Recent Blog Posts
- Efforts to Limit State-Action Antitrust Exemption Continue The state-action antitrust exemption grew out of the 1943 decision of Parker v. Brown, 317 U.S. 341 (1943), in which the Supreme Court explained that “nothing in the language of the Sherman Act or in its history suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislatures.” And, relying on principles of federalism, the Supreme Court gave deference to the state as a sovereign body.
Subsequent decisions expanded the reach of state-action... More
- FTC Extends NPIA Exemption to Hospital’s For-Profit Affiliate In an Advisory Opinion dated October 20, 2017, to Crouse Health Hospital (“Crouse Hospital”), the Federal Trade Commission (“FTC”) agreed that the Non-Profit Institutions Act (“NPIA”) would protect the sale of discounted drugs from Crouse Hospital to the employees, retirees, and their dependents of an affiliated medical practice (Crouse Medical Practice, PLLC) (“Medical Practice”) from antitrust liability under the Robinson-Patman Act. Significantly, the FTC provided this advice despite the fact that the Medical Practice is a for-profit entity, and is... More
- FTC’s 2018 Congressional Budget: Continued Focus on Health Care Industry The Federal Trade Commission’s (“FTC”) recently submitted Congressional Budget Justification and Annual Performance Plan and Report contains helpful insight into the FTC’s focus and expectations for the coming fiscal year. Of particular note, is a slight shift of funds from activities designed to “protect consumers” to activities intended to “promote competition.” High on the FTC’s list of actions designed to promote competition is continued scrutiny of the health care industry. And to that end, the FTC reiterated its intention to,... More
- Year-End Reviews Highlight Antitrust Enforcement in, and Guidance Relevant to, Health Care Industry; Aggressive Enforcement Is Likely to Continue in 2017 The Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“Antitrust Division”) released their respective year-end reviews highlighted by aggressive enforcement in the health care industry. The FTC, in particular, indicated that 47% of its enforcement actions during calendar year 2016 took place in the health care industry (including pharmaceuticals and medical devices). Of note were successful challenges to hospital mergers in Pennsylvania (Penn State Hershey Medical Center and Pinnacle Health System), and Illinois (Advocate Health... More
- Court Finds “Plausible” DOJ’s Assertion That Anti-Steering Provisions Violate Section 1 of the Sherman Act Recently, Judge Robert T. Conrad, Jr. of the United States District Court for the Western District of North Carolina (Charlotte Division), rejected efforts by The Charlotte- Mecklenberg Hospital Authority, doing business as the Carolinas Health Care System (“CHS”), to dismiss, at the pleadings stage, a complaint filed by the United States’ Antitrust Division of the Department of Justice, and the State of North Carolina, asserting that CHS’s anti-steering provisions in its payer contracts unreasonably restrain trade in violation of section... More