Archives: FTC Act

BakerHostetler Antitrust Lawyer Reviews Unusual Incentive Payment/Failing Firm Defense Remedy in Recent Hospital Merger

Antitrust Partner Danyll W. Foix wrote an article, published November 17, 2016 by Law360, reviewing the Federal Trade Commission’s acceptance of an unusual settlement for a challenged hospital merger, explaining that “the settlement ends the FTC’s challenge of a transaction that was too small to be reportable under the Hart-Scott-Rodino Act, and the settlement is … Continue Reading

Forcing Exclusivity on Your Customers May Not Be the Best Competitive Response

By Jonathan Lewis on May 3, 2016 Posted in FTC Act, Sherman Act 5

In the words of the director of the Federal Trade Commission’s (FTC’s) Bureau of Competition, the recent enforcement against Invibio, Inc., the first company to sell implant-grade polyetheretherketone, known as PEEK, to medical device makers, “affirms that the first company to enter a market cannot rely on anticompetitive contract terms to lock up customers and … Continue Reading

Does FTC Vacancy Affect Ability to Resolve Issues?

By Barry Cutler on March 25, 2016 Posted in Antitrust & Politics, FTC Act

Many have been asking in the last few days what the effect will be of Commissioner Julie Brill’s announced resignation from the Federal Trade Commission (“FTC”). Will it change things as the Supreme Court seems to be changing without Justice Scalia? The short answer: Probably not. One needs to consider the FTC Act and the … Continue Reading

FTC Weighs in on Upcoming Third Circuit ‘Product-Hopping’ Appeal

By Carl Hittinger and Mitchell Oates on November 19, 2015 Posted in FTC Act, Sherman Act 1

“Product-hopping” refers to a practice employed by some brand-name pharmaceutical companies in which the company attempts to shift users from an older prescription drug that is going off-patent and will soon face generic competition to a newly introduced similar product from that company. Often, the new product will have a significant term of patent protection … Continue Reading

Specific Guidance to Businesses Still Lacking in FTC Principles

By Carl Hittinger and Mitchell Oates on August 31, 2015 Posted in FTC Act

In 1914, Congress passed the FTC Act, creating the Federal Trade Commission. Section 5 of the FTC Act declared “unfair methods of competition in or affecting commerce” to be unlawful and gave the FTC enforcement power over such “unfair methods.” Over 100 years later, that key language in Section 5 underlying the agency’s competition-related powers … Continue Reading

FTC Finally Offers ‘Principles’ Governing Section 5 Powers, but Specific Guidance to Businesses Still Lacking

By Carl Hittinger on August 26, 2015 Posted in FTC Act

In 1914, Congress passed the FTC Act, creating the Federal Trade Commission. Section 5 of the FTC Act declared “unfair methods of competition in or affecting commerce” to be unlawful and gave the FTC enforcement power over such “unfair methods.” More than 100 years later, that key language in Section 5 underlying the agency’s competition-related … Continue Reading

FTC’s Appellate Win Reflects Focus on Health Care Consolidation

By Carl Hittinger and Mitchell Oates on March 10, 2015 Posted in Antitrust Litigation, Articles, FTC Act, Healthcare, Merger

In an important victory for the Federal Trade Commission in the appellate courts, the U.S. Court of Appeals for the Ninth Circuit recently affirmed last year’s decision from the District of Idaho in Saint Alphonsus Medical Center v. St. Luke’s Health System, No. 14-35173, in which the FTC successfully sued to undo a 2012 merger … Continue Reading

Dollar General—“Setting the Record Straight” on Antitrust for Family Dollar

By Jonathan Lewis on September 4, 2014 Posted in FTC Act, Government Investigations, Merger, Merger Review

Unless you have been in the middle of a bidding war where antitrust concerns are front and center, what is playing out between Dollar General and Family Dollar is probably unfamiliar to you, as it is rarely seen outside of the boardroom. To get you up to speed, back in July Family Dollar agreed to be acquired … Continue Reading

Buckle Up—Unwinding Phoebe Putney’s Acquisition of Palmyra Down in Georgia May End Up Being Back on the Table

By Jonathan Lewis on July 22, 2014 Posted in FTC Act, Government Investigations, Healthcare, Merger Review

Almost one year ago, Federal Trade Commission (FTC) agreed to settle its antitrust challenge of Phoebe Putney Health System’s (Phoebe Putney) acquisition of Palmyra Medical Center (Palmyra) without requiring divesture or any other remedial relief. That settlement came after the FTC ran the table in the Supreme Court with a unanimous decision, and convinced a … Continue Reading

FTC Seeks to Undo Another Small, Completed Transaction

By Danyll Foix on July 25, 2013 Posted in FTC Act, Merger, Merger Review, Premerger Notification

This week, the FTC announced a proposed consent agreement to alter another completed transaction that was too small to be reported under the Hart-Scott-Rodino Act (“HSR Act”). The FTC’s complaint alleged that Solera Holdings Inc. and Actual Systems of America, Inc., through their subsidiaries, were competing providers of yard management systems software (“YMS”) used by automotive recycling … Continue Reading

Supreme Court Rules That “Pay for Delay” Generic Drug Patent Settlements Are Not Shielded From Antitrust Liability

By Jonathan Lewis and Lee Simowitz on June 18, 2013 Posted in Antitrust Litigation, FTC Act, Healthcare, Patents

The Supreme Court has held that the antitrust laws may forbid patent settlements that delay the market entry of generic drugs in return for large payments from manufacturers of competing branded drugs. The Court’s ruling rewarded the dogged efforts of the Federal Trade Commission to expose those settlements—which the FTC labels “pay for delay”—to antitrust … Continue Reading

NC Dentists Can’t Stop Competition from Other Providers of Teeth-Whitening Services

By Jonathan Lewis and Lee Simowitz on June 5, 2013 Posted in Antitrust Litigation, FTC Act, Government Investigations, Healthcare

Court ruling may impact how professionals attempt to limit competition from alternative providers. The North Carolina State Board of Dental Examiners (“Board”) failed to convince the United States Court of Appeals for the Fourth Circuit that the Board’s successful effort to “expel non-dentist providers from the North Carolina teeth-whitening market” is immune from antitrust attack. … Continue Reading

“Wide-Ranging Investigation” Leads FTC and Idaho AG to Join Ongoing Antitrust Lawsuit Challenging Acquisition of Idaho’s Largest Independent, Multi-Specialty Physician Group

By Jonathan Lewis and Lee Simowitz on March 19, 2013 Posted in FTC Act, Government Investigations, Healthcare, Premerger Notification

After dodging an attempt by two of its competitors to stop the closing of its acquisition of Saltzer Medical Group (“Saltzer”)—a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho—St. Luke’s Health System (“St. Luke’s”) must now also fend off the FTC’s and Idaho AG’s joint effort to unwind that transaction. On … Continue Reading

Oklahoma, OK and Not OK: The Right and Wrong Paths to Provider Joint Contracting

By Jonathan Lewis and Lee Simowitz on February 28, 2013 Posted in FTC Act, Healthcare, Sherman Act 1

In the view of the FTC and the Justice Department, competing health care providers can contract jointly with third-party payers only if the providers integrate clinically (or financially) so that gains in efficiency and quality of care counterbalance any resulting price increases. The FTC has filled in the blanks as to what constitutes adequate clinical … Continue Reading

Recent FTC Developments Regarding Standard Essential Patents

By Erin Murdock-Park on January 15, 2013 Posted in FTC Act, Government Investigations, Patents

The FTC recently issued two decisions and proposed consent orders concerning Section 5 of the Federal Trade Commission Act (“FTCA”) and standard essential patents (“SEPs”). Not only do these decisions emphasize the Commission’s willingness, under certain circumstances, to bring stand-alone Section 5 claims against holders of SEPs, but they also attempt to provide a template … Continue Reading

Lonely Conspirators: Antitrust Liability When Nobody Joins Your Conspiracy

By Lee Simowitz on December 13, 2012 Posted in Antitrust Litigation, FTC Act, Government Investigations, Sherman Act 1

One is the loneliest number that you’ll ever do Two can be as bad as one It’s the loneliest number since the number one – Three Dog Night The worst antitrust offenses involve conspiracies involving multiple actors. Hard-core offenses under Section 1 of the Sherman Act, such as price-fixing, market division, customer allocation, or … Continue Reading