Jonathan Lewis

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Forcing Exclusivity on Your Customers May Not Be the Best Competitive Response

By Jonathan Lewis on Posted in FTC Act, Sherman Act 5
In the words of the director of the Federal Trade Commission’s (FTC’s) Bureau of Competition, the recent enforcement against Invibio, Inc., the first company to sell implant-grade polyetheretherketone, known as PEEK, to medical device makers, “affirms that the first company to enter a market cannot rely on anticompetitive contract terms to lock up customers and … Continue Reading

“Ain’t Wastin’ Time No More”* — Doctors, Vets, and Lawyers in the Antitrust Crosshairs

By Jonathan Lewis on Posted in Antitrust Exemptions & Immunities, Antitrust Litigation, Sherman Act 1
Supreme Court Decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission Prompts Legal Challenges to State Professional Boards Earlier this month a Texas federal district court judge granted a motion by Teladoc, Inc. (Teladoc) for a preliminary injunction enjoining the Texas Medical Board (TMB) “from taking any action to implement, enact, … Continue Reading

“Oh help me, please doctor, I’m damaged”*—What does the Future Hold for Hospital-Physician Acquisitions?

By Jonathan Lewis on Posted in Government Investigations, Healthcare, Merger Review
With the ink still drying on the Ninth Circuit’s opinion affirming the Idaho federal district court’s order requiring St. Luke’s Health System to unwind its acquisition of Saltzer Medical Group—a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho—you may ask what the decision means for other providers?  Hospitals considering future acquisitions of … Continue Reading

“And they’re closing all the factories down”* — Going Dark During a Merger Review

By Jonathan Lewis on Posted in Merger, Merger Review
Demand in your industry has been declining for years, the decline is projected to continue for the foreseeable future, and you are one of the few cost-effective manufacturers around. You just inked a deal to buy a competing manufacturer, and you are working hard to get your deal cleared through the merger review process. But … Continue Reading

The Beat Goes On: Antitrust Enforcement and Healthcare*

By Jonathan Lewis on Posted in Government Investigations, Healthcare
In one form or another, the Federal Trade Commission (FTC) has been banging the drum that there is no inconsistency between antitrust enforcement and healthcare. The latest to pick-up the drumbeat is the chair of the FTC herself, Edith Ramirez. In an article appearing in the prestigious New England Journal of Medicine (NEJM) titled “Antitrust … Continue Reading

Gone, Gone, the Damage Done*—Provisions in Transactional Agreements Can Raise Antitrust Risk

By Jonathan Lewis on Posted in Merger
Soon after someone settles “gun jumping” charges, client alerts and blog posts with informative titles like “DOJ Settlement Resolves ‘Gun Jumping’ Charges” start flying around. These “alerts” and “posts” usually recite facts alleged in a DOJ complaint and then say certain conduct is fine (pre-closing integration planning under the watchful eye of an antitrust lawyer, … Continue Reading

Provider Competition Matters—Even for “Reference Pricing”

By Jonathan Lewis on Posted in Healthcare
Editor’s Note: This blog post was originally published to BakerHostetler’s Health Law Update blog. In a recent blog post, three Federal Trade Commission (FTC) economists splashed some cold water on advocates of “reference pricing” that seem to imply that such pricing “will increase competition between providers.”  In the FTC economists’ view, “reference pricing does not and cannot … Continue Reading

Dollar General—“Setting the Record Straight” on Antitrust for Family Dollar

By Jonathan Lewis on Posted in FTC Act, Government Investigations, Merger, Merger Review
Unless you have been in the middle of a bidding war where antitrust concerns are front and center, what is playing out between Dollar General and Family Dollar is probably unfamiliar to you, as it is rarely seen outside of the boardroom. To get you up to speed, back in July Family Dollar agreed to be acquired … Continue Reading

Don’t Pop the Cork Just Yet—Growing Criticism of Massachusetts AG’s Settlement with Partners Healthcare Just Might Send the Parties Back to the Drawing Board

By Jonathan Lewis on Posted in Government Investigations, Healthcare, Merger Review
After touting a proposed settlement with Partners HealthCare (Partners) that supposedly would “fundamentally alter [Partners’] negotiating power for 10 years and control health costs across [Partners’] entire network,” Massachusetts Attorney General (AG) Martha Coakley is now playing defense trying to fend off criticism of the deal that just might send the parties back to the drawing board.  … Continue Reading

Buckle Up—Unwinding Phoebe Putney’s Acquisition of Palmyra Down in Georgia May End Up Being Back on the Table

By Jonathan Lewis on Posted in FTC Act, Government Investigations, Healthcare, Merger Review
Almost one year ago, Federal Trade Commission (FTC) agreed to settle its antitrust challenge of Phoebe Putney Health System’s (Phoebe Putney) acquisition of Palmyra Medical Center (Palmyra) without requiring divesture or any other remedial relief. That settlement came after the FTC ran the table in the Supreme Court with a unanimous decision, and convinced a … Continue Reading

Let The Rejoicing Begin, Or Not—Massachusetts AG’s Settlement With Partners Healthcare Is No Harbinger of Things to Come

By Jonathan Lewis on Posted in Government Investigations, Healthcare, Merger, Merger Review
After almost half a dozen years of investigating Partners HealthCare’s (“Partners”) contracting practices and its proposed acquisitions of two competing hospital systems, Massachusetts Attorney General Martha Coakley announced a “final resolution” that she says “will fundamentally alter [Partners’] negotiating power for 10 years and control health costs across [Partners’] entire network.”  But before you run … Continue Reading

Leave My Employees Alone! You Promised You Wouldn’t Hire/Solicit Them

By Jonathan Lewis on Posted in Antitrust Litigation, Government Investigations, Sherman Act 2
With the antitrust class action against Google, Apple, Intel and other Silicon Valley heavyweights nearly in the books ($300 million plus in settlements and millions more in defense fees later), it is time once again to ask what this settlement means for the continued use of clauses in merger and other types of agreements like … Continue Reading

What the WTP?

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Healthcare, Merger Review
If you are a health system or hospital thinking about a potential transaction and your lawyers have not spoken with you about hospital merger simulation, maybe you should be talking with someone else. What is hospital merger simulation? In recent years, the Federal Trade Commission (“FTC”) has come to rely more heavily on hospital merger … Continue Reading

Are You Facing the Prospect of a Merger Investigation?

Photo of Gilbert S. KeteltasPhoto of James A. ShererBy Jonathan Lewis, Gilbert S. Keteltas, Karin Scholz Jenson and James A. Sherer on Posted in Discovery, Government Investigations, Merger Review
If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone else. What is TAR? TAR, a relatively new entrant into the world of litigation and investigations, is an iterative process in which human subject … Continue Reading

To Report, or Not to Report, Your Non-Reportable Transaction Is the Question

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Merger, Merger Review, Premerger Notification
Just because a proposed transaction does not have to be reported in advance to the Department of Justice (“DOJ”) or the Federal Trade Commission (“ FTC”) because it falls below the Hart-Scott-Rodino (“HSR”) Act size of transaction threshold (currently$75.9 million), you are not out of the woods.  The growing list of companies defending antitrust challenges … Continue Reading

Connecticut’s Attorney General Wants to Know in Advance if You Are Going to Join Forces with a Healthcare Provider

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Healthcare, Legislation, Merger Review, Premerger Notification
Back in early 2013, Connecticut’s Attorney General (“AG”) formed a “Health Care Competition Working Group” within his office to examine the potential impact of horizontal mergers (e.g., hospital to hospital) and vertical provider acquisitions (i.e., hospitals buying up physician practices) “may have on the pricing, quality, and access to health care for Connecticut’s consumers and … Continue Reading

So, You Want to Share Your Technical Cyber Threat Information with Your Neighbors?

Photo of Pamela Jones HarbourPhoto of Gerald J. FergusonPhoto of Theodore J. Kobus IIIBy Jonathan Lewis, Pamela Jones Harbour, Gerald J. Ferguson and Theodore J. Kobus III on Posted in Data Privacy
Echoing guidance previously given to a nonprofit organization looking to exchange certain cybersecurity information, including exchanging actual real-time cyber threat and attack information, and others planning to exchange information concerning remediating the Y2K problems, the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) recently released a joint “Antitrust Policy Statement on Sharing of Cybersecurity … Continue Reading

Sometimes Merger Fixes Are as Close as the End of Your Nose

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Merger, Merger Review
When it comes to negotiating merger remedies with federal antitrust enforcement agencies, the Department of Justice and the Federal Trade Commission each have guides or statements that may help.  But as good as their guidance may be, sometimes the fix for a merger is as close as the end of your nose. Back on July … Continue Reading

Pharmaceutical Association Calls Out FTC in Filing Seeking to Enjoin New Rule Targeting the Industry

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Healthcare, Patents, Premerger Notification
Last November, the Federal Trade Commission (“FTC”) with the “concurrence” of the Antitrust Division of the Justice Department, and over the strenuous objection of Pharmaceutical Research and Manufacturers of America (“PhRMA”), issued final changes to the Hart-Scott-Rodino Act premerger notification rules limited solely to pharmaceutical industry.  Those special rules relate to the transfer of certain … Continue Reading

FTC Victory in Idaho Hospital-Physician Acquisition Case Should be a Wake-Up Call for Future and Past Deals

By Jonathan Lewis and Lee Simowitz on Posted in Antitrust Litigation, BakerHostetler, Government Investigations, Healthcare, Merger
The ink is still drying on the Idaho federal district court’s order requiring St. Luke’s Health System (“St. Luke’s”) to unwind its acquisition of Saltzer Medical Group (“Saltzer”) – a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho.  But hospitals considering future acquisitions of physician groups, and those that the FTC … Continue Reading

Past as Prologue: Rebirth of the Merger Trial and the Bazaarvoice Case

By Lee Simowitz, Jonathan Lewis and Judy Gechman on Posted in Antitrust Litigation, Government Investigations, Merger, Merger Review, Premerger Notification, Sherman Act 7
For many years after its implementation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 seemed to sound the death knell of post-consummation merger trials.  By establishing a file-and-wait system rather than the old catch-me-if-you-can non-system, the Act enabled the antitrust enforcement agencies to prevent the consummation of potentially anticompetitive mergers until they completed their investigation, and … Continue Reading

Thresholds Do Matter – Choosing too Low a Threshold in an Ordinary Course of Business Provision Can Up Your Risk of “Gun Jumping”

By Jonathan Lewis and Judy Gechman on Posted in Government Investigations, Merger Review, Premerger Notification
Soon after someone settles “gun jumping” charges, client alerts with informative titles like “DOJ Settlement Resolves ‘Gun Jumping’ Charges” start flying around.  These “alerts” usually recite facts alleged in the complaint, say ordinary course of business provisions are typically fine, but consult an antitrust lawyer to make sure yours are okay.  But few (if any) … Continue Reading

Give It Back! Disgorgement – Another FTC Arrow against Reverse-Payment Settlements that Delay Generic Entry

By Jonathan Lewis on Posted in Antitrust Litigation, Healthcare, Sherman Act 2
If the uncertainty that the Supreme Court’s Actavis decision injected into the world of reverse-payment settlement litigation wasn’t enough to get your attention, then the FTC’s recent effort to obtain disgorgement from Cephalon in a reverse-payment case should do so. Cephalon is arguing that the federal district court should dismiss the FTC’s near six-year-old complaint … Continue Reading

NY Governor Signs “Unprecedented” Legislation Allowing Public Healthcare Provider “a Blank Check to Engage in a Huge Swath of Anticompetitive Activities with No Oversight” – Will Other States Follow?

By Jonathan Lewis and Lee Simowitz on Posted in Antitrust Exemptions & Immunities, Healthcare, Legislation
Despite vocal opposition from New York Attorney General Schneiderman’s office, New York Governor Cuomo signed legislation this week authorizing Nassau Health Care Corporation (“NuHealth”) – a public healthcare provider that operates a hospital, skilled nursing facility, and several community health centers in Nassau County, New York – to “engage in arrangements, contracts, information sharing, and … Continue Reading
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