Attorneys general impose state laws on cartels, but they can also, for the most part, bring private actions under the federal cartel law to demand omission rights or damage to the law. Private parties, in addition to federal laws, often assert rights under national cartel law. State law is often different from federal cartel law, notably because the majority of states expressly allow indirect purchasers to claim damages. Finally, Attorneys General may enforce federal cartel laws on the basis of their paren patriae authority and state cartel laws, based on their respective statutes. Parens patriae Authority authorizes the state to pursue legal action on behalf of citizens or individuals residing in its state in order to guarantee three damages resulting from a violation of the Sherman Act (see question 55). The research did not reveal any recent decisions regarding the most advantaged wholesalers (MFNs) other than the e-book decision (see question 21). However, in 2010, the U.S. Department of Justice and the State of Michigan filed a complaint against the health insurer Blue Cross Blue Shield of Michigan (BCBSM), claiming that the MFNs contained in BCBSM`s contracts with health care providers blocked entry, increasing prices and discouraging discounts. This is the most significant recent challenge to the validity of MFNs in the wholesale trade, but the case was dismissed without a substantive decision in March 2013 due to the passage of a Michigan law prohibiting the provisions of the MFN in contracts between insurers and Michigan hospitals, prohibiting BCBSM from continuing to include attacked MFNs in their contracts. A class action was settled and the District Court approved the agreement in March 2015 (Shane Group Inc. v.

Blue Cross Blue Shield of Michigan, 2015 WL 1498888 (ED Mich March 31, 2015). Like the price relativity agreements discussed in Question 23, it is likely that NFMs would not be retained in wholesale as a leegin-based treatment in itself justifiable. The modern trend is for the courts to treat agreements between distributors and manufacturers acting as distributors competing with their distributors as vertical agreements subject to general review. The long-standing rule is that “no formal agreement is required to confirm an illegal conspiracy” (American Tobacco Co/USA, 328 US 781, 809 (1946)). In addition, there is no need for the agreement to be written down.

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