Tag Archives: E. John Steren

ILN Today Post

FTC’s Ability to Seek Relief in Federal District Court Based on Past Conduct Is Called Into Question

Section 13(b) of the Federal Trade Commission Act (“Act”), 15 U.S.C. § 53(b), authorizes the Federal Trade Commission (“FTC”) to, among other things, seek injunctive relief (including preliminary and permanent injunctive relief) in federal district court in aid of an administrative proceeding “[w]henever the [FTC] has reason to believe … that any person, partnership, or corporation is violating, or is about to violate, any provision of law enforced by the [FTC] ….” Despite the explicit—and what would appear to be unambiguous—language of this provision, the FTC has taken the position that its authority to seek injunctive relief in federal district court pursuant to section 13(b) of the Act extends to situations where past conduct is “likely to recur” or “there exists some cognizable danger of a recurrent violation.” The FTC’s position is based, in part, on U.S. Supreme Court precedent holding that injunctive relief may be an appropriate remedy in situations where past conduct is likely to recur.

Read more

Read full article
ILN Today Post

Will the FTC Match DOJ’s Efforts to Speed Up Merger Reviews?

On October 3, 2018, at a hearing before the U.S. Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights (“Hearing”), Makan Delrahim, the Assistant Attorney General for the Antitrust Division of the Department of Justice (“DOJ”), announced efforts by DOJ to “modernize and speed up the process of merger review.” Among other things, DOJ stated that it would endeavor to resolve most merger investigations within six months of filings. Relatedly, DOJ plans to make modifications to its second request process, including reforms to its timing agreements with merging parties.

Read more

Read full article
ILN Today Post

Does a Bankruptcy Proceeding Change the HSR Filing Process?

The fact that an entity to be acquired is going through a bankruptcy process does not change the filing requirements under the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”). However, if the entity is going through a bankruptcy under Section 363(b) of the Bankruptcy Code (11 U.S.C. §363(b)), the HSR process is governed by a 15-day waiting period, as opposed to the 30-day waiting period that applies to transactions that are not occurring under Section 363(b) of the Bankruptcy Code.

Read more

Read full article
ILN Today Post

What to Expect When the FTC Loses a Request for a Preliminary Injunction

The Federal Trade Commission (“FTC”) may challenge conduct when it has “reason to believe” that a violation of the laws that the FTC enforces has occurred. The agency does so by filing an administrative complaint, which is adjudicated before an administrative law judge, much like a trial proceeding, albeit utilizing the rules of practice adopted by the FTC.

Read more

Read full article
ILN Today Post

Antitrust Safety Zone for Mergers Involving Small Hospitals

Statement 1 of the Statements of Antitrust Enforcement Policy in Health Care recognizes that small hospitals, particularly those in rural areas, may be unable to achieve cost savings through efficiencies, such as those that could be achieved by larger hospitals. Statement 1 also notes that, in many cases, a small rural hospital may be the only hospital in the relevant geographic market. As a result, Statement 1 provides an antitrust safety zone for mergers involving small hospitals; the antitrust enforcement agencies will not challenge transactions involving these small hospitals, “absent extraordinary circumstances.”

Read more

Read full article

AT&T/Time Warner Merger Approval Will Spur Vertical Mergers in Health Care

Tuesday’s decision by Judge Richard Leon of the U.S. District Court for the District of Columbia categorically approving the merger of AT&T and Time Warner, without imposing any conditions or limitations and rejecting granting a stay for appeal purposes, will, unless blocked if there is an appeal, open the way for a series of pending vertical merger deals.

Read more

Read full article
ILN Today Post

Annual HSR Report: No New Challenges to Hospital or Ambulatory Surgery Center Mergers in 2017

On April 11, 2018, the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) released their 40th Annual Hart-Scott-Rodino Report (“HSR Report”) detailing merger enforcement activity in fiscal year 2017 (covering October 1, 2016, to September 30, 2017). According to the HSR Report, despite the annual increase in reporting thresholds, there were 2,052 reportable transactions in 2017, representing a 12 percent increase over fiscal year 2016. Almost 5 percent of those transactions were in the health services industry.

Read more

Read full article
ILN Today Post

Is Your Agreement Non-Exclusive in Name Only?

The legality of certain collaborative arrangements and contracts often rises and falls on whether the relationship between the parties involved is exclusive or non-exclusive. For example, the issue of exclusivity often determines whether an ACO or other network is deemed to be over-inclusive and, therefore, able to exercise market power, or the foreclosure effects of a contractual relationship between a dominant provider and a payor might unreasonably harm competition.

Read more

Read full article
ILN Today Post

When Conversation Becomes an Antitrust Violation

Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), provides the Federal Trade Commission (“FTC”) with broad authority to address “unfair methods of competition.” Although Congress chose not to define the specific conduct that constitutes unfair methods of competition, Section 5 provides a green light to the FTC to address acts and practices “that contravene the spirit of the antitrust laws and those that, if allowed to mature or complete, could violate the Sherman or Clayton Act.”

Read more

Read full article
ILN Today Post

How to Avoid “Gun Jumping” in Corporate Transactions

Until closing, parties to a merger, acquisition, or similar transaction must remain independent competitors. Failure to do so is known as “gun jumping” and can be a simultaneous violation of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”) and Section 1 of the Sherman Act.

Read more

Read full article