On August 20, 2024, a Texas federal judge permanently barred the implementation of a controversial Federal Trade Commission (FTC) regulation that would have invalidated tens of millions of existing non-compete agreements and precluded the adoption of new covenants. We discussed the FTC’s non-compete regulation earlier this year. The decision comes as a relief to employers … Continue Reading
Customer switching data is an important factor that the Competition and Markets Authority (CMA) considers when assessing the closeness of competition of merging parties. However, as the completed acquisition by Pharmacy2U Limited (Pharmacy2U) of Lloyds Direct demonstrates, switching data can also be determinative when it comes to market definition. Pharmacy2U is a Distance Selling Pharmacy … Continue Reading
Private equity’s investment in healthcare has increased rapidly over the past decade, and this is now drawing attention from regulators. Signifying this increased scrutiny is a joint Request for Information (RFI) issued in March by the Department of Justice’s (DOJ) Antitrust Division, Federal Trade Commission (FTC), and Department of Health and Human Services (HHS) seeking … Continue Reading
For healthcare providers and practitioners, the rules surrounding non-competition agreements have evolved rapidly over the last two years, and that evolution accelerated even more this month. Over the past 18 months, states and the federal government enacted several new laws that substantially limit when healthcare entities can enforce non-competes. Then, on April 24, the Federal … Continue Reading
On December 18, 2023, the US Department of Justice (DOJ) and Federal Trade Commission (FTC) (collectively, the “government”) released the final 2023 Merger Guidelines (the “Guidelines”) which set forth factors and frameworks the government will use when assessing mergers and acquisitions. While the Guidelines are not legally binding, they provide important guidance on how the … Continue Reading
In 2022, the state of California passed into law the California Health Care Quality and Affordability Act which requires that health care entities give the state 90-day notice of certain mergers, acquisitions, or other transactions projected to close on or after April 1, 2024. Review of these transactions began on January 1, 2024. Health care … Continue Reading
On September 21, 2023, the Federal Trade Commission (FTC) filed a lawsuit against U.S. Anesthesia Partners, Inc. (USAP) and private equity firm Welsh, Carson, Anderson & Stowe, alleging that they engaged in anticompetitive practices in the anesthesia services market in Texas. According to the FTC’s complaint, USAP and Welsh Carson executed a multi-year strategy to … Continue Reading
This summer, the Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) (together “antitrust agencies” or “agencies”) continued to push boundaries on what constitutes anticompetitive conduct with the withdrawal of key healthcare policy statements and heightened scrutiny of the pharmaceutical industry. This summer also saw the DOJ and FTC score crucial enforcement wins in … Continue Reading
Last month the Federal Trade Commission (“FTC”) sued to block the $27.8 billion acquisition of Horizon Therapeutics plc (“Horizon”) by the biopharmaceutical corporation, Amgen Inc. (“Amgen”). The lawsuit was the latest move by the Biden Administration to tackle the high price of prescription drugs, which President Joe Biden described as “excessive” in his July 2021 … Continue Reading
In a blow to the Biden Administration’s goal to heighten enforcement of labor-related competitor agreements, a Maine jury on Wednesday acquitted four home-health operators who were accused of conspiring to fix the wages of home-health workers in the Spring of 2020. The U.S. Department of Justice (“DOJ”) had alleged that the operators violated Section 1 … Continue Reading
The U.S. Department of Justice (“DOJ”) recently withdrew three policy statements regarding conduct in the healthcare sector. The statements withdrawn are the Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (dated September 1993); the Statement of Antitrust Enforcement Policy in Health Care (dated August 1996); and the Statement of … Continue Reading
On Monday, September 19, 2022, D.C. District Court Judge Carl J. Nichols rejected the Department of Justice’s (“DOJ”) request to block UnitedHealth’s $13.8 billion acquisition of Change Healthcare. UnitedHealth is the largest health insurer in the United States, while Change Healthcare is a leading data clearinghouse for insurance claims. The DOJ initially filed suit to … Continue Reading
For healthcare entities that use non-compete agreements, the landscape has changed as much recently as it has at any point in recent memory. Several developments at the federal level have created a potential pitfall that did not materially exist until recently, i.e., a non-compete agreement violating antitrust law. Further, several recent state laws have heightened … Continue Reading
On February 24, 2022, the U.S. Department of Justice (“DOJ”) filed suit to block UnitedHealth’s proposed acquisition of Change Healthcare. UnitedHealth owns the largest health insurer in the U.S., while Change Healthcare is a data company whose software is the largest processor of health insurance claims in the U.S. The DOJ alleges that the acquisition, … Continue Reading
Yet another UK Competition and Markets Authority (CMA) merger referral for in-depth investigation, this time in the healthcare sector confirming the CMA’s willingness “to ensure that the NHS does not pay significantly more than it should” for products/services.[1] The merging parties, Imprivata and Isosec, provide similar Identity and Access Management (IAM) solutions that allow staff … Continue Reading
The Department of Justice kicked off 2021 with its first publicly filed, two-count indictment against Surgical Care Affiliates, LLC (SCA) and successor entity Scai Holdings, LLC, both accused of criminal antitrust violations for agreeing with other healthcare companies not to solicit each other’s senior-level employees. The charges are the first to come out of an … Continue Reading
Last week the UK Competition and Markets Authority (CMA) published its decision to fine Spire and 7 consultants ophthalmologists operating in its Macclesfield hospital for fixing “the level of the initial consultation fees charged by the Ophthalmologists at the Hospital” (para 3.34). This is a classic ‘price-fixing’ decision against ophthalmologists who agreed to charge the … Continue Reading
COVID-19 outbreak has caused major disruption of supply chains and a steep rise in demand for certain products and services, notably in the health sector. These circumstances risk leading to shortages in critical medical goods used to treat COVID-19 patients, but also in other essential goods and services outside the health sector. Tackling these exceptional general supply shocks … Continue Reading
In a joint statement on the application of EU and national competition law during the coronavirus disease 19 (COVID-19) crisis, the European Competition Network (ECN) recognized that competitors, supplier and distributors may need to cooperate with each other to ensure the supply and fair distribution of scarce products to all consumers. For example, a few … Continue Reading
Recent years have seen significant vertical integration in the healthcare space, whether megamergers such as CVS-Aetna and Cigna-Express Scripts, or the numerous hospital and health system acquisitions of physician groups and other non-hospital healthcare providers. These vertical mergers—combining assets that are used at different levels of the supply chain—have largely escaped significant antitrust scrutiny since … Continue Reading
The Competition and Markets Authority (CMA), the competition regulator in the UK, has undertaken a number of investigations into suspected anticompetitive practices in the pharma sector in recent years. Most recently, the CMA announced on 3 October 2019 that it has issued a Statement of Objections to pharmaceutical companies Aspen, Amilco and Tiofarma. The CMA’s … Continue Reading
A recent Centers for Medicare & Medicaid Services (CMS) final rule reduces some Medicare reimbursements to hospitals in 2018, paying 28 percent less for certain “specified covered outpatient drugs” (SCODs) purchased at a discount through the 340B Drug Pricing Program (340B). Although hospitals recently lost a challenge to the lower CMS rates in American Hospital Association … Continue Reading
According to press reports, CVS/Caremark’s proposed $66 billion acquisition of Aetna is at the Department of Justice Antitrust Division (DOJ) for antitrust review, as opposed to the Federal Trade Commission (FTC). Under our bifurcated system of antitrust review, both agencies theoretically could have made a claim for the deal. The FTC historically has reviewed transactions … Continue Reading
As discussed previously here, here, and here, antitrust matters are a key consideration in the design of the Shared Savings Program and ACO development. For example, antitrust review of prospective ACOs by the FTC and/or DOJ is a critical aspect of the ACO application process. Despite the release of the joint statement, there is evidence … Continue Reading
