The Federal Trade Commission (“FTC”) announced that on September 21, 2018, it would host a second session in its 21st Century Hearings series. The FTC’s goal for this series is to review changes in technology, various...more
As noted last week, the Federal Trade Commission (“FTC”) may challenge conduct when it has “reason to believe” that a violation of the laws that the FTC enforces has occurred. When challenging mergers, the FTC files an...more
The Federal Trade Commission (“FTC”) may challenge conduct when it has “reason to believe” that a violation of the laws that the FTC enforces has occurred. The agency does so by filing an administrative complaint, which is...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
The Non-Profit Institutions Act provides an exemption from the Robinson-Patman Antidiscrimination Act by permitting the sale of discounted drugs to “schools, colleges, universities, public libraries, churches, hospitals, and...more
8/9/2018
/ Churches ,
Educational Institutions ,
Federal Trade Commission (FTC) ,
Healthcare Facilities ,
Hospitals ,
Libraries ,
Non-Profit Hospitals ,
Nonprofits ,
Pharmaceutical Industry ,
Prescription Drugs ,
Price Discrimination ,
Robinson-Patman Act
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
Section 8 of the 2010 Horizontal Merger Guidelines (issued jointly by the U.S. Department of Justice and the Federal Trade Commission) states that “the Agencies consider the possibility that powerful buyers may constrain the...more
Agreements and discussions among competitors that are associated with petitioning a governmental body (including a legislative body like Congress, a state legislature, or an administrative body) to take specific action are...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
Often, health care providers want to take advantage of state “provider cooperation” laws—those laws that sanction (and provide “state action immunity” for) conduct that would otherwise raise antitrust concerns. Late last...more
According to the “Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program” (“Policy Statement”), issued by the Federal Trade Commission and the...more
Last week, Barry Nigro, the Deputy Assistant Attorney General (“DAAG”) of the U.S. Department of Justice (“DOJ”), delivered a keynote address at the 2018 Antitrust in Healthcare Conference, co-sponsored by the American Bar...more
The Federal Trade Commission (“FTC” or “Commission”) and the Antitrust Division of the Department of Justice (“DOJ”) share responsibility for merger enforcement under section 7 of the Clayton Act. However, differences in the...more
The Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice (collectively, the “Federal Antitrust Enforcement Agencies”) have made a concerted effort of late to describe themselves as “antitrust...more
A violation of Section 1 of the Sherman Act requires an agreement between two or more separate economic entities. In Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), the Supreme Court of the United States...more
On April 11, 2018, the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) released their 40th Annual Hart-Scott-Rodino Report (“HSR Report”) detailing merger enforcement activity in fiscal year 2017...more
The legality of certain collaborative arrangements and contracts often rises and falls on whether the relationship between the parties involved is exclusive or non-exclusive. For example, the issue of exclusivity often...more
There are a few limited circumstances under which a buyer can cause an anticompetitive effect on a market. One instance is when parties enter into agreements that include what are known as “most favored nation” (“MFN”)...more
Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), provides the Federal Trade Commission (“FTC”) with broad authority to address “unfair methods of competition.” Although Congress chose not to define the...more
Until closing, parties to a merger, acquisition, or similar transaction must remain independent competitors. Failure to do so is known as “gun jumping” and can be a simultaneous violation of the Hart-Scott-Rodino Antitrust...more
In October 2016, the Antitrust Division of the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission jointly issued their Antitrust Guidance for Human Resource Professionals (“Guidance”). As stated in its...more
3/15/2018
/ Antitrust Violations ,
Criminal Liability ,
Department of Justice (DOJ) ,
Federal Trade Commission (FTC) ,
Hiring & Firing ,
Human Resources Professionals ,
New Guidance ,
No-Poaching ,
Non-Compete Agreements ,
Non-Solicitation Agreements ,
Wage-Fixing
Agreements to allocate markets raise serious antitrust concerns and can encompass a wide range of activities. Common forms of market allocation agreements include agreements between competitors involving facility locations,...more