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2020 Health Antitrust Year in Review

The federal antitrust enforcement agencies brought three hospital merger challenges and three criminal antitrust enforcement actions in healthcare in the past year. Combined with the incoming Democratic administration, healthcare antitrust enforcement is likely to remain strong in 2021. Our Health Antitrust Year in Review: Examines specific antitrust challenges and enforcement actions that impacted hospitals and health systems, payors and other healthcare companies in 2020; Offers lessons learned from these developments in the midst of the COVID-19 pandemic; and Provides analysis of the enforcement trends, federal guidelines and state policy updates that are likely to shape the healthcare antitrust landscape in 2021. Alexandra Lewis, an incoming associate in our Chicago office, also contributed to this Special Report. Read the full report.

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New German Merger Control Thresholds: A More Business-Friendly Approach?

What Happened: On January 19, 2021, major changes to German antitrust/competition law, i.e. the 10th Amendment Act to the German Act Against Restraints of Competition (ARC) entered into force. In addition to introducing stricter abuse control, in particular over digital companies with a strong market position (so much so that one may refer to the act as the “ARC Digitisation Act”) and effecting changes to procedural rules and cartel prosecution, the new law also introduces substantive changes in merger control rules which may bring significant relief for international transactions. More information on the ARC Digitisation Act and other altered antitrust/competition rules  will follow in this blog. The thresholds of German merger control have traditionally been very low in comparison to other international regimes. The German legislator has now decided to significantly increase the domestic turnover filing thresholds. Last week’s discussions in the German...

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Health Antitrust Litigation Update for Providers | 2020

In 2019, the total number of antitrust cases filed against providers dropped to 20 after the 2018 bump (27 cases). In the latest Health Antitrust Litigation Update for Providers, we discuss what kinds of cases were brought over the past two years and how they were decided, and what cases warrant particular attention in 2020. Read the full report.

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European Commission Consultation on Ex Ante Regulation of Online Platforms: Is Change Coming?

In parallel to a public consultation to seek feedback from the public regarding the New Competition Tool, the European Commission (Commission) is consulting on a proposal for an ex ante regulatory instrument that would ensure that “online platform ecosystems controlled by large online platforms that benefit from significant network effects remain fair and contestable, in particular in situations where such platforms may act as gatekeepers”. This proposal stems from a range of concerns which, according to the Commission, could lead to large-scale unfair trading practices, less innovation and reduced consumer choice. Feedback on the Commission’s inception impact assessment was due on 30 June (85 opinions were collected). The period for stakeholders from public and private sectors to contribute to the Commission’s public consultation (via online questionnaires) ends on 8 September 2020. Identified Need to Regulate Large Online Platforms In its inception impact...

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European Commission Initiates Consultation on Possible New Competition Investigation Tool

On 2 June 2020, the European Commission (the Commission) published its inception impact assessment (or roadmap) on the possible adoption of regulation that would introduce a new market investigation tool. This assessment was immediately followed by the launch of a public consultation to seek views and feedback from the public regarding such a tool. The new tool would enable the Commission to investigate and impose behavioural and/or structural remedies on businesses with significant market power, whether dominant or not - and without any prior finding of a competition law infringement. As such, this new tool could present a significant risk and potential burden for companies with market power. On the other hand, it offers potential benefits to market participants, such as new entrants, who might otherwise see their access to markets foreclosed. Enforcement Gap As digitalization evolves and spreads across sectors rapidly, the Commission has come to understand...

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United Technologies/Raytheon Highlights Key Issues in Aerospace and Defense Industry Merger Review

The DOJ Antitrust Division’s recent challenge to the United Technologies/Raytheon merger highlights a few key considerations for antitrust reviews of aerospace and defense industry transactions. The case is a useful illustration of important principles applicable to this unique industry. Access Full Article

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Crisis & Compliance: EU Competition Law During COVID-19

Amid the economic shocks caused by the Coronavirus (COVID-19) crisis, many industries are facing reduced demand for their products and services. Other industries—notably healthcare and food—are adjusting rapidly to expanding demand requirements and changing consumption patterns due to large-scale population confinement in several countries. Significant over- or under-capacity can create incentives, or even the necessity, to collaborate in ways that may push the limits of antitrust and competition rules. On 23 March 2020, the European Competition Network (ECN) took unprecedented action. ECN, the network of competition enforcement authorities in the European Union, issued a joint statement announcing that its members will not actively intervene against “necessary and temporary” measures, including cooperation among competitors, in order to avoid a “shortage of supply.” At the same time, the ECN cautioned that its members would actively intervene against any...

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Annual European Competition Review 2019

McDermott's Annual European Competition Review summarizes key developments in European competition rules. During the previous year, several new regulations, notices and guidelines were issued by the European Commission. There were also many interesting cases decided by the General Court and the Court of Justice of the European Union. All these new rules and judicial decisions may be relevant for your company and your day-to-day practice. In our super-connected age, we can be inundated by information from numerous sources and it is difficult to select what is really relevant to one’s business. The purpose of this review is to help general counsel and their teams to be aware of the essential updates. This review was prepared by the Firm’s European Competition Team in Brussels and Paris. Throughout 2019 they have monitored legal developments and drafted the summary reports. Access the full report.

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California Attorney General Announces Historic $575 Million Settlement of Antitrust Suit Against Sutter Health

California Attorney General Xavier Becerra (AG Becerra) announced on Friday, December 20, 2019, the terms of a comprehensive settlement agreement reached with Sutter Health (Sutter), the largest hospital system in Northern California. WHAT HAPPENED? Procedural History In March 2018, the California Attorney General’s office brought a civil antitrust action under California state law against Sutter alleging violations of California’s Cartwright Act. Sutter owns and operates 24 hospitals and 35 outpatient centers and partners with physician organizations with 5,500 members and 12,000 other physicians in northern California, among other operations. The complaint alleged that costs in northern California have rapidly increased, and are higher than in other parts of the state, in large part due to Sutter’s contractual practices with commercial health plans. The complaint alleged, specifically, that Sutter: Used its market power in certain local markets across all...

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Interim Measures Imposed on Broadcom: The Re-Awakening of a Once-Dormant Tool?

The European Commission (EC) has found, on a prima facie basis, that Broadcom abused its dominant position. In order to avert the risk of serious and irreparable damage to competition, Broadcom has been ordered to cease its prima facie abusive conduct with almost immediate effect. This is the first time in 18 years that the EC has made use of such measure and could signal the re-awakening of a once-dormant tool. Access the full article.

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