Antitrust

Earlier this week, Stone Canyon Industry Holdings LLC (“Stone Canyon”) and its portfolio company SCIH Salt Holdings Inc. (“SCIH”) reached a settlement agreement with the Department of Justice (“DOJ”) to resolve its investigation of SCIH’s proposed acquisition of Morton Salt Inc. (“Morton”).  Under the terms of the settlement agreement, which is subject to Tunney Act review, Stone Canyon and SCIH are required to divest all assets relating to evaporated salt in order to proceed with the Morton acquisition.  This settlement agreement is noteworthy in that the divestiture was of the buyer to divest its own assets in order to proceed with the transaction, and the DOJ and the parties reached agreement without a divestiture buyer identified.

The Department of Justice (“DOJ”) announced yesterday a criminal indictment returned by a federal grand jury in Las Vegas, Nevada charging a health care staffing company and its former manager of entering into and engaging in a conspiracy with a competitor to allocate and fix the wages of employee nurses in violation of Section 1 of the Sherman Act (15 U.S.C. § 1).

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.

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.

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.

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.

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.

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”).

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”).

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.

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.