Third Circuit Rejects State’s Bid for Attorney’s Fees in Hospital Merger Dispute

By David Garcia and Melissa Gertler on February 4, 2019 Posted in Healthcare / Antitrust

On January 23, 2019, the U.S. Court of Appeals for the Third Circuit (“Third Circuit”) issued an opinion denying the Commonwealth of Pennsylvania the right to recover attorney’s fees after it had successfully blocked a hospital merger. The Third Circuit determined that the state had no federal statutory basis to be awarded attorney’s fees since the injunction had been granted under Section 13(b) of the Federal Trade Commission Act (“FTC Act”), which does not provide for attorneys’ fees, rather than Section 16 of the Clayton Act.

This case establishes binding precedent in the Third Circuit that state attorneys general will only have standing to seek attorneys’ fees in antitrust actions under the Clayton Act when the state actually litigates the case under that section. It also potentially has broader implications if other circuits decide to look to this decision as persuasive authority when deciding similar cases in their jurisdictions. Continue Reading

Loan Syndication and EU Competition Law

By Jacques Derenne, Yaniss Aiche and Ciara Barbu O'Connor on December 17, 2018 Posted in EU Competition and Regulatory

The intricate syndicated loan market has recently triggered attention from competition authorities internationally. Recently, the Spanish competition authority fined €91 million a syndicate of four Spanish banks. The Directorate General for Competition (DG COMP) of the European Commission launched a study on the topic in April 2017 (COMP/2017/008 – EU loan syndication and its impact on competition in credit markets). In anticipation of the results of this study, which are expected by the end of 2018 or early 2019, we highlight some of the competition law risks that may cause greater concern. Continue Reading

Eleventh Circuit Denies Blue Cross Blue Shield’s Interlocutory Appeal Challenging Application of Per Se Rule In Multidistrict Litigation In Alabama

By David Garcia and Nadezhda Nikonova on December 17, 2018 Posted in Blue Shield, Healthcare / Antitrust

On December 12, 2018, the Eleventh Circuit Court of Appeals denied defendants Blue Cross Blue Shield Association’s interlocutory appeal of a District Court decision to analyze BCBS’s geographic market distribution system under the per se rule rather than the rule of reason. Judge R. David Proctor of the Northern District of Alabama certified BCBS’s interlocutory appeal back in June because his decision to proceed under the per se standard of review “involves a controlling question of law as to which there is substantial ground for difference of opinion.” But rather than resolve the substantive legal issue at hand, the Eleventh Circuit issued a one sentence order denying “Defendants’ petition to appeal.” The parties did not seek to stay the case pending appeal and the underlying action has been moving forward. Continue Reading

U.S. Department of Justice Settles Anti-Steering Suit Against Hospital System; First Such Settlement After Amex SCOTUS Decision

By David Garcia and Nadezhda Nikonova on November 26, 2018 Posted in Healthcare / Antitrust

On November 15, 2018, the Antitrust Division of the U.S. Department of Justice settled a two-and-a-half year long lawsuit against Atrium Health, a North Carolina hospital system formerly known as the Carolinas HealthCare System, enjoining Atrium’s anti-steering provisions against health plans. This article discusses the DOJ/Atrium settlement in light of the recent Ohio v. American Express Supreme Court decision, which concerned anti-steering provisions in the two-sided credit card network services market. We previously reported on the DOJ’s suit against Atrium here, and analyzed the implications of the SCOTUS Amex decision on health insurance here. Continue Reading

N.D. Cal. Releases Comprehensive Procedural Guidance for Class Action Settlements

By Michael W. Scarborough and Nadezhda Nikonova on November 15, 2018 Posted in California Antitrust and Unfair Competition Law, Cartel Investigations and Litigation, Private Civil Antitrust Litigation

On November 1, 2018, the Northern District of California updated its Procedural Guidance for Class Action Settlements, requiring increased disclosures for settlement preliminary and final approval, and more transparency in post-distribution accounting. Failure to follow the Guidance may result in delay or denial of settlement approval. This article highlights the most significant updated rules affecting class action settlements in the Northern District. Continue Reading

New Law Allows Consumers Concerned about Identity Theft to Place Free Credit Freezes and Fraud Alerts

By Robert Magielnicki on September 21, 2018 Posted in Consumer Protection

The Federal Trade Commission has announced that, beginning today, consumers concerned about identity theft or data breaches can place credit freezes and one year fraud alerts with the three nationwide credit bureaus for free. The new Economic Growth, Regulatory Relief & Consumer Protection Act also allows parents to freeze for free the credit of their children who are under 16. Continue Reading

Federal Antitrust Regulators Approve Cigna’s Proposed Acquisition of Express Scripts

By Jordan Grushkin and Cody Fierro on September 20, 2018 Posted in Healthcare / Antitrust

On Monday, September 17, 2018, the Antitrust Division of the United States Department of Justice (the “DOJ”) cleared Cigna’s proposed $67 billion acquisition of Express Scripts, the country’s largest pharmacy benefit manager. While the transaction still needs the approval of certain state regulatory agencies, obtaining the DOJ’s approval was widely seen as the transaction’s most significant obstacle to overcome. Continue Reading

Big in Europe? What Multinationals Need to Know about Competing on the Continent

By Isabelle Rahman on September 18, 2018 Posted in EU Competition and Regulatory

With its recent imposition of a record 4.3 billion EUR fine against Google for abuse of dominant position, the European Commission may have cemented its reputation for taking an aggressive enforcement stance against US tech giants, particularly when contrasted with the US antitrust enforcers’ more hands-off approach in this sector. Continue Reading

AmEx Ruling May Have Big Impact on Health Insurance

By David Garcia and Nadezhda Nikonova on July 19, 2018 Posted in Healthcare / Antitrust

The Supreme Court recently established a new rule requiring plaintiffs to analyze both sides of a two-sided credit card market, which may be applicable to health insurance – arguably one of the biggest and most complex two-sided markets in the United States. There are a number of ongoing antitrust cases involving health insurance networks that may be susceptible to the type of two-sided market analysis required by the Supreme Court in Ohio v. American Express. David Garcia and Nadezhda Nikonova discuss the AmEx case, explain the economic rationale behind the rule, and analyze its possible applicability to healthcare antitrust cases.

Click here to read the full article, originally published by Law360 as Expert Analysis.

New Lower UK Thresholds for Scrutiny of Mergers Affecting National Security

By Oliver Heinisch on June 25, 2018 Posted in EU Competition and Regulatory

Following the publication and consultation on a green paper earlier this year the UK Government has now published new takeover rules, adding new thresholds to the relevant provisions of the UK Enterprise Act giving the Secretary of State (SoS) additional powers to scrutinize mergers taking place after July 11, 2018. These powers are based on public interest in transactions that raise national security concerns and in which the Government would have otherwise not been able to intervene. This is part of the UK Government’s wider review of national security and infrastructure investment review which will bring additional legislative changes in future. The Government’s stated reasons for the new rules include technological and economic changes as well as a changing national security threat which meant that thresholds were no longer effectively safeguarding the UK’s national security in all areas of the economy. In addition to giving the SoS broader grounds to intervene the additional rules also add a new jurisdictional test for merger review and as such apply to the UK Competition and Markets Authority (CMA) which is responsible for reviewing such mergers on competition law grounds.

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