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FTC Requests Substantial Increase to FY 2025 Budget

The fiscal year (FY) 2025 budget proposed by the Federal Trade Commission (FTC) seeks a 20 percent increase from its FY 2024 budget and an additional 55 employees to help support its mission....more

Podcast: Key Changes in Finalized Antitrust Merger Guidelines – Diagnosing Health Care [Video]

After nearly two years of combined efforts from the Federal Trade Commission and the Antitrust Division of the Department of Justice, the agencies jointly issued much-anticipated merger guidelines identifying the procedures...more

Podcast: Antitrust Updates – Changes Affecting Merger Review and Enforcement in 2024 and Beyond – Diagnosing Health Care [Video]

From wholesale revisions of the merger guidelines to significant amendments to the Hart-Scott-Rodino premerger notification forms, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) have proposed...more

New Antitrust Theory: Cross-Market Effects

Antitrust concerns about hospital mergers have historically focused on mergers of hospitals that compete for patients in the same local market....more

FTC Says State Oversight Cannot Effectively Displace Competition Among Health Care Providers

In two recently issued statements, the Federal Trade Commission (FTC) reiterated its long-held view that states are not in a position to effectively displace competition with regulatory oversight....more

DOJ Withdraws Long-Standing Health Care Antitrust Enforcement Policy Statements

In a quiet yet shocking announcement on February 3, 2023, the Antitrust Division of the U.S. Department of Justice (DOJ) withdrew three major antitrust policy statements that have served for years as mainstays of health care...more

FTC Maintains Strong Opposition to COPAs

On August 15, 2022, the Federal Trade Commission (FTC) released the FTC Policy Perspectives and Certificates of Public Advantage staff policy paper, along with a fact sheet....more

Antitrust Enforcers Continue March to Protect Labor Markets in Health Care and Other Industries

On January 28, 2022, a federal grand jury in Maine returned an indictment charging four managers of home health care agencies with participating in a conspiracy to suppress the wages and restrict the job mobility of Personal...more

Lina Khan Takes Charge of the Federal Trade Commission

On June 15, 2021, in a 69–28 vote, the Senate confirmed Lina Khan to fill the current vacancy at the Commissioner level of the Federal Trade Commission (“FTC”). Immediately upon her confirmation, President Biden tapped Ms....more

Distinguishable Products and Tying Claims in Health Care Markets

Unlawful tying occurs when an entity with market power in one product (the “tying” product) agrees to sell that product but only on the condition that the buyer also agrees to buy a second product (the “tied” product), or at...more

The Numbers Are In: The Recently Released Hart-Scott-Rodino Annual Report for Fiscal Year 2018 Provides an Overview of Antitrust...

On September 16, 2019, the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) released their combined Hart-Scott-Rodino Annual Report (“Report”) for fiscal year 2018 (covering the...more

Are Efforts to Speed Up Antitrust Merger Reviews Working?

Last September, Makan Delrahim, the Assistant Attorney General for the Antitrust Division of the Department of Justice (“DOJ”), announced efforts to streamline antitrust merger reviews with a stated goal of completing the...more

Definition of “Relevant Market” Is Fact-Intensive

Violations of the Sherman Act generally require a demonstration of market power in the “relevant market.” The relevant market has two components—the relevant product market and the relevant geographic market....more

Joint Development of Specialized Clinical Services

The Statements of Antitrust Enforcement Policy in Health Care (“Policy Statements”), issued jointly by the Department of Justice and Federal Trade Commission, provide, at Statement 3, guidelines for evaluating whether a joint...more

Using a Messenger Model

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

Financial Integration: A Means to Avoid Antitrust Risk

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

Horizontal Mergers: Is a “Dominant Payer” Defense Viable?

Section 8 of the 2010 Horizontal Merger Guidelines (issued jointly by the U.S. Department of Justice and the Federal Trade Commission) states that “the Agencies consider the possibility that powerful buyers may constrain the...more

Antitrust Analysis of Vertical Agreements in Multiprovider Health Care Networks

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

COPAs and State Action Immunity

Often, health care providers want to take advantage of state “provider cooperation” laws—those laws that sanction (and provide “state action immunity” for) conduct that would otherwise raise antitrust concerns. Late last...more

Antitrust Concerns for Large ACOs Operating in Commercial Markets

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

DOJ Official: Antitrust Enforcement Remains a “High Priority”

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

Is Your Agreement Non-Exclusive in Name Only?

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

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