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Category Archives: Healthcare Antitrust

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Contractual Duty to Deal Does Not Equal Antitrust Duty to Deal

Posted in Healthcare Antitrust, IP Antitrust, Monopolization/Abuse of Dominance

Addressing for the first time whether a patent holder under a contractual duty to deal is also subject to an antitrust duty to deal, the U. S. Court of Appeals for the Second Circuit upheld dismissal of a putative antitrust class action challenge to a drug manufacturer’s refusal to fully supply competitors’ requested quantities under [...]

Getting the Deal Through: Pharmaceutical Antitrust 2014

Posted in Healthcare Antitrust, Italian Developments

McDermott has contributed to the Italian chapter of the 2014 edition of “Pharmaceutical Antitrust” published by Getting the Deal Through, a valuable work tool for legal practitioners dealing with antitrust rules in the pharmaceutical sector.  The chapter addresses the most significant regulatory and antitrust issues affecting the marketing, authorization and pricing of pharmaceutical products in [...]

Federal Judge Puts Narcolepsy Drug Horizontal Conspiracy Claims to Bed

Posted in Healthcare Antitrust, IP Antitrust

On Monday, June 23, 2014, a Federal Judge in the Eastern District of Pennsylvania granted summary judgment for five pharmaceutical companies on horizontal conspiracy claims brought by Apotex Inc. and direct purchaser and end payor plaintiffs regarding the popular narcolepsy drug Provigil.  Provigil’s key ingredient is modafinil, “a wakefulness-promoting agent” used to treat sleep disorders [...]

Perspectives from the Federal Antitrust Enforcement Agencies

Posted in DOJ Developments, FTC Developments, Healthcare Antitrust

At the recent Antitrust in Health Care conference in Arlington, Virginia, representatives from the Federal Trade Commission and U.S. Department of Justice Antitrust Division discussed important health care and antitrust topics.  Speakers stressed that the Affordable Care Act is not an opportunity for anticompetitive consolidation and conduct.  Providers and payers alike should continue to analyze [...]

The Case of Ophthalmic Drugs in Italy and France: A Lesson to Learn – Parallel Antitrust Investigations and Cooperation Between National Competition Authorities

Posted in French Developments, Healthcare Antitrust, Italian Developments

The recent investigations into two pharmaceutical companies active in the ophthalmic drugs market in Italy and France serve as a reminder of the cooperation that takes place between national competition authorities. International groups should therefore take into account all the jurisdictions where they have a presence or do business when developing their antitrust audit and [...]

FTC Hosts Public Workshop, “Examining Health Care Competition”

Posted in FTC Developments, Healthcare Antitrust

During the last several years, the Federal Trade Commission (FTC) has taken an active role in antitrust enforcement in the health care industry, particularly with respect to hospital and physician group acquisitions.  Last week, the FTC held a two-day public workshop to examine new trends and developments in the health care industry related to professional [...]

Court Orders Divestiture of Consummated Physician Practice Acquisition

Posted in Healthcare Antitrust, Mergers & Acquisitions

In a challenge brought both by private plaintiffs and the government, a court has ruled that a health system’s acquisition of a competing physician group practice violated the antitrust laws where the transaction resulted in the health system employing 80 percent of the primary care physicians in one area.  Hospitals and health systems pursuing physician [...]

FTC Focuses Enforcement Efforts on Health Care, Technology and Energy Sectors

Posted in Energy/Commodities, FTC Developments, Healthcare Antitrust, IP Antitrust, Monopolization/Abuse of Dominance

On November 15, 2013, Chairwoman Edith Ramirez testified on behalf of the Federal Trade Commission (FTC) before the House Subcommittee on Regulatory Reform on the topic of antitrust oversight and enforcement.  Ramirez explained that the FTC “focuses its enforcement efforts on sectors that most directly affect consumers, such as health care, technology and energy.” The [...]

Healthcare Provider Fees May Constitute Kickbacks Even Without Direct Referrals

Posted in Healthcare Antitrust

In a recent advisory opinion, the Department of Health and Human Services inspector general warned health care providers about entering into contracts that may generate illegal kickbacks and result in administrative penalties.  An unnamed anesthesiology provider requested advice regarding a proposed contract with an in-hospital psychiatric service.  Currently, the anesthesiology provider is the exclusive provider [...]

Detroit Nurses Object to Sixth Circuit Reviewing Class Certification Decision

Posted in Cartel Enforcement, Healthcare Antitrust, Private Litigation

On October 11, 2013, the plaintiffs in the Detroit nurses litigation who have accused Detroit-area hospitals of conspiring to suppress their wages opposed VHS of Michigan, D/B/A Detroit Medical Center’s (DMC) petition to the Sixth Circuit for leave to appeal the district court’s decision granting class certification. DMC had asked the Sixth Circuit to do [...]

UK Competition Commission Provisionally Finds Anti-Competitive Features in Privately-Funded Health Care

Posted in EC Developments, Healthcare Antitrust

The UK Competition Commission (the CC) has provisionally found that there are anti-competitive features in the supply or acquisition of privately-funded health care services, which give rise to adverse effects on competition.  If the CC’s provisional position is indicative of its final position, private healthcare providers—in particular, private hospital groups—may face significant changes in how [...]

FTC Reaches Unique Settlement with Phoebe Putney Health System Resolving Lengthy Hospital Merger Challenge

Posted in FTC Developments, Healthcare Antitrust, IP Antitrust, Mergers & Acquisitions

by Carrie G. Amezcua and Stephen Wu The U.S. Federal Trade Commission (FTC) and Phoebe Putney Health System settled the FTC’s complaint that the health system’s merger with Palmyra Park Hospital violated the antitrust laws.  Unique state statutes and regulations effectively prevented the FTC from obtaining its usual remedy for unlawful mergers or acquisitions, a [...]

FTC Takes a Broad, “Generic” Approach to Actavis in Amicus Brief

Posted in FTC Developments, Healthcare Antitrust, IP Antitrust

by Daniel Powers The Federal Trade Commission’s (FTC) battle against “reverse-payment” settlements continues.  In an amicus brief recently submitted in the case of In re Effexor XR Antitrust Litigation, the FTC advanced a broad interpretation of the Supreme Court’s decision in FTC v. Actavis that looks beyond the labels applied to agreements between brand pharmaceutical [...]

Plaintiffs Abandon Putative Class Action Against Pfizer and Takeda over Protonix

Posted in Healthcare Antitrust, IP Antitrust

by Lincoln Mayer Plaintiffs in a putative class action against Pfizer, Inc. and Takeda Pharmaceutical Co., related to acid reflux drug Protonix, will no longer give the two companies any heartburn.  The plaintiffs stipulated to dismissal from New Jersey federal district court after a settlement in related proceedings that held the patent-in-suit valid and enforceable.  [...]

North Carolina Dentists Seek Rehearing En Banc After Losing Bid for Antitrust Immunity

Posted in FTC Developments, Healthcare Antitrust

by Lincoln Mayer North Carolina’s dentists were not smiling when a three judge panel of the U.S. Court of Appeals for the Fourth Circuit sided with the Federal Trade Commission in a challenge to the State Board of Dental Examiners’ policy that only dentists could perform teeth whitening.  On July 15, 2013, the board filed [...]

Antitrust and Healthcare: A Comprehensive Guide

Posted in Healthcare Antitrust, Mergers & Acquisitions, Monopolization/Abuse of Dominance

McDermott Will & Emery is pleased to announce the publication of Antitrust and Healthcare: A Comprehensive Guide, First Edition. This new publication, produced by American Health Lawyers Association provides invaluable “practice pointers” to help healthcare industry participants, and their counsel, minimize antitrust risk and more successfully plan and execute business and litigation strategies.   McDermott [...]

ACOs and Antitrust Are Aligned and Compatible, Says Commissioner Brill

Posted in FTC Developments, Healthcare Antitrust, Joint Ventures/Competitor Collaboration, Mergers & Acquisitions

by Carrie G. Amezcua FTC Commissioner Julie Brill addressed attendees at the 2013 National Summit on Provider Market Power on June 11.  The focus of her remarks were on the intersection of antitrust, the Affordable Care Act (ACA) and Accountable Care Organizations (ACOs).  She first touched on the ACA.  Noting the empirical evidence shows that [...]

FTC Wins NC Dental State Action Case

Posted in FTC Developments, Healthcare Antitrust

by Daniel Powers On May 31, the Federal Trade Commission (FTC) recorded yet another victory in its continuing efforts to limit the scope and application of antitrust immunity under the state action doctrine.  The Fourth Circuit ruled that the North Carolina State Board of Dental Examiners’ efforts to block non-dentists from providing teeth-whitening services was [...]

District Court Grants Temporary Restraining Order in Phoebe Putney Litigation

Posted in FTC Developments, Healthcare Antitrust, Mergers & Acquisitions

by Carrie Amezcua The next step of the on-going Phoebe Putney litigation is completed.  On Wednesday, April 15, the district court for the Middle District of Georgia granted the Federal Trade Commission’s (FTC) motion for a Temporary Restraining Order (TRO) in Federal Trade Commission v. Phoebe Putney Health System, Inc., No. 1:11-cv-58 (M.D. Ga.).  In [...]

North Carolina Legislature Passes Prohibition on MFNs in Health Care Contracts

Posted in DOJ Developments, FTC Developments, Healthcare Antitrust

by Jeffrey Brennan and Carrie Amezcua On Tuesday, the North Carolina legislature has enacted into law, pending the governor’s signature, a prohibition on the use of most favored nations (MFN) clauses in contracts between commercial health insurers and providers.  The two-page bill, titled “Freedom to Negotiate Health Care Rates,” lists "prohibited contract provisions related to reimbursement [...]

FTC’s New Chairwoman Ramirez Says Health Care Continues To Be Top Priority

Posted in FTC Developments, Healthcare Antitrust, IP Antitrust, Mergers & Acquisitions

by Hillary Webber In remarks made this week at the International Competition Network annual conference, Federal Trade Commission (FTC) Chairwoman Edith Ramirez stated that health care will continue to be a top priority for the FTC.   Referring to health care and hospital mergers in particular, she said that the Commission will "guard[] against what we [...]

Supreme Court Hears Oral Argument in “Pay-for-Delay” Patent Settlement Antitrust Case

Posted in FTC Developments, Healthcare Antitrust, IP Antitrust

by Jeffrey Brennan and Glenn Engelmann The Supreme Court’s ruling in Federal Trade Commission v. Actavis, Inc., will almost certainly have major implications for the viability of Federal Trade Commission and private suits alleging that pay-for-delay settlements are anticompetitive, and for the level of antitrust risk facing companies that enter into such settlements. Click here [...]

Supreme Court Limits Availability of State Action Immunity from Federal Antitrust Liability

Posted in FTC Developments, Healthcare Antitrust

by Jeffrey W. Brennan, Ashley M. Fischer, David Marx, Jr., Stephen Wu and Christine G. Devlin The Supreme Court decision in FTC v. Phoebe Putney Health System, Inc., makes clear that state action immunity from federal antitrust laws is disfavored, and local governmental, quasi-public and private entities can only qualify for the immunity under certain [...]