AmEx Ruling May Have Big Impact on Health Insurance

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

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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Principal Deputy Assistant Attorney General Finch: Compliance Re-Evaluation?

On May 31, 2018, Principal Deputy Assistant Attorney General Andrew Finch delivered an important policy statement at the ABA antitrust in a Conference in Seoul, Korea. Finch remarks of May 31, 2018. The most widely reported aspect of the speech was its focus on international antitrust cooperation. Indeed, the following day Assistant Attorney General Makan Delrahim announced a formal initiative “to help finalize and join the global multilateral framework in procedures in competition law and enforcement. Delrahim’s June 1st remarks on Global Antitrust Enforcement at the Council of Foreign Relations. Continue Reading

California Sues Sutter Health Alleging Anti-Competitive Practices

California Attorney General Xavier Becerra filed a civil antitrust lawsuit in San Francisco County Superior Court on March 29, 2018 (the “Complaint”), alleging that Sutter Health (“Sutter”), one of Northern California’s largest healthcare providers, engaged in unlawful conduct in violation of California’s Cartwright Act (the “Act”).[1] Sutter Health has a substantial healthcare network that includes: 24 hospitals, 35 outpatient centers, physician’s organizations with over 5,500 members, and over 12,000 other physicians who partner with Sutter. Continue Reading

Senior Executive Type B Amnesty Redux — A Rare Correction From DOJ (Or Not?)

Last year, as noted in this blog, the Antitrust Division issued one of its fairly rare but critically important “Frequently Asked Questions” publications concerning its Amnesty Program. In January 2017, DOJ said explicitly that for Type B amnesty it retained discretion to prosecute senior executives. Defense counsel greeted this development with widespread alarm. Type B amnesty is frequently what DOJ offers to reporting companies if DOJ had any information of any kind about the reported activity. Few thought that mattered very much until January 2017 when DOJ’s FAQ pronouncement in practical effect imposed on defense counsel the need to advise a corporate client that amnesty might not apply to senior executives—with a likely attendant chilling effect on a company’s desire to participate in the program. Continue Reading

HSR and Antitrust Considerations for Private Equity Firms in M&A Transactions

An increasing number of M&A transactions each year involve private equity firms. Like any other transaction, the parties in private equity deals must be cognizant of the filing requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the substantive requirements of the Clayton Act § 7, which prohibits transactions that may “substantially . . . lessen competition” or “tend to create a monopoly.” Over the years, the HSR rules have been modified to target certain information specific to private equity firms and generally have been adding to the burden of the filing parties in private equity transactions. The requirements sometimes differ from those applicable to deals that do not involve private equity firms. This article discusses some of the HSR and antitrust issues that should be considered, and frequently arise, in private equity transactions. Continue Reading

Higher Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced

  1. Higher Thresholds For HSR Filings

On January 26, 2018, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in gross national product and will be effective thirty days after publication in the Federal Register. Publication is expected within one week, so the new thresholds will likely become effective in late February 2018. Acquisitions that have not closed by the effective date will be subject to the new thresholds. Continue Reading

10 EU Competition & Regulatory Trends to Watch for in 2018

Introduction

Our “trends for 2018” are only a selection of interesting developments to watch for in 2018.

Within the political and legislative cycle of the European Union, 2018 promises to be an eventful year, given that it is the last full year before the 2019 EU elections when a new European Commission will be appointed and the European Parliament will hold new elections. This means, in practice, that there will be pressure in 2018 on the current European Commission and European Parliament to act on all their initiatives and to complete their legislative agenda.

Our team of EU lawyers will continue to report on noteworthy developments including for instance, Brexit and its implications for competition and regulatory policies, the surge in foreign direct investment controls, the opening of new competition enforcement fronts, the practical implementation of the EU damages directive, as well as the development of alternative means of resolution in competition investigations and their impact on rights of defence. Continue Reading

Selective Distribution Systems and Bans on Sales of Luxury Products via Online Market Platforms: Initial Thoughts on the CJEU’s Coty Judgment

The Court of Justice of the European Union (CJEU) confirmed in a short judgment of 6 December 2017 that a prohibition imposed on authorized distributors from using third party platforms for the sale of their luxury products is in line with European competition law provided certain conditions are met. This judgment also ends an ongoing debate and confirms that selective distribution systems are indeed permissible if they are used to preserve and enhance the luxury image of a product. This outcome is not surprising to those familiar with the Court’s case law and is welcomed by companies running selective distribution networks to market their luxury products. However, the judgment is specific to the facts at hand and bans relating to online platforms will have to be reviewed on the basis of the merits of each case and of the products concerned. Continue Reading

An EC Communication on SEPs – Not More Not Less

A summary of the European Commission’s Policy Document on standard essential patents (SEPs).

After considerable preparations and consultation the European Commission has on 29 November 2017 issued a Communication [1] “setting out the EU approach to standard essential patents”. This Communication is part of the wider Europe’s Digital Single Market initiative. Notably, however, this long-awaited paper is not likely to change the current landscape of FRAND litigation and licensing, and intentionally does not address the most controversial issues of the current debate. Continue Reading

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