R. DAVID PROCTOR

Individual motions denied; consolidated motion denied in part.

Joseph H. Webster, Chapman Lewis & Swan PLLC, Clarksdale, MS, Megan Jones, William Butterfield, Melinda Coolidge, Michael D. Hausfeld, Hausfeld LLP, Richard A. Feinstein, Kathleen Simpson Kiernan, William A. Isaacson, Boies Schiller & Flexner LLP, Bradley A. Wasser, David A. Balto, Law Offices of David Balto, Carl S. Kravitz, Zuckerman Spaeder LLP, Charles M. Thompson, Charles M. Thompson PC, Daniel A. Small, Laura Alexander, Meghan M. Boone, Cohen Milstein Sellers & Toll PLLC, Jason R. Rathod, Whitfield Bryson & Mason LLP, Justin W. Bernick, Hogan Lovells U.S. LLP, Mark J. Murphy, Mooney Green Saindon Murphy and Welch PC, Washington, DC, Aaron S. Podhurst, Matthew P. Weinshall, John Gravante, III, Peter Prieto, Podhurst Orseck PA, Javier Asis Lopez, Kozyak Tropin & Throckmorton PA, Miami, FL, Andrea Layne Stackhouse, Lawrence L. Jones, II, Jones Ward PLC, Mark K. Gray, Gray & White, Louisville, KY, Andrew England Brashier, Archibald I. Grubb, II, Rebecca Diane Gilliland, Wilson Daniel Miles, III, Beasley Allen Crow Methvin Portis & Miles PC, Gregory L. Davis, Davis & Taliaferro LLC, H. Lewis Gillis, Means Gillis Law, LLC, Montgomery, AL, Andrew J. Kochanowski, Jason J. Thompson, Kevin J. Stoops, Lance Craig Young, Sommers Schwartz PC, Southfield, MI, Andrew Allen Lemmon, Lemmon Law Firm, Hahnville, LA, Andrew M. Stone, Stone Law Firm LLC, Benjamin J. Sweet, Edwin J. Kilpela, Jr., Carlson Lynch Ltd., Pittsburgh, PA, Anna Louise Hart, Annesley H. Degaris, Douglas A. Dellaccio, Jr., Cory Watson Crowder & Degaris PC, Augusta S. Dowd, Hope S. Marshall, J. Mark White, Katherine R. Brown, Linda G. Flippo, U. W. Clemon, White Arnold & Dowd PC, Barry A. Ragsdale, Sirote & Permutt PC, Brian M. Clark, Dennis G. Pantazis, Wiggins Childs Pantazis Fisher & Goldfarb, Christopher T. Hellums, Jonathan S. Mann, Pittman Dutton & Hellums PC, David J. Guin, Guin Stokes & Evans LLC, Donna Smith Cude, John D. Saxon PC, Edward K. Wood, Jr., Michael E. Gurley, Jr., Wood Law Firm LLC, Glen M. Connor, Richard P. Rouco, Quinn Connor Weaver Davies & Rouco, J. Allen Schreiber, Burke Harvey LLC, James M. Terrell, Phillip W. McCallum, R. G. Methvin, Jr., McCallum Methvin & Terrell PC, Joe R. Whatley, Jr., W. Tucker Brown, Whatley Kallas LLP, John D. Saxon, John D. Saxon PC, Peter H. Burke, Burke Harvey LLC, Richard S. Frankowski, The Frankoski Firm LLC, Robert B. Roden, Shelby Roden LLC, Tammy McClendon Stokes, Guin Stokes & Evans LLC, Birmingham, AL, Arthur N. Bailey, Jr., Hausfeld LLP, San Francisco, CA, Ben W. Gordon, Jr., Levin Papantonio Thomas Mitchell Rafferty & Proctor, Pensacola, FL, Benjamin L. Barnes, Edmond, OK, Brenton W. Cole, Jacob T. E. Stutzman, James L. Warren, III, Carroll Warren & Parker PLLC, M. Patrick McDowell, Brunini Grantham Grower & Hewes PLLC, Jackson, MS, Brian E. Wojtalewicz, Wojtalewicz Law Firm Ltd., Appleton, MN, Bruce C. Jones, Eric B. Swartz, Jones & Swartz PLLC, Boise, ID, Bryan L. Clobes, Ellen Meriwether, Cafferty Clobes Meriwether & Sprengel LLP, Dianne M. Nast, Erin C. Burns, Nastlaw LLC, Michael J. McCarrie, Artz Health Law, Philadelphia, PA, Carl Wesley Pittman, The Pittman Firm PA, Lee McArthur Scott, Panama City, FL, Casey Langston Lott, Langtson & Lott, P.A., Booneville, MS, Charles D. Hudson, Myron C. Penn, Penn and Seaborn LLC, Christina D. Crow, Lynn W. Jinks, III, Nathan A. Dickson, II, Jinks Crow & Dickson PC, Union Springs, AL, Charles C. Hunter, Debra B. Hayes, The Hayes Law Firm, Kingwood, TX, Charles R. Watkins, John R. Wylie, Donaldson & Guin LLC, Chicago, IL, Christopher T. Cain, Scott & Cain, Thomas S. Scott, Jr., Ball & Scott Law Offices, W. Gordon Ball, Gordon Ball Law Office, Knoxville, TN, Christopher L. Coffin, Stanley P. Baudin, Pendley Baudin & Coffin LLP, Plaquemine, LA, Cyril V. Smith, III, Daniel Patrick Moylan, Zuckerman Spaeder LLP, Baltimore, MD, D. Brian Hufford, Zuckerman Spaeder LLP, Edith M. Kallas, Whatley Kallas LLC, Robert J. Axelrod, Axelrod & Dean LLP, Star Mishkel Tyner, Pomerantz Grossman Hufford Dahlstrom & Gross, LLP, New York, NY, Dale Ernest Akins, Akins Law Firm, Bluffton, SC, Daniel E. Gustafson, Daniel C. Hedlund, Ellen M. Ahrens, Gustafson Gluek PLLC, Minneapolis, MN, David Boies, Boies Schiller & Flexner LLP, Armonk, NY, David A. Ettinger, Lara F. Phillip, Honigman Miller Schwartz & Cohn LLP, Detroit, MI, David J. Hodge, Morris King & Hodge, Herman Watson, Jr., Rebekah Keith McKinney, Watson McKinney LLP, Huntsville, AL, David M. Wilkerson, The Van Winkle Law Firm, Asheville, NC, Deborah J. Winegard, Whatley Kallas LLC, Atlanta, GA, Dennis Craig Reich, Reich & Binstock LLP, Houston, TX, Edgar Hyde Carby, Philip E. Carby, Carby & Carby PC, Natchez, MS, Edgar Dean Gankendorff, Eric R. Belin, Provosty & Gankendorff LLC, New Orleans, LA, Gail A. McQuilkin, Harley S. Tropin, Kozyak Tropin & Throckmorton PA, Coral Gables, FL, Garrett D. Blanchfield, Reinhardt Wendorf & Blanchfield, St. Paul, MN, Gary E. Mason, Whitfield Bryson & Mason LLP, Washington, AL, Gerald F. Easter, Gerald F. Easter, Attorney at Law, Randall D. Noel, Butler Snow LLP, Timothy R. Holton, Deal Cooper Holton PLLC, Matthew G. White, Baker Donelson Bearman Caldwell & Berkowitz, Memphis, TN, Henry C. Quillen, Whatley Kallas LLP, Portsmouth, NH, Irma L. Netting, Lemmon Law Firm, Hahnville, LA, J. Michael Malone, Hendren & Malone PLLC, Raleigh, NC, James G. Adams, Jr., Julia Smeds Roth, Nicholas B. Roth, Ta'Kisha L. Guster, Eyster Key Tubb Roth Middleton & Adams LLP, Decatur, AL, James P. Carr, Yuhl Carr LLP, Marina Del Rey, CA, Janet Brooks Holmes, Temus C. Miles, Jr., McKay Cauthen Settana and Stubley, Joseph Preston Strom, Jr., Strom Law Firm LLC, Columbia, SC, Joey K. James, Bunch & James, Florence, AL, John Clark Davis, John C. Davis PC, Tallahassee, FL, John R. Holton, Deal Cooper Holton PLLC, Memphis, TN, John Doyle Nalley, Lovell & Nalley, Benton, AR, John W. Partin, L. Shane Seaborn, Penn & Seaborn LLC, Clayton, AL, John W. Reis, Cozen O'Connor, Charlotte, NC, Jonathan Charles Little, Saeed & Little, LLP, Indianapolis, IN, Kathleen Currie Chavez, Matthew J. Herman, Robert M. Foote, Foote Mielke Chavez & O'Neil LLC, Geneva, IL, Lisa N. Hayes, Reinhardt Wendorf & Blanchfield, Auburn, AL, M. Stephen Dampier, The Dampier Law Firm PC, Fairhope, AL, Margery S. Bronster, Rex Y. Fujichaku, Robert M. Hatch, Bronster Hoshibata, Honolulu, HI, Michael P. McGartland, McGartland Law Firm PLLC, Fort Worth, TX, Michael J. Sudekum, Mandel and Mandel, LLP, Troy A. Doles, Schlichter Bogard & Denton LLP, St. Louis, MO, Mitchell Lloyd Berry, Dyke Goldsholl & Winzerling PLC, Little Rock, AR, Nicholas R. Rockforte, Patrick W. Pendley, Pendley Baudin & Coffin LLP, Plaquemine, LA, Patrick E. Cafferty, Cafferty Clobes Meriwether & Sprengel LLP, Ann Arbor, MI, Patrick James Quinlan, Law Offices of Patrick J. Quinlan, Providence, RI, R. Christopher Cowan, Cowan Law Firm, Dallas, TX, Robert G. Eisler, Grant & Eisenhofer PA, Wilmington, DE, Sean T. O'Connell, Shaheen & Gordon PA, Dover, NH, Stephen M. Hanson, Law Offices of Stephen M. Hansen, PS, Tacoma, WA, Thomas Bender, Walters Bender Strohbehn & Vaughn PC, Kansas City, MO, Thomas Michael Trucksess, Hogan Lovells U.S. LLP, McLean, VA, Tyler J. Barnett, Yuhl Carr LLP, Marina Del Rey, CA, Van Bunch, Bonnett Fairbourn Friedman & Balint PCO, Phoenix, AZ, Virginia M. Buchanan, Levin Papantonio Thomas Mitchell Rafferty & Proctor PA, Pensacola, FL, William H. Horton, Giarmarco Mullins & Horton PC, Troy, MI, for Plaintiff. Aaron G. McLeod, Adams & Reese LLP, Andrew Phillip Campbell, Andrew T. Campbell, Stephen D. Wadsworth, Campbell Guin Williams Guy and Gidiere LLC, Brian P. Kappel, Lightfoot Franklin & White LLC, Carl S. Burkhalter, James L. Priester, John T. A. Malatesta, III, Maynard Cooper & Gale PC, Cavender C. Kimble, Balch & Bingham LLP, D. Keith Andress, Baker Donelson Bearman Caldwell & Berkowitz PC, Devin Clarke Dolive, Gary M. London, Burr & Forman LLP, John M. Johnson, Lightfoot Franklin & White LLC, Joshua K. Payne, Michael Sansbury, Robert K. Spotswood, Spotswood Sansom & Sansbury LLC, Kimberly R. West, Mark Montgomery Hogewood, Wallace Jordan Ratliff & Brandt LLC, Stephen A. Rowe, Adams & Reese LLP, Birmingham, AL, Adam H. Charnes, Chad Dwight Hansen, Daniel R. Taylor, Jr., Kilpatrick Townsend & Stockton LLP, Winston–Salem, NC, Alan Harris, Bodman PLC, Ann Arbor, MI, Alan D. Rutenberg, Foley & Lardner LLP, Andrew D. Kaplan, April N. Ross, Kathleen Taylor Sooy, Crowell & Moring LLP, Craig A. Hoover, E. Desmond Hogan, Elizabeth A. Jose, J. Robert Robertson, Robert F. Leibenluft, Hogan Lovells U.S. LLP, D. Bruce Hoffman, Todd M. Stenerson, Hunton & Williams LLP, Ian R. Conner, Kirkland & Ellis LLP, John D. Briggs, Kenina Lee, Rachel J. Adcox, Axinn Veltrop Harkrider LLP, Tracy A. Roman, Crowell and Moring LLP, Victoria Ann Redgrave, Redgrave LLP, Washington, DC, Allison Nunley Pham, Charles A. O'Brien, III, Baton Rouge, LA, Antonio M. Clayton, Michael Paul Fruge, Clayton & Fruge, Port Allen, LA, Ashley M. Lowe, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Knoxville, TN, Brian K. Norman, Shamoun & Norman LLP, Dallas, TX, Carlos M. Hernandez—Burgos, Pedro Santiago—Rivera, Rafael Escalera—Rodriguez, Reichard & Escalera, San Juan, PR, Charles L. Sweeris, Mary C. St. John, Blue Shield of California, Mark Edward McKane, Kirkland and Ellis, Michael A. Naranjo, Foley & Lardner LLP, San Francisco, CA, Cheri D. Green, Christopher A. Shapley, M. Patrick McDowell, R. David Kaufman, Brunini Grantham Grower & Hewes PLLC, Jackson, MS, Christopher G. Scanlon, Paul A. Wolfla, Faegre Baker Daniels LLP, Indianapolis, IN, D. Kent Meyers, Crowe & Dunlevy, Elizabeth Barnett Labauve, Oklahoma City, OK, David Newmann, Hogan Lovells U.S. LLP, Lezlie Madden, Matthew L. Bleich, Paul K. Leary, Jr., Cozen O'Connor, Shannon Elise McClure, Reed Smith LLP, Stephen A. Loney, Jr., Hogan & Hartson, Philadelphia, PA, Daniel E. Laytin, David J. Zott, Erica Zolner, Kirkland & Ellis LLP, Chicago, IL, Douglass C.E. Farnsley, Stites & Harbison PLLC, Gregory Haynes, Wyatt, Tarrant & Combs LLP, Louisville, KY, Edward S. Bloomberg, Phillips Lytle LLP, Buffalo, NY, Emily M. Yinger, N. Thomas Connally, III, Hogan Lovells U.S. LLP, McLean, VA, Erin M. Wilson, Gwendolyn C. Payton, Lane Powell PC, Seattle, WA, Gary C. Shockley, Baker, Donelson, Bearman & Caldwell, Nashville, TN, H. James Koch, Armbrecht Jackson LLP, Mobile, AL, Honor R. Costello, Crowell & Moring LLP, New York, NY, J. Bentley Owens, III, Wallace Ellis Fowler Head & Justice, Columbiana, AL, Jeremy D. Feinstein, Reed Smith LLP, Pittsburgh, PA, James Thomas Williams, Jr., Jennifer K. Van Zant, Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, Greensboro, NC, Jason Gourley, Sarah Lynn Cylkowski, Bodman PLC, Detroit, MI, John Stone Campbell, III, L. Adam Thames, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, John Martin, Nelson Mullins Riley & Scarborough LLP, Columbia, SC, John W. Reis, Cozen O'Connor, Charlotte, NC, Jonathan M. Redgrave, Redgrave LLP, Chantilly, VA, Kristen J. Gillis, Tyrone Carlton Means, Means Gillis Law LLC, Pamela B. Slate, Hill Hill Carter Franco Cole & Black PC, Montgomery, AL, R. Mark Glover, Baker Donelson Bearman Caldwell & Berkowitz, Randall D. Noel, Butler Snow LLP, Memphis, TN, Samuel Andrew Diddle, Eberle Berlin Kading Turnbow & McKlveen, Boise, ID, Scott F. Singley, Brunini Grantham Grower & Hewes PLLC, Columbus, MS, for Defendant.

MEMORANDUM OPINION

R. DAVID PROCTOR, District Judge.

This matter is before the court on various Motions to Dismiss filed by Defendants. (Docs. # 107, 108, 110, 112–14, 116, 119, 121, 122, 125, and 135). On April 9, 2014, the court heard argument on certain aspects of the Motions to Dismiss with general application to Defendants and both categories of Plaintiffs. After careful review and with the benefit of oral argument, the court denies certain of the Motions to Dismiss without prejudice.

I. Introduction

This multidistrict litigation involves a series of allegations by two separate putative classes which seek to represent Blue Cross/Blue Shield Providers and Subscribers, respectively, from across the country. The Provider and Subscriber Putative Classes have each filed Master Complaints in this litigation. Both complaints allege, among other things, that the Defendant Blue Cross/Blue Shield Plans, which are independent companies, along with the Blue Cross Blue Shield Association, have engaged in a conspiracy to horizontally allocate geographic markets (“the BCBS Market Allocation Conspiracy”) by agreeing with each other to carve the United States into “service areas” in which only one designated Blue plan is permitted to sell health insurance to customers ( i.e., the Subscribers) and contract with healthcare professionals and entities

( i.e., the Providers). Plaintiffs allege that this practice is per se illegal under Section 1 of the Sherman Act.

Defendants have moved to dismiss the Master Complaints on a number of grounds. To be clear, this Memorandum Opinion does not address all of those arguments. Rather, this ruling is limited to Defendants' contentions that Plaintiffs have failed to state a Sherman Act Section 1 claim, and, in any event, that their antitrust claims are barred, at least in part, by the McCarran–Ferguson Act and the Filed Rate Doctrine. The court also addresses, but makes no ruling upon, the parties' arguments about personal jurisdiction and venue.

II. Plaintiffs' Claims

The court will not attempt to discuss in detail all of the claims advanced by class counsel for the Providers and Subscribers in this litigation. However, it does provide a summary of Plaintiffs' claims and Defendants' motions to dismiss (or at least those arguments related to the issues discussed in this Memorandum Opinion) as background for the court's disposition of these motions.

A. The Subscribers' Claims

The Subscribers allege the existence of an ongoing conspiracy between and among the Individual Blue Plans (sometimes referred to as “the Blues” or “the Blue Plans”) and the Blue Cross and Blue Shield Association (“BCBSA” or “the Association”) to allocate markets in violation of the Sherman Act. Their Master Complaint seeks both injunctive relief and damages. In particular, the Subscribers seek damages consisting of the difference between the supra-competitive premiums that the Individual Blue Plans have charged and lower competitive premiums that the noncompeting Blue Plans have not charged as a result of this illegal conspiracy. (Doc. # 99–1 at ¶ 2). In support of their market allocation claims, the Subscribers allege, inter alia, that Defendants have agreed to do the following:

a. Prohibit individual Blue Plans from competing against each other using the Blue name by allocating territories among the individual Blues;

b. Limit individual Blue Plans from competing against each other, even when they are not using the Blue trade name, by mandating the percentage of their business that they may conduct under the Blue name, both inside and outside each Plan's territory;

c. Restrict the right of any individual Blue Plan to be sold to a company that is not a member of BCBSA, thereby preventing new entrants into the individual Blues' markets;

d. Place severe territorial limitations upon the individual Blue Plans' ability to compete outside of their geographic areas, even when using their non-Blue brands; and/or

e. Not to utilize non-Blue brands to compete with other individual Blue Plans.
(Doc. # 99–1 at ¶ 4). But for these and other illegal agreements not to compete with one another, the Subscribers contend Defendants could (and would) use their Blue brands and non-Blue brands to compete with each other throughout their Service Areas, which would result in greater competition and competitively priced premiums for the Subscribers. (Doc. # 99–1 at ¶¶ 5–7).

B. Providers' Claims

Similar to the allegations made by the Subscribers, the Providers allege that Defendants previously reached an explicit agreement to divide the United States into what they term “Service Areas” and then to allocate those geographic markets among the Blues, free of competition from one another. The Providers specifically allege that Defendants have created geographic markets and allocated those among themselves by agreeing not to compete with each other within those markets. The Providers further allege that, as a result of decreased competition due to the market allocation, they are paid much less by the Blues than they would be absent Defendants' conspiratorial conduct. (Doc. # 86 at ¶¶ 4–6).

The Providers contend that the alleged BCBS Market Allocation Conspiracy is a per se violation of Section 1 of the Sherman Act.

C. Defendants' Motions

As noted above, Defendants' motions to dismiss assert a number of theories. However, at the hearing held on April 9, 2014, the court heard argument limited to the following issues:

1. Whether Plaintiffs have adequately pled per se violations of Section 1 of the Sherman Act related to their horizontal market allocation claims;

2. Whether proper consideration of Defendants' motions requires some factual development;

3. The effect, if any, of common law trademarks on Plaintiffs' Section 1 market allocation claims;

4. Whether the Filed Rate Doctrine bars some of Plaintiffs' claims;

5. Whether the McCarran–Ferguson Act bars Plaintiffs' claims; and

6. What rule of law controls as to personal jurisdiction and/or venue issues raised by certain Defendants.
(Doc. # 187). Again, the court will not attempt to capture and restate Defendants' arguments in their entirety. However, a summary of their arguments is provided below.

First, Defendants argue that their alleged market allocation actually relates to a network of service areas that have existed for more than half a century, and which originally arose from common law trademark rights. Defendants also contend that their service agreements create a unique product because they allow Defendants to compete like a nationally integrated health insurer, while still preserving a focus on meeting the health insurance needs of their local communities. For these (and other) reasons, Defendants assert that Plaintiffs cannot state a per se claim under Section 1 of the Sherman Act because the license agreements they challenge cannot constitute an unlawful agreement to restrict Blue–on–Blue competition. That is, they argue the license agreements do not restrain trade, but merely adopt pre-existing rights to local geographic exclusivity acquired either independently by operation of trademark law, or vertically through lawful licenses granted by the American Hospital Association (“AHA”) or the American Medical Association (“AMA”). They also contend that the service areas have procompetitive benefits

and have been the subject of review by such federal agencies as the Federal Trade Commission and Department of Justice.

Second, Defendants contend that Plaintiffs' Section 1 claims cannot be shoehorned into what they characterize as the ever-narrowing per se rule, a rule they claim applies only to a shrinking slice of restraints that result from agreements (1) among direct ( i.e., “horizontal”) competitors; (2) which have no plausible procompetitive justifications; and (3) can be condemned without analysis by virtue of the judiciary's vast experience with them. Indeed, they argue that the per se rule does not apply to horizontal agreements which have plausible procompetitive justifications; rather, those restraints must be evaluated under the rule of reason.

Third, Defendants argue that the Subscribers' “fallback” rule of reason claim also fails because their alleged product and geographic markets are improper.

Fourth, Defendants argue that Plaintiffs' claims are barred, at least in part, by operation of the McCarran–Ferguson Act and the Filed Rate doctrine. The former exempts the “business of insurance” from the reach of federal antitrust laws; the latter precludes damages claims based on certain rates filed with state regulators.

Finally, certain of the Defendants have raised challenges based upon a purported lack of personal jurisdiction and venue. Although the court does not rule on these threshold challenges, it does provide guidance to the parties regarding the analysis it will employ in making such rulings.

The court discusses each of these five issues, in turn.

III. Standard of Review

In most instances, the Federal Rules of Civil Procedure require only that the complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Nevertheless, to survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The complaint must include enough facts “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels or conclusions” or “naked assertion[s]” without supporting factual allegations. Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955. To be plausible on its face, the claim must contain enough facts that “allow [ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949.

Antitrust claims are subject to the general standards of Rule 8 pleading. See Twombly, 550 U.S. at 554–55, 127 S.Ct. 1955. The court must construe pleadings broadly and resolve inferences in a plaintiff's favor. Levine v. World Fin. Network Nat'l Bank, 437 F.3d 1118, 1120 (11th Cir.2006). However, the court need not accept inferences that are unsupported by the facts asserted in the complaint. Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir.2006). Ultimately, the well-pleaded complaint must present a reasonable inference from the facts it alleges that show a defendant is liable. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1215 (11th Cir.2012). To survive Defendants' Motion, the allegations of Plaintiffs' Complaints must permit the court based on its “judicial experience and common sense ... to infer more than the mere possibility of misconduct.” Iqbal, 129 S.Ct. at 1949.

IV. Analysis

Defendants have proffered several arguments in support of their motions to dismiss. The court deals with four of those below and also addresses the starting point for a proper personal jurisdiction and venue analysis.

A. Defendants' Common Law Trademarks Arguments

Defendants argue that Plaintiffs' Section 1 claims are due to be dismissed because the alleged agreements at issue are not illegal, as they merely recognize pre-existing trademarks. However, at this early stage of the proceedings, the Blues' contention misses the mark. Plaintiffs have offered a number of arguments as to why the court should, at least for now, reject Defendants' assertions related to prior trademark rights. Although the court addresses three of those below, to be sure, there are others.

First, Plaintiffs have alleged in their pleadings that the current market allocation agreements do more than merely recognize pre-existing trademarks. For example, they contend that the agreements also restrict competition under non-Blue or non-trademarked brands. Specifically, Plaintiffs allege that Defendants have illegally agreed to place limits on the extent to which Blues can compete under their non-Blue brands and that impermissible agreement had the effect of reducing competition between Blues and non-Blue subsidiaries to which preexisting trademark rights are irrelevant.

(Doc. # 86 at ¶¶ 111, 153–58; Doc. # 99–1 at ¶¶ 6, 7, 328–31).

Second, it is plausibly alleged in the Master Complaints that, before the challenged market allocations and under the pre-existing trademarks, the Blues actually competed in the areas in which they now contend they had exclusive and enforceable trademark rights. (Doc. # 99–1 at ¶¶ 316–19). Thus, Plaintiffs have alleged that, prior to the alleged agreement to allocate markets and curtail competition between them, but after the alleged formation of common law trademark rights, Defendants actually engaged in competition. Plaintiffs also allege that the market allocation agreement imposes additional restraints on trade that did not exist, or at least were not enforced, when the Blues were purportedly exercising their common law trademark rights.

Finally, and in any event, Plaintiffs have alleged that, as part of the scheme at issue here, the individual Blue Plans surrendered their trademark rights to the Association, and that the Association is nothing more than an entity controlled by the Blues.

According to Plaintiffs' allegations, because the Blues control the Association, they in turn control—collectively—each individual Blue Plan's rights to assert a trademark claim. Plaintiffs have claimed that this arrangement was put in place in furtherance of the conspiracy to eliminate competition. Thus, even assuming the accuracy of the Blues' characterization of the history related to the Blues' common law trademark rights, this presents a significantly different scenario than that which existed prior to their alleged scheme.

The court has not attempted to reference (much less address) all of the details regarding Plaintiffs' allegations about the alleged scheme. But the contentions discussed above make clear that Plaintiffs have alleged a viable market allocation scheme. If that scheme is proven, it may subject Defendants to antitrust liability.

B. The Attack on Plaintiffs' Section 1 Per Se Claim

Section 1 of the Sherman Act makes unlawful “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. However, an important question to be answered in assessing any Section 1 claim is this: what standard of review will be utilized in assessing the challenged restraint(s). Here, Plaintiffs allege that Defendants have engaged in concerted activity that has produced two different types of illegal restraints: horizontal market allocation and horizontal price fixing.

In Topco, the Supreme Court made clear that it meant what it said in Sealy:

horizontal territorial restraints are per se violations of the Sherman Act. United States v. Topco Associates, Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). Nevertheless, the parties are in dispute as to Topco's (and Sealy's ) continuing viability. The Blues contend that Topco is essentially outdated, and that the Supreme Court's antitrust analysis has moved away from pronouncing horizontal market allocations illegal as a matter of law. They note that in recent years, the Supreme Court has “presumptively applie[d] rule of reason analysis, under which antitrust plaintiffs must demonstrate that a particular contract or combination is in fact unreasonable and anticompetitive before it will be found unlawful.” Texaco Inc. v. Dagher, 547 U.S. 1, 5, 126 S.Ct. 1276, 164 L.Ed.2d 1 (2006). The Court has also expressed reluctance to classify agreements as per se illegal: “ Per se liability is reserved for only those agreements that are ‘so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality.’ ”

Id. (quoting National Soc. of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978)).

Plaintiffs, on the other hand, are quick to note that Sealy and Topco have never been overruled and, in fact, the Court has never expressly called those decisions into question. Moreover, the lower courts have also frequently (as well as recently) mentioned horizontal market allocation as an example of a combination that is “so inherently anticompetitive that each is illegal per se without inquiry into the harm it has actually caused.” E.g., In re Southeastern Milk Antitrust Litigation, 739 F.3d 262, 271 (6th Cir.2014) (quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984)); see also Jacobs v. Tempur–Pedic Intern., Inc., 626 F.3d 1327, 1334 (11th Cir.2010).

No “bright line separat[es] per se from Rule of Reason analysis.” Nat'l Coll. Athletic Ass'n (“NCAA”) v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 104 n. 26, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984). Moreover, somewhere on the continuum between the per se rule and the rule of reason lies the “quick look” approach, which applies to a limited number of intermediate cases where the anticompetitive impact of a restraint is clear from a quick look (as in a per se case), but procompetitive justifications for the restraint also exist. See NCAA, 468 U.S. at 101, 104 S.Ct. 2948; In re Southeastern Milk Antitrust Litigation, 739 F.3d 262, 274–75 (6th Cir.2014) (the quick look analysis is a third type of category arising from the blurring of the line between per se and rule of reason cases); In re Terazosin Hydrochloride Antitrust Litigation, 352 F.Supp.2d 1279, 1312 (S.D.Fla.2005). “This less-rigid approach aligns with the Supreme Court's recognition of the value of the ‘quick look’ approach as an abbreviated form of the rule of reason analysis used for situations in which ‘an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect on customers and markets.’ ” In re Southeastern Milk Antitrust Litigation, 739 F.3d at 274 (quoting Cal. Dental Ass'n v. FTC, 526 U.S. 756, 770, 119 S.Ct. 1604, 143 L.Ed.2d 935 (1999)). Applying “this test is useful when the anticompetitive nature of an agreement is so blatant that a detailed review of the surrounding marketplace would be unnecessary.” Id. (citing Cal. Dental Ass'n, 526 U.S. at 769–70, 119 S.Ct. 1604).

As to the per se versus rule of reason question,

it is, as the court explained at the April 9, 2014 hearing, simply too early to assess which standard of review should be applied to Plaintiffs' allegations. The court fully appreciates that whether “a per se[, quick look] or rule of reason analysis [applies] is a question of law[;] [however, that question] is predicated on a factual inquiry into the restraint's competitive effect.” National Bancard Corp. (NaBanco) v. VISA U.S.A., Inc., 779 F.2d 592, 596 (11th Cir.1986) (citing NCAA, 468 U.S. at 104, 104 S.Ct. 2948) (emphasis added). Thus, while the mode of analysis is certainly a question of law, “underpinning that purely legal decision are numerous factual questions.” In re Wholesale Grocery Products Antitrust Litigation, 752 F.3d 728, 733–34 (8th Cir.2014). To decide upon “[t]he true test of legality ... the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable.” Cont'l T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49 n. 15, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) (quoting Chi. Bd. of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918)).

In Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 344 F.3d 1294 (11th Cir.2003), the Eleventh Circuit addressed an agreement between brand name and generic drug manufacturers not to compete. The district court granted partial summary judgment on liability. In doing so, the trial court characterized the plaintiffs' Section 1 claims as attacking geographic market allocation agreements between horizontal competitors as per se illegal under Section 1. Valley Drug Co., 344 F.3d at 1301. The district court entertained, but rejected, the defendants' argument that there were procompetitive justifications for the agreements. Valley Drug Co., 344 F.3d at 1302. However, the court did not analyze whether the agreements not to compete were broader than the exclusionary rights granted by the underlying patents.

Valley Drug Co., 344 F.3d at 1301–02. The Eleventh Circuit reversed, holding that any such characterization was premature without further analysis of that issue. Id. at 1304. Thus, Valley Drug supports a conclusion that any similar characterization of Plaintiffs' claims at the stage in this case would be premature. Neither the parties nor the court has had the opportunity to develop the factual record necessary to make that determination. NaBanco, 779 F.2d at 596. Accordingly, Defendants' motions to dismiss Plaintiffs' Section 1 claims on this ground are due to be denied at this time.

C. Defendants' Filed Rate Doctrine Arguments

The so-called Filed Rate Doctrine generally operates to bar antitrust suits that are, in actuality, based upon challenges to rates that have been filed with regulatory agencies. The Supreme Court first set forth the Filed Rate Doctrine in Keogh v. Chicago & Northwestern Railway Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922), although its origin can be traced back even further.

The plaintiff in Keogh alleged that a railroad company conspired to fix freight rates, in violation of antitrust laws. The Supreme Court held that where a plaintiff challenges a rate filed with and deemed reasonable by the Interstate Commerce Commission (“ICC”), the district court correctly dismissed the suit for failure to state a claim upon which relief can be granted. Keogh, 260 U.S. at 164–65, 43 S.Ct. 47.

The doctrine bars consumers' claims that would undermine the regulator's rate-setting authority by challenging the rate that the regulator had approved. Hill v. BellSouth Telecommunications, Inc., 364 F.3d 1308, 1317 (11th Cir.2004). Even a claim which on its face does not challenge reasonableness of the rate but nevertheless seeks purely monetary damages may be barred by the Filed Rate Doctrine. Id. at 1317. The rationale is that a consumer is barred from challenging the reasonableness of a rate because the consumer has no legal right to pay any rate other than that set by the administrative agency. Taffet v. Southern Co., 967 F.2d 1483, 1494 (11th Cir.1992). The doctrine “recognizes that where a legislature has established a scheme for utility rate-making, the rights of the rate-payer in regard to the rate he pays are defined by that scheme.” Id. at 1490.

The Filed Rate Doctrine serves two main goals: (1) respecting statutory grants of rate-setting authority to agencies (the “nonjusticiability rationale”), Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981); and (2) preventing discrimination between similarly situated rate-payers (the “nondiscrimination rationale”), Keogh, 260 U.S. at 163, 43 S.Ct. 47. See also Hill, 364 F.3d at 1316–17. Initially, the doctrine was applied in the context of federal claims involving rates set or approved by federal regulatory bodies. See, e.g., Keogh, 260 U.S. at 165, 43 S.Ct. 47 (affirming dismissal of antitrust claims that challenged a rate set by the ICC). However, since that time, its application has not been limited to federal regulatory bodies. Indeed, the Eleventh Circuit

has applied this doctrine to dismiss a complaint bringing federal claims that challenged rates set by state agencies.

See, e.g., Taffet, 967 F.2d at 1494 (affirming dismissal of RICO claims challenging rates set by Alabama and Georgia utility commissions). Our Circuit has also relied upon the doctrine in the context of federally approved rates which formed the basis for the assertion of state law causes of action. See Hill, 364 F.3d at 1317 (affirming dismissal of two state law claims challenging rates filed with the Federal Communications Commission).

As part of their argument, Defendants contend that the Filed Rate Doctrine bars the claims of some, but not all, of Subscriber Plaintiffs' claims.

In particular, they contend that rates were filed with state regulators such that those rates are legal rates, and, as a matter of law, those Subscriber Plaintiffs cannot state a claim or assert legally cognizable injury based on payment of these rates. (Doc. # 120 at 71). In opposition, Plaintiffs argue that (1) the Filed Rate Doctrine does not bar claims for declaratory and injunctive relief (Doc. # 153 at 37–38); (2) the conduct challenged by the Subscriber Plaintiffs is the agreement not to enter any market assigned to another BCBSA licensee

(Doc. # 153 at 38); (3) state law filed rates cannot trump federal antitrust claims because such a scenario would run afoul of the most basic principles of federalism (Doc. # 153 at 39); and (4) the Filed Rate Doctrine cannot apply to bar damages incurred from rates that are never filed with a state regulator, or rates that depart from the base rate that is filed (Doc. # 153 at 39).

Plaintiffs are correct that, even if this court were to decide to apply the Filed Rate Doctrine, application of that doctrine would only bar recovery of money (including treble) damages, not declaratory or injunctive relief. Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 422 n. 28, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986); Florida Mun. Power Agency v. Florida Power & Light Co., 64 F.3d 614, 616 (11th Cir.1995). Thus, not only would application of the doctrine only apply to a subset of Plaintiffs, it would also only apply to a subset of those particular Plaintiffs' claims for relief.

The court also believes that Plaintiffs correctly note that logic dictates the Filed Rate Doctrine could only apply to claims against a Blue in the state or states in which that particular Blue filed rates. Thus, for example, although claims brought by Alabama Subscribers against Blue Cross and Blue Shield of Alabama (“BCBS Alabama”) might be barred by the Filed Rate Doctrine, claims by BCBS Alabama Subscribers in any other states (in which BCBS Alabama does not file rates) would not be barred. It follows that even if this court were to apply the doctrine, it would have limited application here.

There is a split of authority as to the propriety of examining whether there is a “meaningful” review of the rates at issue. In Square D, the Supreme Court rejected the petitioner's contention that the Filed Rate Doctrine was inapplicable even though, unlike in Keogh, no ICC hearing reviewing the rate had been held. Square D, 476 U.S. at 417 n. 19, 106 S.Ct. 1922. Although the Square D Court did not definitively resolve the question of whether the doctrine may apply even when no such review has occurred, that approach has been followed by other federal courts. See, e.g., Goldwasser v. Ameritech Corp., 222 F.3d 390, 402 (7th Cir.2000); Town of Norwood v. New England Power Co., 202 F.3d 408, 420 (1st Cir.2000). Two other circuit decisions, however, have reached a different conclusion. See Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332 (9th Cir.1990) (where no review is mandated by a statutory scheme, the filed rate doctrine may be inapplicable); Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir.1992) (relying primarily on Wileman Bros.).

The Eleventh Circuit has not squarely addressed the issue, but the emerging trend in this Circuit appears to be in line with the Ninth Circuit's approach—before applying the doctrine, the court should make an inquiry into the extent of administrative oversight of the rates at issue. E.g., In re Managed Care Litig., 150 F.Supp.2d 1330, 1344 (S.D.Fla.2001) (Moreno, J.) (“The filed rate doctrine does not apply to the present case because these states do not appear to conduct administrative oversight in the extensive manner typical of situations implicating the doctrine.”); Abels v. JPMorgan Chase Bank, N.A., 678 F.Supp.2d 1273, 1277 (S.D.Fla.2009) (King, J.) (declining to apply the Filed Rate Doctrine because a defendant bank was not subject to the same extensive administrative oversight as insurance companies); see also Taffet, 967 F.2d at 1490–91 (“To determine whether the appellants in the cases at hand have alleged a cognizable injury ..., we examine the rate-making schemes in Alabama and Georgia which define the rights these appellants enjoy in regard to the rates they pay for electric power.”). Moreover, as the Eleventh Circuit has noted, “[i]n decisions subsequent to Keogh, the Court has emphasized the limited scope of the filed rate doctrine to preclude damage claims only where there are validly filed rates.” Fla. Mun. Power Agency v. Fla. Power & Light Co., 64 F.3d 614, 617 (11th Cir.1995) (emphasis added).

The court believes that a decision about whether to apply the Filed Rate Doctrine at this time, even only to claims against those Blues who filed rates in the jurisdictions in which they were required to file rates, would be premature. At this early stage, the court cannot make a determination about the applicability of the Filed Rate Doctrine because such a decision may require an inquiry into the extent of administrative oversight exercised by the various states' insurance regulators over the filing of rates in relevant states. Moreover, delaying this decision until at least the summary judgment stage will not prejudice Defendants because (1) again, the doctrine is not a complete bar to all of Plaintiffs' claims, and (2) at a minimum, discovery on Plaintiffs' declaratory/injunctive claims would still be in order. Some inquiry is needed into which Defendants have filed rates and in which jurisdictions, and discovery may also be required concerning the extent of administrative oversight Defendants were subjected to in each jurisdiction in which they filed rates.

D. Defendants' Invocation of the McCarran–Ferguson Act's Antitrust Exemption

Defendants also assert that “[P]laintiffs cannot attack [the] Blue Plans' use of service areas under federal antitrust law because the practice is exempt under the McCarran–Ferguson Act as part of the ‘business of insurance.’ ” (Doc. # 120 at 66). However, to the contrary, the court concludes that because the conduct alleged by Plaintiffs cannot be construed as the “business of insurance”—but rather involves the business of insurance companies—Plaintiffs' claims are not barred by the McCarran–Ferguson Act's antitrust exemption.

The McCarran–Ferguson Act (“the Act”) provides that any conduct that (1) constitutes the “business of insurance,” (2) is regulated by state law, and (3) does not amount to an “act of boycott, coercion, or intimidation,” is exempt from the strictures of federal antitrust law. 15 U.S.C. §§ 1012(b); 1013(b). Although the Act does not define the term “business of insurance,” the Supreme Court has articulated three guidelines to be used in determining whether particular behavior can be designated as such: “first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.” Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982). Each of Pireno's “business of insurance” factors is relevant, but no single one is individually dispositive. Id.

In arguing that the conduct attributed to them by Plaintiffs is exempt from antitrust scrutiny under the Act, Defendants rely heavily on the Eleventh Circuit's most recent treatment of the exemption in Gilchrist v. State Farm Mutual Automobile Insurance Company, 390 F.3d 1327 (11th Cir.2004). Gilchrist involved an antitrust suit in which it was alleged that numerous insurance companies conspired with each other to use cheap parts in the repair of automobiles, thereby reducing repair costs and allowing the insurance companies to retain a greater percentage of the premiums they charged. 390 F.3d at 1330. Starting with the premise that “both rate-making and the performance of an insurance contract—including the adjustment of claims—constitute the business of insurance,” the Gilchrist court had no difficulty holding that the insurance companies' discount repair scheme constituted the “business of insurance.” Id. at 1331–32. The court reasoned that the Gilchrist plaintiffs' suit amounted to (1) “an indirect allegation of price-fixing and, therefore, a direct attack on the integrity of Insurers' rate-making,” and (2) “an attack on how Insurers perform their contractual obligations to their policyholders.” Id. at 1331–32.

Attempting to extend Gilchrist's reasoning to this case, Defendants frame Plaintiffs' market-allocation theory as “an attack on premiums” and conclude that Plaintiffs' suit “is a camouflaged attack on rates ... barred by McCarran.” (Doc. # 120 at 67–68). However, Gilchrist is distinguishable from this case. Here, Plaintiffs allege that Defendants entered into geographic market allocation agreements among themselves, limiting competition and thereby maintaining rates— i.e., premiums (Subscribers) and reimbursements (Providers)—at anti-competitive levels. (Doc. # 85 at 10–12; Doc. # 86 at 7–8). The factual allegations here are markedly different from those in Gilchrist.

First, there is a distinct contrast in the anticompetitive behavior alleged in each of the cases—Plaintiffs' primary allegation in this case is horizontal allocation of geographic markets, whereas “cost-fixing” formed the basis of the underlying allegations in Gilchrist. To be sure, in a very general sense, allocation of geographic markets can be said to ultimately influence rates. However, the mere fact that an insurance company's conduct affects rates is not necessarily dispositive as to whether such conduct constitutes the “business of insurance.” Indeed, the Supreme Court noted in Royal Drug that, at least in some manner, “every business decision made by an insurance company has some impact on its reliability, its ratemaking, and its status as a reliable insurer.” Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 216–17, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). Nevertheless, the Court warned that viewing the “business of insurance” in such an expansive manner would “be plainly contrary to the statutory language [of the Act], which exempts the ‘business of insurance’ and not the ‘business of insurance companies.’ ” Id. To be sure, the cost-fixing in Gilchrist was more directly aimed at transferring/spreading risk of the insurer, in that it allowed participating insurance companies to fix the costs of repair and ensured that they would enjoy larger profit margins on premiums.

In addition, Gilchrist differs from this case in the degree to which the challenged practices directly implicate the core insurance relationship, i.e., that between insurer and insured. In Gilchrist, the defendants' conduct went to the heart of the insurance relationship, affecting the manner in which insurers serviced their insureds' policies. In contrast, the Blues' alleged behavior here is more attenuated, bearing more on the relationship between fellow insurers, rather than insurers and insureds.

Finally, the conduct at issue in Gilchrist—fixing the cost of servicing policyholders' claims—was unique to the insurance industry. In stark contrast, the conduct alleged in the present case—horizontal allocation of geographic markets—is not specific to the insurance industry. That is, allocating geographic markets between competitors is a practice that can occur in any number of industries, not just the insurance area.

The present case also stands out from other prominent McCarran–Ferguson Act cases decided by the Eleventh Circuit, particularly because of our Circuit's unique focus on horizontal allocation of geographic markets. See Slagle v. ITT Hartford, 102 F.3d 494 (11th Cir.1996); Uniforce Temporary Personnel, Inc. v. National Council on Compensation Insurance, Inc., 87 F.3d 1296 (11th Cir.1996). These cases are also distinguishable and the court addresses them, in turn.

The Slagle case involved the actions of the Florida Windstorm Underwriting Association (“FWUA”), a state-mandated, insurer-funded organization that offered windstorm insurance in coastal areas where such insurance was not otherwise available on the open market. 102 F.3d at 496. The member insurers did not offer windstorm insurance; rather, they were proportionally responsible for any losses suffered by the FWUA. Id. The Eleventh Circuit found that such conduct, which the plaintiff challenged as both horizontal price-fixing and market allocation, was exempted by the Act. Id. at 499. The court's application of the statutory antitrust exemption was relatively straightforward: the court (1) held that the windstorm insurance program was a quintessential example of spreading/transferring a policyholder's risk ( i.e., the “business of insurance”); (2) noted that the FWUA bore the imprimatur of the State of Florida; and (3) determined that the insurance scheme did not trigger the Act's boycott exception. Id. at 497–99. Indeed, the Slagle court characterized the FWUA's conduct as “rate-fixing,” not horizontal market allocation,

and, as such, its reasoning has dubious applicability in the present case. Id. at 498.

Nor does this case squarely align with Uniforce. There, an agency for temporary workers brought suit against a variety of insurance entities, alleging antitrust violations in the area of workers' compensation insurance. 87 F.3d at 1298. The temp agency was unable to obtain workers' compensation insurance through the voluntary or self-insurance markets, and instead had to insure its workers with “assigned risk” policies from the residual market. Id. The temp agency alleged that the target insurance carriers acted in concert to set premiums for “assigned risk” policies at unreasonable levels and prevent temporary worker agencies from accessing the voluntary market for workers compensation insurance. Id. at 1299. The Eleventh Circuit determined that those allegations actually concerned “rate-making activity” and further concluded that the alleged conduct satisfied all of Pireno's “business of insurance” criteria. Like Slagle, Uniforce did not address the allocation of geographic markets—the primary allegation here.

Based upon Plaintiffs' allegations, the most analogous set of facts to those here are found in In re Insurance Brokerage Antitrust Litigation, a case in which insurers were accused of impermissibly entering into an agreement not to compete for one another's established customers. 618 F.3d 300, 356 (3d Cir.2010) (“[W]e are left with plaintiffs' allegations that [defendants] agreed with one another not to compete for incumbent business.”). There, the Third Circuit held that the alleged agreement fell outside the purview of the Act's antitrust exemption because it did not directly concern the spreading of risk (and, consequently, did not constitute the “business of insurance”). Id. at 357.

In reaching its conclusion, the court distinguished more risk-centric agreements ( e.g., agreements as to eligibility for coverage, extent/type of coverage, or price of coverage), and, in doing so, the Third Circuit reasoned that an agreement to allocate incumbent customers only affects an insurance company's risk exposure in an incidental manner. Id. at 357–58 (“Here, not only is defendants' alleged agreement not to compete for incumbent business different than the cooperative ratemaking efforts described in Royal Drug, but it also appears to have been unrelated to reliability; it does not involve any restriction on the type of coverage offered or the risk profile of insurable entities.... Defendants' alleged agreement was designed to ensure only that once an insurer had won a client's business—by providing the client with an acceptable coverage package at an acceptable premium—another insurer would not attempt to poach that business by offering a more attractive price when it came up for renewal.”).

The court finds the Third Circuit's reasoning persuasive. Because Defendants' alleged allocation of geographic markets is similarly unrelated to the spreading of risk, the court concludes that the conduct challenged by Plaintiffs does not fall within the definition of the “business of insurance.” Accordingly, Plaintiffs' claims are not barred by the McCarran–Ferguson Act's antitrust exemption.

E. An Overview of the Proper Personal Jurisdiction and Venue Analysis

In addition to Defendants' primary motion to dismiss (Doc. # 108), some of the Blues have filed motions to dismiss based upon lack of personal jurisdiction and/or improper venue (Docs.# 107, # 112, # 113, # 119, # 121, # 122, # 125, # 135).

The court and parties briefly discussed these motions at the hearing held on April 9, 2014, but that argument was limited to the question of what rule of law should be applied to determine personal jurisdiction and venue in the antitrust context. The court similarly limits its analysis to that same, narrow issue.

A federal antitrust plaintiff may properly establish personal jurisdiction and venue against an out-of-state, corporate defendant in one of two ways. First, an antitrust plaintiff may rely on traditional principles of personal jurisdiction and venue, demonstrating that the forum state's long-arm statute provides for personal jurisdiction and that venue is proper under the general federal venue statute, 28 U.S.C. § 1391.

Second, an antitrust plaintiff may invoke Section 12 of the Clayton Act, which provides:

Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.
15 U.S.C. § 22. Section 12 has two distinct clauses, the first addressing venue and the second addressing service of process, but the appropriate interaction of these two clauses is somewhat murky, resulting in a circuit split. And although a number of circuits have weighed in on the question, the Eleventh Circuit has not yet squarely addressed the issue.

The majority view, subscribed to by the Seventh, Second, and D.C. Circuits, is that the two clauses are meant to operate in concert with each other. See KM Enterprises, Inc. v. Global Traffic Technologies, Inc., 725 F.3d 718 (7th Cir.2013); Daniel v. American Board of Emergency Medicine, 428 F.3d 408 (2d Cir.2005); GTE New Media Services Inc. v. BellSouth Corp., 199 F.3d 1343 (D.C.Cir.2000). This interpretation is commonly-referred to as the “integrated” approach. According to this viewpoint, if an antitrust plaintiff wishes to avail itself of the second clause's nationwide service of process procedure (which produces nationwide personal jurisdiction),

that plaintiff must also use the first clause to determine venue.

The minority view, championed by the Ninth Circuit, understands the two clauses of Section 12 to exist independent of one another, meaning that they do not have to be utilized in conjunction, but instead may be “mixed-and-matched” with other statutory provisions. Go–Video, Inc. v. Akai Electric Company, Ltd., 885 F.2d 1406 (9th Cir.1989).

In the context of personal jurisdiction and venue, this interpretation allows plaintiffs to pair Section 12's nationwide service of process clause with the general federal venue statute, 28 U.S.C. § 1391, an amalgamation which essentially produces proper venue anywhere in the nation, as a plaintiff can use Section 12's nationwide service of process clause to establish personal jurisdiction in any judicial district and then use Section 1391 to establish proper venue based upon personal jurisdiction. Go–Video, 885 F.2d at 1415.

As noted above, the Eleventh Circuit has not conclusively weighed in on the circuit split described above. However, it did tangentially address the interplay between Section 12 of the Clayton Act and Section 1391 in Delong Equipment Company v. Washington Mills Abrasive Co., 840 F.2d 843 (11th Cir.1988). There, the court separately addressed issues of service and venue, holding that (a) the district court properly applied Section 12's nationwide service of process provision to a corporate defendant, and (b) venue was proper under Section 1391. Delong, 840 F.2d at 848, 855. These independent conclusions have been construed as an endorsement by the Eleventh Circuit of the notion that invocation of Section 12's nationwide service of process provision does not automatically require a venue analysis rooted in Section 12's venue clause. Go–Video, 885 F.2d at 1409; Plaintiff's Brief in Opposition, Doc. # 150 at 11–13. But such a reading of Delong is off the mark because it ignores the entirety of the court's analysis—including an extensive evaluation of the propriety of service under the forum state's long-arm statute

—and fails to acknowledge that the court's opinion was not rendered in the context of the current circuit split.

As such, Delong does not answer the question before the court, and the court is tasked with determining the appropriate rule of law to apply in this case without the aid of circuit precedent.

The court is well aware that the “starting point for all statutory interpretation is the language of the statute itself.” U.S. v. DBB, Inc., 180 F.3d 1277, 1281 (1999) (citing Watt v. Alaska, 451 U.S. 259, 265, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981)). However, the court agrees with the Seventh Circuit that the plain language of Section 12 is ambiguous, KM Enterprises, 725 F.3d at 728–29, and, thus, relies on secondary canons of interpretation in reaching its conclusion. This court finds that the “integrated” approach, which was most fully developed by that circuit in its KM Enterprises opinion, represents the best understanding of Section 12's operation. The court's preference for the “integrated” approach primarily lies in its avoidance of the odd outcomes that accompany the “mix-and-match” or “independent” approach. Indeed, the minority viewpoint, which understands Section 12 to provide nationwide venue, not only renders Section 12's venue provision superfluous, but also eviscerates Section 1391's limits on venue. KM Enterprises, 725 F.3d at 729–30. Cognizant that “interpretations that render words of a statute superfluous are disfavored as a general matter”

and “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available,”

the court chooses to adhere to the Seventh Circuit's sensible interpretation, avoiding the statutory Frankenstein that is the predictable result of the “mix-and-match” approach.

At this time, the court declines to substantively determine whether the Northern District of Alabama is the proper venue under Section 12 for all of the various suits that have been consolidated here, and that question will likely require further briefing. However, in light of the court's conclusion that the “integrated” approach is the correct rule of law, the venue issue will be assessed under Section 12's venue provision (at least to the extent Plaintiffs have utilized Section 12's nationwide service of process procedure).

V. Conclusion

For the reasons stated above, Defendants' Motions (Docs. # 107, 110,

112, 113, 114, 116,

119, 121, 122, 125, and 135) are due to be denied without prejudice. Defendants' Consolidated Motion to Dismiss (Doc. # 108) is due to be denied in part.

The court will enter a separate order consistent with this opinion.

ORDER

In accordance with the Memorandum Opinion entered this day, the court concludes that various Defendants' Motions to Dismiss (Docs. # 107, 110

, 112, 113, 114, 116

, 119, 121, 122, 125, and 135) are due to be and hereby are DENIED WITHOUT PREJUDICE. Defendants' Consolidated Motion to Dismiss (Doc. # 108) is DENIED IN PART.

On or before July 15, 2014, the parties SHALL filed a joint status report regarding a proposal for consideration of the remaining issues raised in Defendants' Supplemental Brief in Support of Motion to Dismiss (Doc. # 115) related to the Consolidated Motion to Dismiss (Doc. # 108).