Antitrust

The Third Circuit reinstated an antitrust suit brought by a medical device seller that alleged Blue Cross Blue Shield Association and five of its member insurance plan administrators shut out the seller by conspiring to deny coverage for its device. LifeWatch Services Inc. v. Highmark Inc. et al., Case No. 17-1990 (3rd Cir. Aug. 28, 2018). Critical to the Third Circuit’s reversal of the lower court’s dismissal of the suit was market definition. In this buyer-side conspiracy case, where the seller alleged a concerted refusal to deal by purchasers of its product, the relevant market is comprised of buyers who are seen by the seller as reasonably good substitutes for each other regarding the purchase of its product. Thus “[a] concerted refusal to deal with all sellers of telemetry monitors, regardless of its equality, may still restrain competition in the alleged market for the purchase of outpatient cardiac monitors.” The lower court had instead focused on the market for the seller’s product.

The Premerger Notification Office (the “PNO”) of the Federal Trade Commission (the “FTC”) recently issued a reminder about often overlooked “transactions” that may require notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”).

The Department of Justice (“DOJ”) announced a new initiative to terminate “legacy” antitrust judgments that “no longer protect competition.” In 1979, the DOJ adopted a general practice to include sunset provisions that automatically terminate judgments, typically 10 years after entry.

Since 2013, the Blue Cross Blue Shield Association has faced a series of purported class actions consolidated in the U.S. District Court in Alabama.

On March 29, 2018, the Attorney General of California filed an antitrust action against Sutter Health and its affiliates (“Sutter”) alleging Sutter engaged in various anti-competitive conduct in violation of California’s Cartwright Act.[1]  According to the Complaint, healthcare costs in California have rapidly increased, and prices in Northern California are higher than in other areas of the State.

In broad language, a Third Circuit panel affirmed a district court’s dismissal of a monopoly suit against Uber Technologies Inc. (“Uber”). Philadelphia Taxi Association Inc. v. Uber Technologies Inc., Case No. 17-1871 (3rd Cir. Mar. 27, 2018).

A private home health care agency’s attempted monopolization suit against a dominant public hospital system and its home health care agency will move forward following a federal district court’s denial of the defendant hospital’s Motion for Judgment on the Pleadings.

The Department of Justice ("DOJ") Antitrust Division recently announced plans to hold a series of public roundtable discussions to analyze the relationship between competition and regulation, and its implications for antitrust enforcement policy.

On Friday, the U.S. Department of Justice (“DOJ”) Antitrust Division announced a settlement with Henry Ford Allegiance Health (“Allegiance”) of claims that Allegiance and certain other hospitals unlawfully agreed not to market to each other’s healthcare customers in central Michigan.

The Federal Trade Commission (FTC) announced on January 26, 2018, increased jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act). The FTC revises the thresholds annually based on changes in the gross national product.

For the first time in 26 years, the FTC and DOJ (the “Agencies”) have issued proposed updates to the Antitrust Guidelines for the Licensing of Intellectual Property, last revised in 1995.

After fending off a motion for judgment on the pleadings in March 2015, a small hospital in Peoria, Illinois lost on summary judgment in its $300 million antitrust suit alleging illegal exclusive dealing and attempted monopolization against its largest competitor.

As stakeholders and watchers of the expansive field of regenerative medicine likely are aware, earlier this year a study published in the peer-reviewed journal Cell Stem Cell reported on the growth of so-called stem cell clinics operating in the U.S.

The Third Circuit reminds, “[i]n antitrust suits, definitions matter.” Last week, in applying that maxim, the court affirmed a lower court’s dismissal of a suit filed by a hospital against a competing hospital and physician group, in which the plaintiff hospital alleged that defendants engaged in an illegal exclusive dealing arrangement by referring patients to a third hospital rather than to the plaintiff hospital.

Last week, in In re Aluminum Warehousing Antitrust Litigation, the US Court of Appeals for the Second Circuit (“Second Circuit”) rejected a claim by certain downstream end-users of aluminum that their price manipulation antitrust suit should be allowed to proceed.

The Department of Justice (“DOJ”) announced this week that an activist investment manager has agreed to pay a record $11 million to settle allegations that it violated the requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act” or “Act”) by improperly relying on the “investment-only” exemption to avoid reporting the transaction and observing the appropriate waiting period.

A popular weapon used to contain health care expenditures is the creation by payors and employers of tiered provider networks, which by differentiated co-pays attempt to steer insureds to less expensive choices.  In connection with such networks, providers will often provide better pricing in order to be placed on more favorable tiers.

The mere possession of monopoly power does not violate federal antitrust laws. The laws only address the anticompetitive acquisition, maintenance, or abuse of that power.

The NCAA scored a victory last week with the denial of class certification in an antitrust suit challenging the association’s former ban on multiyear scholarships (the “One Year Rule”) and its cap on scholarships (the “GIA Cap”). Plaintiff had alleged that those rules constituted a concerted effort by the NCAA and its member schools to thwart competition.

The Sixth Circuit on Tuesday voted 2 to 1 to reverse a district court’s grant of summary judgment under which a defendant hospital network had been found to be a single entity incapable of conspiring with itself in an anticompetitive manner under Section 1 of the Sherman Act.