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AHLA's Speaking of Health Law
2022's Biggest Antitrust Developments and What to Expect in 2023
In the fifth installment of their popular annual series, John D. Carroll, Partner, Sheppard Mullin Richter & Hampton LLP, and Alexis J. Gilman, Partner, Crowell and Moring LLP, are joined by Peter Herrick, Partner, Axinn Veltrop & Harkrider LLP, to discuss 2022's biggest antitrust developments and what attorneys should expect in 2023. Sponsored by Axinn.
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Speaker 2:Welcome to the ALA's Antitrust Year in Review Review podcast for 22. My name is Pete Harrick. I'm a partner in the New York Offices of Axon, Vero Andry, and I'm very pleased on behalf of Axon to be sponsoring this podcast. With me today are two esteemed members of the Antitrust Bar, Alexis Gilman and John Carroll. To those who are familiar with these podcasts, you will no doubt recognize Alexis and John from years of hosting these annual reviews, which I think now go back five years running. Uh, today we are bringing you, uh, the top 10 antitrust healthcare developments from 2022 and the top 10 things to watch for in 2023. So, without further ado, I'll let Alexis and John introduce themselves.
Speaker 3:Thanks, Pete. It's Alexis. Uh, I'm a partner in the Antitrust in Competition Group at Kroll and Mooring in Washington, DC.
Speaker 4:Hey, Alexis, happy New Year. Uh, good to be doing this with you again. Uh, John Carroll. Uh, I'm a partner in the, uh, antitrust competition practice here at Shepherd Mullin and also in Washington DC
Speaker 3:And thanks to Pete for, uh, moderating this this year.
Speaker 2:My pleasure. All right. Uh, well, since all of us work in the world of antitrust and healthcare, we do need to put out the obligatory disclaimer that the views we express here are our own and are not those of any of our clients or our firm's clients. Uh, so just to start things off, one of the real challenges, uh, this is my first time doing this year in review, uh, is actually narrowing down the lists, uh, to 10, uh, because there's so much going on in the world of healthcare and antitrust, but Alexis and John have done their best, uh, so to keep everyone on the edge of their seats, we're going to do this in a sort of round robin alternating style and countdown to the number one biggest development in 2022, and the number one thing to watch for in 2023. So, starting in 2022, what was the number 10 biggest development in antitrust healthcare? To answer that question, I'm gonna hand it off to John.
Speaker 4:Thanks so much, Pete. Um, and as you said, it's been tough to narrow it down and there's a lot to cover, so, we'll, we'll go through these at a high level. Um, we<laugh> have determined that the number 10, uh, most interesting or important, whatever you wanna call it, development and healthcare antitrust in 2022, was the, uh, fact that the F T C scrutinized closely, but ultimately cleared, uh, the, uh, transaction between advocates, uh, Aurora Health, uh, and Atrium Health. Uh, as folks may know, uh, this was one of the largest provider healthcare transactions, I think, in US history. 67 hospitals, 27 billion transaction. Uh, the FTC took a very close look at it according to, uh, publicly available sources, and, uh, ultimately cleared the transaction toward the end of last year. Um, the interesting part about this, purely from an antitrust perspective, was that advocate, uh, Aurora operates principally in the Midwest and Atrium, principally in the Southeast. And so there wasn't geographic overlap or geographic, I guess you could say, competition between the two systems. But it nevertheless, um, uh, got a, a, a very close look by the ftc, similar to that of, of Spectrum Beaumont, um, back a, a a little ways in Michigan. And if the FTC had challenged it, I believe it would've been the first, um, so-called cross market, uh, healthcare merger or hospital merger to be challenged, uh, by the ftc Pete.
Speaker 2:Okay, well, staying in the Southeast, uh, we're gonna shift over to North Carolina to talk about, uh, some local, uh, challenges to a healthcare deal, uh, to talk about that. Um, I'm gonna hand it off to Alexis.
Speaker 3:Thanks, Pete. So, um, this one has a pretty interesting history that goes back ways. Um, but the upshot is that last fall, late summer, maybe two counties in, uh, uh, two cities in North Carolina sued, uh, in a class action lawsuit, H C A and its subsidiary Mission Health for allegedly violating the Sherman Act. And this case, like I said, goes back, um, to the mid nineties where a hospital merger created mission health system pursuant to a Certificate of Public Advantage or copa. We'll be talking more about those, uh, later, later in the podcast. But basically, that COPA gave that merger antitrust immunity from, from federal Antitrust Challenge, and that COPA lasted for 20 years until North Carolina appealed its COPA Law, uh, in 2015 and later, um, H c a acquired mission. So basically, in August, these cities and counties in North Carolina filed this suit against H c a admissions saying that missions contracting practices with payers violated, uh, antitrust laws. Uh, basically they said that, uh, mission had these all or nothing tying contracts that required health plans to contract with all mission general acute care hospitals and outpatient service providers, uh, in a single bundle, or none at all, that it had anti steering and anti tiering, uh, provisions in its contract with payers. And it had gag clauses that prevented payers from telling employers and patients about the prices of, of healthcare services. And there are some other things thrown into the allegations, but these are similar claims, uh, as were raised by the DO O j North Carolina Ag against Atrium Health a few years ago. And that case was settled and, uh, similar to some claims we'll talk about later as well against Sutter Health. But at any rate, mission said, you know, look, we were granted a, a lawful monopoly, basically, or monopoly positioned through this COPA with state approval. So you can't show that we unlawfully obtain a monopoly or maintain that monopoly. And in any case, plaintiffs have failed to, um, show that these contractual provisions, uh, allegedly led to the monopoly or harm competition in any way. So, it's a pretty significant case because the F T E C and other interest forces have long complained about CO's, um, and have worried about what happens when those copas go away, and you have this consolidated provider, um, and can anything be done after the fact? So we may get some answers, uh, to those questions coming out of this case.
Speaker 2:Thanks, Alexis. And, and this, this concept of the owner nothing contracting is, is, as you previewed going to come up again. And it, it does seem that this is an area where antitrust enforcers are really focusing their energies. So I'm sure there, there's going to be more to that, uh, in the coming year and and beyond. Um, switching over to criminal, uh, antitrust, uh, John, uh, number eight is going to talk about generics.
Speaker 4:Thanks. I'm glad you didn't, you didn't just allude to my being a criminal<laugh>, speaking of being a criminal. John Carroll's gonna talk now.
Speaker 3:<laugh>.
Speaker 4:Yeah, this has been, uh, thanks, Pete. This has been, uh, for those of you who are, are, uh, repeat listeners to the, uh, top 10 Antitrust Healthcare podcast we've been doing now for several years. I think we've covered this just about every year because there's something going on, um, in this sprawling, uh, not case, but this sprawling matter. Um, uh, and, and that's been the case really, I think for now, seven or eight years since the first round of indictments. Um, the generic pharmaceutical industry has been, um, subject to a number of, um, complaints, indictments and, and, uh, massive m d l in the space concerning alleged price fixing with respect to number of generic drugs. Um, 2022 had a number of developments, um, certainly in the criminal arena, also in the M D L. Uh, the main, uh, uh, development in terms of the Department of Justice's, uh, criminal action, uh, was, uh, a few things that just happened with respect to the, uh, the case they're bringing in the Eastern District of Pennsylvania, where they indicted, uh, Glen Mark and I believe it's Teva as a, as a co-conspirator. Um, uh, nothing too, uh, crazy that happened, but, uh, too, too, uh, interesting that happened. But a couple of things moved along with respect to scheduling order, uh, rounding out some witnesses, I think, um, that are supposed to be, or some testimony rather that's supposed to be finishing up, um, this year. And according to the judge, an enormous volume of complex discovery in the case, more than 22 million documents counting, I think as of earlier in 2022. Um, there, uh, th this continues to move relatively, uh, slowly. So we'll, we'll continue to keep our eye on this, both the criminal trial, uh, and of course, developments in the M D L and, and very well maybe, uh, having an update, uh, a year from now if we do this podcast again on this topic. Um, the other thing I'll say is more broadly, um, the investigation, the DOJ investigation and, and, and action. And of course, the litigation have brought a lot of attention to the industry. And so there have been calls from, you know, US House of Representatives committee on oversight and drug pricing. There's been legislation that's been, um, put together. I don't think any of it has passed with respect to pharmaceutical pricing. And so this is all part of, um, the bigger topic of drug pricing in the United States and sort of what role and, uh, that the, uh, at the antitrust plays, um, with respect to that issue.
Speaker 2:Yeah. And John, uh, thank you for that. I certainly didn't mean to imply that, uh, you have any specific criminal background, but, uh, I appreciate you clarifying that for the record. Uh, so, uh, and I agree, I think the, uh, the, the broad, uh, interest in pharma pricing is definitely picking up steam at both agencies. And we're gonna talk in a minute about, uh, PBMs and their role in that, in, in setting pricing and, and the effect of PBMs on, um, overall prices in pharma. But before we get to that, uh, we are going to go back to Alexis to talk about Sutter Health.
Speaker 3:Yeah, there's another long running case, uh, this, this one running a decade long against Sutter Health. Um, this, uh, is a federal class action that, um, raised some allegations that were, were pretty similar to, um, a settlement that are entered into with the California Ag about a year ago that I think also appeared on our last year's podcast. But in March in a case called C Bay, and John and Pete, correct me if I'm not saying that right, C Bay versus Sutter Health. Uh, uh, a grand or a jury in California, not a grand jury, a jury in California returned a verdict for Sutter, um, on a class action brought by health plan subscribers who claimed that Sutter was unlawfully tying its hospitals, hospitals that were must have in some areas with hospitals in other areas that were in more competitive areas and required payers to contract with all of the center hospitals or none. Again, this all or nothing, uh, contract term that we previously talked about in North Carolina, and also by preventing payers from, um, steering patients to lower cost hospitals. And so the, the plaintiffs in this case said that the, the ultimate effect of these provisions was to raise prices for health plan subscribers. And the plaintiffs were looking for over 400 million in damages. Um, Sutter basically said, you know, look, we face a lot of competition and we don't have market power, and we didn't use any alleged market power to tie the services of our hospitals together. Um, as I, as I mentioned, these are pretty similar claims to ones made by the California Ag and other PLI plaintiffs in a state case against Sutter that settled last year. Um, and in that case, Sutter agreed to pay 575 million, um, to the plaintiffs and to end its all or nothing contracting terms and steering contracting terms, and allow prices to be shared with health plan members, um, in this federal case. Um, like I said, the, the jury trying to verdict in Sutter's favor, the plaintiffs have appealed, uh, that decision to the ninth Circuit. So, uh, we haven't heard the last one, uh, last of this one either. And so we're, we're probably picking up, uh, perhaps next year's, uh, update, Pete.
Speaker 2:Yeah, that is definitely one to watch going forward. Notwithstanding the long and tortured history of that case, it's still, uh, unresolved amazingly. Um, so at number six, uh, we're going to turn back to John to talk about, uh, the F FTC COPA policy paper.
Speaker 4:Sure. Thanks. And Alexis, um, talked a bit about this with respect to number nine and the litigation, um, and certificates of public advantage. So back in, um, on August 15th, the Federal Trade Commission, uh, issued a policy paper, uh, on, on CPA's, certificates of Public Advantage, um, that was issued on a a five to zero, uh, vote with all commissioners, um, uh, in favor of the policy statement that the FTC put forth at bottom, the Ft. C's position is that the COPA s um, certifi, again, certificate of Public Certificates of public Advantage, um, issued by states are essentially laws that are enacted, um, to shield hospital mergers from the antitrust laws in favor of state oversight. So the paper and the accompanying, uh, fact sheet that the F T C put forth, you know, details, the research that they had undertaken since I believe it's 2017, um, purporting to demonstrate that COPA S are detrimental, uh, for, according to the FTC patient costs, patient care and healthcare worker wages. Also, the ftc, uh, alleges in the policy paper, um, that most, I'm quoting here, most of the cos that have been approved so far have resulted in a single hospital monopoly. And there's a footnote that cite a few examples to that. So this came out, um, in August, uh, making clear what the Ft C's position is. And as Alexis, um, mentioned just a few minutes ago, um, there's been, uh, litigation, uh, private litigation about the extent to which COPA policies have shielded transactions, and for how long have they shielded them, uh, from monopolization claims and other antitrust claims, uh, again, in private litigation. So this is definitely a space to follow. Um, we'll see how influential the, the policy paper is, you know, in terms of hearts and minds, um, as, uh, hospitals, uh, in certain states that have COPA laws, um, continue to explore whether they are shielded from federal antitrust liability for those transactions.
Speaker 2:So this has nothing to do with the COA policy paper, but I, I, I'm maybe dating myself, but whenever I hear copa, I always think of Barry Manilow. I don't know if that's just me<laugh> in any event, um,<laugh>, um, in any event, I previewed this a little bit earlier. Uh, PBMs, um, pharmacy benefits managers, uh, for those who are unfamiliar are now under the microscope, and, uh, Alexis is gonna tell us all about that.
Speaker 3:Yeah. Um, obviously, you know, the high and rising cost of pharma pricing has been, uh, the subject of a lot of attention across the country, including the Washington and the FCC is definitely putting a spotlight on, on PBMs or did in 2022. Um, so a couple key developments here. Uh, so in June, the FTC announced it was launching, uh, what it calls a six B study of PBMs. It's basically a study that the agency conducts by issuing subpoenas effectively to, uh, industry participants. So in this case, it's sent these special order subpoenas, basically to six PBMs, um, and ask them to submit, uh, an, you know, information about a wide range of topics. I think there were a total of 30, 38 requests. And the goal, uh, the FTCs goal is to study the effect that vertically integrated PBMs in particular have on access to prescription drugs and drug pricing. The F T C said it wanted to look into certain practices that had, quote, unquote drawn scrutiny, and it pointed to fees and, uh, clawback charges to unaffiliated pharmacies, steering patients to P B M owned pharmacies, uh, potentially unfair audits of independent pharmacies and other practices that it thinks, um, results in higher prescription drug prices. Um, also that same month, the FTC unanimously, which is pretty rare these days at the FTC unanimously issued a policy statement on rebates and fees in exchange for excluding lower drug cost drug products. So basically what this statement was, is a warning to drug manufacturers, PBMs, and other so-called middlemen as agency described them, uh, that the agency was gonna go after practices that the agency believes harms competition and patients. Um, so for example, the agency said that it was concerned that drug companies were using rebates and fees to put higher cost drugs on formularies and keeping lower cost drugs off formularies, resulting in higher prices for consumers. The FCC said that some of these practices could not just be unreasonable restraints of trade and ization, pretty standard antitrust claims, but also could be commercial bribery under the Robinson Patman Act. And, uh, the Robinson Patman Act is, uh, going, uh, uh, a revitalization, I would say at the FTC these days. But, um, we won't get into weeds on that, but, uh, certainly a lot going on with PBMs in 2022 and, and not likely to end anytime soon, Pete.
Speaker 2:Yeah. And that's the, uh, the concept of a rebate wall, if I'm not, if I'm not mistaken. Is that right, Alexis? That's
Speaker 3:Right. The term, yeah, another term.
Speaker 2:Yeah. It's a, it's, it's a fascinating area and certainly one, uh, to, to keep an eye on. Um, shifting gears back to the criminal realm, this is just a coincidence, John, I swear. Um, uh, we're gonna talk a little bit about no poach.
Speaker 4:Yeah. So, um, coming in at number four, the, the, what's been going on in 22 in the, in the, uh, department of Justices ongoing, um, cases, uh, some which have, have been resolved in the no poach arena. So I'm gonna cover two very quickly. Um, the first is, um, in US versus he slash vda, uh, the doj, the U S D OJ got its first guilty plea, um, ever, I believe in a no poach, uh, wage fix case. This involved nurse staffing in Nevada. Um, the indictment came down in May of 2021, and there was a guilty plea, um, on October 27th of, of last year, 2022. Uh, according to the plea agreement that they entered into with the government, um, V D a, uh, through one of its employees had participated, uh, in a conspiracy with another contract, healthcare staffing firm to suppress and eliminate competition by agreeing to allocate n nurses and fix the wages of those nurses. Um, at the, at the same hearing during which VDA pleaded guilty, uh, the judge, uh, the US District Court judge sentenced them to pay a criminal fine of 62,000 in restitution of 72,000 to the victim nurses. Um, in contrast, uh, in us, uh, versus Genal, uh, that was, uh, do J'S first ever criminal wage fixing case. They charged, uh, near a genal, a former owner of, uh, Texas Healthcare Staffing Company, as well as another, uh, employee there. And, uh, in April of, uh, 2022, uh, April 14th, to be specific, um, it was, they were found not guilty, uh, after a six day trial. Uh, however, I would note that, uh, genal was convicted not on, on antitrust, uh, claims, but of obstructing the FTCs investigation's investigation of, uh, of the allegations. Um, and, and so it wasn't a completely non-guilty, not guilty, uh, verdict. Um, so those are, those are some developments. I know that there are others, Pete.
Speaker 2:Yeah. And, uh, just to talk very briefly, I'm gonna, I'm gonna get John A. Little bit of a break here, uh, just to talk briefly about DaVita. Uh, so couple things have been happening with DaVita. So first in US versus theory, T H I R Y. Um, back in April, a jury in Denver, Colorado acquitted a dialysis provider, DaVita, and its former c e o Kent Theory of charges that they conspired with cons competitors, not to hire each other's employees. DOJ had alleged that DaVita and its competitors, including surgical care associates, suppressed competition by agreeing not to solicit each other's senior level employees, and requiring those employees who sought work, uh, to notify their current employers that they were job hunting. Uh, it is worth noting that despite the, uh, not guilty verdict, that this case did survive a motion to dismiss. So it was not without some risk. Um, and indeed, in September, in, in Ray Outpatient Medical Center employee antitrust litigation, a judge in the US District Court for the Northern District of Illinois denied DaVita's motion to dismiss plaintiff employee claims on essentially the same facts that d OJ had alleged in the, in the criminal case. And, uh, Kim Theory is one of the main defendants in that case. So he's not completely out of the woods, uh, just yet. So there's lots going on in this space. Um, turning back to mergers, uh, I'm gonna hand it off to Alexis to talk about Illumina Grail.
Speaker 3:Thanks, Pete. And this is the first of a, a couple vertical merger cases we're gonna be talking about. Um, and so an Illumina Grail, the FTC suffered a pretty, I'd say a pretty sunny defeat, uh, when its own in-house administrative law Judge rejected the agency's, uh, attempt to block Illumina's acquisition of grail. Uh, for, for folks who may not be familiar, Illumina is the largest, I believe, supplier of next generation, D N A sequencing platforms or NGS platforms for short and Grail at the time was developing a, if not a, the leading candidate or multi canncer early detection tests or M C E D tests. Um, I think since then, it's now launched those tests. Um, so this was a vertical combination, as I said. And so the agency sued to challenge this deal in 2021, alleging that Illumina had the ability and incentive either to withhold its own NGS platforms entirely from competing M C E D M C E D test developers that competed with GRAIL in order to disadvantage m relative to Grail, or that Illumina could, you know, raise the prices of its NG s platforms to those competitors, deny technical assistance on its platforms to those, uh, test rivals or hurt grails rivals in other ways. Uh, just before the complaint was filed, Illumina offered what it called its open offer to, uh, rival, uh, M C E D test developers through a so-called, uh, tw, uh, irrevocable 12 year supply commitment, uh, on Illumina's NGS platforms and related products. And, you know, specifically Illumina said it was going to promise to give access to the same services and supports to those rivals that Grail had access to. It wasn't gonna discontinue any products, uh, that GRAIL's rivals, uh, bought from Illumina during the term of those 12 years. Uh, it offered these, uh, companies either grandfathered pricing that they were paying for Illumina's products or to pay prices that were no higher than Illumina was charging grail. Uh, but the F T C, uh, reject that offer and went ahead of the litigation. Um, in September, though, the ALJ ruled against, uh, against complaint counsel, basically F T C staff that was litigating the case, um, finding that the, the staff had failed to prove that the deal would hurt competition for M C E D tests. Uh, the ALJ acknowledge ALJ acknowledged that Illumina Lumina's market position gave it the ability to harm grill's competitors. Um, but that the open offer, um, basically took away that ability to harm those rivals. And in any case, Illumina didn't have the incentive to foreclose those rivals or harm them in other ways, because it would lose, um, as many or more sales of its NGS platforms to those rivals without kind of recouping those lost sales to higher revenues from greater Grail, uh, M C E D test revenue. Um, so that loss has been appealed by the F T C staff to the full commission, which is now, uh, consists of four members. Uh, and we're waiting for that decision. Um, there's also litigation happening across, uh, the pond because the European Commission, uh, uh, ordered Illumina to unwind, uh, the acquisition of braille. So, uh, a lot going on in this case, um, but a big laws for the FTC in its home court.
Speaker 2:Yeah. And we are seeing that more and more, not just with the ftc, but the DO OJ where parties have found some receptive audiences with judges, um, when they offer remedies that maybe the FTC or DOJ staff or the OR leadership are not willing to accept. So, uh, that's a great example of, of that strategy really paying off, at least, at least on this side of the pond. Um, so turning back to John, uh, we're gonna talk about United change.
Speaker 4:Yeah. Speaking of appeals, right, um, uh, the doj uh, brought a, uh, a case to block, uh, United Health Groups, uh, 13 billion acquisition of change, uh, back in February alleging, uh, couple different, uh, sources of harm, including horizontal overlap and, and first pass claims editing. But, but really, the heart of that case was, and is the, the so-called vertical concerns for the, um, the electronic data interchange clearing houses. Um, DOJ alleged that the, the transaction would give United, uh, which owns the largest health insurer in the us, access to a vast amount of its rivals, uh, rival health insurers, uh, competitively sensitive information now would cause, uh, a, a lot of competitive harm. Uh, DOJ was not successful in at the D D C, uh, the court denied, uh, the, the, sorry, the federal court and the District of Columbia. Uh, the court denied the injunction they had. The court agreed, um, with the parties that their proposed dives chair for the claims, uh, uh, space and the firewalls that they were putting in place, um, uh, as well as the, the, the<inaudible> more broadly would resolve the, both the horizontal and the vertical concerns, and that there wasn't evidence, um, that, uh, United would be able to withhold, uh, integrated platforms, uh, and, uh, that the, uh, United had incentives to protect its con its customers data, and that those incentives would outweigh their incentives to, to misuse the data. So, um, uh, a case that DOJ brought, and at least for now, uh, was not successful in bringing the parties close the transaction in early October. It is on appeal, uh, and so we'll be, we'll be talking about it shortly as we, as we look forward to this year.
Speaker 2:Okay. So we've reached number one. I'm not gonna steal Alexis's thunder. Alexis, do you want to take it away?
Speaker 3:Sure. Uh, what we have is our number one development, uh, as the biggest development, although perhaps not surprising, is, uh, the ftc, uh, is back on a wind streak and hospital merger challenges. Um, it forced three hospital mergers to be abandoned, uh, this past year. Um, you know, this comes after the FTC losses first case in a couple decades, two years ago. Um, but I think last year shows it's, uh, back, um, on a wind streak, uh, and, and is not backing down from, from challenging provider merger. So, um, the first case, uh, the FTC challenge was in February, uh, seeking a block, uh, and ultimately blocking the acquisition or combination of lifespan and care in New England. Uh, the FTC said this deal would combine the two largest healthcare providers in the state of Rhode Island and harm competition in two markets. First was inpatient general acute care hospital services. That's a, a very traditional, uh, product market. The FTC alleges in hospital merger challenges, and the second was inpatient behavioral health services. And as far as I know, that's the first time, um, outside of settlement context, the FTC is alleged that in a hospital merger complaint. Um, I'd say another interesting part of this case is that in a concurring statement announcing the complaint, the two Democratic commissioners said they would've also alleged ARM in a labor market. They didn't specify which one, but, uh, there was analysis, um, presentation by the Rhode Island Attorney General raising concerns about competition to employee registered nurses. Um, so that's probably the market the FTC was also concerned about. Um, but that allegation, as I said, didn't make it into the complaint. Uh, there were four commissioners at the time, and the two Republicans were opposed to that allegation. So that ultimately didn't make its way into the complaint, uh, but I think shows FTC interest and labor market issues and mergers and, and otherwise. Um, so that deal was abandoned. In the second case, the FTC challenged, uh, HCAs proposed acquisition of Steward Healthcare's hospitals in Utah. The FTC said that transaction were har harm competition in inpatient general acute care hospital services in three geographic areas around the Salt Lake City area. And I think, I guess one thing I'd point to is, what was interesting about this case is that the FC pointed, uh, uh, evidence or alleged, there was evidence that the parties provided price concessions to payers in order to exclude the other party from payer networks, and that the parties were particularly close competitors to one another for patients in narrow networks, where the largest provider in the area Intermountain, was less competitive with the merging parties, uh, for those narrow networks, that transaction was abandoned. And in the third complaint, the FTC stew to stop the merger of, uh, R W J Barnabas and St. Peter's Healthcare in New Jersey there, the F T C alleged that, uh, the merger of R W J, which was one of the largest healthcare systems in the state of New Jersey and St. Peters, who had its hospital just a mile from R W J's Flagship Hospital, that that deal would harm, uh, general acute care competition in Middlesex County, New Jersey. Um, saying that the parties had about a 50% share, and they'd be, uh, the only, uh, there would only be two other remaining competitors in that county. So that deal was also abandoned. And I guess I should mention that besides these three deal abandonments, the T c also got a favorable decision out of the third circuit in 2022, upholding a district court decision blocking the Hackensack Meridian Englewood healthcare. So, uh, 2022 was, uh, a big year for F t FTC Hospital merger enforcement. And, uh, I'd say that is also expected to continue. So that's, uh, number one. As far as, uh, we're concerned, at least stop, I'll speak for myself.
Speaker 2:Well, I think it's a worthy number one for sure. Uh, no countdown would, uh, would be complete without a hospital merger challenges because the FTC has been, uh, so active in that area. And of course, with back to back wins in New Jersey, uh, we, you know, we just had to put it at number one, right? Yes. Um, okay. So we've looked backwards, and now we're gonna break out the crystal ball for 2023 to talk about the 10 things to watch for in the coming year. And I'm gonna turn it back to Alexis to talk about the fifth FTC Commissioner.
Speaker 3:Yeah. So right now, uh, and since October when commissioner, Republican commissioner Noah Phillips stepped down, the FTCs been operating with four out of the five seats filled, three Democrats, one Republican. So we're watching out, um, to see, uh, whether and when a fifth commissioner may be nominated and who it will be. I haven't been hearing many names being floated. Maybe you guys have, but, um, we could potentially be waiting a while, though. Uh, the, the Democratic president doesn't have an obvious motivation to fill, uh, a Republican seat that quickly at the F T C, uh, since that seat has to be filled by a Republican, or at least someone who is not a Democrat, um, in any case, I'm not sure that open seat really matters all that much, because with three Democratic votes, the majority can pretty much approve any enforcement action or policy, uh, decision it wants without, uh, Republican votes, whether it's one or two. Uh, but still, uh, important seat to Phil and we'll be watching, uh, to see, um, who may join, uh, commissioner Wilson as, uh, a second non Democrat on the F T C in 2023.
Speaker 2:Yeah, that is a, it's an interesting conundrum if, uh, for, for the president, because there really isn't much incentive. But on the other hand, not much downside either, I guess<laugh> Yeah. Uh, for, to add a Republican, uh, because they're gonna be outvoted, um, pretty much no matter what. Uh, but yeah, it's gonna be an interesting process to, to watch for in 2023. So, turning back to John, we're gonna talk about the future of United change, John.
Speaker 4:Yeah, thanks, Pete. This is going to be really short as I covered most of the substance, um, when we were looking back at the case in 2022. But one of the developments in, in, in our view, I guess the ninth most important healthcare antitrust development or, or, or thing to look for, uh, in 2023, is what happens, um, at the DC Circuit with respect to the Department of Justice's challenge to that transaction. As I mentioned just moments ago, the deal did close, uh, uh, in October. Uh, and so, uh, we are, uh, anxiously awaiting, uh, that decision, and I'm sure there'll be a lot of great content, uh, from the H L A, uh, once that decision, uh, comes out.
Speaker 2:Yes, for sure. Regardless of which way it goes. Right. Um, so we're up to number eight, and we're going back to cos uh, so Alexis, do you wanna talk about Sunni?
Speaker 3:Yeah. So, uh, as John mentioned, the FFC has been making a push, uh, against cop's. Um, and a couple months after it issued, um, the policy paper, uh, maybe it doesn't even that long, but after it issued the policy paper, John mentioned in 2022, uh, the staff filed a public comment opposing or asking the New York Department of Health to not grant a COPA to a combination of SUNY Upstate Medical Center and Kraus Health System, which are, uh, located as far as I can tell, basically right across the street or adjacent to each other, um, in, in upstate New York. Uh, and the FTC CO basically says that the proposed merger has a quote, substantial risk of serious competitive harm and consumer harm in the form of higher healthcare costs, lower quality, reduced innovation, reduced access to care, and depressed wages for hospital employees. Um, picking up on that last point, I think one of the things that's interesting about this is that the IC isn't just alleging harm to inpatient general acute care competition, but for the first harm, as far as I can tell, um, you know, alleging harm in various labor markets, um, it put forward alleged hospi or employment market shares for registered nurses, respiratory therapists, and hospital employees overall in, in what it's called the commuting zone, how far, you know, employees are, would be willing to compute in the com commute in the area. So I think that's a really interesting element beyond just the overall element that the FTC has been unsuccessful at stopping any of the recent COPA approvals in recent years. So we'll see if they have any different outcome, um, in, in New York, uh, potentially in 2023.
Speaker 2:Great. So now we're up to number seven. And John, I believe you're gonna talk about big healthcare deals.
Speaker 4:Yeah, that's, that's the best phrase we could come up with, right?<laugh>. Um, last couple of years we've seen a lot of, or at least a number of, um, large transactions that are interesting in the healthcare space because they combine different types of companies. So some, some, uh, tech, uh, provider deals. We've seen, certainly pharmacy provider deals, all sorts of different transactions that not just have high dollar figures in terms of the enterprise value of the transactions, but are also interesting to those of us who are practitioners and, and I would imagine also to those who follow the industry. And so, in 2023, what we're, um, really gonna be interested in seeing, and, and I know you all are, is what's next in terms of large transactions. There are, uh, a number of startups that have been, uh, talked about as acquisition targets by larger players. Uh, how do the agencies grapple with those antitrust issues? And, um, what is the reaction as the market continues to evolve in healthcare? It's one of the most dynamic, uh, industries I think we would agree in the world, certainly one of the most in the United States. It's also a sixth of our economy. And so when we see large transactions in the ecosystem, um, they certainly get our attention more than just from an antitrust perspective. But again, um, from those, for those of us who, who followed the industry closely.
Speaker 2:So I'm gonna give the guys a break, uh, and take one, uh, at number six. Speaking of big deals, I'm gonna talk a little bit about Amazon One Medical. So in July of 2022, Amazon announced that it was buying one medical for 3.9 billion. For those who aren't familiar, uh, one medical focuses on primary care, telemedicine and in-office care with locations at various major cities like Atlanta, Boston, Chicago, Phoenix, la, and New York, as customers can book same or next day appointments with providers in their area through its app. Now, Amazon is not exactly known for healthcare. Uh, it has a very small presence in healthcare, uh, and there doesn't appear to be any obvious meaningful overlap between IT and one Medical. Nevertheless, two months after the deal was announced, public reports stated that Amazon and One Medical had received second requests from the F T C. Uh, for those who are not familiar with the second request, it's a very large invasive subpoena, essentially asking for documents and data, uh, and written responses, uh, and takes months and months and months to comply with. Usually, uh, traditionally, the agencies, the DOJ and the FTC probably wouldn't have seen a problem with this type of deal because there are no obvious competitive overlaps. Uh, so one might ask, well, why did the FTC issue a second request? Uh, well, this, the answer may be as simple as it's Amazon. Um, because the FTCs current chair, Lena Khan, has argued that antitrust enforcement and specifically with respect to Amazon, uh, requires a much more aggressive approach. It will be very interesting to see if the FTC tries to find a perhaps less traditional basis for challenging this deal. Uh, for those who aren't familiar, uh, Terracon authored a very influential note in the Yale Law Journal titled Amazon's Antitrust Paradox, where she argued that the current framework in antitrust, and specifically it's focus on consumer welfare and short-term price effects, is really not well equipped to deal with the architecture of market power in a modern economy, particularly with respect to Amazon. Uh, she has also called for changing the FTCs overall strategic approach, uh, to look more holistically and harm from transactions, including harm to workers, as we just talked about, uh, as well as independent businesses and of course, consumers. So, uh, chair Con is, is really looking for FTC enforcement, uh, to focus not just on the deal at hand, but the underlying causes and structural incentives that could lead to unlawful conduct in the future. Um, and it wouldn't surprise anyone probably to, to know that Amazon's announcement of the deal also got the attention of Capitol Hill, uh, specifically from Senator Klobuchar. So, uh, a lot of attention on this deal, even though, uh, it doesn't fit the traditional mold of a deal that the agencies would've historically been all that concerned about. So, bottom line, uh, perhaps, uh, despite all of the pressure to do something about Amazon, it's still an open question as to whether the F T C will challenge it, because ultimately the FTC does have to convince, convince a judge, uh, to block a deal, can't do it on its own. So this is definitely one to watch for in, in 2023. So, next up, we have more no poach, uh, this time up in, in Maine and, and elsewhere, John.
Speaker 4:Yeah, thanks. So, um, some things to keep an eye on in the no poach space, certainly. Uh, and, and, and also there's a, a class action in Illinois, but in Maine, um, there was a, an indictment, uh, early in 22, uh, in the home healthcare agency space, um, that alleged, uh, that these agencies were participating in conspiracy to suppress wages. Uh, so that was, uh, uh, an indictment of a few individuals in the district court of Maine. We'll see what happens, um, in, in 2023. Um, and then also, um, there was a, a, a class action, uh, in Illinois, um, sort of unrelatedly, um, just so we thought we'd loop in, uh, or, or include in this, um, actually involved, uh, involving advocate, uh, Aurora that was filed on, on Tuesday, brought by Euro ure pharmaceutical, uh, pharmacy, um, that had to do with, um, the way, uh, that the, the hospital system allegedly uses, its, its market power to quote, take huge sums of money from the pockets of Wisconsin employers. So those are cases, um, and, and actions we're gonna be following, uh, there's a lot going on, lot to follow, but that's what came in, I think, with, uh, under the consensus, our consensus for, for number five.
Speaker 2:Okay. Yeah, no poach. I think, uh, it's safe to say that that's gonna be a hot area going forward for both, uh, the FTC and DOJ and, and we'll probably seeing more and more of this, uh, private litigation as well. Um, so definitely an area to watch, uh, at number four, the FTCs use of its Section five authority. Alexis.
Speaker 3:Yeah, thanks, Pete. Um, we didn't touch on it as a key de, you know, healthcare development in 2022, since it's not specific to healthcare may, maybe we could have, uh, but certainly one to watch this year. So last November for context, uh, the FTC issued a new policy statement on the scope of its authority under section five of the FTC Act, which prohibits, quote unquote, unfair methods of competition. Um, I think in a nutshell, it's safe to say that the policy statement reflects a pretty expansive view of the agency's authority under section five to go, uh, after conduct well beyond the bounds of what, um, is traditionally pursued under section one in section two of the Sherman Acts or strengths of trade and monopolization claims. I think everyone agrees that there's some scope for section five to go beyond those statutes, but how far is, has always been a question. And I think this policy statement says quite a bit farther. Um, so we have it as a key development in 2023, uh, one to watch, because the policy statement identifies a bunch of practices that it says could violate section five, and several of them, uh, appear to be relevant to healthcare. So, you know, the types of conduct that could violate Section five, according the statement include actual or de facto loyalty rebates, tying, bundling, exclusive dealing arrangements, a series of mergers and acquisitions that collectively harmed competition. Even if individually, none of those transactions would violate the antitrust laws, acquisitions of mason and potential competitors, uh, quote unquote discriminatory refusals to deal that tend to create or maintain market power, uh, whatever that means, and other practices. So, um, certainly wide scope of agencies trying to carve out for things that could violate section five. Um, we're now seeing the first, uh, indications of that in the labor, uh, employment context, which will, I think come up, uh, in one of our, uh, later things to watch in 2023. But let me leave it there. Beep.
Speaker 2:Okay, that's a good teaser, uh, for, for something coming up. Um, so at number three, we have, uh, a topic that I think I probably would've expected to be in the top 10 developments of 2022. Uh, but now we're, we're looking at it in 2023. So, uh, I'm gonna hand it off to John to talk about that one.
Speaker 4:Yeah, these are the anxiously awaited new horizontal merger guidelines, uh, to be put forth by the agencies. So the last version of the, uh, horizontal merger guidelines, which for those of our listeners who don't know, are, um, the, uh, the, the, the, the guidelines pursuant to which the FTC and doj, uh, enforce, uh, transactions under their authority of section seven of the Clayton Act. Uh, and they were last updated and revised, uh, in 2010. So it's been quite some time. They do not, uh, they're not law, they don't have the force of law. It's not a statute, but really what it is, is telling, uh, practitioners and, um, and firms en engaging in transactions, how, again, how the agencies view and interpret and enforce the antitrust laws. And so, uh, there was a lot of noise, um, a around, uh, the, the new version of these particularly, um, when the new, uh, leadership was put in place, uh, at, at both agencies. There's a public comment, uh, period, uh, and, and I believe some, even some, uh, town halls and other events that were held, uh, back in the earlier part of 2022. Thus, Pete, your comment with respect to, uh, anticipating these having been issued prior to, prior to 2023. Uh, so we are, we're really looking forward to, to seeing what gets put forth. Um, lot of things that could potentially be in them. We could speculate endlessly, but you know, some of them have actually been covered on this podcast. You know, like cross market issues, uh, or, or, you know, uh, mergers where the, the firms are not in the same geographic market. Uh, vertical transactions, market definition, uh, presumptions or bright lines about the types of mergers that should be considered illegal according to clear rules, as opposed to, uh, the, the more fact by, uh, fact, uh, or, or case specific or fact specific analysis largely employed now. So we're really looking forward to these. I'm sure when they come out, um, there will be a lot of coverage a, across the industry and, and certainly, um, will affect, uh, the healthcare industry and, and the transactions that, that folks may be contemplating.
Speaker 2:Yeah, absolutely. And I think, uh, it's safe to expect that if, if the thresholds that were in the previous guidelines are lowered, then one direct effect could be the, uh, F T C staff are more able to pursue challenges of cases that they might not have otherwise to, to block deals. So, yeah, it's gonna be fascinating. Uh, it could have a very significant impact on how the agencies review mergers. Uh, so that is definitely one to keep an eye on for 2023. Uh, now we're up to number two, and I'm gonna hand it off to Alexis again.
Speaker 3:Yeah, we, um, we put this in two, you know, we could probably have flipped it with the murder guidelines revisions, but we'll, we'll slot it here. Uh, which is the decision, the FTC commission decision, uh, in the Illumina Rail, uh, challenge, as I mentioned, the FTC staff suffered a pretty surprising defeat in its administrative court in the case, uh, the commission, the four commissioners that are there now heard, uh, the appeal, we're now waiting for the decision. Um, I think based on, uh, recent history, I think there's a lot of folks who expect that the FTC will reverse the ALJs decision. Um, that's suggested to commission of some criticism about how successful it is in its own administrative court. But, um, I still think it'll be interesting to see, uh, if that is the case, what the commission's rationale is for or returning the decision. Um, and whether the parties appeal that to a, a circuit court. Uh, I think the decision's gonna be interesting as well, because it, it might be released around the time, or, you know, just before or after these new merger guidelines come out, at least in draft form. So, how the F FTC decides this case might give us some insight into how the agency is thinking about vertical mergers, um, how the commission deals with the existing vertical merger, a recent vertical merger case law that hasn't gone the agency's way. They've, they've lost the challenges they've recently filed against vertical mergers in court. And also how the FTC treats, um, behavioral remedies to solve, uh, vertical merger concerns, which they've, um, shown, uh, hesitance, if not, you know, um, uh, reticence to, to adopt. So, um, uh, certainly a big decision decision probably could have been lumped in with John's big healthcare merger transactions as well, but certainly, um, a, a key decision because, uh, of the various issues, including the vertical nature of the case and the context of these new guidelines coming out.
Speaker 2:Okay, so we're up to number one. Everyone is on the edge of their seats. So, uh, without further ado, John, what's number one?
Speaker 4:It's, it's my pleasure to be, uh, talking about the number one most anticipated healthcare antitrust development 2020.
Speaker 3:Is it criminal
Speaker 4:<laugh>? No, unlike me, uh, it's, uh, it's something, it's something I think that actually, uh, we, we'd all agreed would be a major development. The Federal Trade Commission's, uh, rule making, uh, on in particular non-competes, um, as well as some other things like exclusive contracts. The ftc, uh, issue proposed, uh, uh, notice, uh, or sorry, a notice of proposed rulemaking under, uh, 16 C F R part nine 10, that would essentially, uh, be a rule, uh, under, its under its section five authority, rulemaking authority to ban, uh, non-compete, uh, provisions or non-compete clauses, uh, in the employment context. So, not necessarily, or not in the deal context, but specifically according to the FTCs definition, a contractual term between an employer and a worker that blocks the worker from working for a competing employer or starting a competing business, typically within a geographic area. And a period of time after the worker's employment ads, we're looking at the proposed rule, um, it will be subject to a public comment, uh, period, uh, that, uh, I believe is due 60 days after the federal register, uh, publishes the proposed rule. Proposed rule is on ftc.gov encourag folks to look at it. Um, this is something that has a lot of implications, uh, certainly too many to discuss on, on this relatively abbreviated high level podcast. But just looking at the commission or the FTC statement alone that accompanied this, you know, they estimate that this rule, uh, assuming this is actually promulgated in an upheld is enforceable, uh, would increase American workers earnings. And I'm quoting between 250,000,000,290 6 billion, uh, per year. So, um, certainly a, a massive, uh, potential impact on, uh, a number of industries, of course, on the healthcare industries, you know, non-compete clauses, um, are, are, uh, relatively common in the healthcare industry in a variety of contexts. And so, uh, again, lot to think about here, uh, including, um, without opining one way or the other, but just pointing out whether, um, this rule actually, uh, is promulgated in the way it was originally proposed, proposed. So we'll see what happens during the public comment period. And then, of course, um, what would expect if promulgated and enforced, um, there will be challenges, uh, to, to the rule, uh, constitutional challenges, uh, et cetera, administrative process challenges. And so I imagine this is something we're gonna be talking about, uh, in the anti, in the antitrust world, and certainly in the, in the labor and employment arenas as well, uh, for quite some time. And, uh, stay tuned. Uh, we're, we're, we're gonna be, uh, analyzing it and, and talking about it. And it's, uh, an interesting development. And I guess the last thing I would say, it's not, it's not, it's an interesting development. It's something we had to look forward to in 2023. Um, it's not a surprising development, uh, in my view. So a little bit of editorializing, this is something that was in, um, president Biden's, uh, uh, July, 2021, executive order on competition, where the executive branch outlined what they viewed to be their enforcement priorities in US antitrust enforcement, non-competes, was, was front and center in that, uh, executive order. And this is something that, um, everyone pretty much knows, uh, the FTC has been working through both, both on, uh, in terms of bringing cases and enforcement actions, but also more broadly in terms of rulemaking. And so, uh, looking forward to seeing how this development develops and, uh, appreciate being given the opportunity to talk about number one in 2023. I'm not sure I've had that honor before when we've done this podcast the next year of number one. Uh, and thanks so much for, uh, Pete, for, for doing this with us. Alexis, always, always a great time, uh, doing this. And, and thanks to h l a for putting this on. This has been a lot of fun
Speaker 3:For sure. Echo those sentiments for sure.
Speaker 2:Okay, well, quite a list. Uh, so that's all we have for today. Uh, I, I do want to thank the A H L A, and of course, uh, my fellow, uh, panelists or podcasters, uh, Alexis and John for their excellent work. And of course, uh, infinite patience with me as moderator today. Um, and to our listeners, thank you for joining and I hope everyone has a wonderful new year. Lots to look forward to in 2023. And as John said, stay tuned.
Speaker 1:Thank you for listening. If you enjoy this episode, be sure to subscribe to a H L A speaking of health law, wherever you get your podcasts. To learn more about a H L A and the educational resources available to the health law community, visit American health law.org.