Tag Archives: FTC

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

By Mitchell Oates on Posted in Antitrust Litigation
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

Photo of Julian PerlmanBy Julian Perlman on Posted in Antitrust & Politics
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

Photo of Carl HittingerPhoto of Jeffry DuffyBy Carl Hittinger and Jeffry Duffy on Posted in Healthcare, 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

Photo of Carl HittingerPhoto of Julian PerlmanBy Carl Hittinger and Julian Perlman on Posted in Government Investigations
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

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on Posted in FTC Act
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

Photo of Danyll FoixBy Danyll Foix on Posted in Sherman Act 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

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on Posted in Antitrust Litigation, Sherman Act 5
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

Photo of Carl HittingerPhoto of Jeffry DuffyBy Carl Hittinger and Jeffry Duffy on Posted in Articles, BakerHostetler, Events, Sherman Act 5
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

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on Posted in Antitrust Litigation, Articles, FTC Act, Healthcare, Merger
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

Photo of Danyll FoixBy Danyll Foix on Posted in BakerHostetler, Events, Sherman Act 5
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

“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 FTC’s Section 5 Authority Discussed in Article by BakerHostetler Antitrust Attorneys

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust Litigation, Articles, Sherman Act 5
BakerHostetler antitrust attorneys Carl Hittinger and Jeffry Duffy authored the article, “FTC Section 5 in 2014: An Unexpected Attack, A New Frontier,” published in Law360 on December 22. The authors cover the FTC’s push to exercise its Section 5 authority in new areas; ever since Section 5 of the Federal Trade Commission Act was created … Continue Reading

Save the Date: Section 5 Symposium

Photo of BakerHostetlerBy BakerHostetler on Posted in BakerHostetler, Events, Sherman Act 5
You may be vulnerable to FTC claims of antitrust or consumer fraud violations without realizing it. Learn how to help prevent such potentially damaging issues through a groundbreaking, BakerHostetler-sponsored symposium on Section 5 of the Federal Trade Commission Act on Thursday, Feb. 26, 2015, in Washington, D.C. TIME: 8:30 a.m. – 4:30 p.m. – Program 4:30 … 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

FTC Aggressively Pressing ‘Antitrust Trumps IP’ Theme

Photo of Carl HittingerPhoto of Jeffry DuffyBy Carl Hittinger and Jeffry Duffy on Posted in Antitrust Litigation, Articles, Patents
The Federal Trade Commission has recently brought its considerable institutional weight to bear in two developing areas at the intersection of unfair competition and intellectual property law. Continuing its crusade against “reverse-payment” patent infringement settlements in the pharmaceuticals sector, the FTC is promoting—especially in the Third Circuit—a maximalist interpretation of the U.S. Supreme Court’s 2013 … Continue Reading

BakerHostetler Lawyers Publish Chapter on Exemptions and Immunities in Antitrust Litigation

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust Exemptions & Immunities, Antitrust Litigation, Articles, BakerHostetler
The 2015 Antitrust Review of the Americas features a chapter, “‘United States: Private Antitrust Litigation,” authored by BakerHostetler Antitrust Chair Robert G. Abrams, Partner Gregory J. Commins Jr., and Partner and Editor of Antitrust Advocate Danyll W. Foix.  They wrote: “US law is littered with dozens of immunities and exemptions that limit or preclude the … 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

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

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
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