Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits “every contract, combination … or conspiracy, in restraint of trade or commerce.” Determining whether such a “contract, combination … or conspiracy” (i.e., the agreement...more
Trade associations frequently engage in standard-setting programs. Most often, these programs involve the setting of standards or specifications for certain manufactured products. Such programs can benefit consumers and...more
Under the Trump administration, the Antitrust Division of the U.S. Department of Justice (“DOJ”) (and, to some extent, the Federal Trade Commission) has emphasized its role as an antitrust “enforcer” and not a “regulator.”...more
Statement 1 of the Statements of Antitrust Enforcement Policy in Health Care recognizes that small hospitals, particularly those in rural areas, may be unable to achieve cost savings through efficiencies, such as those that...more
When a physician network or a multiprovider network lacks sufficient integration (either financial or clinical), agreements on price among the competing providers in the network must be avoided. One way to do this is through...more
Health care networks strive to achieve a level of integration that will permit joint contracting without the risk of per se condemnation under the antitrust laws. Clinical integration will allow for such contracting, but...more
While federal officials have stated their intent to persist in questioning vertical relationships that they hypothesize cause downstream economic effects on product flow and prices, a recent loss by the Department of Justice...more
7/3/2018
/ Antitrust Provisions ,
AT&T ,
Cable Television Providers ,
Competition ,
Department of Justice (DOJ) ,
Health Insurance ,
Insurance Industry ,
Merger Agreements ,
Mergers ,
The Clayton Act ,
Time Warner ,
Vertical Mergers
Recent decisions outside of the health care industry—including the defeated efforts (at least at the district court level) to block the merger of AT&T and Time Warner and the recent decision from the Second Circuit upholding...more
Collaborations among competitors or potential competitors can take many forms, the most common being a joint venture. The Antitrust Guidelines for Collaboration Among Competitors, issued jointly by the Federal Trade...more
According to the “Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program” (“Policy Statement”), issued by the Federal Trade Commission and the...more
Last week, Barry Nigro, the Deputy Assistant Attorney General (“DAAG”) of the U.S. Department of Justice (“DOJ”), delivered a keynote address at the 2018 Antitrust in Healthcare Conference, co-sponsored by the American Bar...more
A violation of Section 1 of the Sherman Act requires an agreement between two or more separate economic entities. In Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), the Supreme Court of the United States...more
On April 11, 2018, the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) released their 40th Annual Hart-Scott-Rodino Report (“HSR Report”) detailing merger enforcement activity in fiscal year 2017...more
The legality of certain collaborative arrangements and contracts often rises and falls on whether the relationship between the parties involved is exclusive or non-exclusive. For example, the issue of exclusivity often...more
Until closing, parties to a merger, acquisition, or similar transaction must remain independent competitors. Failure to do so is known as “gun jumping” and can be a simultaneous violation of the Hart-Scott-Rodino Antitrust...more
Agreements to allocate markets raise serious antitrust concerns and can encompass a wide range of activities. Common forms of market allocation agreements include agreements between competitors involving facility locations,...more
The sharing of confidential and proprietary information among competitors and potential competitors (even during due diligence) can raise serious antitrust concerns. In particular, parties must avoid exchanging information...more