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Yesterday, August 28th, the Federal Trade Commission (the “FTC”) and the Department of Justice Antitrust Division (the “DOJ”) (the “Antitrust Agencies”), together with the Department of Labor (the “DOL”) and National Labor Relations Board (the “NLRB”), signed a new agreement (the Memorandum of Understanding or “MOU”) that seeks to enhance the ability of the FTC and DOJ to investigate the impact of mergers and acquisitions on labor markets.Continue Reading U.S. Federal Antitrust Agencies Announce Cooperation Initiative with Labor Agencies in Merger Review

On July 3, 2024, Judge Ada Brown of the U.S. District Court for the Northern District of Texas entered a limited, preliminary injunction barring the Federal Trade Commission (“FTC”) from enforcing its controversial Final Rule (“Rule”) which purports to ban almost all non-compete agreements. Importantly, Judge Brown’s preliminary order only enjoined enforcement of the Final Rule against the named plaintiffs who opposed it. On August 20, 2024 – just two weeks before the Rule’s effective date – Judge Brown greatly expanded the scope of her initial ruling by granting summary judgment for the plaintiffs and ordering the Rule be completely “set aside” and “not be enforced or otherwise take effect on September 4, 2024[.]” Judge Brown’s order may be the fatal blow for the Rule, and should end a months-long saga of uncertainty for employers.Continue Reading Final Word on Final Rule? Texas District Court Eviscerates FTC’s Non-Compete Ban

On July 3, District Judge Ada Brown of the Northern District of Texas issued an order enjoining the Federal Trade Commission (“FTC”) from enforcing its “Final Rule” against plaintiffs Ryan, LLC (“Ryan”) and the U.S. Chamber of Commerce (the “Chamber”). If implemented, the Final Rule would effectively render nearly all non-compete agreements unlawful. Accordingly, this opinion was one of the most highly anticipated judicial decisions in antitrust and labor and employment law in recent memory.Continue Reading Not So “Final”? Texas Federal Court Enjoins Enforcement of FTC’s Noncompete Ban, Leaving Future of Commission’s Rule in Doubt

On June 6, 2024, California Attorney General Rob Bonta announced that he led a multistate coalition of eleven (11) state attorneys general in in submitting a comment letter (the “Comment Letter”) in response to the Federal Trade Commission, the U.S. Department of Justice, and the U.S. Department of Health and Human Services’ (together the “Agencies”) request for information regarding consolidation in healthcare by private equity. On March 5, 2024, the Agencies issued a “Request for Information on Consolidation in Healthcare Markets,” on the same day the Agencies hosted a public workshop regarding the impact of private equity investment in the healthcare system. Continue Reading California Attorney General Advocates for Greater Antitrust Enforcement in Private Equity in Healthcare

The health care industry has been a particular focus of antitrust concern in recent years, including recent policy initiatives, private equity warnings, and enforcement actions from both the Department of Justice (DOJ) and Federal Trade Commission (FTC). The new Task Force on Health Care Monopolies and Collusion (HCMC), announced this month by the DOJ, is the latest example of antitrust scrutiny on the industry.Continue Reading New DOJ Health Care Task Force Portends Continued Aggressive Antitrust Enforcement

On April 23, 2024, the Federal Trade Commission (“FTC”) issued its Final Rule banning employers from imposing post-employment noncompete requirements on their workers (the “Final Rule”). The FTC has indicated that it will continue to prioritize enforcement in the healthcare industry, with objectives seeming to include alleviating physician shortages and improving access to healthcare. What the Final Rule means for healthcare organizations generally, and for nonprofits in particular, is not entirely clear and is likely to be challenged. Continue Reading What the FTC’s Noncompete Ban Means for Healthcare

On April 23, 2024, the Federal Trade Commission (the “FTC”) voted 3-2 to issue its final rule (“Final Rule”) banning employers from imposing noncompete clauses on their workers, approving the final rule in a special Open Commission Meeting. Continue Reading FTC Votes to Ban Noncompete Agreements

The Federal Trade Commission (“FTC”) has filed an amicus brief in Teva Branded Pharmaceuticals Products R&D, Inc. v. Amneal Pharmaceuticals of New York, LLC to further the agency’s efforts to promote and protect generic drug and biosimilar competition. In the case, Teva asserts that Amneal’s Abbreviated New Drug Application (“ANDA”) for an asthma inhaler infringes upon five patents it has listed in the FDA’s Orange Book–a challenge that under FDA regulations triggers a 30-month stay of FDA’s approval of the generic inhaler. Amneal’s counterclaims assert that the Teva patents, which relate to the inhaler device and dose counter, rather than the drug itself, were improperly listed and has asked the court for judgment on the pleadings and an order to delist the patents at issue.Continue Reading FTC’s Campaign Against Improper Orange Book Listings Continues with Amicus Brief in Teva’s Challenge of Amneal Asthma Inhaler ANDA

On March 5, 2024, the Federal Trade Commission (“the FTC”) hosted a public workshop titled “Private Capital, Public Impact: An FTC Workshop on Private Equity in Health Care”, which covered the impact of private equity investment on the health care system. The workshop included panelists from the FTC, the Department of Justice (“the DOJ”), the Department of Health and Human Services (“HHS”) (together, “the Agencies”), academic thought-leaders, and health care professionals. On the same day as the workshop the Agencies launched a “Cross-Government Inquiry on Impact of Corporate Greed in Health Care,” issuing a Request for Information (“RFI”) seeking public comment on health care deals involving private equity firms, including deals that would not be reportable under the Hart-Scott-Rodino Act. The Agencies will use the RFI to inform future enforcement and policy decisions related to health care consolidation. The public has 60 days to submit comments to the Agencies.Continue Reading The FTC Hosts Workshop on Private Equity in Health Care

On December 18, 2023, the Federal Trade Commission and Department of Justice (the “Agencies”) jointly issued Final Merger Guidelines, following a public comment period on the Proposed Merger Guidelines first issued in July. The Final Merger Guidelines update and replace the 2010 Horizontal Merger Guidelines and the rescinded 2020 Vertical Merger Guidelines. The Final Merger Guidelines kept important components from the Proposed Merger Guidelines (e.g., lower thresholds rendering certain transactions presumptively illegal, focus on cumulative effects of multiple acquisitions, etc.). Among the most significant developments from prior iterations of the merger guidelines are the adoption of a market share threshold in determining when a transaction is presumed to be illegal, expansion of the concept of vertical mergers to include mergers involving “related” products or services, and formal espousal of the current Administration’s focus on the impact of mergers on labor.Continue Reading The Wait is Over: DOJ and FTC Issue Final Merger Guidelines

Last week the Federal Trade Commission (FTC) issued a press release highlighting recent and forthcoming actions by the FTC, Department of Justice (DOJ), and the Department of Health and Human Services (HHS), which they say will further promote competition, thereby lowering costs and increasing the quality of care in the U.S. health care market. In addition to highlighting recent actions by each of the agencies (e.g., the FTC’s proposed non-compete rule), the release states that the three agencies are entering into new partnerships to increase interagency cooperation and advance a “whole-of-government” approach to protect health care competition, including:Continue Reading FTC, DOJ, and HHS Announce Interagency Initiatives to Promote Healthcare Competition