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Hospital Wins First Round Against Largest Rival in Antitrust Suit Alleging Illegal Exclusive Dealing Agreements with Insurers

March 30, 2015 | Alert | By Bruce Sokler, Dionne Lomax, Robert Kidwell, Farrah Short

The waves of change affecting health care providers include reimbursement and funding developments, the impact of the Affordable Care Act, technological and medical advances, provider network design transformations imposed by payors — and antitrust.
Last week, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) co-hosted the second installment of their public workshop series, “Examining Health Care Competition.”
The Federal Trade Commission (“FTC”) on Monday completed its review of Novartis AG’s (“Novartis”) proposed $16 billion acquisition of GlaxoSmithKline’s (“GSK”) oncology drug portfolio with an announced consent decree that requires limited divestitures of BRAF- and MEK-inhibitor drugs used to treat melanoma, ovarian, colorectal, non-small cell lung, and other cancers.
On February 25, 2015, in a 6-3 decision authored by Justice Kennedy, the Supreme Court upheld the Federal Trade Commission’s (FTC) decision finding that the North Carolina Board of Dental Examiners (Board), although a state agency, was not exempt from federal antitrust laws when it sent 47 official cease-and-desist letters to non-dentist teeth whitening service providers.

FTC Tastes Sweet Victory in POM Wonderful Deceptive Advertising Appeal

February 17, 2015 | Alert | By Timothy Slattery

The District of Columbia Circuit Court of Appeals handed the Federal Trade Commission a critical win on January 30, 2015 by affirming the Commission’s January 2013 decision holding POM Wonderful LLC in violation of the FTC Act for its deceptive advertisements alleging pomegranate juice and supplements could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction.
In a much anticipated appellate health care antitrust decision, the United States Court of Appeals for the Ninth Circuit upheld a district court’s finding that a consummated hospital-physician group merger violated Section 7 of the Clayton Act, despite the provider-defendants’ assertion of an efficiencies defense based on integrated care and risk-based reimbursement.

DOJ Releases Electrifying New Guidance on Standard-Essential Patent Policy

February 10, 2015 | Alert | By Bruce Sokler, Timothy Slattery

The Department of Justice (the “Department” or “DOJ”) continued its multi-pronged defense of standards-setting organizations (SSOs) who adopt patent policies to prevent hold-up during licensing negotiations.

FTC and DOJ to Host Second Public Workshop on Health Care Competition

January 26, 2015 | Alert | By Bruce Sokler, Farrah Short

Last March, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) began a public workshop series entitled, “Examining Health Care Competition.”
On December 22, 2014, a federal district court in New Jersey found that Mylan Pharmaceuticals, Inc. (“Mylan”) alleged facts sufficient to plead an antitrust claim under Section 2 of the Sherman Act against defendant, Celgene Corporation (“Celgene”), for denying a generic rival access to samples of its branded drugs (Thalomid® and Revlimid®) that are distributed pursuant to a Risk Evaluation and Mitigation Strategies (“REMS”) program.
On November 19, 2014, a panel of the United States Court of Appeals for the Ninth Circuit heard oral arguments in one of the most significant antitrust health care cases in years.
On October 21, 2014, the U.S. District Court for the Southern District of Ohio granted Defendants’ motion for summary judgment, holding that Premier Health Partners (“Premier”) and its affiliate hospitals, Atrium Health Systems, Catholic Health Initiatives, MedAmerica Health Systems, Samaritan Health Partners, and Upper Valley Medical Center (collectively, “Defendants”), operating under a joint operating agreement (“JOA”), constituted a single entity incapable of conspiring in violation of Section 1 of the Sherman Act.
On October 14, 2014, the United States Supreme Court heard oral arguments in North Carolina State Board of Dental Examiners v. FTC, a U.S. Court of Appeals Fourth Circuit decision upholding an FTC finding that the North Carolina State Board of Dental Examiners (the “Board”) did not qualify for antitrust immunity after excluding non-dentists from providing teeth-whitening services.
In recent years, antitrust criminal enforcement efforts have increased around the world. These efforts focus mainly on cartels — which the Supreme Court calls “the supreme evil of antitrust” — that conspire to fix prices, rig bids, or allocate markets.
On August 5, 2014, the Tenth Circuit Court of Appeals reinstated claims of monopolization and attempted monopolization under Section 2 of the Sherman Act brought by a manufacturer of surgical bone mills against a competitor.

Antitrust and Health Care: An Update from the Federal Trade Commission

June 24, 2014 | Alert | By Bruce Sokler, Helen Kim

The interplay between the Affordable Care Act (ACA), Accountable Care Organizations (ACOs), and antitrust has been a matter of great moment for several years. It has been an issue in litigation such as the Federal Trade Commission’s (FTC) St. Luke’s case.
Nearly five years into a wide-ranging monopsonization suit accusing milk processors of conspiring to depress and fix the prices paid to independent and cooperative milk suppliers, Judge Christina Reiss of the District of Vermont ruled that a narrowed set of the dairy farmers’ class claims will proceed to trial.

DOJ Revisits Music Royalty Consent Decrees

June 5, 2014 | Alert | By Bruce Sokler, Robert Kidwell, Helen Kim

From cassette tapes to CDs to Pandora and Spotify, innovations in the music field over the past two decades have drastically changed how people access music. Songwriters, however, are paid according to a system that has been in place since 1941 and unchanged since 2001.
The Federal Trade Commission’s (“FTC”) recent settlement with ski manufacturers Marker Volkl (International) GmbH (“Marker Volkl”) and Tecnica S.p.A. (“Tecnica”) continues to expand the scope of “inherently suspect” business practices under In re Polygram’s quick-look analysis.
In a highly anticipated decision, the federal antitrust agencies’ reinvigorated hospital merger enforcement efforts received a boost when, for the first time this century, an appellate court upheld a Federal Trade Commission (FTC) decision condemning a hospital acquisition and ordering full divestiture of the acquired assets.
Nearly five years into the lawsuit, a District Court denied defendant NCAA’s summary judgment motion, and ordered that the antitrust claims of current and former student-athletes denied compensation for the commercial use of their name, image, and likeness proceed to trial in June.
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