Tag Archives: Merger Enforcement

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

CFIUS Report Reflects Continued Need to Plan for Government Scrutiny of Cross-border Transactions

The Committee on Foreign Investment in the United States (CFIUS) recently reported its 2013 activities, confirming the continuation of its heightened review and investigation of certain foreign direct investments in U.S. businesses. CFIUS, a panel of high-level Washington bureaucrats, was described in a prior post. CFIUS reviews and investigates mergers and acquisitions that could result … 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

To Report or Not to Report, That Is the CFIUS Question

With the complexities inherent in many cross-border transactions – from cultural differences to the growing number of competition authorities demanding paperwork – the last thing one may want to think about is whether to submit a voluntary report of a transaction to the Committee on Foreign Investment in the United States (CFIUS). The recent decision … Continue Reading

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

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

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

What is the CFIUS: Information to Know When Doing Transactions with Foreign Parties

U.S. Senator Debbie Stabenow’s recent and much publicized unveiling of legislation to expand the CFIUS review process of transactions likely caused businesspeople everywhere to ask: “What’s the CFIUS?” In short, the Committee on Foreign Investment in the United States (“CFIUS”), comprised of high-level Washington bureaucrats, reviews certain domestic transactions involving foreign parties and determines or recommends … 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

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

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

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?

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?

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

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

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

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

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

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

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

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

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

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

BakerHostetler Lawyers Publish Chapter on Antitrust Trends in U.S. Agribusiness

The 2014 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 write, “The US agriculture and food market has become increasingly concentrated in several sectors and across multiple levels. … Continue Reading

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

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”

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
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