Antitrust

On Wednesday, an FTC Commissioner used the occasion of a routine report to Congress to send a warning shot to private equity firms, especially those rolling up health care providers. Commissioner Rohit Chopra, an advisor to Senator Elizabeth Warren before he joined the Commission in May 2018, released this statement focusing particular scrutiny on private equity (PE) firms and the practice of acquiring physician groups, especially emergency medicine, anesthesiology, and other services that generate “surprise” out of network charges for otherwise insured patients.

In a recent decision in In Re Humira (Adalimumab) Antitrust Litigation), No. 19-cv-1873, Judge Shah of the Northern District of Illinois dismissed a consolidated class action complaint filed by U.S. purchasers of AbbVie Inc.’s blockbuster biologic drug Humira alleging that AbbVie had prevented manufacturers of competing biosimilar drugs (“biosimilars”) from entering the U.S. market in violation of federal and state antitrust laws.

On May 29th, the Federal Trade Commission (FTC) submitted a comment to the Centers for Medicare & Medicaid Services (CMS) in support of reducing reimbursement requirements for telehealth services. CMS accepted public comments for its new Interim Final Rule published on April 6, 2020, 85 FR 19230, which changes the Medicare payment regulations to allow for more flexible Medicare service options in response to the COVID-19 pandemic. In addition to supporting CMS’s new Interim Final Rule, FTC’s comment recommends permanent measures and further steps to take. The comment offers a valuable insight into the Commission’s stance on telemedicine in relation to health care competition.

Read about how price gouging statutes and enforcement, by NY state and city, Mass., and the federal government, may affect businesses during the COVID-19 pandemic.

Read about a federal district court in Delaware’s denial of the DOJ’s challenge under the Clayton Act of Sabre Corp.’s $360 million acquisition of Farelogix Inc.

Back in March, we wrote a blog post regarding the FTC and DOJ’s joint statement on antitrust guidance for COVID-19 public health efforts. As part of the press release, the Agencies announced that companies could request an expedited staff opinion on requests for review of collaborative COVID-19-related business efforts. The Agencies would endeavor to respond to all requests within seven business days. On Saturday, the DOJ issued its first business review letter, allowing to come to fruition a joint effort by McKesson, Owens & Minor, Cardinal Health, Medline, and Henry Schein (the “Medical Supplies Distributors”) to expedite and increase manufacturing, sourcing, and distribution of personal-protective equipment (PPE) and COVID-19-related medication.

As the COVID-19 pandemic continues to spread, so too have concerns about collaboration between competitors attempting to address unmet needs due to this national emergency. Shortages of medical supplies, personal protective equipment (PPE), and health care services pose questions of whether stakeholders can join forces in order to provide these much needed services and supplies.

Read about the FTC’s 2020 “size of transaction” and “size of person” thresholds for premerger reporting under the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

On December 12, 2019, the Antitrust Division of the Department of Justice filed an antitrust case and simultaneous settlement against the National Association for College Admission Counseling (NACAC).  The complaint alleged that NACAC established and enforced illegal restraints on the ways that colleges compete in the recruiting of students.

Read about Third Point and three funds’ agreement to pay $609,810 to settle HSR Act antitrust allegations related to their delayed reporting of securities acquired due to the merger of third parties.

Read about Canon Inc. and Toshiba Corporation’s agreement to pay $2.5 million each to settle DOJ antitrust allegations associated with a $6.1 billion transaction.

This alert discusses State of Washington v. Franciscan Health System, outlines its proposed settlement, and reviews the important takeaways for health care provider affiliations.

Just when observers thought Qualcomm could celebrate its successful litigation with Apple another decision has come down which could have major implications for Qualcomm’s business going forward.