Archives: Merger Review

The Trump DOJ’s View on Merger Enforcement and Remedies Explained

By Danyll Foix on November 20, 2017 Posted in Merger Review

President Trump’s head of the Department of Justice’s Antitrust Division, Makan Delrahim, recently explained that the division will cut back on behavioral commitments such as consent orders regulating conduct and will instead rely more on structural changes such as divestitures to remedy merger concerns. This could signal significant changes in how the DOJ resolves concerns … Continue Reading

The ‘Failing Firm’ Defense and How Not to Lose It, Article Explains

By BakerHostetler on July 19, 2017 Posted in Articles, Merger, Merger Review

Law360 featured an insightful article today on a recently unsealed court opinion blocking the $367 million merger of rival nuclear waste processing companies. The court blocked the merger, while rejecting the parties’ argument that the deal should be approved because otherwise the acquired firm would collapse and the market would suffer. The merging companies did not … Continue Reading

FTC Still Ramping Up Antitrust Review of Health Care Mergers

By Carl Hittinger and Tyson Herrold on December 15, 2016 Posted in Healthcare, Merger Review

Last month, we reported on the Federal Trade Commission’s (FTC) steady filing of injunctions to block what are effectively local mergers of small health care providers. In 2007, the FTC filed suit in Saint Alphonsus Medical Center v. St. Luke’s Health System, its first successful challenge to a hospital merger in recent history. Since then, … Continue Reading

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

By BakerHostetler on November 17, 2016 Posted in Articles, FTC, FTC Act, Government Investigations, Healthcare, Merger Review

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

FTC Takes Action to Block Hospital Mergers

By Carl Hittinger and Tyson Herrold on November 16, 2016 Posted in Healthcare, Merger Review

In the 1990s, Federal Trade Commission (FTC) enforcement actions to block mergers between health care providers were a rare phenomenon successfully obtained. In many instances, state Attorneys General filled the role of watchdog, especially since hospital mergers were relatively small and implicated local markets. Many, like the Pennsylvania Attorney General, were unable to convince the … Continue Reading

FTC Accepts Practical ‘Failing Firm’ Defense in Ending Challenge of Nonreportable Transaction

By Danyll Foix on October 18, 2016 Posted in Healthcare, Merger Review, Premerger Notification

The Federal Trade Commission’s recently announced proposed settlement of its challenge of CentraCare Health’s acquisition of St. Cloud Medical Group (SCMG) is doubly noteworthy. The settlement ends the challenge of a transaction that apparently was not reportable under the Hart-Scott-Rodino (HSR) Act, and the settlement is premised on a “failing firm” defense that infrequently is … Continue Reading

To Report or Not to Report, That Is the CFIUS Question

By Danyll Foix on February 16, 2015 Posted in CFIUS, Government Investigations, Merger, Merger Review, Premerger Notification

With the complexities inherent in many cross-border transactions – from cultural differences to the growing number of competition authorities demanding paperwork – the last thing one may want to think about is whether to submit a voluntary report of a transaction to the Committee on Foreign Investment in the United States (CFIUS). The recent decision … Continue Reading

“Oh help me, please doctor, I’m damaged”*—What does the Future Hold for Hospital-Physician Acquisitions?

By Jonathan Lewis on February 12, 2015 Posted in Government Investigations, Healthcare, Merger Review

With the ink still drying on the Ninth Circuit’s opinion affirming the Idaho federal district court’s order requiring St. Luke’s Health System to unwind its acquisition of Saltzer Medical Group—a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho—you may ask what the decision means for other providers? Hospitals considering future acquisitions of … Continue Reading

“And they’re closing all the factories down”* — Going Dark During a Merger Review

By Jonathan Lewis on February 10, 2015 Posted in Merger, Merger Review

Demand in your industry has been declining for years, the decline is projected to continue for the foreseeable future, and you are one of the few cost-effective manufacturers around. You just inked a deal to buy a competing manufacturer, and you are working hard to get your deal cleared through the merger review process. But … Continue Reading

What is the CFIUS: Information to Know When Doing Transactions with Foreign Parties

By Danyll Foix on November 3, 2014 Posted in CFIUS, Government Investigations, Merger, Merger Review, Premerger Notification

U.S. Senator Debbie Stabenow’s recent and much publicized unveiling of legislation to expand the CFIUS review process of transactions likely caused businesspeople everywhere to ask: “What’s the CFIUS?” In short, the Committee on Foreign Investment in the United States (“CFIUS”), comprised of high-level Washington bureaucrats, reviews certain domestic transactions involving foreign parties and determines or recommends … 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

Don’t Pop the Cork Just Yet—Growing Criticism of Massachusetts AG’s Settlement with Partners Healthcare Just Might Send the Parties Back to the Drawing Board

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

After touting a proposed settlement with Partners HealthCare (Partners) that supposedly would “fundamentally alter [Partners’] negotiating power for 10 years and control health costs across [Partners’] entire network,” Massachusetts Attorney General (AG) Martha Coakley is now playing defense trying to fend off criticism of the deal that just might send the parties back to the drawing board. … 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

Let The Rejoicing Begin, Or Not—Massachusetts AG’s Settlement With Partners Healthcare Is No Harbinger of Things to Come

By Jonathan Lewis on June 27, 2014 Posted in Government Investigations, Healthcare, Merger, Merger Review

After almost half a dozen years of investigating Partners HealthCare’s (“Partners”) contracting practices and its proposed acquisitions of two competing hospital systems, Massachusetts Attorney General Martha Coakley announced a “final resolution” that she says “will fundamentally alter [Partners’] negotiating power for 10 years and control health costs across [Partners’] entire network.” But before you run … Continue Reading

What the WTP?

By Jonathan Lewis and Lee Simowitz on May 20, 2014 Posted in Government Investigations, Healthcare, Merger Review

If you are a health system or hospital thinking about a potential transaction and your lawyers have not spoken with you about hospital merger simulation, maybe you should be talking with someone else. What is hospital merger simulation? In recent years, the Federal Trade Commission (“FTC”) has come to rely more heavily on hospital merger … Continue Reading

Are You Facing the Prospect of a Merger Investigation?

By Jonathan Lewis, Gilbert S. Keteltas, Karin Scholz Jenson and James A. Sherer on May 8, 2014 Posted in Discovery, Government Investigations, Merger Review

If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone else. What is TAR? TAR, a relatively new entrant into the world of litigation and investigations, is an iterative process in which human subject … Continue Reading

To Report, or Not to Report, Your Non-Reportable Transaction Is the Question

By Jonathan Lewis and Lee Simowitz on May 1, 2014 Posted in Government Investigations, Merger, Merger Review, Premerger Notification

Just because a proposed transaction does not have to be reported in advance to the Department of Justice (“DOJ”) or the Federal Trade Commission (“ FTC”) because it falls below the Hart-Scott-Rodino (“HSR”) Act size of transaction threshold (currently$75.9 million), you are not out of the woods. The growing list of companies defending antitrust challenges … Continue Reading

Connecticut’s Attorney General Wants to Know in Advance if You Are Going to Join Forces with a Healthcare Provider

By Jonathan Lewis and Lee Simowitz on April 24, 2014 Posted in Government Investigations, Healthcare, Legislation, Merger Review, Premerger Notification

Back in early 2013, Connecticut’s Attorney General (“AG”) formed a “Health Care Competition Working Group” within his office to examine the potential impact of horizontal mergers (e.g., hospital to hospital) and vertical provider acquisitions (i.e., hospitals buying up physician practices) “may have on the pricing, quality, and access to health care for Connecticut’s consumers and … Continue Reading

Sometimes Merger Fixes Are as Close as the End of Your Nose

By Jonathan Lewis and Lee Simowitz on April 15, 2014 Posted in Government Investigations, Merger, Merger Review

When it comes to negotiating merger remedies with federal antitrust enforcement agencies, the Department of Justice and the Federal Trade Commission each have guides or statements that may help. But as good as their guidance may be, sometimes the fix for a merger is as close as the end of your nose. Back on July … Continue Reading

Webinar Now Available: Lessons Learned from FTC Investigation and Challenges of Healthcare Provider Transactions

By Danyll Foix on March 7, 2014 Posted in BakerHostetler, Events, Government Investigations, Healthcare, Merger Review

If you missed our webinar “Lessons Learned from FTC Investigation and Challenges of Healthcare Provider Transactions” featuring Former FTC Commissioner Pamela Jones Harbour and other antitrust partners from our Washington, D.C. office, you can listen and view the webinar by clicking here.… Continue Reading

Past as Prologue: Rebirth of the Merger Trial and the Bazaarvoice Case

By Lee Simowitz, Jonathan Lewis and Judy Gechman on January 21, 2014 Posted in Antitrust Litigation, Government Investigations, Merger, Merger Review, Premerger Notification, Sherman Act 7

For many years after its implementation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 seemed to sound the death knell of post-consummation merger trials. By establishing a file-and-wait system rather than the old catch-me-if-you-can non-system, the Act enabled the antitrust enforcement agencies to prevent the consummation of potentially anticompetitive mergers until they completed their investigation, and … Continue Reading

Thresholds Do Matter – Choosing too Low a Threshold in an Ordinary Course of Business Provision Can Up Your Risk of “Gun Jumping”

By Jonathan Lewis and Judy Gechman on January 15, 2014 Posted in Government Investigations, Merger Review, Premerger Notification

Soon after someone settles “gun jumping” charges, client alerts with informative titles like “DOJ Settlement Resolves ‘Gun Jumping’ Charges” start flying around. These “alerts” usually recite facts alleged in the complaint, say ordinary course of business provisions are typically fine, but consult an antitrust lawyer to make sure yours are okay. But few (if any) … Continue Reading

Could an Idaho Healthcare Merger Impact Other Mergers, Including the American/US Airways Merger?

By Jonathan Lewis and Lee Simowitz on October 23, 2013 Posted in Antitrust Litigation, Government Investigations, Healthcare, Merger, Merger Review, Sherman Act 7

With the trial over, post-trial briefs due November 1, and closing arguments scheduled for November 7, a lot more is at stake than whether St. Luke’s Health System (“St. Luke’s”) can keep Saltzer Medical Group (“Saltzer”) – a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho. St. Luke’s closed its acquisition … Continue Reading

US Airways and American Airlines Have a Potential Friend in FTC Commissioner Wright

By Jonathan Lewis on September 30, 2013 Posted in Merger, Merger Review, Sherman Act 7

In their answer to the government’s complaint challenging their proposed merger, US Airways and American Airlines (the “Airlines”) tout the “immense benefits to the traveling public” that the combined “US Airways and American Airlines will offer” with “more and better travel options for passengers through an improved domestic and international network, something that neither carrier … Continue Reading