See case page: Sidibe v. Sutter Health   On August 24, the 9th Circuit Court of Appeals heard oral arguments in the appeal of the federal class action Sidibe v. Sutter Health. A jury verdict in March 2022 in the Northern District Court of California had cleared the hospital giant of anticompetitive allegations that were initially filed over a decade ago. The alleged practices were also at issue in the case filed in state court by a labor union that was later joined by the attorney general, UEBT v. Sutter Health. …

As private equity (PE) investment in healthcare draws scrutiny from advocates and regulators, one lawsuit has been in the spotlight as a potentially important precedent-setter, particularly regarding its corporate practice of medicine (CPOM) claims: American Academy of Emergency Medicine Physician Group (AAEM-PG) v. Envision Healthcare. The Independent Emergency Physicians Consortium called this case a “momentous event” that could signal an inflection point in the increasing corporatization of medicine.[1] However, proceedings have been on pause since May 2023, when the defendant filed for bankruptcy, and it is unclear if and when …

On July 19, the Federal Trade Commission (FTC) and Department of Justice (DOJ) jointly released updated draft guidelines for their antitrust review of mergers and acquisitions. The new proposed guidelines were established following public comments solicited from the past 18 months and aim to better evaluate business and competition in the modern economy and current market realities. The draft guidelines provide 13 principles the agencies will use in determining whether a transaction is anticompetitive and take into consideration increasing concern over new forms of consolidation including vertical mergers, cross-market mergers, …

On June 27, the Federal Trade Commission (FTC), joined by the Department of Justice (DOJ), announced its proposal to amend pre-merger reporting rules that implement the Hart-Scott-Rodino (HSR) Act of 1976. The new rules would require entities seeking to merge to provide more information and details on their transaction. This latest move by the federal antitrust enforcement agencies is consistent with ongoing efforts to promote competition in the U.S. and may act to slow down consolidation trends in the healthcare industry.   What is the Existing Reporting Process The original …

In a recent Supreme Court decision, the high court upheld a California ballot initiative that bans the sales of certain type of pork in the state. While the challenge of the law is specifically focused on the state pork law, it has significant legal implications for industries beyond the meat industry. The Pharmaceutical Research and Manufacturers of America (PhRMA), representing many biopharmaceutical and biotechnology companies, filed an amicus brief opposing the law due to its potential application to the state regulation of prescription drug prices. In this post, we take …

The healthcare market is seeing intense antitrust scrutiny in recent years at both the federal and state level. As the Federal Trade Commission (FTC) and Department of Justice (DOJ) step up their enforcement efforts, some states are exploring avenues to allow healthcare entities to pursue consolidating transactions the state deems beneficial and avoid antitrust challenge. One of them is the use of certificate of public advantages (COPA). A recent slew of antitrust immunity disputes coming out of a healthcare merger in Louisiana brought the use of COPA and state action …

The federal agencies have been flexing their muscles in antitrust enforcement in recent years to reinvigorate competition. This month, the Federal Trade Commission (FTC) ordered the unwinding of a completed merger that combined gene sequencing company Illumina and cancer test developer Grail. This move is highly unusual not only because of the vertical nature of the consolidation, which typically receives less antitrust scrutiny, but also how the Commission unanimously voted to undo a consummated merger while overturning an administrative court ruling in the process. For these reasons, this latest development …

In a New England Journal of Medicine article and accompanying interview, The Source Founder and Distinguished Fellow Jaime S. King provides an overview of the history of healthcare antitrust law and enforcement and discusses the functions of antitrust law and the effects of health care consolidation on prices, quality of care, and access to care. The perspective piece asserts that combining competitive and regulatory forces may offer the only hope for controlling health care prices, restoring high-quality care, protecting health care workers, and preserving and expanding access to care. Check out …

In this first healthcare merger watch of 2023, we highlight some consolidation activities from the first quarter in the healthcare industry. In a trend that has continued in recent years, healthcare entities in the latest proposed and pending deals are increasingly exploring consolidation in new and innovative ways, across different geographic regions and involving different healthcare players in the industry. Even though federal and state antitrust enforcers often successfully challenge traditional, horizontal mergers and acquisitions, transactions involving cross-market consolidation are typically not challenged due to less straightforward legal and economic …

Since the Biden administration’s release of the Executive Order on Promoting Competition in the American Economy in July 2021, federal enforcement agencies have visibly advanced their efforts to step up enforcement actions and continued to push forward new enforcement agenda. In the latest development, the Department of Justice (DOJ) announced on February 3 the withdrawal of three federal enforcement policy statements, which removes some of the safe harbor protections that were established for healthcare entity activities nearly three decades ago. DOJ’s action is a direct response to the executive order’s call for …