Tag Archives: Healthcare

Are Hospital Acquisitions with COPA Authorization Exempt from HSR Pre-Merger Notification?

Photo of Marc SchildkrautBy Marc Schildkraut on Posted in Antitrust Compliance, Healthcare
The Federal Trade Commission (FTC or the Commission) has experienced multiple recent setbacks with respect to its regulatory authority. Now a new dispute raises questions about whether hospital acquisitions with Certificate of Public Advantage (“COPA”) authorization are exempt from Hart-Scott-Rodino Act pre-merger notification. Recent FTC Setbacks In AMG Capital Management v. FTC, the U.S. Supreme … Continue Reading

BakerHostetler Partners Publish Article Examining Reverse-Payment Suits Five Years After Actavis

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust Litigation, Healthcare, Patents
Partners Carl Hittinger and Jeffry Duffy authored an article published by The Legal Intelligencer on July 27, 2018. The article, “Actavis and Reverse-Payments Suits in the Third Circuit After Five Years,” examines how purportedly anticompetitive patent-litigation settlement agreements between rival branded and generic pharmaceutical manufacturers—so-called “reverse payment” or “pay for delay” settlements—have generated numerous private lawsuits and remain one … Continue Reading

No Health Care Merger Too Small for the FTC to Take an Antitrust Look

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in FTC, Healthcare
In our November and December 2016 articles, we discussed the Federal Trade Commission’s proclivity to challenge health care mergers, even when the purported anticompetitive effects of the relatively economically limited merger would be confined to a local geographic region. For example, in 2014, the FTC, joined by the Idaho state attorney general, in St. Alphonsus … Continue Reading

Hospital Seeks Second Opinion on Certifying Class with Uninjured Members

Photo of Danyll FoixBy Danyll Foix on Posted in Class Action Litigation
Ten years into litigation, a hospital has moved to decertify a class of plaintiffs who claim the hospital’s merger caused them to overpay for medical services. Arguing there is insufficient proof that class members were harmed, the hospital’s motion invites the court to jump into the fray about whether classes may be certified when they … Continue Reading

FTC Still Ramping Up Antitrust Review of Health Care Mergers

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Healthcare, Merger Review
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

Photo of BakerHostetlerBy BakerHostetler on Posted in Articles, FTC, FTC Act, Government Investigations, Healthcare, Merger Review
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

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Healthcare, Merger Review
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

Photo of Danyll FoixBy Danyll Foix on Posted in Healthcare, Merger Review, Premerger Notification
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

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

Caught Between a Rock and a Hard Place: The Second Circuit to Decide Appeal From Cartel Defendants Who Argued Compliance With Chinese Law Resulted in Sherman Act Violations

Photo of Torello CalvaniBy Torello Calvani on Posted in Antitrust Litigation, Sherman Act 1
On January 28, 2016, the United States Court of Appeals for the Second Circuit heard arguments on whether the doctrines of act of state, foreign sovereign compulsion, and international comity required the reversal of a jury’s verdict against two Chinese companies that were found liable for violating Section 1 of the Sherman Act. The plaintiffs … Continue Reading

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

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Healthcare
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 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’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

“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

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

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

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

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

Webinar Now Available: Lessons Learned from FTC Investigation and Challenges of Healthcare Provider Transactions

Photo of Danyll FoixBy Danyll Foix on Posted in BakerHostetler, Events, Government Investigations, Healthcare, Merger Review
If you missed our webinar “Lessons Learned from FTC Investigation and Challenges of Healthcare Provider Transactions” featuring Former FTC Commissioner Pamela Jones Harbour and other antitrust partners from our Washington, D.C. office, you can listen and view the webinar by clicking here.… 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

BakerHostetler Lawyers to Present Webinar on Lessons Learned from FTC Investigations and Challenges of Healthcare Provider Transactions

Photo of Danyll FoixBy Danyll Foix on Posted in BakerHostetler, Events, Healthcare, Uncategorized
Members of BakerHostetler’s Antitrust and Competition team will present a webinar on February 26, 2014 which takes an in-depth look at FTC investigations and challenges of hospital and physician transactions. The topics will include: Insights from a former FTC Commissioner involved in nearly 30 healthcare enforcement actions while at the Commission Latest statistics on FTC  … Continue Reading
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