Antitrust

This antitrust alert highlights two filings made by the DOJ last week in cases pending in federal district courts in North Carolina and Washington.

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

Read about FTC commissioners’ divergent views on vertical mergers detailed in statements filed with a proposed consent order regarding Staples’ acquisition of Essendant.

Read about the 11th Circuit's denial of Blue Cross Blue Shield’s appeal of a ruling that its allegedly restrictive practices must be analyzed under the per se standard.

This alert reviews the DOJ’s Competitive Impact Statement on the Atrium case, which suggests that providers including anticompetitive steering restrictions in payor contracts may face antitrust risks.

Read about a DOJ Antitrust Division proposed settlement that would bar Atrium Health from using anticompetitive steering restrictions in payor contracts.

This antitrust alert outlines an FTC settlement designed to reduce anticompetitive effects resulting from the merger of gas suppliers Praxair, Inc. and Linde AG.

Read about a US District Court’s denial of Landmark Theaters’ dismissal motion in an exclusive dealing Sherman Act antitrust case brought by independent movie theaters.

In September 25, 2018 remarks at the 2018 Global Antitrust Enforcement Symposium, Assistant Attorney General Makan Delrahim announced the Department of Justice’s plan to modernize and expedite the DOJ merger review process. This article outlines the changes to the merger review process, which the DOJ now plans to complete within six months of the parties’ Hart-Scott-Rodino filings.

The Third Circuit reinstated an antitrust suit brought by a medical device seller that alleged Blue Cross Blue Shield Association and five of its member insurance plan administrators shut out the seller by conspiring to deny coverage for its device. LifeWatch Services Inc. v. Highmark Inc. et al., Case No. 17-1990 (3rd Cir. Aug. 28, 2018). Critical to the Third Circuit’s reversal of the lower court’s dismissal of the suit was market definition. In this buyer-side conspiracy case, where the seller alleged a concerted refusal to deal by purchasers of its product, the relevant market is comprised of buyers who are seen by the seller as reasonably good substitutes for each other regarding the purchase of its product. Thus “[a] concerted refusal to deal with all sellers of telemetry monitors, regardless of its equality, may still restrain competition in the alleged market for the purchase of outpatient cardiac monitors.” The lower court had instead focused on the market for the seller’s product.

The Premerger Notification Office (the “PNO”) of the Federal Trade Commission (the “FTC”) recently issued a reminder about often overlooked “transactions” that may require notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”).

The Department of Justice (“DOJ”) announced a new initiative to terminate “legacy” antitrust judgments that “no longer protect competition.” In 1979, the DOJ adopted a general practice to include sunset provisions that automatically terminate judgments, typically 10 years after entry.

Since 2013, the Blue Cross Blue Shield Association has faced a series of purported class actions consolidated in the U.S. District Court in Alabama.

On March 29, 2018, the Attorney General of California filed an antitrust action against Sutter Health and its affiliates (“Sutter”) alleging Sutter engaged in various anti-competitive conduct in violation of California’s Cartwright Act.[1]  According to the Complaint, healthcare costs in California have rapidly increased, and prices in Northern California are higher than in other areas of the State.

In broad language, a Third Circuit panel affirmed a district court’s dismissal of a monopoly suit against Uber Technologies Inc. (“Uber”). Philadelphia Taxi Association Inc. v. Uber Technologies Inc., Case No. 17-1871 (3rd Cir. Mar. 27, 2018).

A private home health care agency’s attempted monopolization suit against a dominant public hospital system and its home health care agency will move forward following a federal district court’s denial of the defendant hospital’s Motion for Judgment on the Pleadings.

The Department of Justice ("DOJ") Antitrust Division recently announced plans to hold a series of public roundtable discussions to analyze the relationship between competition and regulation, and its implications for antitrust enforcement policy.

On Friday, the U.S. Department of Justice (“DOJ”) Antitrust Division announced a settlement with Henry Ford Allegiance Health (“Allegiance”) of claims that Allegiance and certain other hospitals unlawfully agreed not to market to each other’s healthcare customers in central Michigan.

The Federal Trade Commission (FTC) announced on January 26, 2018, increased jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act). The FTC revises the thresholds annually based on changes in the gross national product.

For the first time in 26 years, the FTC and DOJ (the “Agencies”) have issued proposed updates to the Antitrust Guidelines for the Licensing of Intellectual Property, last revised in 1995.