"The McCarran Ferguson act does not define the key phrase "business of insurance." Courts, however, analyze three factors when determining whether a particular commercial practice constitutes the business of insurance: whether the practice has the effect of transferring or spreading a policy-holder's risk, whether the practice is an integral part of the policy relationship between the insurer and the insured, and whether the practice is limited to entities within the insurance industry (Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S. Ct. 3002, 73 L. Ed. 2d 647 [1982]).

1) Agreements (pricing or otherwise) between auto insurers and service providers have nothing to do with "transferring or spreading a policy-holder's risk".
2) They are not "an integral part of the policy relationship between the insurer and the insured".
3) They are not "limited to entities within the insurance industry".

It follows that TPA business models that include service provider networks are outside the "business of insurance" and subject to the Sherman Antitrust Act just as Bobby Kennedy reasoned in his case against the auto insurance industry.

Rather than face the music, the auto insurance industry "consented" to the Consent Decree of 1963 thereby establishing public policy for the entire nation.

The Federal Court ordered, adjudged and decreed, in part, that auto ensurers were enjoined from placing into effect any plan, program or practice which has the purpose or EFFECT of: directing, advising or otherwise suggesting that any person or firm do business or refuse to do business with any independent or dealer franchised automotive repair shop with respect to the repair of damaged automobile vehicles; or FIXING, establishing, maintaining or otherwise controlling the PRICES to be paid for the appraisal of damage to automotive vehicles, or to be CHARGED by independent or dealer franchised automotive repair shops for the repair of damage to automotive vehicles or for replacement parts or labor in connection therewith, whether by coercion, boycott or intimidation or by the use of FLAT RATE or parts MANUALS or OTHERWISE.

Can anyone, with a straight face, suggest that TPA's with networks of service providers and the auto insurers represented by said TPA's have not combined in violation of the law? If so, please submit your reply.

Very good post JB.

And now, hopefully, some will understand why I have stated repeatedly that "there is no such thing as insurance business", that "the insurer is NOT contracting for the repairs to the property, and therefore, by default, neither can the network or TPA be doing so", and the simplicity of YEAF's sig line, "Who's the Customer?", or "Who is the Buyer, and just as importantly, who is NOT?".

Safelite is arguing profoundly that the MN Dept of Insurance has no authority to regulate them. If this is true, they cannot be "an agent of the insurer", and then they also will not enjoy any of the supposed protections insurers enjoy under McCarran Fergusson. That means they are subject to the federal laws just like the rest of us, and you stated clearly that the Feds determined in 1963 that those laws apply to insurers also, anyway.

In addition to the fact that NONE of those laws have changed, you also have the addition of RICO law since.

The MN Dept of Insurance is between a rock and a hard place, the only way out for them at this point, is to enforce the laws. The alternative is much less appealing than dealing with Safelite thumbing their nose at them.

As to what Safelite is stating in their filings, well, all I can say to that is, you just can't make this stuff up! I say, keep talking Safelite, keep talking.

Of course, as always, this is all JMHNLO.

Thanks, Mark1.
There is also a very recent Supreme Court of the U.S. decision in North Carolina Board of Dental Examiners v. Federal Trade Commission that will have an impact on cases where entities may lose their “State-Action” Exemption to Federal Antitrust Law status.

See Richard M. Blau, Esq.'s article, "WHAT’S IN IT FOR YOU?

The “State-Action” Exemption to Federal Antitrust Law and
The U.S. Supreme Court’s Decision of
North Carolina Board of Dental Examiners v.
Federal Trade Commission

Here is his conclusion,"CONCLUSION
So, what’s the takeaway from all this?
In its current form, the state-action doctrine provides that state legislatures and high courts generally enjoy federal antitrust immunity. The jurisprudence also demonstrates that government administrative agencies and municipalities must act pursuant to a clearly articulated state policy, but need not be actively supervised by the state to get immunity.

The NC Dental Board decision qualifies how the state-action doctrine applies – or, more accurately, does not apply – when the state-authorized entity is “controlled by active market participants.” When trade associations or boards comprised primarily of market participants are authorized to act under the state’s imprimatur, those entities will not be entitled to state-action protection from federal antitrust laws unless they meet both prongs of the Midcal standard, i.e., the anticompetitive actions at issue are:
(a) undertaken pursuant to a “clearly articulated and affirmatively expressed” state policy; and (b) “actively supervised” by the state. In contrast, actions taken by state boards or authorities with no involvement from market participants likely do not have to satisfy the Midcal requirements.

I don't think an auto insurers decision to conspire with a third party made up of active market service providers to administer auto glass claims has been undertaken pursuant to a "clearly articulated and affirmatively expressed" state policy or is being "actively supervised" by the designated state agency.

Were that the case, Minnesota's action would be just the tip of the iceburg.

In order to retain their control, state agencies must either start actively supervising or relinquish their authority to the Feds. JMHO