Managing Your Health Care Transaction Through Federal and State Antitrust Scrutiny

Bryan Perry, Senior Managing Director, FTI Consulting, Amanda Wait, Partner and Head of Antitrust, Michael Best & Friedrich LLP, and Elizabeth Odette, Assistant Attorney General and Manager of the Antitrust Division, Office of the Minnesota Attorney General, discuss the changing landscape of antitrust scrutiny of health care transactions. They cover substantive antitrust scrutiny and the enforcement perspective, practical guidance for anticipating and planning for antitrust review processes, and tips on managing simultaneous federal and state antitrust reviews. Bryan, Amanda, and Elizabeth spoke about this topic at AHLA’s 2025 Annual Meeting in San Diego, CA.

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Transcript

SPEAKER_02: 0:04

This episode of AHLA Speaking of Health Law is brought to you by AHLA members and donors like you. For more information, visit AmericanHealthlaw.org.

SPEAKER_00: 0:17

Hello, my name is Brian Perry. I'm an economist and a senior managing director with FTI Consulting's Center for Healthcare Economics and Policy in Washington, D.C. My colleagues Amanda Wade, Elizabeth Ladette, and I had the opportunity to discuss managing healthcare transactions through federal and state antitrust scrutiny at the AHLA annual meeting in San Diego this year. And we're pleased to share some of that discussion with you today. The healthcare industry is in the crosshairs of antitrust enforcement, but this scrutiny is not new. What we are seeing, though, is a changing procedural and substantive landscape in which healthcare transactions are being reviewed. So our goals for today's discussion are to help you anticipate substantive antitrust scrutiny and understand the enforcement perspective, to provide practical guidance for anticipating and planning for antitrust review processes, and to share some tips on managing joint or simultaneous federal and state antitrust reviews. Before we dive into the substance of our discussion, Amanda and Elizabeth, would you like to introduce yourselves?

SPEAKER_03: 1:26

Sure, I'll kick it off. My name is Amanda Waite, and I'm partner and head of antitrust at Michael Best and Friedrich, based in Washington, D.C. And uh formerly served at the Federal Trade Commission as a staff attorney reviewing mergers. So pleased to be here and great to see you, Brian.

SPEAKER_01: 1:44

And I'm Elizabeth Odette. I am an Assistant Attorney General and Manager of the Antitrust Division at the Minnesota Attorney General's office. I am also the Antitrust Task Force Chair for the National Association of Attorneys General. And so with those both of those titles, I just need to give a quick disclaimer that uh my comments and uh thoughts are my own today and not that of the Office of the Minnesota Attorney General or NEG. Great to be here.

SPEAKER_00: 2:10

Wonderful. Well, Amanda, let's begin with you. Can you give us an outline of which transactions must be notified to the federal government and what information must be included with that filing?

SPEAKER_03: 2:23

Sure. So this could be an entire webinar on its own, but I'll give just the highlights here and talk about when you should be thinking about filing and then what do you have to do once you've determined that you've got one. So in terms of when should you be thinking about filing, the rule of thumb that I usually share with clients is if you have a transaction valued at$100 million or more, you should start thinking about whether a filing is required. The technical answer is filings are required to the federal government, the Federal Trade Commission, and the US Department of Justice's antitrust division under the Hart Scott Rodino Act, when they meet certain very specific dollar thresholds and do not meet one of the exceptions. And those dollar thresholds change from year to year. So even if you know what the threshold is this year, if you have a transaction that hits kind of around that$100 million mark, it's always prudent to go back and check. The current thresholds for 2025 are that if you have a transaction that results in an entity, an acquiring entity holding assets valued at more than$126.4 million. Um, and you have two parties that meet certain size requirements, that transaction probably has to be reported to the agency. The size of parties test that I mentioned earlier is that you have to have at least one party to the transaction that has total assets or annual net sales of more than 100, I'm sorry, 252.9 million dollars. And you have to have at least one other party to the transaction that also has total assets or annual net sales in excess of 25.3 million. But like I said, those numbers change annually, usually in February. And so if you are having transactions around that$100 million mark, you should just check. So there are also a number of exceptions that apply under the Hart Scott Rodino Act. And those exceptions can take transactions at much higher dollar values and make them not reportable. This is a very much in the weeds question. And there's uh people who spend their whole lives thinking about nothing other than whether transactions are reportable, hopefully only in their professional lives and not in their personal lives, too. But this is an area where it's just prudent to check. If you do determine that a filing is required at the federal level under the Hard Scott Rodino Act, there are some important changes that just went into effect back in February. And we talked about these a little bit at the annual meeting as well. We're now, you know, what, eight months into the new filing regime? And, you know, I'll lead off with the it hasn't been as bad as we thought it was gonna be point that I make to a lot of clients. The new filing requirements do require significantly more information, but you know, it can be done. You just got to give yourself a little bit more time and dedicate some more resources to gathering all the information that's required. And I won't go into all of the information that you have to submit along with an HSR filing now, but there's kind of two important buckets. The first one is narrative information. So if you've ever had to do a filing in Europe, for example, writing descriptions of the competitive landscape and descriptions of the transaction is not going to be a foreign concept, but we now have to do those kinds of narrative uh submissions along with the USHSR filing. We have to provide diagrams of the deal structure if they exist, discussions about the strategic rationale and the competitive landscape, among others. And then on the document side, I think the tagline there is just more documents from more people. So there are more people that you have to search, there are more types of documents that you have to bring in. Um while the US process has gotten more burdensome in some respects, um, it is, you know, lengthier and a little bit more expensive and more burdensome now. It is completely doable. You just have to get going a little bit earlier on the process. Um, we're telling clients, you know, don't sign those agreements that say five business days to file anymore. You know, please give us 20 business days or so, and that seems to be standard these days.

SPEAKER_00: 6:45

Thanks, Amanda. Elizabeth, we are also increasingly seeing states involved in merger investigations. Can you share how states like yours come to get involved and what the scope of that involvement may look like?

SPEAKER_01: 7:01

Yes, and I think one really important thing given what Amanda just mentioned in terms of the federal oversight, is that to the extent that you can be engaging federal and state enforcers in alignment, that is ideal. Um, if you are trying to do it ad hoc, and as I'll discuss, there are a lot of different state enforcement uh mechanisms and how each state is involved is going to vary. But to the extent that you can do it in a in a parallel fashion or in conjunction uh is the best. Uh, and don't assume that uh what you're giving to the federal enforcers isn't something that the states will also want. It kind of often there's a lot of overlap in what state enforcers are looking for and what federal enforcers are looking for, but also say it's probably to the benefit of uh the entities involved in a transaction to have that state enforcement perspective because states can um provide the federal enforcers who are looking at it from a very high 10,000-foot level, some more of the local information and in some instances could be verifying how uh transaction um entities are uh presenting um the geographic and other uh markets. But uh state legislators hear from constituents, state AG's offices hear from constituents on you know the personal challenges that they face, healthcare costs is one of them. And so in recent years we have seen kind of, I wouldn't say an explosion, but a steady increase of state legislators passing laws that have uh specific health care transaction notification requirements. Um but separate from that, uh some states have their own state agencies that do healthcare oversight. And then as well, um City AG's offices, even without the healthcare transaction or other notification laws, want to be looking at certain transactions for antitrust and charities. So it is just really important to kind of consider states when you're looking at a transaction. And it may be that it um involves transactions that are under that threshold that Amanda mentioned. So as I mentioned, it's kind of uh, you know, a blend of uh state laws, but you know, one thing to note is they often involve both antitrust and charities laws. And that is something that can be kind of unique for uh antitrust enforcers and those who are looking at uh transactions strictly from a competition perspective, because it can blend um more often in the space where there's a nonprofit entity involved, but not always. Some states still require some look at public interest, even if neither of the entities is a nonprofit. So, you know, for example, Colorado and Washington recently passed a uh laws that give them the ability to have uh pre-merger notification of just most transactions in general that the uh federal government uh would receive as well. They both also have specific healthcare transaction notification laws. And those um you probably want to connect with those state AG's offices specifically to learn how those two laws and the requirements for them interact with each other. So uh as Amanda had talked about too, involving antitrust counsel early to kind of just get a sense of which states should we really be focused on. Uh, know that the federal enforcers may be reaching out to those states as well. Um, contacting your state attorney general's office with uh your intended timeline is helpful because that way you'll have a greater chance that the AG's offices uh will have that staff time and resources dedicated to when your submission is ready, uh to when you would really like to have their review completed and having them confirm that their review is complete. One thing to note is that there is sometimes a confusion that state AG's offices approve or deny. Um at least many, most state AG's office enforcement involves a review that's similar to the federal enforcers, so that there's a time period and if they find that there may be antitrust or charities concerns that they need to sue to uh try to stop that uh transaction from occurring, very similar to the federal government. There are some separate uh agencies in states. I'll give Oregon for an example where there is a very specific approve or uh deny. But that's that's pretty rare. A couple of things to think about when you're preparing to provide information to a state uh AG's office or a state uh uh entity that's looking at these is that uh the proximity of the parties, uh the proximity of the hospital or other facilities, um, that that's going to be something that we look more closely at. Uh whether uh the transaction will substantially lessen competition. Uh there's often many concerns about if these healthcare entities combine, will it reduce services in rural areas? That's a big concern. Um the nonprofit focus would involve uh whether the you know charitable assets are going to continue to be used for their charitable purpose. And also uh, you know, just the quality as well in terms of the overall uh improvement or deterioration when that uh goes. I mean, often you're looking for efficiencies. And so you may be rightly combining uh phone runes or you know, referral uh you know uh resources. Will that still maintain the uh quality for the patients that it's impacting? And then I think uh it's just uh one thing to note, I would say, is private equity is a really hot topic these days. State EG's offices know that there's nuance involved. Uh there isn't a one size fits all. But I will say because there's some skepticism in the public about the use of private equity, you may just get more questions from regulators. And that in part is just simply a matter of the State EG's offices want to make sure we have the right information to be able to understand that the use is appropriate, not that we are uh, you know, not wanting private equity to be at all involved in in healthcare transactions. The uh federal uh forms that Amanda mentioned have a checkbox now so that you can uh basically just give the waiver so that the federal enforcers uh can share information that you've provided with the state AG's offices. That is a really efficient way to deal with it because otherwise uh your lawyers will have to um negotiate waivers for each state that can get uh complicated uh and time consuming for something that ultimately uh should be just a conclusion that you want to reach is that everybody should have the same information when they're looking at it. It uh would speed up the process. And then lastly, uh the you know, as Amanda mentioned, sometimes there could be uh international uh impact on the transactions. And so even though uh you're thinking about state AG's offices in a very local setting, um, there are some instances where um the non-US US jurisdictions may be in collaboration with them.

SPEAKER_00: 14:35

Well, with that really helpful primer on the antitrust uh environments for the federal and uh in the federal and state settings. Uh Amanda, what would be some best practices for preparing for these antitrust reviews?

SPEAKER_03: 14:52

Thanks. Uh I'll start by just uh underscoring one thing that Elizabeth said because I think it is really important. And this is the ensuring that the federal uh enforcers can work cooperatively with their state counterparts. That can really throw a wrench in a deal if it's not done correctly. And you know, Elizabeth is coming at it from an enforcer perspective, and so obviously there are synergies to having those waivers granted early from her perspective. And but I'll just emphasize, you know, I've been in private practice now for 18 years advising clients on these things. And I can only think of maybe one example in the entire time I've been on this side of the table where I've advised a client not to sign a waiver. And it was only because of a specific nuance of that specific state's law that was going to impact the way that the information was being shared back and forth. And we found a workaround to that. So I've clients come to me all the time and they say, Well, why would we want to do that? Don't we want to make them do their own work? And I say, Well, you could, but then you're gonna risk getting two completely paral, two completely different tracked investigations. And inevitably, what could happen is your state enforcers maybe focused on slightly different issues than your federal enforcers, and you're just about ready to wrap things up in a nice neat little bow. And one of the investigating agencies finds out that the other one has been investigating something else, and now they have to go look at it too. And it just will slow everything down. So I completely agree with Elizabeth's comment that in almost every case, you know, there are some exceptions, but in almost every case, encouraging that cooperation makes a lot of sense because if somebody's gonna find an issue with your deal, it is better to know that earlier and have time to be able to address it rather than have it come out at the last minute when you're getting ready to close. Um, so the other thing I would say, just in terms of you know, best practices or practical tips, is really in addition to filing your HSR, getting ready for your HSR early, I always tell clients, you know, you've got to understand the risk of your transaction early on as well. And you need to bring in antitrust counsel as soon as possible so that they can take a look. And I usually will tell clients early on, you know, I can tell you whether this is probably a red light, a green light, or a yellow light. You know, is this a, you know, you're absolutely gonna get questions on this deal. It's it might even get blocked, red light, or is this a you're probably not gonna have any issues, green light, or it's you're gonna have some questions proceed with caution, yellow light. And knowing that very early on is critically important because it impacts almost everything that you're doing from a business and commercial side throughout the deal cycle as well. So, for example, the antitrust risk that you have with a transaction as advised by your council can impact your deal terms. And, you know, I'm oftentimes reading LOIs or I'm reading draft definitive deal agreements, and there's provisions in there about who's gonna bear the antitrust risk and what is your timing before you get to an end date, when can people walk away, when can people terminate? And a key input into those considerations is how long do you think the antitrust review is going to be? If you think the antitrust review is only gonna be 30 days, you submit your HSR form, you submit your state forms if they're required, you wait your waiting period, and then nobody raises any questions or issues and you're free to close, then your termination date could be 45 days, 60 days, you know, whatever your other regulatory requirements might involve. But if you think you're gonna get a second request, that's a whole different decision. You might want your end date to be shorter so that if you get a second request, you can walk. Um, depending on which side of the transaction you're on, you might want your end date to be longer to hold the other side's feet to the fire and make them go through the second request process and see if you can get it cleared. Um, but you can't make those decisions from a commercial perspective until you know what the risk is on the front end. So that's just one example. There are there are so many other provisions and considerations that come into play depending on where you fall on that risk spectrum, that getting your antitrust risk assessed very early on is very important. Um I would also say the other thing to keep in mind is just being very mindful of your document creation process very early on in the process. Um, I just told a client this morning that I need to read the deck that their bankers put together so that they don't have a world domination slide in there because I see it all the time. You know, especially if you're representing the sell side of the transaction, they hire some bankers, they're trying to get this deal sold, they are puffing up the business that is getting sold. All the clients are sticky. Um, all the relationships are, you know, um they're all long-term relationships that can't be changed. There's um, you know, minimal competition. Um, you know, you see, you see these phrases pop up because you have people writing these documents whose job is to make the company seem really profitable, and that you know, customers and patients and others don't have alternatives. But those documents go in with your HSR filing. They go in with your state filings, and those are some of the very first documents that are forming the impression that reviewing agency staff have on your transaction. So those documents, you know, first of all, need to be accurate. Um, you know, sometimes I see these documents come in, especially if they're written by third-party consultants. And you know, I'll take them back to the client and say, you know, is this really true? And they're like, not really. Like, let's make sure it's true. If you're gonna, if you're gonna kind of put a document out there that could potentially raise an antitrust question, like, let's make sure it's actually true first. Um, if it's true, we can deal with that, but um, you know, you don't want that kind of puffery out there um in your in your documents that could really throw a wrench in things. Um a couple other just practical tips. Just make sure that your team, whoever it is internally within the company who's under the tent on a deal is following document preservation requirements as advised by counsel. That might just mean following your normal business policies, but there might be instances where heightened scrutiny or heightened protections are required. Make sure people are following those. Um, and then in terms of timing, you know, make sure that you're again aware of your risk because that impacts timing, but also any other notifications that are coming in from state AGs, they don't all follow the 30-day rule under the HSR Act. Some are 60 or even more. And so make sure that you're aware of how those timings are going to play in on your deal as well. Um, and so I think those are the only tips that I've got. And you know, Ryan, you and I have worked on a lot of deals together over the years. I'm sure you've got some ideas from your side as an economist.

SPEAKER_00: 22:21

Yeah, thank you. Uh first I'll I'll echo uh Amanda's um perspective that uh from the view of the economist, earlier is going to be better. Um, having been brought in to advise on uh the economics of transactions, both right before uh a transaction is being notified to agencies and well ahead, I can tell you that uh there's more that can be done and more development of economic theory and analyses that can be done if it's done early, well ahead of a HSR filing or state notification. So sometimes I'm asked what uh what exactly do economists bring to the table in a in a transaction, like uh in terms of the antitrust review. And I think that there are a few things, a few ways in which economists can be helpful to companies as they're preparing for this moment of uh of filing with state or federal agencies. First, um we we are useful in assisting in the identification of data and relevant documents that agency economists are likely to ask for as part of their review. And so uh we get involved in collecting and developing the uh the relevant information that is going to be asked for almost surely by the FTC or the DOJ or state AG's offices. Once we've uh pulled that information together, uh we tend to do a preliminary antitrust risk assessment. Think of this as a preview of what the economists in the antitrust agencies are going to do when they get access to your data. So this is an early screening for potential antitrust issues and potential offsetting pro-competitive benefits of the transaction. And then once we know the basic contours of the economic impacts of a transaction, or at least the potential impacts, economists can help with development of economic analyses and theories that will go to the storytelling aspect of the transaction. The last thing I would highlight is that the uh the filing requirements at the state and federal level, as Amanda and Elizabeth pointed out, are becoming increasingly complex and in some cases uh data intensive. And so uh we also tend to get involved in helping to prepare the data, the same data that's being used for the antitrust risk assessment and screening exercises tends to be similar data that's going to be asked for. And so we can uh we often will be involved in the early preparation of getting that material ready for submission to state and federal agencies.

SPEAKER_03: 25:36

So, Brian, we've talked a lot about you know kind of the nuts and bolts of all of this and you know, making sure we've done the assessment early and gotten ready for our filings and getting ready ready for our state filings. But could you maybe walk us through what are the key issues that the enforcers, either at the federal or the state level, are looking for? And Elizabeth, maybe you can chime in on some of this as well.

SPEAKER_00: 26:00

Yes, I would I would welcome hearing from Elizabeth on this as well. But in in broad terms, the DOJ and FTC and state agents tend to be following a fairly similar analysis. You're going to start by identifying relevant markets affected by the transaction. Which services, which products, and which geographies are at issue? Um where are there overlaps between the parties to the transaction? Where are there not overlaps? Once those uh markets have been identified, then the the enforcers are going to look for competitive effects, which is a uh economic term for are you going to see price increases? Are you going to see changes in output? Are you going to see impacts to quality? Also, you uh the the agencies may also be looking at whether or not the transaction will disadvantage rivals, potentially in adjacent markets or in uh that have vertical relationships with the parties rather than being strict horizontal competitors. And in a newer focus uh from the agencies, we're also seeing them looking for competitive effects where a dominant firm may be entrenching their dominance. This could be by eliminating a nascent competitor or raising some barriers that makes it harder for uh a competitor to enter the relevant market. So uh with all of this, the the bottom line question that's being asked, the ultimate focus is what is going, what are the likely effects on price and output? Now the agencies, uh the federal agencies have issued the uh merger guidelines that uh give some direction on what will be considered uh potentially anti-competitive. And these these guidelines come down to how much concentration in a market will increase. So, for example, uh a merger may be at risk if it results in a market share, a combined market share of the two parties in one of the relevant markets of 30% or more. And there's also an index of market concentration called the Herfendahl Hirschmann Index or HHI. And if that rises above a certain level in a market that was already tending to be concentrated, you would also uh potentially have additional scrutiny from the uh federal agencies. Um before I get into the specific anti-competitive theories that enforcers are going to look at, Elizabeth, is there uh could you would you like to comment on the differences in the state side here or similarities?

SPEAKER_01: 29:03

Yeah, I mean, I think you've covered most, I mean the basic kind of areas that folks are looking at. I think um there has been a couple areas, and I think you'll maybe get into more detail on them, about uh, you know, vertical integration is another uh issue that uh I think states are looking at too. Uh we're so focused on the regional and local impacts that we want to really understand if uh there are, for example, vendor relationships in those kind of key critical infrastructure areas that could be considered um, you know, problems for competition down the chain. It could be uh, you know, is is it a critical infrastructure in tech within the healthcare system? Is it a critical infrastructure in insurance? But we want to understand some of those really big important relationships and if there are any uh ownership or control aspects there. And then I think uh, you know, I think. get this to this too, but labor is a really important piece of regional and local uh review as well. And um how a larger transaction might uh impact the ability of those who work for those healthcare systems to be able to have competition for their labor.

SPEAKER_00: 30:17

Yeah Elizabeth you you raise a really important point that we should highlight um healthcare transactions especially on the provider side tend to involve hyper-local issues where you have significant employers in a community significant uh portions of the healthcare infrastructure for a community and so it's it's not surprising that uh local stakeholders are going to be uh raising questions and concerns including state AG's offices let me just go through a few of the the theories that uh an enforcer might be looking at in a transaction between healthcare entities so the first and and most common theory is that a combined entity between the two parties have horizontal overlaps that would eliminate direct head-to-head competition between them. So in the provider space perhaps they are competing with each other for the same patients or they're competing to offer the same services in the same community same geography. Under this theory a transaction would eliminate competition between these direct competitors and allow them to exercise more market power in that market for example by raising their prices that they're charging to patients. To prepare for that theory you would like to assess what are the potential what the potential overlaps between the two parties are. You would do that at the facility level or service line level if you're looking at providers you may want to look at different levels of acuity of the patients you may want to look at freestanding facilities versus physician services versus inpatient care versus hospital-based outpatient care and identify who are the relevant competitors in these areas for each party to the transaction because of the complexity of contracting in healthcare you'd also want to look at the impact on payers and payer contracts what facilities are in uh which payers network are do you see uh narrow networks or tiered networks that would um that would be an important driver of competitive effects and there is a is a an adjacent theory to the pure horizontal direct head-to-head competition overlap uh theory that has been uh raised by economists in the academic setting and increasingly by state and federal federal regulators uh though it is uh still a fairly new theory about cross so-called cross-market interactions between providers so in this uh setting imagine that you have two health systems that don't actually compete with each other head to head in a particular geography hospital A draws its patients from uh area A and hospital B draws its patients from area B and those areas are not overlapping however the theory posits that if those uh if those patients are employed by the same employers andor if they're uh if they are receiving purchasing insurance health insurance from the same payers that that could create an overlap an interaction a competitive strategic um dynamic whereby there could be competitive effects even in non-overlapping strictly non-overlapping areas uh so to assess this you'll also want to look at in addition to where are the patients coming from for these providers for each per party whether or not there's overlap in the employers of their patients or in the insurers that the uh in the payer contracts uh the economic literature on this while nascent does have some uh useful tests that can be explored to assess whether or not your transaction is more or less likely to fit the criteria where these cross market effects are more or less likely. Elizabeth mentioned labor markets and so I I want to spend some time talking through the concerns there in a it may be that uh two healthcare entities are significant employers for a certain type of of labor for example skilled nurses or physicians that uh and and that a combination of those of the parties would eliminate the opportunity for those employees to uh compete uh or it would eliminate competition for those employees' labor perhaps by suppressing their their wages or by deteriorating the work conditions for those employees so here again you would want to look and screen for whether or not you have overlapping labor markets for the employees of both parties and who the relevant competitors are. And I will I'll note that the relevant geography for the area from which you draw your patients in may be quite different from the relevant geography geography from which you are drawing employees in. So those need to be examined separately the last thing I'll mention is that quality of care and access to care is going to be very relevant both to federal and local antitrust reviewers. So if your if your transaction is going to uh is not going to have any impact on pricing but is going to materially restrict access to care for certain populations or deteriorate quality of care for those patients that would still raise anti-competitive concerns.

SPEAKER_03: 36:57

On the flip side if the transaction is going to enable in a way that is transaction specific improvements in the quality of care, that would be a useful story to develop as part of your antitrust uh submissions theories Amanda what else should companies be thinking about as they prepare for a transaction well um first do we want to see if Elizabeth had anything she wanted to add on the theories of harm Brian covered it well thank you uh but I think uh he really did highlight that for the state enforcers we are going to be looking at things more locally and there may be uh for example public meetings or other things that could and this may get to your point uh but that people should be thinking about in terms of what the review of a state uh more local enforcer would look like versus the federal enforcement yeah that's a that's a great point Elizabeth so to Brian's question about what what else companies should be thinking about um I'll highlight two things first is you know as as Brian and Elizabeth have discussed kind of throughout the discussion today healthcare transactions are hyperlocal and those local stakeholder questions can come up in a variety of different ways. Elizabeth mentioned potentially having public hearings on transactions you can even just have local stakeholders you know whispering in the ear of the the state AG or other government officials sending information over to support you know what they think might happen if the transaction does or does not go forward. And those local stakeholders can can be on either side you can have local support for your transaction or you can have local opposition in some deals you have both. You need to be prepared for that and so planning ahead for not only what is the review going to look like and what might what local stakeholder issues might come up, but proactively how are you going to address those? How are you going to suss those out? Oftentimes with clients we have we have the kind of rollout communication strategy for a transaction where you know there's a a timed list of who gets calls first and who gets called second, who gets called third and exactly how is that rolled out because you know sometimes there are certain people who just need to feel less like looped in on your on your deal and have the opportunity to comment before it kind of gets out there more public. But it also gives the merging parties the opportunity potentially before the deal becomes fully public to kind of hear what some of the concerns may be or what the support may be and figure out you know how do you incorporate that into an antitrust or state AG charities review. So I think maintaining that communication strategy but also working into that appropriate government relations strategy or other stakeholder strategy is is really critically important. And I would just say if a client ever comes to me and says you know oh nobody's gonna notice this deal this is a small deal nobody's gonna care about this that's just not true. Don't don't uh don't delude yourself healthcare is not an area where transactions fly under the radar ever. And if your strategy is to file and duck and hope nobody comes knocking that's that's probably not a good strategy. So just be ready. The second quick like more administrative point that I'll note here is that you know I see clients they they sign their LOI or they have their deal announcement coming out pending closing because there are usually in addition to antitrust other barriers to close you know in terms of regulatory filings or insurance filings or other things that have to happen first. But the parties want to run off into the sunset. You know they're engaged they're they're so happy to be together and they want to run off into the sunset together. And oftentimes the antitrust lawyers are the ones that are like whoa whoa whoa tapping the brakes not quite yet because the parties even though they have agreed to merge are not fully integrated yet. And so there are certain decisions within the companies that cannot be done jointly until the filings are complete, until the antitrust rule review is complete and until the deal is actually closed. So the rule of thumb is that all parties to a transaction must continue to operate independently and I say to clients as much business as usual as you can until closing and sometimes that does mean that you're going to be bidding against the other side for something. And that's not just okay that is what the antitrust laws expect and require so parties can plan for their integration and they can absolutely be ready on day one to hit go but before the deal is actually closed they have to just stay in planning mode and not in implementation mode.

SPEAKER_01: 42:24

I have one thing to add before we wrap up um just in terms of things to think about uh we are now in an age of data um the world and you know understands how data can be collected, used uh and how powerful it is uh in healthcare that is clearly the case um so one thing I would say is to look out when you are considering a deal is are there any ways in which information is being exchanged as competitors um in areas that you compete in um that could be questionable um not all uh ways in which data is you know aggregated and shared are are illegal and you know this is similar to what we've discussed before is you know but like with private equity um it's not all bad but um information exchanges are something that is being looked at more carefully now and what you wouldn't want to have happen is uh be surprised by something that you are you know assuming is okay um to have more scrutiny over a larger deal and open up a can of worms um so looking at how you're uh sharing information uh it would be important as well well Elizabeth and Amanda thank you for a fantastic discussion and thank you for listening today we really enjoyed our time at the annual meeting this year and we would love to see you next year at the 2026 and AHLA annual meeting in New York.

SPEAKER_00: 43:47

Thanks so much.

SPEAKER_02: 43:49

Thanks hope to see you both there we'll keep talking thank you if you enjoyed this episode be sure to subscribe to AHLA Speaking of Health Law wherever you get your podcast. For more information about AHLA and the educational resources available to the health law community visit americanhealth law dot org and stay updated on breaking healthcare industry on the HP outlets or AHLA Health Law Daily Podcast exclusively for AHLA comprehensive members. Subscribe at podcast eight square podcast goes to Americanhealth law dot org slash daily podcast