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
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
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
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
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
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.
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.
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 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”). 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
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