On April 2, 2007, the Antitrust Modernization Commission (AMC) submitted its Report and Recommendations to Congress and the president following a three-year review of antitrust laws. The report, addressing exceptions to antitrust law in the context of an overall review of antitrust law and enforcement activity, was released while the congressional debate regarding the proposed repeal of the antitrust exemption granted to insurers in the McCarran-Ferguson Act, 15 U.S.C. § 1011, et seq., remains ongoing. Indeed, the sponsors of the repeal bills indicated that they would carefully review the AMC report in the context of the pending legislation. AMC is made up of members appointed by the former Republican-controlled Congress pursuant to the Antitrust Modernization Commission Act of 2002, Pub. L. No. 107-273, § 11054(h), 116 Stat. 1856, 1857 (2002).
The report concluded that "statutory antitrust exemptions should be disfavored as likely to harm both U.S. consumers and the U.S. economy." The AMC report has no binding effect on Congress or courts. However, the report contains sufficient negative commentary on McCarran-Ferguson that it likely will be cited by some members of Congress to support efforts to repeal that law. On the other hand, the AMC report's opposition to government price controls and emphasis on a free market provides support for proponents of the optional federal chartering concept.
The report did not examine the McCarran-Ferguson Act in any detail in its discussion of statutory exemptions to antitrust law. The AMC report did address the argument that this exemption is necessary for insurers to share data and that this exemption, and the shared data, in particular benefited smaller insurers. AMC found the justification "questionable" and responded that, under current application of antitrust law, the data sharing would be evaluated under the rule of reason that would take into consideration the procompetitive effects of the activity. The report suggested that, if antitrust law applied, insurers would face no greater risk than other industries in which data are shared and that insurers should be subjected to liability under antitrust law if they engaged in "anticompetitive collusion." AMC noted that "[a]lthough [it] was not in a position to study all antitrust exemptions in depth, it heard no compelling justification for any of the exemptions on which it held hearings. Such justifications . . . seemed to overestimate the potential for antitrust liability for the immunized conduct or seek a special exception from the same costs of legal compliance as are borne by other firms in the United States."
In addition to the brief discussion of the McCarran-Ferguson Act, the report included general recommendations regarding appropriate justifications for exemptions to antitrust law as well as recommendations regarding the nature of those exemptions. AMC suggested that Congress reconsider antitrust exemptions and grant only those exemptions that are "necessary to satisfy a specific societal goal that trumps the benefit of a free market." When granting statutory exemption, the report proposed that Congress develop a public record on the exemptions, consult with antitrust agencies to determine whether the conduct at issue would be subject to antitrust liability, and require those supporting the exemption to bear an ongoing burden to justify the necessity of the exemption. The AMC report supported periodic reconsideration of each statutory exemption, which could be achieved with the inclusion of a sunset clause, and also asked that courts construe each exemption narrowly and against the beneficiary.
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