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Eleventh Circuit Denies Blue Cross Blue Shield’s Interlocutory Appeal Challenging Application of Per Se Rule In Multidistrict Litigation In Alabama

On December 12, 2018, the Eleventh Circuit Court of Appeals denied defendants Blue Cross Blue Shield Association’s interlocutory appeal of a District Court decision to analyze BCBS’s geographic market distribution system under the per se rule rather than the rule of reason. Judge R. David Proctor of the Northern District of Alabama certified BCBS’s interlocutory appeal back in June because his decision to proceed under the per se standard of review “involves a controlling question of law as to which there is substantial ground for difference of opinion.” But rather than resolve the substantive legal issue at hand, the Eleventh Circuit issued a one sentence order denying “Defendants’ petition to appeal.” The parties did not seek to stay the case pending appeal and the underlying action has been moving forward.

Of course, this is not a decision on the merits. The Circuit Court’s refusal to hear the interlocutory appeal leaves open the possibility of defendants petitioning the Eleventh Circuit to rehear the issue en banc, and eventually seeking certiorari in the Supreme Court. Finally, the parties obviously can also appeal any final determination that relies, in whole or in part, on Judge Proctor’s ruling.

The case is In re Blue Cross Blue Shield Antitrust Litigation, Case No. 13-cv-2000, MDL 246 (N.D. Ala.). The appeal case number is 18-90020 (11th Cir. Dec. 12, 2018).

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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David Garcia Sheppard Mullin complex civil litigation attorneyantitrust law
Partner

David Garcia is a partner in Sheppard, Mullin, Richter & Hampton LLP's Century City office, where he is also the Office Managing Partner. He is a litigator with a broad background in complex civil litigation for major U.S. companies, including extensive class action and multidistrict litigation experience. His practice focuses  principally on antitrust litigation and counseling with particular emphasis on the entertainment industry, provider side healthcare mergers and the intersection between antitrust and intellectual property in litigation and joint ventures.

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Nadezhda Nikonova, Antitrust and Trade Regulation Attorney, Sheppard Mullin
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Nadezhda Nikonova is an associate in the Antitrust and Trade Regulation Practice Group in the firm's San Francisco office. Her practice focuses on high-technology cartel and monopolization cases. She has special experience working with expert witnesses and applying sophisticated economic analysis to antitrust law.

Ms. Nikonova earned her J.D. from the University of California, Berkeley School of Law (Boalt Hall), where she was awarded the Certificate in Business Law. During law school, she was the Editor-in-Chief of the Berkeley Business Law Journal, clerked at the Federal Trade Commission’s Bureau of Competition, and served as a research assistant to revise an antitrust law textbook.

Ms. Nikonova formerly worked as an economic analyst with expert witnesses on antitrust litigation and merger clearance matters. She received her B.A. summa cum laude in economics and psychology from UCLA.

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