Tag Archives: FTC

Presidential Powers and Antitrust Politics: Part Three

In July and August, we discussed the president’s role in setting antitrust policy at the Department of Justice, Antitrust Division. Specifically, we pointed out that presidents routinely face competing domestic and foreign policy challenges that require a delicate balance and flexible approach to antitrust enforcement. For example, President John F. Kennedy directed the DOJ to … Continue Reading

‘Tryin’ to Loosen My Load’ – FTC’s New CID Process May Reduce Your Antitrust Investigation Burden*

In April we reviewed several new initiatives within the Federal Trade Commission (FTC) focused on eliminating “wasteful, legacy regulations and processes that have outlived their usefulness,” in the words of FTC Acting Chair Maureen K. Ohlhausen. As part of these initiatives, the FTC recently announced that its Bureau of Consumer Protection will be implementing “process … Continue Reading

Case Closed! FTC Announces New Processes for Potentially Ending Investigations

Earlier this week, the Federal Trade Commission’s Acting Chair, Maureen K. Ohlhausen, announced new and potentially meaningful processes to be implemented by the agency for reviewing and ending some investigations. Responding to President Trump’s directives aimed at eliminating wasteful and unnecessary regulations, Ohlhausen stated that the FTC would be “focusing our resources where they will … Continue Reading

What to Expect From FTC during Trump Administration: New Leader Illuminates

On Jan. 25, President Trump named Maureen Ohlhausen as the Federal Trade Commission’s acting chairwoman. A recent speech by Ohlhausen, who has served as a commissioner for the FTC since 2012, shed some light on the role the FTC may have under her leadership during the new administration. Ohlhausen briefly summarized a “few areas in … Continue Reading

FTC Still Ramping Up Antitrust Review of Health Care Mergers

Last month, we reported on the Federal Trade Commission’s (FTC) steady filing of injunctions to block what are effectively local mergers of small health care providers. In 2007, the FTC filed suit in Saint Alphonsus Medical Center v. St. Luke’s Health System, its first successful challenge to a hospital merger in recent history. Since then, … Continue Reading

BakerHostetler Antitrust Lawyer Reviews Unusual Incentive Payment/Failing Firm Defense Remedy in Recent Hospital Merger

Antitrust Partner Danyll W. Foix wrote an article, published November 17, 2016 by Law360, reviewing the Federal Trade Commission’s acceptance of an unusual settlement for a challenged hospital merger, explaining that “the settlement ends the FTC’s challenge of a transaction that was too small to be reportable under the Hart-Scott-Rodino Act, and the settlement is … Continue Reading

FTC Takes Action to Block Hospital Mergers

In the 1990s, Federal Trade Commission (FTC) enforcement actions to block mergers between health care providers were a rare phenomenon successfully obtained. In many instances, state Attorneys General filled the role of watchdog, especially since hospital mergers were relatively small and implicated local markets. Many, like the Pennsylvania Attorney General, were unable to convince the … Continue Reading

FTC Accepts Practical ‘Failing Firm’ Defense in Ending Challenge of Nonreportable Transaction

The Federal Trade Commission’s recently announced proposed settlement of its challenge of CentraCare Health’s acquisition of St. Cloud Medical Group (SCMG) is doubly noteworthy. The settlement ends the challenge of a transaction that apparently was not reportable under the Hart-Scott-Rodino (HSR) Act, and the settlement is premised on a “failing firm” defense that infrequently is … Continue Reading

How to Avoid Antitrust Trouble in Wake of North Carolina Dental Ruling on State Action Immunity

BakerHostetler Antitrust Litigation Partners Robert Abrams, Gregory Commins, and Danyll Foix authored an article for The Antitrust Review of the Americas 2016, published by Global Competition Review. The article, headlined “United States: Private Antitrust Litigation,” analyzes emerging cases in the wake of North Carolina State Board of Dental Examiners v. Federal Trade Commission. These cases, … Continue Reading

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

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

FTC’s Latest “Pay for Delay” Action Focuses on Noncash “Payments” and New “Product Hopping” Theory of Harm

The Federal Trade Commission (FTC) filed an antitrust complaint this week against Endo Pharmaceuticals and several generic companies, alleging that these companies entered into anticompetitive “reverse payment” settlements of patent infringement litigation under the Hatch-Waxman Act. In its 2013 FTC v. Actavis opinion, the U.S. Supreme Court held that certain settlements involving “reverse payments” may … Continue Reading

FTC Skeptical of West Virginia Legislature’s Proposal to Immunize Certain Health Care Providers’ Activities from Antitrust Laws

We recently wrote about the FTC filing a complaint, In re Cabell Huntington Hospital (FTC Docket No. 9366), objecting to the merger of two West Virginia hospitals. The FTC filed its complaint against the wishes of West Virginia’s antitrust enforcer, Attorney General Patrick Morrisey, who approved the merger. In addition to challenging the merger, the … Continue Reading

FTC’s Amicus Brief in Wellbutrin XL Appeal Highlights Significance for Interpretation of Actavis

The FTC has recently weighed in again on the evolving interpretation of the Supreme Court’s 2013 opinion in FTC v. Actavis, 133 S. Ct. 2223 (2013). The agency submitted an amicus brief to the Third Circuit in the appeal of the district court’s September 2015 grant of summary judgment in In re Wellbutrin XL Antitrust … Continue Reading

Former FTC Chair Kovacic Rates the Presidential Candidates

As has been reported by William McConnell at TheStreet, former FTC Chair Bill Kovacic delivered a frank assessment of the four leading presidential candidates’ antitrust stances at a program sponsored by the Heritage Foundation on Tuesday. Kovacic noted that the dearth of express statements from the candidates regarding antitrust law requires one to look at their … Continue Reading

FTC Brushes Aside AG, Regulators to Attack Local Hospital Merger

The Federal Trade Commission (FTC) continued its relentless focus on combinations in the healthcare industry last month when it filed an administrative complaint challenging a merger of two West Virginia hospitals, In the Matter of Cabell Huntington Hospital (FTC Docket No. 9366). Given the FTC’s recent successes in thwarting other healthcare mergers it saw as … Continue Reading

FTC Addresses Sharing Economy Following June Workshop

Federal Trade Commission Chairwoman Edith Ramirez recently made statements regarding regulation of the developing “sharing economy” exemplified by on-demand apps and websites such as Uber and Airbnb that connect sellers of a service with buyers nearly instantaneously and without traditional middlemen. Last week, in a speech at Fordham University Law School, Chairwoman Ramirez recognized that, … Continue Reading

Specific Guidance to Businesses Still Lacking in FTC Principles

In 1914, Congress passed the FTC Act, creating the Federal Trade Commission. Section 5 of the FTC Act declared “unfair methods of competition in or affecting commerce” to be unlawful and gave the FTC enforcement power over such “unfair methods.” Over 100 years later, that key language in Section 5 underlying the agency’s competition-related powers … Continue Reading

Better Late Than Never? FTC Finally Releases Guidance on Section 5

After years of academic debate and internal deliberation, the Federal Trade Commission today unveiled a “Statement of Enforcement Principles” that generally describes conduct prohibited by Section 5 of the FTC Act. Section 5 gives the FTC authority to take action against “unfair methods of competition.”  Legislative history indicates that it was left to the FTC to … Continue Reading

FTC Failure to Adopt Section 5 Guidelines Still Hot-Button Issue

Section 5 of the FTC Act gives the Federal Trade Commission the authority to take action against “unfair methods of competition.” The act was enacted over 100 years ago, and its legislative history indicates that it was left to the FTC to provide specific content to this broad and general language. However, there is still … Continue Reading

Symposium Advances Debate Over FTC’s Section 5 Enforcement Powers

What is an “unfair method of competition” for purposes of the Federal Trade Commission’s enforcement powers? For more than 100 years, lawyers, economists and other experts—as well as courts—have debated that question, trying to determine exactly what conduct Congress meant to prohibit, beyond conduct already condemned by the antitrust laws, when it enacted Section 5 … Continue Reading

FTC’s Appellate Win Reflects Focus on Health Care Consolidation

In an important victory for the Federal Trade Commission in the appellate courts, the U.S. Court of Appeals for the Ninth Circuit recently affirmed last year’s decision from the District of Idaho in Saint Alphonsus Medical Center v. St. Luke’s Health System, No. 14-35173, in which the FTC successfully sued to undo a 2012 merger … Continue Reading

FTC Commissioner Wright Calls for Vote on Section 5 Guidelines

FTC Commissioner Joshua Wright, during yesterday’s keynote speech at BakerHostetler’s Section 5 Symposium, announced his plan to call for the FTC Commissioners to vote on three proposed definitions of Section 5’s “unfair methods of competition.” Covering the Section 5 Symposium and Commissioner Wright’s announcement, Global Competition Review wrote: “Joshua Wright will ask his four Federal Trade Commission … Continue Reading
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