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DOJ Reaches Acquisition Settlement with Geisinger, Evangelical; Demonstrates Department’s Willingness to Challenge a Minority Investment
March 8, 2021 | Blog | By Bruce Sokler, Evelyn French
Last week, Geisinger Health (“Geisinger”) and Evangelical Community Hospital (“Evangelical”) reached a settlement agreement with the Department of Justice (“DOJ”), resolving the DOJ’s ongoing litigation challenging Geisinger’s partial acquisition of Evangelical. Notably, the settlement agreement, among other terms, limits Geisinger’s ownership interest in Evangelical to a 7.5% passive investment and prevents Geisinger from exercising any control or influence over Evangelical.
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FTC Abandons Appeal of Philadelphia Hospital Merger, Allowing Jefferson and Einstein to Proceed with Creation of 18-Hospital System
March 2, 2021 | Blog | By Bruce Sokler, Joseph Miller, Robert Kidwell
Back in December, we wrote about a district court ruling rejecting the Federal Trade Comission’s (“FTC”) motion to enjoin the proposed combination of Thomas Jefferson University (“TJU”) and Albert Einstein Healthcare Network (“Einstein”) that would create an 18-hospital system in the Philadelphia area. The FTC and the Pennsylvania Attorney General had alleged the merger would lead to TJU/Einstein controlling at least 60% of the inpatient GAC hospital services market in a portion of Philadelphia. Following the district court decision, the FTC quickly appealed to the Third Circuit Court of Appeals and filed an emergency motion for a stay pending appeal. Days later, a three-judge panel denied the government’s motion without comment.
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Fourth Circuit Affirms District Court’s First-of-Its-Kind Divestiture Order in Private Merger Challenge
February 23, 2021 | Blog | By Bruce Sokler, Tinny Song
On February 18, 2021, the United States Court of Appeals for the Fourth Circuit upheld the divestiture order issued by the U.S. District Court for the Eastern District of Virginia in a private merger challenge brought by Steves and Sons Inc. (“Steves”) against Jeld-Wen Inc. (“Jeld-Wen”) relating to Jeld-Wen’s acquisition of CraftMaster Manufacturing Inc. (“CMI”) in 2012. While divestitures are the government’s preferred remedy when it challenges a merger, this case represents the first instance when this remedy was ordered in a private litigation.
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Body Camera Manufacturer Fails in Bid to Escape FTC Administrative Jurisdiction as Ninth Circuit Shows No Appetite for Judicial Overhaul of Merger Review Procedure
February 2, 2021 | Blog | By Bruce Sokler
The FTC, and antitrust enforcement in general, are having their moment. For example, in early January the Supreme Court heard oral argument in AMG Capital Management v. Federal Trade Commission, a case questioning the FTC’s authority to require defendants to pay restitution for money obtained as the result of illegal activities. In that case, there is significant doubt about whether the Court will uphold the FTC Act’s Section 13(b) provision allowing for the FTC to obtain this equitable relief, and such a ruling would drastically change the way FTC approaches enforcement.
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HSR Notification Thresholds Decrease in 2021
February 1, 2021 | Alert | By Bruce Sokler, Robert Kidwell, Farrah Short
This alert reviews the lower jurisdictional thresholds scheduled to be published by the FTC on February 2, 2021for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).
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DOJ Continues its Enforcement Efforts Against Anticompetitive Conduct in Labor Markets, Charges Health Care Company for No-Poach Agreements with First Criminal Indictment
January 12, 2021 | Blog | By Bruce Sokler, Evelyn French
Last week, the Department of Justice (“DOJ”) announced the criminal indictment of Surgical Care Affiliates LLC (“SCA”), an Alabama- and Illinois-based company, which owned and operated outpatient medical centers around the U.S., for its alleged agreements with competitors not to solicit senior-level employees. DOJ has been suggesting since 2006 that it would use the criminal provisions of the antitrust laws against into employee allocation agreements—commonly called no-poach agreements, and DOJ has now followed through on its warnings.
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FTC’s Hospital Merger Challenges Hit Speedbump in Philadelphia
December 15, 2020 | Alert | By Bruce Sokler, Joseph Miller, Robert Kidwell
This alert examines a Philadelphia US district court decision that denied the FTC’s and Pennsylvania Attorney General’s request to preliminarily enjoin a proposed merger between Thomas Jefferson University and the Albert Einstein Healthcare Network.
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DOJ Announces Indictment of Former Owner of Health Care Staffing Company for Wage Fixing
December 11, 2020 | Blog | By Bruce Sokler, Evelyn French
Peabody and Arch Walk Away from Joint Venture After District Court Grants FTC’s Request for Preliminary Injunction
October 1, 2020 | Alert | By Bruce Sokler
The Other Shoe Drops: Ringleader of Oncology Treatment Market Allocation Scheme Indicted in Florida District Court
September 24, 2020 | Blog | By Bruce Sokler, Joseph Miller
Treasury Issues Final Rule Amending CFIUS Mandatory Filing Requirements
September 17, 2020 | Blog | By Robert Kidwell, Tinny Song
Another One Bites the Dust – N.D. Tex. Dismisses Antitrust Claims re FRAND Commitments with Prejudice
September 17, 2020 | Blog | By Michael Renaud, Joseph Miller
In the latest decision addressing antitrust liability for FRAND commitments, Judge Barbara M. G. Lynn of the Northern District of Texas dismissed a complaint from Continental Automotive Systems, Inc. (“Continental”) alleging, inter alia, violations of §§ 1 and 2 of the Sherman Act, and declaratory judgment as to FRAND obligations against Avanci, LLC (“Avanci”) and various members of its patent pool (collectively, “Defendants”).
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DOJ to IEEE: Yes, Injunctive Relief Should Be Available for SEPs, and Stop Saying Otherwise
September 14, 2020 | Blog | By Michael Renaud, James Wodarski, Joseph Miller, Daniel Weinger
Last Thursday, September 10, 2020, the U.S. Department of Justice’s Antitrust Division (“DOJ”) issued an updated Business Review Letter (“2020 Letter”) to the Institute of Electrical Electronics Engineers, Incorporated (“IEEE”) clarifying the DOJ’s views on licensing and enforcement practices related to standard essential patents (“SEPs”).
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DOJ Antitrust Division Releases New Guidance on Merger Remedies for First Time Since Withdrawal of 2011 Policy Guide to Merger Remedies
September 8, 2020 | Alert | By Bruce Sokler, Evan Moore
Read about the DOJ Antitrust Division’s new Merger Remedies Manual, its first guidance on the topic since its 2011 withdrawal of its policy guide for merger remedies.
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Ninth Circuit Reverses FTC Win in FTC v. Qualcomm, Finding No Antitrust Violations from Qualcomm’s Licensing of its Standard-Essential Patents
August 13, 2020 | Blog | By Rich Gervase, Joseph Miller, Michael Renaud, Tinny Song
In a reversal that came as no surprise to many observers, on Tuesday, August 11, 2020, a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit reversed the decision by the U.S. District Court for the Northern District of California in FTC v. Qualcomm and vacated the district court’s worldwide, permanent injunction prohibiting several of Qualcomm Incorporated’s (“Qualcomm”) licensing practices with respect to standard-essential patents (“SEPs”) covering cellular technology.
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Justice Department Files Suit to Enjoin Acquisition of Minority Share of Community Hospital; Shows Pitfalls of A Merger “Plan B” and Provides Roadmap of What Not to Say During Deal Negotiations
August 7, 2020 | Blog | By Joseph Miller, Bruce Sokler
DOJ and the FTC Publish Vertical Merger Guidelines
July 13, 2020 | Blog | By Joseph Miller, Bruce Sokler, Robert Kidwell, Evan Moore
Commissioner Chopra Releases Statement on Private Equity Physician Practice Roll-Ups with FTC/DOJ HSR Annual Report
July 10, 2020 | Blog | By Joseph Miller, Robert Kidwell
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.
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AbbVie’s Enforcement of its ‘Patent Thicket’ For Humira Under the BPCIA Does Not Provide Cognizable Basis for an Antitrust Violation
June 18, 2020 | Blog | By Rich Gervase, Joseph Miller, Tinny Song
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.
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FTC Comments on New Medicare Rule in Support of Expanded Telehealth Services
June 4, 2020 | Blog | By Evan Moore, Joseph Miller
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.
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