Wellmark must bear the financial risk of the resulting claims.
The record also disclosed that Wellmark, which is the BCBS licensee in Iowa and South Dakota, has a BlueCard® program with BCBS licensees in other states. Under this arrangement, those out-of-state licensees have access to Wellmark's provider network in Iowa at the rates negotiated by Wellmark whenever they have to pay Iowa claims. Likewise, Wellmark has access to the other licensees' negotiated provider networks in their respective states at their rates whenever Wellmark
The plaintiffs maintained that Wellmark had engaged in per se price-fixing when it entered into agreements with self-insuring Iowa employers to make its network and claims administration available to them. Similarly, the plaintiffs urged that Wellmark had engaged in per se price-fixing when it participated in the national BlueCard® program under which BCBS entities agreed to make their in-state networks available to each other when their respective customers needed out-of-state services.
After hearing the parties' arguments, the district court rejected plaintiffs' per se theories and entered summary judgment for Wellmark. This appeal followed.
This court reviews grants of summary judgment for correction of errors at law. Mueller, 818 N.W.2d at 253. Whether the per se rule or the rule of reason applies to a given practice is a question of law. See California ex rel. Harris v. Safeway, Inc., 651 F.3d 1118, 1124 (9th Cir.2011) (citing XI Phillip Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1909b, at 279 (2d ed.2005)); Nat'l Bancard Corp. v. VISA U.S.A., Inc., 779 F.2d 592, 596 (11th Cir.1986).
Id.
Accordingly, in the past, when interpreting the Iowa Competition Law, we have generally adhered to federal interpretations of federal antitrust law. See Next Generation Realty, Inc. v. Iowa Realty Co., 686 N.W.2d 206, 208 (Iowa 2004) (per curiam); Max 100 L.C. v. Iowa Realty Co., 621 N.W.2d 178, 181-82 (Iowa 2001); Fed. Land Bank of Omaha v. Tiffany, 529 N.W.2d 294, 296-97 (Iowa 1995); Neyens v. Roth, 326 N.W.2d 294, 297 (Iowa 1982); State v. Cedar Rapids Bd. of Realtors, 300 N.W.2d 127, 128 (Iowa 1981). In Comes v. Microsoft Corp., we declined to follow federal precedent on whether indirect purchasers had standing to sue under the Iowa Competition Law. 646 N.W.2d 440, 445-49 (Iowa 2002). We did so because: (1) the language of the relevant provision (Iowa Code section 553.12 (1997)) supported indirect purchaser standing; (2) uniformity only requires a uniform standard of conduct under state and federal law, not a uniform rule as to who may sue; and (3) most federal courts allowed indirect purchasers to sue at the time the Iowa Competition Law was enacted in 1976. See id.
This case involves section 553.4 of the Iowa Competition Law. It provides, "A contract, combination, or conspiracy between two or more persons shall not restrain or monopolize trade or commerce in a relevant market." Iowa Code § 553.4 (2007). This provision of the Iowa Competition
In applying the rule of reason, "the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition." Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 1519, 99 L.Ed.2d 808, 816 (1988) (internal quotation marks omitted). By contrast, when a practice falls under the per se rule, there is no need for "case-by-case evaluation." Id. "The per se rule, treating categories of restraints as necessarily illegal, eliminates the need to study the reasonableness of an individual restraint in light of the real market forces at work...." Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886, 127 S.Ct. 2705, 2713, 168 L.Ed.2d 623, 634 (2007).
Thus, "`[i]t is only after considerable experience with certain business relationships that courts classify them as per se violations....'" Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 9, 99 S.Ct. 1551, 1557, 60 L.Ed.2d 1, 10 (1979) [hereinafter BMI] (alteration in original) (quoting United States v. Topco Assocs., Inc., 405 U.S. 596, 607-08, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515, 525 (1972)). Price-fixing agreements between competitors have been viewed as per se violations. Texaco, 547 U.S. at 5, 126 S.Ct. at 1279, 164 L.Ed.2d at 7.
But not all agreements on price are governed by the per se rule. When Texaco and Shell formed a joint venture known as "Equilon" to collaborate in the refining and marketing of gasoline in the western United States, the fact that the resulting gas was sold under the Texaco and Shell
Id. at 5-6, 126 S.Ct. at 1279-80, 164 L.Ed.2d at 7-8.
Similarly, in the BMI case, the Court held that the per se rule did not govern agreements among copyright holders to join together and issue blanket licenses at fixed rates. BMI, 441 U.S. at 16, 99 S.Ct. at 1560, 60 L.Ed.2d at 14. As the Court said,
Id. at 8-9, 99 S.Ct. at 1556-57, 60 L.Ed.2d at 9-10. The Court emphasized that the blanket license was not a "`naked restrain[t] of trade with no purpose except stifling of competition,'" but instead "accompanies the integration of sales, monitoring, and enforcement against unauthorized copyright use." Id. at 20, 99 S.Ct. at 1562, 60 L.Ed.2d at 16 (alteration in original) (quoting White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 702, 9 L.Ed.2d 738, 746 (1963)). The Court noted that the costs of individual sales transactions would be "prohibitive" and thus some form of blanket license was a necessity. Id. at 20-21, 99 S.Ct. at 1562-63, 60 L.Ed.2d at 16-17.
Still, monopsonistic conduct can create economic dislocation by forcing supplier prices down below the competitive level, just as monopolistic conduct can lead to dislocation by driving consumer prices above a competitive level. See id. (citing Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and Its Practice § 1.2(b), at 14 (4th ed.2011)). In Mandeville Island Farms, Inc. v. American Crystal Sugar Co., the Supreme Court reversed the dismissal of a complaint brought by sugar beet growers, alleging that three sugar refiners had entered into an agreement to pay uniform prices for beets. 334 U.S. 219, 221, 246, 68 S.Ct. 996, 999, 1011, 92 L.Ed. 1328, 1333, 1345 (1948). As the Court put it, this arrangement "deprived the beet growers of any competitive opportunity for disposing of their crops by the immediate operation of the uniform price provision." Id. at 242, 68 S.Ct. at
To begin with, these arrangements are not naked price-fixing arrangements but are more akin to joint ventures. The self-insureds are not entering into bare agreements to refrain from competing on price with Wellmark — they are buying claims-administration service from Wellmark. Part of that service consists of Wellmark's negotiated pricing. As in BMI, the record indicates that it would be highly impractical for the vast majority of participants in the alleged conspiracy (i.e., the vast majority of the self-insured employers) to engage in the numerous individual transactions that would be needed if they could not latch on to Wellmark's pricing.
Wellmark's health care provider network is analogous to the blanket license in BMI. It provides a mechanism by which an otherwise unavailable product (self-financed health coverage) can be offered. Cf. id. If the only lawful choice for a self-insured employer were the time-consuming process of negotiating individual rates with health care providers, the record indicates that almost all employers would avoid self-insuring. This would eliminate one possible way to render the health care market more efficient and reduce the costs of health care coverage — by allowing employers to bear the financial risk of health claims themselves.
Insurance involves both claims-handling and risk-spreading. A large number of Iowa employers, according to the summary judgment record, want some of the package but not all of it. That is, they do not wish to go into the health insurance business themselves but instead desire to purchase typical health insurance services from an outside entity like Wellmark. At the same time, those employers apparently have enough financial wherewithal to assume the ultimate risk that workforce claims will exceed workforce premiums.
Similar efficiency-related observations can be made about Wellmark's reciprocal arrangements with out-of-state BCBS licensees.
In a somewhat different context, the Supreme Court has recognized that joint buying can "achieve economies of scale ... that would otherwise be unavailable." Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 286-87, 105 S.Ct. 2613, 2615, 86 L.Ed.2d 202, 206 (1985). In Northwest Wholesale Stationers, the Court declined to apply a per se analysis to a member's claim that it had been wrongfully expelled from a nonprofit wholesale purchasing cooperative, noting that "such cooperative arrangements would seem to be `designed to "increase economic efficiency and render markets more, rather than less, competitive."'" Id. at 295, 105 S.Ct. at 2620, 86 L.Ed.2d at 212 (quoting BMI, 441 U.S. at 20, 99 S.Ct. at 1562, 60 L.Ed.2d at 16); see also All Care Nursing Serv., Inc. v. High Tech Staffing Servs., Inc., 135 F.3d 740, 744, 747-49 (11th Cir.1998) (declining to apply a per se analysis to an arrangement whereby competing hospitals agreed to seek bids as a group for temporary nursing services); Kartell v. Blue Shield of Mass., Inc., 749 F.2d 922, 925 (1st Cir. 1984) (rejecting antitrust claims and contrasting a legitimate, independent medical cost insurer with a "`sham' organization seeking only to combine otherwise independent buyers in order to suppress their otherwise competitive instinct to bid up price").
Furthermore, neither of these types of Wellmark arrangements truly represents a horizontal agreement between competitors. Cf. Texaco, 547 U.S. at 5, 126 S.Ct. at 1279, 164 L.Ed.2d at 7. Wellmark does not really compete with its self-insured clients. While a self-insured might elect not to use Wellmark's services, plaintiffs cite no example of a self-insured that markets those kinds of services to anyone else in competition with Wellmark. Nor does Wellmark compete with the out-of-state BCBS licensees. Its customers are in Iowa and South Dakota; the other licensees are licensed to sell health insurance in other states.
Additionally, we agree with Wellmark that a decision of the United States District Court for the Northern District of Illinois is helpful and on point. See N. Jackson Pharmacy, Inc. v. Caremark RX, Inc., 385 F.Supp.2d 740 (N.D.Ill.2005). In North Jackson, a retail pharmacy sued a
The district court rejected the per se categorization. Id. at 747-51. The arrangement in question was not a "naked restraint," but one which was "ancillary" to a broader venture with procompetitive potential. See id. at 747-48. The court elaborated,
Id. at 748-51.
Another and related factor arises from a concern explained by Kartell v. Blue Shield of Massachusetts, Inc., 749 F.2d 922, 931 (1st Cir.1984):
The conditions that were present in North Jackson Pharmacy prevail here as well. The arrangements here are not bare price-fixing agreements; indeed, unlike in North Jackson Pharmacy, there is not even an allegation that the various self-insureds have entered into agreements with each other. Rather, the self-insured employers have entered into significant relationships with Wellmark under which Wellmark provides much more than a price list — i.e., a network of providers; rules for eligibility, limitations, copays, and deductibles; and claims administration and processing. From the employee's standpoint, Wellmark appears to be providing traditional health insurance. The only difference is that the employer and not Wellmark is the ultimate financial backstop.
Also, similar to the situation in North Jackson Pharmacy, the record here indicates that there are potential efficiencies and economies of scale when employers rely on Wellmark to perform these functions, in which it has experience and expertise. The vast majority of employers could not realistically perform these duties on their own. There are also potential efficiencies and economies of scale when out-of-state insurers collaborate with Wellmark instead of trying to set up their own network for a relatively small number of Iowa claims.
Additionally, as in North Jackson Pharmacy, there are reasons for "judicial hesitancy" in classifying the challenged practices as per se violations of antitrust law. The plaintiffs themselves admit the practices are widespread. A large percentage of Iowans are covered by self-insured employer plans administered by Wellmark. The BlueCard® network is a national program used by health insurers and clients across the country. We should be reluctant to declare these arrangements flatly illegal, without considering their relative procompetitive or anticompetitive effects.
Plaintiffs seek to distinguish North Jackson Pharmacy on the ground that Wellmark is not a "mere independent third-party `administrator'" but a "major competitor in the market for Iowa healthcare provider services." Yet we fail to see how this distinction helps the plaintiffs' cause. It is true that Wellmark provides a higher level of service than a "mere administrator." It is also true that Wellmark's health care provider network was set up at least in part for its own purposes, not merely as a device to enable group purchasing of health care services. But these factors, if anything, take the challenged arrangements even further out of the realm of naked restraints. The self-insured employers are purchasing a bundle of preexisting services from Wellmark that most of them could not provide themselves.
Plaintiffs analogize this case to Arizona v. Maricopa County Medical Society, but we think the analogy is imperfect. See 457 U.S. 332,
This case might be comparable to Maricopa County Medical Society if the plaintiffs were claiming that Wellmark and other Iowa health insurers had simply agreed they would pay the same reimbursements to health care providers, without exchanging any meaningful services. Under Maricopa County Medical Society, it would not be a defense that the health insurers had agreed on minimum rather than maximum reimbursement rates.
The plaintiffs also argue at some length that Wellmark has market power in health insurance in Iowa. This may be true, but it is not relevant to a per se claim. If plaintiffs' per se argument were correct, then it would be illegal for any insurer to make its insurance network pricing available to a self-insured that used the insurer's administrative and claims services even if the insurer had only a miniscule market share.
Additionally, the plaintiffs rely on Department of Justice and Federal Trade Commission guidance on health care. However, we believe the line that those agencies have drawn between per se and rule of reason conduct is consistent with the decision in this case. Consider the following passage from the 1996 Statements of Antitrust Enforcement Policy in Health Care:
U.S. Dep't of Justice & Fed. Trade Comm'n, Statements of Antitrust Enforcement Policy in Health Care 67 n. 17 (1996), available at http://www.justice.gov/ atr/public/guidelines/0000.pdf. The challenged arrangements here are not simply agreements among purchasers to fix a price, which would be subject to per se treatment. To the contrary, both the self-insureds and the out-of-state BCBS licensees are obtaining a block of Iowa claims-related services from Wellmark. In other words, there is "integration of purchasing [and other related] functions to achieve efficiencies." Id.
We are not today foreclosing a rule of reason claim against Wellmark if it were shown that the anticompetitive consequences of its practices exceeded their procompetitive benefits.
For the foregoing reasons, the district court's judgment is affirmed.
All justices concur except HECHT and APPEL, JJ., who take no part.
385 F.Supp.2d at 750-51.