Antitrust Compliance Programs for Insurers

• Pages: 225-239

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CHAPTER XIII

ANTITRUST COMPLIANCE PROGRAMS FOR

INSURERS

This chapter outlines measures that counsel for insu rance carriers

should consider when designing, implementing, and administering an

antitrust compliance program.

The development of any compliance program starts with an

understanding of the substantive legal standards discussed in Chapters II

through XI of this Handbook and their applicability to insurance industry

practices. But an effective compliance program also requires the creation

of practical mechanisms for transmitting the antitrust counselor’s advice

to the company’s officers and employees, as well as proactive mechanisms

for detecting and remedying wrongful conduct, and for preventing similar

misconduct in the future. Although antitrust compliance programs can be

structured in many different ways, antitrust counsel should consider at

least the basic elements described below.

A. The Unique Nature of Antitrust Compliance Programs for

Insurers

In unregulated industries, antitrust compliance programs focus almost

exclusively on avoiding conduct that might violate the antitrust laws.

While this is an important objective of antitrust compliance programs for

insurers, it is not the only one.

The McCarran-Ferguson Act

996

permits insurers to engage in certain

kinds of cooperation that the antitrust laws would or might prohibit absent

antitrust immunity. In those areas of conduct, compliance depends on the

avoidance of activity that might result in the loss of immunity, and in

particular, conduct falling within the McCarran-Ferguson Act’s boycott

exception.

997

Therefore, insurers’ antitrust compliance programs should

counsel against practices that might cause forfeiture of immunity where it

would otherwise be available.

996. See 15 U.S.C. §1012 (2012).

997. See 15 U.S.C. §1013 (2012).