Joseph Simons, Chairman of the Federal Trade Commission (“FTC”) since May 1, 2018, has announced that he would resign effective January 29, 2021. Following Chairman Simons out of the FTC are, among others, Bureau of...more
In a June 18, 2020, letter to the heads of the Antitrust Division of the Department of Justice and the Federal Trade Commission, several U.S. Senators expressed their views that the draft vertical merger guidelines...more
In April 2020, the Federal Trade Commission (“FTC”) released its annual report for 2019. The FTC’s annual report details the FTC’s actions over the prior year. In 2019, similar to other years, the health care industry...more
One of the more difficult questions faced by a dominant firm is whether to do business with a rival. The general rule, premised on the principle that true competition affords everyone the ability to make decisions about whom...more
On April 30, 2020, the Antitrust Division of the U.S. Department of Justice (“DOJ”) issued a press release announcing a deferred prosecution agreement with a major oncology practice in Florida. As a condition of the deferred...more
As organizations are working to respond to the 2019 novel coronavirus (known as “COVID-19”), the U.S. Department of Justice (“DOJ”) issued a reminder that emergency efforts do not negate the requirement to adhere to the...more
3/13/2020
/ Antitrust Provisions ,
Antitrust Violations ,
Bid Rigging ,
Competition ,
Coronavirus/COVID-19 ,
Crisis Management ,
Department of Justice (DOJ) ,
Emergency Response ,
Infectious Diseases ,
Preventive Health Care ,
Price-Fixing ,
Public Health
Adjustments to the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“Act”) will become effective on February 27, 2020. At that time, the minimum size-of-transaction threshold goes up to $94...more
The U.S. Department of Justice and the Federal Trade Commission (collectively, “Agencies”) recently released for public comment their much-anticipated draft Vertical Merger Guidelines (“Guidelines”) that purport to “outline...more
1/30/2020
/ Acquisitions ,
Antitrust Provisions ,
Comment Period ,
Competition ,
Department of Justice (DOJ) ,
Draft Guidance ,
Federal Trade Commission (FTC) ,
Horizontal Merger Guidelines ,
Merger Controls ,
Mergers ,
Public Comment ,
Regulatory Agenda ,
Rulemaking Process ,
Vertical Mergers
How a transaction gets structured raises a multitude of issues, including whether the transaction might be reportable under the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”). Structuring a transaction for the purpose...more
When submitting a Hart-Scott-Rodino (“HSR”) Premerger Notification and Report Form and documentary attachments, parties are required to include what are known as “4(c) documents” and “4(d) documents.” Under the HSR...more
Until recently, state and federal enforcers shared a common outlook in their approach and goals for antitrust enforcement. Most state antitrust laws mirror federal laws, and a consistent approach to antitrust enforcement has...more
On May 31, the Federal Trade Commission (“FTC”) posted the agenda for its final hearing in the “Competition and Consumer Protection in the 21st Century” series. The hearing will take place on June 12, 2019. The FTC has...more
On March 11, 2019, the Director of the Federal Trade Commission’s (“FTC’s”) Bureau of Competition and the Assistant Director of the Bureau’s Compliance Division coauthored a blog post to announce the revision of “standard...more
Parties involved in health care transactions subject to the reporting requirements of the Hart-Scott-Rodino Antitrust Improvements Act (“HSR” or “Act”) frequently ask whether submission of the HSR Notification and Report...more
2/28/2019
/ Acquisitions ,
Antitrust Provisions ,
Confidential Information ,
Contractual Safeguards ,
Department of Justice (DOJ) ,
Federal Trade Commission (FTC) ,
FOIA ,
Hart-Scott-Rodino Act ,
Information Sharing ,
Mergers ,
Public Disclosure ,
Sensitive Business Information
The Statements of Antitrust Enforcement Policy in Health Care (“Policy Statements”), issued jointly by the Department of Justice and Federal Trade Commission, provide, at Statement 3, guidelines for evaluating whether a joint...more
Given the importance of population health management, providers (whether as part of a value-based arrangement or otherwise) share clinical information to help develop best practices and quality initiatives. Current guidance...more
Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits “every contract, combination … or conspiracy, in restraint of trade or commerce.” Determining whether such a “contract, combination … or conspiracy” (i.e., the agreement...more
Trade associations frequently engage in standard-setting programs. Most often, these programs involve the setting of standards or specifications for certain manufactured products. Such programs can benefit consumers and...more
Under the Trump administration, the Antitrust Division of the U.S. Department of Justice (“DOJ”) (and, to some extent, the Federal Trade Commission) has emphasized its role as an antitrust “enforcer” and not a “regulator.”...more
Statement 1 of the Statements of Antitrust Enforcement Policy in Health Care recognizes that small hospitals, particularly those in rural areas, may be unable to achieve cost savings through efficiencies, such as those that...more
When a physician network or a multiprovider network lacks sufficient integration (either financial or clinical), agreements on price among the competing providers in the network must be avoided. One way to do this is through...more
Health care networks strive to achieve a level of integration that will permit joint contracting without the risk of per se condemnation under the antitrust laws. Clinical integration will allow for such contracting, but...more
While federal officials have stated their intent to persist in questioning vertical relationships that they hypothesize cause downstream economic effects on product flow and prices, a recent loss by the Department of Justice...more
7/3/2018
/ Antitrust Provisions ,
AT&T ,
Cable Television Providers ,
Competition ,
Department of Justice (DOJ) ,
Health Insurance ,
Insurance Industry ,
Merger Agreements ,
Mergers ,
The Clayton Act ,
Time Warner ,
Vertical Mergers
Recent decisions outside of the health care industry—including the defeated efforts (at least at the district court level) to block the merger of AT&T and Time Warner and the recent decision from the Second Circuit upholding...more
Collaborations among competitors or potential competitors can take many forms, the most common being a joint venture. The Antitrust Guidelines for Collaboration Among Competitors, issued jointly by the Federal Trade...more