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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

FTC and DOJ Seek Public Comments on Merger Guidelines

The Federal Trade Commission and the U.S. Department of Justice’s Antitrust Division announced last week that they are soliciting public comments on ways to “modernize federal merger guidelines” to assist the agencies in...more

Hospital Transactions Subject to Hart-Scott-Rodino Reporting Obligations See Dramatic Rise in Second Requests for Information

Hospital transactions, including acquisitions and mergers, that meet Hart-Scott-Rodino (HSR) thresholds must, subject to any available exception, be reported to the Federal Trade Commission (FTC) and the Antitrust Division of...more

Podcast: How Will Biden’s Executive Order Impact Future Hospital Mergers? - Diagnosing Health Care [Video]

We’re beginning to see how mergers and acquisitions in the hospital industry are being impacted by President Biden’s executive order promoting competition in the American economy. The Federal Trade Commission recently...more

Commissioner Wilson Issues Strong Comments to Antitrust Bar

On November 9, 2021, Federal Trade Commission (FTC) Commissioner Christine Wilson addressed the American Bar Association Antitrust Law Section’s 2021 Fall Forum. Her prepared comments, entitled “The Neo-Brandeisian...more

Federal Trade Commission Continues Quest to Stem the Merger Tide

The Federal Trade Commission (FTC) has reimplemented a policy of requiring all merger enforcement orders to include the requirement that acquisitive firms obtain prior approval from the FTC before closing any future...more

FTC Announces Proposed Changes to Second Request Process, but Commissioner Phillips Raises Concerns

On September 28, 2021, the Federal Trade Commission (FTC) issued a blog post announcing several changes to how the FTC will investigate mergers and acquisitions and how it will approach second-request negotiations. The blog...more

FTC Chair Outlines Vision and Priorities

Chair Khan’s Priorities - In a memo dated September 22, 2021, the Chair of the Federal Trade Commission (“FTC”), Lina Khan, described for the FTC Staff and fellow Commissioners what she described as her “vision and...more

A Divided FTC Withdraws 2020 Vertical Guidelines, Introducing Uncertainty into Review of Vertical Mergers

On September 15, 2021, by a 3-2 vote, the Federal Trade Commission (“FTC”) decided to withdraw the vertical merger guidelines that had been issued in 2020. In its statement supporting the withdrawal, the majority raised...more

Medical Device Manufacturers, Beware: FTC Ramps Up Enforcement Against Repair Restrictions

The Federal Trade Commission (“FTC”) recently released a policy statement addressing repair restrictions imposed by manufacturers and sellers (“Policy Statement”). The Policy Statement was the result of an FTC workshop...more

FTC Responds to Tsunami of HSR Filings

A Surge of HSR Filings - On August 3, 2021, the Acting Director of the Bureau of Competition of the Federal Trade Commission (“FTC”) authored a blog post discussing the tsunami of Hart-Scott-Rodino (“HSR”) filings that the...more

FTC Reinstates Notice and Approval Requirements in All Merger Settlement Agreements

Prior to 1995, the Federal Trade Commission (“FTC”) required parties to a Commission Order entered in a merger case to obtain the FTC’s prior approval for any future transaction in similar markets above a de minimis...more

Biden Issues Executive Order Promoting Competition

On July 9, 2021, President Biden issued an Executive Order on Promoting Competition in the American Economy (the “EO”). The EO casts a wide net, encompassing many industries, including health care....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

Focus on Antitrust in Health Care Transactions

On May 19, 2021, the Senate Subcommittee on Competition Policy, Antitrust, and Consumer Rights of the Committee of the Judiciary held a hearing on Antitrust Applied: Hospital Consolidation Concerns and Solutions. The...more

Public Comment Period on Pharmaceutical Mergers Opens and Exposes Dueling Philosophies Among FTC Commissioners

The Multilateral Pharmaceutical Merger Task Force, a working group formed by the Federal Trade Commission (“FTC”), the Antitrust Division of the Department of Justice, State Attorneys General, and counterpart enforcement...more

FTC Loses Disgorgement Remedy Under 13(b) of the FTC Act

On April 22, 2021, the Supreme Court of the United States issued an opinion finding that the Federal Trade Commission (“FTC”) does not have the authority to order disgorgement (i.e., monetary relief) under Section 13(b) of...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

FTC Annual Review Shows Focus on Health Care

On March 25, 2021, the Federal Trade Commission (“FTC”) released its 2020 Annual Highlights report. The report’s statistics show that 46 percent of the Bureau of Competition’s enforcement actions related to the health care...more

Merger Reviews Likely to Address More Expansive—and Possibly New—Theories of Harm

Previously, as a member of the Republican-controlled Federal Trade Commission (“FTC”), Commissioner Rebecca Kelly Slaughter chided both the FTC Staff and her fellow Commissioners for, in her estimation, a failure to consider...more

Hart-Scott-Rodino Reporting Thresholds Adjusted Downward

The Federal Trade Commission recently announced new reporting thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“Act”). The new thresholds became effective on March 4, 2021. Unlike previous years, this...more

A Private Right to Seek Divestiture Under Section 7 of the Clayton Act – from Theory to Reality

Section 7 of the Clayton Act (15 U.S.C. § 18) prohibits mergers and acquisitions where “the effect may be substantially to lessen competition, or tend to create a monopoly.” Although drafted in part to address potential...more

FTC’s Retrospective Study of Health Care Facility and Physician Group Mergers

On January 14, 2021, the Federal Trade Commission (“FTC”) announced that it was launching a study to examine the impact of health care facility and physician group mergers. Accordingly, the FTC stated that it had requested...more

Leadership Changes at the Federal Trade Commission

Joseph Simons, Chairman of the Federal Trade Commission (“FTC”) since May 1, 2018, has announced that he would resign effective January 29, 2021. Following Chairman Simons out of the FTC are, among others, Bureau of...more

Certificate of Need Laws Suffer Another Broadside

Commissioners Christine S. Wilson and Noah Joshua Phillips of the Federal Trade Commission (“FTC”) used a recent FTC enforcement action challenging a hospital acquisition as an opportunity to issue a statement (“Statement”)...more

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