The Department of Justice recently signalled further strong support for tools to improve the efficiency of healthcare delivery, including improved transparency for patients and the removal of impediments to steering patients to low-cost or high-quality healthcare providers. Providers contemplating contractual restrictions on insurer steering are encouraged to ensure that such restrictions are reasonably necessary to achieve legitimate business objectives.
The Federal Trade Commission (FTC) recently announced that it is seeking public comments on a planned study to assess the effectiveness of divestiture remedies in mergers. The FTC proposes to review nearly 100 consent orders issued between 2006 and 2012, with information-gathering approaches varying based on the industry.
The Department of Justice recently announced a settlement under which parties to an abandoned transaction agreed to pay a total of nearly $5 million in fines to settle claims of unlawful gun jumping under the Hart-Scott-Rodino Act. There are many lessons to be gleaned from the complaint and settlement agreement.
In the first ever Federal Trade Commission-litigated challenge to a hospital system's acquisition of a physician group, the US District Court for Idaho ruled in favour of the plaintiffs. It found that while the hospital system's strategy to deliver more integrated care by using primary care physicians as care coordinators would lead to improved care, this could be achieved through means other than acquisition of the physician group.
The Federal Trade Commission recently announced final changes to the Hart-Scott-Rodino Act rules regarding acquisitions of exclusive patent rights in the pharmaceutical industry. The revised rules, which apply only to transfers of pharmaceutical patent rights, will increase the number of licensing arrangements in the pharmaceutical industry that will be subject to the act's pre-closing filing and waiting period requirements.
The US Court of Appeals for the Third Circuit recently issued a decision holding that pharmaceutical patent settlements that restrict generic entry and contain a payment to the generic company are presumptively unlawful under the antitrust laws. The decision adopted the long-advocated legal position of the Federal Trade Commission.
In challenging Valeant's planned acquisitions of dermatology assets from divisions of Sanofi and Johnson & Johnson, the Federal Trade Commission alleged a relevant market that included the branded and generic versions of the pharmaceutical product at issue, but excluded other products that serve as potential therapeutic substitutes. Valeant recently agreed to divest certain drugs in order to consummate the acquisitions.
Earlier this year the Federal Trade Commission filed an administrative complaint to stop the acquisition of PharMerica by Omnicare, the largest long-term care pharmacy, alleging that the acquisition would combine the two largest and only national long-term care pharmacies. Ultimately, in the face of a lawsuit to block the transaction, Omnicare was unable to win over PharMerica shareholders and it allowed the tender offer to expire.
The Federal Trade Commission has closed its eight-month pre-merger investigation into the proposed combination of Express Scripts, Inc and MedCo Health Solutions, two of the three largest pharmacy benefit managers. The majority found that, in spite of a combined market share of more than 40%, even using the broadest market definition the merger was unlikely to constrain competition.
The Federal Trade Commission and the Department of Justice recently announced revisions to the Hart-Scott-Rodino pre-merger notification rules and the Hart-Scott-Rodino form. Although some of the changes are intended to make Hart-Scott-Rodino filing less onerous, others will add to the burden of completing the form.
Following the filing of a complaint by the Federal Trade Commission (FTC) regarding Thoratec Corporation's proposed acquisition of HeartWare International Inc, the parties have agreed to abandon the transaction and withdraw their Hart-Scott-Rodino Act filings. The FTC complaint alleged that the acquisition would eliminate the most likely entrant into the market for the sale of approved left ventricular assist devices.
The Federal Trade Commission has proposed a consent order in regard to Carilion Clinic's 2008 acquisition of an outpatient imaging centre and an outpatient surgical centre. The order requires Carilion to divest the facilities within three months of the order being final. This case is yet another example of a post-closing investigation of an acquisition which led to a challenge by the commission.
A district court judge has denied motions for summary judgment filed by Lundbeck, Inc, formerly Ovation Pharmaceuticals, Inc. The Federal Trade Commission and the Minnesota attorney general brought suit against Ovation seeking divestiture and disgorgement of profits for alleged price-gouging in relation to Ovation's acquisition of NeoProfen.
In two recent cases involving antitrust claims against branded manufacturers, the plaintiffs alleged that each branded manufacturer filed a frivolous citizen petition with the US Food and Drug Administration (FDA), which delayed FDA approval of generic products. In each case, a threshold question was whether the plaintiff could even show that the citizen petition actually delayed the Abbreviated New Drug Application approval.
Eight years after Evanston Northwestern Healthcare Corp and Highland Park Hospital consummated their merger, the Federal Trade Commission (FTC) has issued a final order and opinion on remedy following its investigation into the merger. Due to the unusual cirumstances of the case, the FTC upheld the earlier finding of a Clayton Act violation, but overturned the divestiture order.
In a recent decision the US District Court for the Northern District of Illinois allowed the continuation of a case against UnitedHealth Group and PacifiCare alleging that they violated the antitrust laws through illegal activities prior to consummating their merger.
The Federal Trade Commission has ordered two private equity groups to convert certain holdings into passive investments before they may participate in a group of private equity investors proposing to invest in Kinder Morgan Inc. The case confirms that investments by private equity firms and other financial buyers will not escape antitrust scrutiny when their combined holdings create competitive overlaps.