Litigation & Enforcement Highlights
Litigation and Enforcement Highlights – January 2021
Amy Y. Gu, Managing Editor January 14, 2021
We kick off the new year with a handful of new developments in healthcare litigation and enforcement that transpired at the end of 2020. In price transparency, a pair of legal challenges intended to block transparency efforts in drug pricing and hospital pricing, respectively, were denied by the circuit courts. On the antitrust front, the Federal Trade Commission saw both victory and defeat in its challenges of proposed mergers that would lessen competition in the healthcare markets. Judges Refuses to Block California’s Drug Pricing Transparency Law SB 17 On …
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Year in Review: 2020 Sees A Flurry of Federal Healthcare Antitrust Challenges
Amy Y. Gu, Managing Editor December 14, 2020
As the COVID-19 pandemic continues to ravage the nation, it has put economic stress on smaller healthcare providers, giving larger health systems the opportunity to gain market power through more rampant merger and acquisition activity. In response, the Federal Trade Commission and the Department of Justice also stepped up their antitrust enforcement efforts. In this year-end Litigation and Enforcement Highlights issue, we round up federal enforcement challenges of provider mergers in 2020 and look at the latest status of these actions. Jefferson Health/Albert Einstein (Pennsylvania) The Federal Trade Commission …
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[Case Brief] Atrium Health Settlement Encourages Enforcement of Anti-tiering/Anti-steering Clauses in Healthcare Contracts
Amy Y. Gu, Managing Editor November 16, 2020
Editor’s Note: An abbreviated summary of this case appears in the research report “Preventing Anticompetitive Contracting Practices in Healthcare Markets”, which provides a detailed analysis of anti-tiering/anti-steering clauses, including economic justification and procompetitive use and states that have restricted its use in healthcare contracts. The antitrust case against Sutter Health in California has drawn the attention of state regulators and policymakers across the country, spawning legislative reform efforts to curb dominant hospitals’ market power. Prior to this, an enforcement action against Atrium Health, a large health system on the …
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Blue Cross/Blue Shield Reaches Settlement Agreement with Class Plaintiffs in Private Antitrust Suit
Amy Y. Gu, Managing Editor October 15, 2020
The private antitrust case against Blue Shield/Blue Cross (BCBS) reached a preliminary partial settlement last month after eight years of litigation. A driving force for this settlement may have been the April 2018 district court ruling that was seen as a serious blow to the defendants. In two antitrust suits that have been consolidated in Alabama federal court (put into Multi-District Litigation),[1] healthcare providers and employer subscribers sued BCBS companies across the country, alleging horizontal market allocation in violation of Section 1 of the Sherman Antitrust Act. The plaintiffs claim …
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[Sutter Case Watch] Court Officially Rejects Sutter’s Proposed Settlement Due to Inadequate Compliance Monitor Selection
Amy Y. Gu, Managing Editor October 6, 2020
See case page: UFCW & Employers Benefit Trust v. Sutter Health In August, The Source reported on the preliminary approval hearing for the proposed settlement of California’s high-profile antitrust suit against Sutter Health. Among other issues, Judge Anne-Christine Massullo of the Superior Court of San Francisco was particularly troubled by the selection process of the independent compliance monitor and required supplemental filings from the parties regarding the selection and outreach process employed in the selection of Jesse Caplan of Affiliated Monitors, whom the parties jointly requested to appoint (see The Source …
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[Sutter Case Watch] Sutter Health Preliminary Approval of Settlement Agreement Held up by Compliance Monitor Selection
Amy Y. Gu, Managing Editor August 13, 2020
See case page: UFCW & Employers Benefit Trust v. Sutter Health After much delay due to the pandemic induced hiatus, the preliminary approval hearing for the proposed settlement agreement in the Sutter Health antitrust case resumed on August 12 at the Superior Court of San Francisco. At the hearing, plaintiff attorneys on behalf of both class members UEBT and the Attorney General addressed in turn questions with respect to specific proposed terms raised in a tentative ruling by Judge Anne-Christine Massullo.[1] One key issue the court rested on was the selection …
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[Sutter Case Watch] Approval Hearing of Sutter Health Settlement Moves Forward Despite COVID-19
Amy Y. Gu, Managing Editor July 10, 2020
See case page: UFCW & Employers Benefit Trust v. Sutter Health At a July 9 hearing at the Superior Court of San Francisco, Judge Anne-Christine Massullo denied Sutter Health’s motion to delay the approval hearing of the preliminary settlement agreement due to the COVID-19 pandemic. This is an encouraging ruling as there was much speculation and concern that Sutter’s request is a thinly veiled attempt to walk back the historic settlement reached last December amidst the chaos of COVID-19. In a California Healthline quote last month, The Source Executive Editor …
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Final DOJ and FTC Vertical Merger Review Guidelines Fail to Impress
Amy Y. Gu, Managing Editor July 9, 2020
After much anticipation and a round of public comments on the draft guidelines released in January, the Department of Justice (DOJ), along with the Federal Trade Commission (FTC), officially issued the final Vertical Merger Review Guidelines, replacing the Non-Horizontal Merger Guidelines originally issued in 1984. The updated guidelines govern how federal antitrust agencies evaluate vertical, as well as other non-horizontal mergers. The guidelines outline three main sources of evidence for potential adverse competitive effects from vertical mergers: 1) Foreclosure and Raising Rivals’ Costs, 2) Access to Competitively Sensitive Information, and …
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[Sutter Case Watch] The Landmark Sutter Health Antitrust Case was Settled. Will COVID-19 Uproot it Like it Did Everything Else?
Amy Y. Gu, Managing Editor June 11, 2020
See case page: UFCW & Employers Benefit Trust v. Sutter Health When Sutter Health reached a preliminary settlement agreement with California Attorney General Xavier Becerra restricting its anticompetitive practices, antitrust experts breathed a collective sigh of relief on clinching a favorable outcome. Then came COVID-19. As with all other aspects of business and life, the pandemic has turned existing order upside down. Will it throw a wrench in the all but finalized case that would’ve served as strong guidance to other health systems in the country? The terms of the …
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Affordable Care Act Litigation – May 2020 Updates
Amy Y. Gu, Managing Editor May 18, 2020
The coronavirus pandemic has highlighted the urgent need for healthcare coverage for all Americans, once again putting the Affordable Care Act (ACA) in the national spotlight. The law, however, has long been immersed in various types of litigation, involving both state governments and private insurers, a few of which have reached the Supreme Court after many years in the making. This month, we take a look at the latest Supreme Court action in two recent lawsuits involving the ever-controversial law and its legacy. Insurers Win $12 Billion Lawsuit for …
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