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
Once the parties to a transaction have signed a definitive agreement, there may be a sense that the parties can more freely share competitively sensitive information. However, until closing, the antitrust laws require that...more
This past June, President Trump issued an Executive Order on Improving Price and Quality Transparency in American Healthcare to Put Patients First (“Order”), intending to increase price and quality transparency for American...more
The fact that a merger might be anticompetitive is not a reason to prohibit a transaction if all of the elements of the “failing firm defense” are met, as described below. In fact, the antitrust agencies have long recognized...more
On September 16, 2019, the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) released their combined Hart-Scott-Rodino Annual Report (“Report”) for fiscal year 2018 (covering the...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
Last September, Makan Delrahim, the Assistant Attorney General for the Antitrust Division of the Department of Justice (“DOJ”), announced efforts to streamline antitrust merger reviews with a stated goal of completing the...more
The Antitrust Division of the Department of Justice (“DOJ”) has a process that allows organizations to seek written opinions from the agency on whether proposed conduct will violate the antitrust laws. (The Federal Trade...more
The Antitrust Division of the U.S. Department of Justice (“DOJ”) recently released guidance outlining how DOJ evaluates antitrust corporate compliance programs as part of its Corporate Leniency program. This guidance...more
On June 6, 2019, the Federal Trade Commission (“FTC”) submitted a comment letter regarding a proposed rule by the Department of Health and Human Services’ Office of the National Coordinator for Health Information Technology...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
In our last Antitrust Byte, we brought to your attention Federal Trade Commission (“FTC”) Commissioner Rebecca Slaughter’s support for retrospective reviews of vertical transactions. Not to be overlooked, however, is Chairman...more
The Federal Trade Commission Act (“Act”) declares “unfair methods of competition to be unlawful” and gives the Federal Trade Commission (“FTC”) multiple tools to combat such conduct. Section 5(b) of the Act provides the FTC...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
Violations of the Sherman Act generally require a demonstration of market power in the “relevant market.” The relevant market has two components—the relevant product market and the relevant geographic market....more
Section 1 of the Sherman Act prohibits any “contract, combination ... or conspiracy, in restraint of trade or commerce.” As a result, in order to establish a viable claim under this section, there must be factual evidence of...more
The Hart-Scott-Rodino Antitrust Improvements Act (“HSR”) (section 7A of the Clayton Act, 15 U.S.C. §18a) requires parties to a transaction meeting certain size thresholds to complete and file a Notification and Report Form...more
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
Unlawful tying involves an agreement between a buyer and a seller whereby the seller conditions the sale of a good or service in one market (the “tying” product) upon the buyer’s agreement to buy a second good or service (the...more
Section 13(b) of the Federal Trade Commission Act (“Act”), 15 U.S.C. § 53(b), authorizes the Federal Trade Commission (“FTC”) to, among other things, seek injunctive relief (including preliminary and permanent injunctive...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