Application of the Antitrust Laws to the Activities of Insurance Companies : Heavier Risks, Expanded Coverage, and Greater Liability

Since 1945 Congress has exempted certain activities of insurance companies from federal antitrust scrutiny. This exemption, provided by the McCarran-Ferguson Act, is not unqualified; it only applies to insurance company activities that constitute the "business of insurance" and that already are regulated under state law. Moreover, the exemption does not apply to activities that involve boycotts, coercion, or intimidation. The purpose of this exemption was to preserve the long tradition of state regulation of insurance, while providing federal remedies for coercive anticompetitive activities. The authors examine recent Supreme Court interpretations of the Act in light of this legislative policy and conclude that the Court has unduly restricted the scope and application of the Act. They urge the Court to abandon this restricted view and call on Congress to assert its view of the nature and scope of the McCarran-Ferguson exemption